Iftikhar v. Canada (Minister of Citizenship and Immigration), 2003 FCT 449

                                                                                                                                            Date: 20030417

                                                                                                                               Docket: IMM-1769-01

                                                                                                                              Citation: 2003 FCT 449

Ottawa, Ontario, this 17^th day of April, 2003

PRESENT:      THE HONOURABLE JOHANNE GAUTHIER

BETWEEN:

                                                                 NAZIA IFTIKHAR

                                                                                                                                                       Applicant

                                                                             - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

                        (Reasons and order delivered orally from the Bench on March 18, 2003)

[1]                 Nazia Iftikhar seeks judicial review of the decision of the visa officer refusing her application for permanent residence. She asked to be assessed against the requirement for Education Program Coordinator (NOC-4166.0).

[2]                 In the last twenty years, Mrs. Iftikhar has been an elementary school teacher, a reading coordinator and a school Head or Principal in Pakistan. She holds a Bachelor of Art degree (a 2 year course) from the University of Punja and a Bachelor of Education degree (1 year course) from the Government College of Education for Women, Lahore, Pakistan.

[3]                 The visa officer refused her application principally because he found that she did not have the qualifications listed by the NOC for this occupation that is a Bachelor in Education or in a discipline such as Social Science or Business Administration. With 0 unit in this category (occupational factor) Mrs. Iftikhar could not qualify as a permanent resident pursuant to section 11(2) of the Immigration Regulations, 1978, SOR 78-172, (the "Regulations") unless she had an offer of suitable employment in Canada, which was not the case.

[4]                 With respect to the other criteria referred to in the Regulations, the following units were awarded to the applicant:

Age                                            02

Occupational Factor            00

ETF/SVP                                   17

Experience                                00

Demographic Factor             08

Education                                 13

English                                      09

French                                       00

Bonus                                       05

Personal Suitability              06

Total:                                        60

[5]                 Mrs. Iftikhar submits that the visa officer erred in law in his findings that she did not have a Bachelor of Education as required by the NOC because in doing so he based himself solely on the length of the course she followed (1 year) versus the 3 years normally required to obtain a similar degree in Canada.

[6]                 The applicant argues that this error impacted on the visa officer's assessment in four categories and are as follows:

Occupational Factor                               1 *

Education                                                  2 *

Experience                                                 8 *

Personal Suitability                                 2 *

* Number of additional units which should have been awarded.

The correct total number of units would then have been 73, that is more than what is required under the Regulations.

[7]                 The respondent argues that the visa officer was entitled to look beyond the title of Mrs. Iftikhar's Bachelor degree and to consider that her degree was not a proper equivalent of the Canadian Bachelor degree required under the Regulations. His decision was therefore reasonable on the face of the evidence put forward by the applicant.

[8]                 The Court finds that there is no indication in the CAIPS notes or the refusal letter that the visa officer looked at anything other than the length of the course followed by Mrs. Iftikhar to obtain her Bachelor degree.

[9]                 In any event, having made this finding of fact, the visa officer was, according to the respondent, entitled to discard the applicant's experience because she carried out those duties without being qualified. This argument is based on the wording of the introductory paragraph of Schedule I, section 3 (Experience) of the Regulations.

[10]            The Court agrees with the reasoning of Dawson J. in the Chatterjee v. Canada (Minister of Citizenship and Immigration) 2001 FCT 240 and finds that the visa officer erred in law in not considering whether Mrs. Iftikhar's Bachelor degree was equivalent to the degrees those required under the NOC by virtue of factors other than simply the years of study.

[11]            This means that Mrs. Iftikhar could have been entitled to an additional 9 units under the occupational factor and experience criteria.

[12]            However, the Court does not agree with the applicant that she was entitled to an extra 2 units under "education" for, in order to get those units, she had to have "a first level University degree that requires at least 3 years of full time study" (Schedule I, section 1(d) of the Regulations).

[13]            The applicant argues that in calculating those units, the visa officer should have added all the degrees or diplomas of the applicant, in this case, 2 years plus 1 year. However, section 1 (Education) (3)(4) of Schedule I states clearly that:

None of Mrs. Iftikhar's Bachelor degrees required 3 years of full time study. She was thus, not entitled to any additional units in this category.

[14]            With respect to "personal suitability", Mrs. Iftikhar recognizes that the assessment is discretionary and that one could not forcefully argue that the officer should have awarded her an additional 2 units, rather she says that he may have. The Court finds that the visa officer properly considered how Mrs. Iftikhar's academic record and the fact that she followed a shorter course could put her at a disadvantage and impair her abilities to compete for employment in Canada and to successfully establish herself in Canada. His decision in this respect was not unreasonable and Mrs. Iftikhar is not entitled to any additional units in this category.

[15]            In light of the foregoing, the Court must conclude that even though the visa officer made a reviewable error with respect to his assessment under "occupational factor" and "experience", the total that Mrs. Iftikhar would have obtained is 69 units. Thus, this reviewable error is immaterial to the ultimate decision and cannot justify the Court granting this application (See Bedi v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1596 (QL) and Syed v. Canada (Attorney General), [1999] F.C.J. No. 451 (QL)).

[16]            The parties agreed that there are no questions to be certified.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The application for judicial review is dismissed.

2.         No question of general importance is certified.

                                                                                                                                       " Johanne Gauthier"                       

                                                                                                                                                               Judge                       

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-1769-01

STYLE OF CAUSE:                           Nazia Iftikhar v. MCI

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       March 18, 2003

REASONS FOR ORDER AND ORDER:                          GAUTHIER J.

DATED:                                                Delivered orally on the Bench and filed on

April 17, 2003

APPEARANCES:

Ms. Wennie Lee                                                                             FOR APPLICANT

Ms. Mielka Visnic                                                                          FOR RESPONDENT

SOLICITORS OF RECORD:

Ms. Wennie Lee                                                                             FOR APPLICANT

610-255 Duncan Mill Road

Toronto, Ontario,     M3B 3H9

Morris Rosenberg                                                                           FOR RESPONDENT

Deputy Attorney General of Canada

Department of Justice

3400-130 King Street West,

Toronto, Ontario, M5X 1K6