Date: 20010706
Docket: IMM-3314-00
Neutral citation: 2001 FCT 775
BETWEEN:
MUNIB TAHIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of Ms. Valerie Feldman, visa officer at the Canadian Embassy, Immigration Section in Paris, France, dated May 4, 2000, refusing Mr. Munib Tahir's application for permanent residence in Canada.
[2] The applicant is a citizen of Pakistan. He obtained a Bachelor of Commerce degree from the University of Faisalabad, Pakistan, where he studied from 1985-1987. He completed a Masters degree in Administrative Sciences at the University of Punjab in Lahore, Pakistan from 1989-1991.
[3] The applicant submitted an application for permanent residence in Canada as a travel agent (NOC 6431) on or about September 12, 1997.
[4] The applicant was called in for an interview on January 27. 1999. The applicant stated that he held a Master's degree in Administrative Sciences but he was unable to describe to the visa officer what he did for his courses. Consequently, the visa officer informed him that she had doubts as to his education and that she would be verifying his school certificate. The visa officer also informed him of her concerns with his personal suitability.
[5] The visa officer verified the applicant's school certificate and she found that, according to the education system in Pakistan, a Bachelor of Commerce degree is a two-year program and a subsequent Master's degree in Administrative Sciences constitutes another two-year program.
[6] The visa officer decided not to award the applicant 16 units of assessment for a second-level university degree, as provided by Factor 1, paragraph 1(e) of Schedule I of the Immigration Regulations, 1978, SOR/78-172, given that the applicant had not completed a first-level university degree of at least three years of full-time study, as required by Factor 1, paragraph 1(e) of Schedule I of the Immigration Regulations, 1978. The visa officer awarded him l3 units of assessment for education.
[7] By letter dated May 4, 2000, the applicant was advised that his application for permanent residence in Canada had been refused. The reason for the refusal as set out in the letter is that the applicant did not obtain sufficient "units of assessment to qualify for immigration to Canada, the minimum requirement being 70 units."
[8] The relevant provisions are found in Factor 1, paragraphs 1(d) and (e), and Factor 9 of Schedule I of the Immigration Regulations, which read as follows:
| 1. Education
(1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
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(d) where a fist-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.
9. Personal Suitability
Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative. resourcefulness and other similar qualities.
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1. Études
(1) Sous réserve des paragraphes (2) à (4), des points d'appréciation sont attribués selon le barème suivant:
[...]
(d) lorsqu'un diplôme universitaire de premier cycle, comportant au moins trois ans d'études à temps plein, a été obtenu, 15 points;
(e) lorsqu'un diplôme universitaire de second ou de troisième cycle a été obtenu, 16 points.
9. Personnalité
Des points d'appréciation sont attribués au requérant au cours d'une entrevue qui permettra de déterminer si lui et les personnes à sa charge sont en mesure de réussir leur installation au Canada, d'après la faculté d'adaptation du requérant, sa motivation, son esprit d'initiative, son ingéniosité et autres qualités semblables.
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[9] With respect to the education factor, the Federal Court of Appeal recently considered the same legal issue in Hameed v. M.C.I., [2001] F.C.J. No. 10, as to whether an applicant who had obtained a first-level degree, but had not undertaken the three years of full-time study required by paragraph 1(d), could be awarded 16 units of assessment for a second-level degree under paragraph 1(e).
[10] The Federal Court of Appeal concluded that paragraphs 1(d) and 1(e) are to be considered separately and that the applicant was therefore entitled to be awarded 16 units of assessment for his Master of Arts degree under paragraph 1(e), even though his Bachelor of Arts degree did not qualify under paragraph 1(d).
[11] Therefore, in the present matter, I find that the visa officer improperly interpreted the Immigration Regulations, 1978 in assessing the education factor.
[12] For the reasons expressed by Evans J.A. in Hameed, supra, even though the applicant is still short of one unit of assessment to qualify for permanent residence in Canada, I will use my discretion to set the visa officer's decision aside because it is possible that, if the applicant had been awarded the appropriate number of units of assessment under the education factor, the visa officer might have found an additional unit under the personal suitability factor or exercised a positive discretion.
[13] The application for judicial review is granted, the visa officer's decision is set aside, and the matter is returned for redetermination.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
July 6, 2001.
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