Date: 19980831
Docket: IMM-4700-97
BETWEEN:
MOHAMMAD NAZIN HAMEED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Tuesday, August 25, 1998 as edited)
ROTHSTEIN, J.:
[1] In this judicial review of a decision of a Visa Officer, the applicant alleges three errors.
[2] First, he says he should have been awarded sixteen (16) units of assessment for education rather than thirteen (13). The Schedule I of the Immigration Regulations, 78 SOR/78-122 as amended provides, in respect of the factor of education, that for a second or third level university degree, sixteen (16) units of assessment are to be awarded. The applicant produced a Master's Degree and says he should be entitled to sixteen (16) units.
[3] The relevant paragraphs are 1(d) and 1(e) and subsections 1(3) and 1(4) of Factor 1 in Schedule I1. There is no minimum study time specified in Paragraph 1(e) for a second or third level university degree. However, fifteen (15) units are to awarded for a first level university degree, which requires at least three years of full-time study. The necessary implication is that an applicant's second or third level university degree for which he or she is to be awarded sixteen (16) units, cannot be considered unless he first satisfies the Visa Officer that he has completed a first level university degree that requires at least three years of full-time study. Here the applicant did not meet the first level university degree requirement because his first level degree did not require three years of full-time study.
[4] Based on subsections 1(3) and 1(4), the applicant submits that the second and third level degrees must be considered independent from the first level degree. However subsection 1(3) only means that in awarding units, a single degree should be considered even if an applicant has more than one. Subsection 1 (4) precludes accumulation of units provided for succeeding levels of education and requires that the highest number of units applicable shall be awarded. The progression from lower to higher education and lesser to greater numbers of educational units is linear. In other words a lower level of education must be met before going on to a higher level. It follows that for an applicant to qualify for sixteen (16) units for a second or third level university degree he must first satisfy the requirements for a first level university degree that require at least three (3) years of full-time study. He was unable to do so. Therefore no error by the visa officer in awarding only thirteen (13) units for education.
[5] Second, the applicant claims a denial of procedural fairness. After the applicant had been interviewed and verbally told that his application would not succeed, applicant's counsel wrote to the Program Manager or Officer in Charge requesting a review of the Visa Officer's verbal decision. The Visa Officer's written decision refusing the application then was issued followed by a letter from the Program Manager refusing the review request.
[6] Applicant's counsel says the Visa Officer erred in not considering what was contained in his letter to the Program Manager or Officer in Charge before issuing her written decision refusing the applicant's application and that a breach of procedural fairness has therefore occurred. However, counsel's letter was not addressed to the Visa Officer and it explicitly accepted that a negative decision had already been made. It was written to a supervisor of the Visa Officer asking for a review. In these circumstances, there was nothing further before the Visa Officer and there was no breach of procedural fairness in the Visa Officer issuing her written decision without regard for the material submitted to her superior asking for a review.
[7] Third, the applicant submits that his personal suitability was not correctly assessed by the Visa Officer. Counsel makes a number of arguments as to errors by the Visa Officer. However, these are all challenges to her assessment of the application and her exercise of discretion in assessing personal suitability. She awarded the applicant four (4) out of ten (10) personal suitability units having regard to considerations, all of which appear to be relevant.
[8] The applicant says that one reason for his personal interview was to enable the Visa Officer to obtain further details about his work history and experience. However, for the experience factor she awarded the applicant a full six (6) units. In this regard, there was no prejudice to the applicant even if his work experience and history were not fully canvassed.
[9] In the personal suitability assessment, the Visa Officer took into account, as one of a number of considerations, the dated nature of his experience. He offered nothing to refute that his experience was dated. Indeed, in his own letter to the Visa Officer written immediately after the interview, he confirmed he was five years apart from his work. There is no legal error with respect to the Visa Officer's assessment of personal suitability.
[10] The judicial review is dismissed.
[11] Applicant's counsel has requested certification of a question for appeal: Under Schedule I to the Immigration Regulations, 1978, whether sixteen (16) units of assessment must be awarded for a second or third level university degree even if an applicant has not provided evidence of a first level university degree requiring at least three years of study. Such question will be certified.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 31, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4700-97
| STYLE OF CAUSE: MOHAMMAD NAZIN HAMEED |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, AUGUST 25, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MONDAY, AUGUST 31, 1998
APPEARANCES:
Mr. David A. Bruner
For the Applicant
Ms. Cheryl Mitchell
For the Respondent
SOLICITORS OF RECORD: Hoppe, Bruner
| 1st Canadian Place, Exchange Tower |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980831
Docket: IMM-4700-97
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 They are:
I(1) (d):where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and (e):where a second- or third- level university degree has been completed, sixteen units. I (3):Only a single diploma, degree or apprenticeship certificate shall be taken into consideration when determining the units of assessment to be awarded in accordance with the applicable paragraph of subsection (1). I (4):The units of assessment set out in paragraphs (1)(b) to (e) shall not be awarded cumulatively, and the number of units os assessment set out in the applicable paragraph that awards the greatest number of units shall be awarded.
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