Bawa v. Canada (Minister of Citizenship and Immigration), 2002 FCT 300

Date: 20020320

Docket: IMM-4718-00

Neutral citation: 2002 FCT 300

BETWEEN:

                                                                       AMIT BAWA

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

LUTFY A.C.J.

[1]                  The applicant Amit Bawa, a citizen of India, applied for permanent residence in Canada as a Marine Engineer (NOC 2148.5). He was not assessed in this category because, in the view of the visa officer, he did not have the required bachelor's degree in an appropriate engineering discipline.

[2]                  The applicant was then assessed as a Contractor and Supervisor, Mechanic Trades (NOC 7216.0) for which he was assessed sixty-seven points, three short of the minimum normally required.

[3]                  In this application for judicial review, the applicant challenged principally the visa officer's assessment under the education factor for which she awarded him thirteen units as a person who has completed a diploma or an apprenticeship certificate programme with a prerequisite of a secondary school diploma. The applicant maintains that he should have been awarded fifteen units for a first-level university degree with at least three years of full-time study.

[4]                  In his application for permanent residence, the applicant submitted his "Graduation Certificate" in marine engineering from the Marine Engineering and Research Institute in Bombay, India. The record also includes the applicant's transcript for his four years of study at the Institute with a detailed listing of the subjects completed and marks obtained in each year.

[5]                  The visa officer did not accept the Graduation Certificate from the Institute as being a first-level university degree because, in her view, on the face of the document there was no evidence of "a degree" having been issued by "a university". While she acknowledged that the applicant produced a letter stating that the Certificate was the equivalent of a bachelor's degree for the purposes of the Department of Education of the Indian government, she concluded that the applicant had not demonstrated that the Certificate "... was the equivalent of a bachelor's degree in Canada" [emphasis added].

[6]                  In my view, the visa officer made her assessment under the education factor without regard to the Ministerial guidelines for this assessment which state:

Points are based on the completion of a program of study, meaning that a diploma has been obtained. There is no equivalency system. Programs of study are to be assessed on the basis of the standards which exist in the country of study.

[7]                  It was an error for the visa officer, according to the Ministerial guidelines, to require the applicant to demonstrate that his Graduation Certificate was the equivalent of a bachelor's degree in Canada. For the purpose of obtaining fifteen units under the education factor, it was sufficient for the applicant to demonstrate that his Certificate met the standards of a bachelor's degree in India.

[8]                  With a correct assessment under the education factor, the applicant would have received a total of sixty-nine units.

[9]                  The applicant argues, in both his written and oral submissions, that the visa officer's error under the education factor necessarily affected her negative decision under subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172. In particular, the applicant refers to the visa officer's immediate dismissal of his educational qualifications for the occupation of Marine Engineer because, in her view, he did not possess a bachelor's degree in engineering. Accordingly, it is submitted that I should refer the matter back for redetermination even though the additional units under the educational factor still leave the applicant with one unit less than the usual minimum of seventy.

[10]            In Hameed v. Canada (Minister of Citizenship and Immigration) (2001), 268 N.R. 168 (C.A.), the Court of Appeal found that an error in the visa officer's assessment under the education factor would increase the total award to sixty-nine units. The Minister argued that the error was not material and the visa officer's decision should not be set aside because the appellant was still one unit short of the seventy normally required. The Court of Appeal rejected this submission and ordered that the matter should be remitted for redetermination (at paragraph 24):

It is possible that, if the appellant had been credited with the appropriate number of units under the education factor, the visa officer might have found an additional unit under the personal suitability factor or exercised a positive discretion. Beyond this, it is not appropriate for the Court to speculate on the ultimate disposition of the appellant's visa application.

[11]            More recently, in Canada (Minister of Citizenship and Immigration) v. Patel, [2002] F.C.J. No. 178 (C.A.) (QL), 2002 FCA 55, the Court of Appeal, in circumstances not substantially different from those in Hameed and in this case, answered a certified question as follows:

When on an application for judicial review of a visa officer's refusal to issue a visa the Court concludes that the officer committed a reviewable error and awarded the applicant too few units of assessment, the Court may in its discretion refuse to set the decision aside if, in its view, the error could have made no difference to the officer's decision because, even after the error was corrected, the applicant still had insufficient points to be issued a visa. [Emphasis added]

I have benefited from supplementary submissions from counsel concerning Patel which was decided on the same day as the hearing in this proceeding.

[12]            Because the visa officer immediately concluded that the applicant did not possess the educational requirements for a Marine Engineer and in view of the negative discretion she exercised under subsection 11(3) of the Regulations, I am not satisfied that, in the words of Patel, "... the error could have made no difference to the officer's decision". In the circumstances of this case, I have concluded, in a manner similar to the decision in Hameed, that I should not speculate on the ultimate disposition by the visa officer had she understood that the applicant had a bachelor's degree, at least according to the education standards in India.

[13]            Accordingly, even though the correction of the visa officer's error leaves the applicant with only sixty-nine units, I choose to exercise my discretion by setting aside the decision of the visa officer and remitting the matter for reconsideration. Neither party suggested the certification of a serious question.

                                                                                                                                                   "Allan Lutfy"                       

                                                                                                                                                            A.C.J.

Ottawa, Ontario

March 20, 2002