Date: 20090521
Docket: IMM-2700-08
Citation: 2009 FC 527
Montréal, Quebec, May 21, 2009
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
SAQIB HAMEED &
ADEELA
BASHIR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Since 2001, Mr. Saqib Hameed, a 46-year-old
citizen of Pakistan, has been trying to obtain permanent residence in Canada as a skilled worker. In 2007, a visa
officer in Islamabad turned him
down on the basis that he had failed to achieve the required number of points
for success under both the former Immigration Act and the current Immigration
and Refugee Protection Act (IRPA), S.C. 2001, c.27. The main problem was in
the education category. The officer felt that, under IRPA, Mr. Hameed was entitled
to only 5 points, not 20.
[2]
A senior officer reviewed the original officer’s
decision and confirmed it. However, Mr. Hameed successfully sought judicial
review of the negative decision. Justice Orville Frenette concluded that the
officer had taken an irrelevant factor into account and allowed the application
for judicial review on that basis.
[3]
Nevertheless, on a re-assessment of his
application, a second officer also turned Mr. Hameed down, again finding that
he was entitled to only 5 education points, not 20. Mr. Hameed unsuccessfully
sought an order that the officer was in contempt of Justice Frenette’s
decision. Justice Judith Snider dismissed the motion on the basis that Justice
Frenette had merely allowed the application for judicial review; he had not
stipulated how Mr. Hameed’s application should be treated on a re-assessment.
Mr. Hameed now seeks judicial review in respect of the second negative decision
on his application for permanent residence.
[4]
The sole issue is whether the officer’s
assessment of the applicant’s education credits was reasonable.
I. Factual
Background
[5]
After his secondary education, Mr. Hameed
studied at Islamia College,
Civil Lines, Lahore from 1981
to 1983. The college is affiliated with the University of the Punjab. In 1984, Mr. Hameed wrote his exams
for his bachelor’s degree at the University and was successful in obtaining his
degree. The University, not Islamia College, supplied his mark sheets and transcripts.
[6]
Mr. Hameed provided the officer with his mark
sheet and degree from the University, as well as a letter from Islamia College
confirming that he had been enrolled there from 1981 to 1983. He also provided
a letter from the Higher Education Commission stating that the University of
the Punjab only admits post-secondary students and that a bachelor’s degree
from that University is recognized as equivalent to 14 years of study.
II. The
Officer’s Decision
[7]
After evaluating Mr. Hameed’s application, the
officer awarded him a total of 52 points. He gave Mr. Hameed 5 points for
education. Mr. Hameed felt he was entitled to 20. If he had been awarded those
20 points, Mr. Hameed would have met the threshold for a successful
application, being 67 points.
[8]
The officer’s assessment was based on Mr.
Hameed’s completion of secondary education. Mr. Hameed was given no points for
his bachelor’s degree because, according to the officer, he had failed to
provide conclusive proof that he had attended classes on a full-time or
full-time equivalent basis on the way to achieving that degree.
[9]
I note that this was a different issue than was
raised in respect of Mr. Hameed’s first judicial review. There, the officer had
refused to give credit to Mr. Hameed for his bachelor’s degree because he was an
external student at the University of the Punjab at the time. Justice Frenette
found that this was not a relevant consideration and overturned the officer’s
decision. In doing so, Justice Frenette stated that Mr. Hameed should have been
awarded 20 points. However, when Mr. Hameed’s application was reassessed, the
second officer found a different problem – namely, that Mr. Hameed had failed
to provide proof that he attended classes on a full-time or full-time
equivalent basis.
III. Was
the Officer’s Decision Reasonable?
[10]
According to the Supreme Court of Canada, a decision
is reasonable if it falls within a range of reasonable outcomes based on the
facts and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47.
[11]
The Immigration and Refugee Protection
Regulations, SOR/2002-227, provide that, in order to obtain 20 points in
the education category, Mr. Hameed had to prove (1) that he had obtained a
two-year educational credential at the bachelor’s level, and (2) that he had
completed a total of at least 14 years of full-time or full-time equivalent
studies (s. 78(2)(d)(ii) (see Annex “A”)).
[12]
The officer’s notes indicate that he was
concerned that, while Mr. Hameed was able to show he was enrolled at Islamia
College for two years and had obtained a valid bachelor’s degree from the
University of the Punjab, there was no evidence of the number of hours of classes
required in his program of study or what his attendance record was. Therefore, the
officer could not conclude that Mr. Hameed had completed a total of 14 years of
full-time or full-time equivalent study.
[13]
In my view, the officer’s conclusion was
unreasonable. He had before him evidence that Mr. Hameed had been enrolled for
two years at Islamia College and then obtained a bachelor’s
degree recognized as being the product of 14 years of study. The Regulations
define “full-time” as being “at least 15 hours of instruction per week” and
“full-time equivalent” as being “the period that would have been required to
complete those studies on a full-time basis”. The Regulations do not require
proof of attendance. Even if the officer was concerned that Mr. Hameed had not
proved how many hours of classes he was supposed to have attended each week,
his evidence showed that “the period that would have been required to complete”
his bachelor’s degree was 14 years, according to the Higher Education
Commission. In other words, even if Mr. Hameed had failed to show that his
studies met the definition of “full-time”, he had proved that he had obtained a
degree based on a full-time equivalent of 14 years of study. Accordingly, he
met the dual requirements of the Regulations. The officer’s decision to the
contrary is out of keeping with the law and the relevant facts and, therefore,
is unreasonable.
[14]
The respondent argues that the issue in this
case was decided in its favour in Bhuiya v. Canada (Citizenship and Immigration), 2008 FC
878. There, Justice Anne Mactavish held that the Regulations require an
applicant both to possess the relevant educational credential and to have
completed the stipulated number of years of full-time or full-time equivalent
studies. She found that the applicant before her possessed a master’s degree
but had not completed the required 17 years of full-time study because the
applicant had obtained her master’s after only 16 years. The fact that
she spent another year in school thereafter and obtained another diploma did
not mean that she satisfied the 17-year requirement. In coming to that
conclusion, Justice Mactavish observed that the purpose of the dual requirements
of the Regulations is “to promote consistent standards in the assessment of a
candidate’s education and training, given the range of education and formal
training systems around the world” (at para. 17).
[15]
Based on that reasoning, the respondent argues
here that Mr. Hameed must prove both that he obtained his bachelor’s degree and
that he completed a total of 14 years of full-time or full-time equivalent
studies in doing so. Accordingly, the officer was reasonable in asking for that
proof and would have been justified in denying Mr. Hameed’s application if it
was absent.
[16]
I agree with the respondent that the Regulations
promote consistent standards. However, as mentioned, Mr. Hameed had provided to
the officer proof that he met the standards prescribed by the Regulations. The
officer’s conclusion to the contrary is unreasonable.
[17]
Mr. Hameed argued that I should simply find
Justice Frenette’s decision binding on me and decide this case accordingly. In
the circumstances, I do not find Justice Frenette’s decision binding either on
the basis of stare decisis or res judicata. Justice Frenette was
dealing with a completely different issue than the one argued before me. His
conclusion that Mr. Hameed was entitled to 20 education points was arrived at
in the context of a dispute about Mr. Hameed’s status at the University of the
Punjab. Here, I am faced with the question whether Mr. Hameed met the 14-year study
requirement of the Regulations. Of course, at the same time, I reviewed Justice
Frenette’s decision carefully and found it helpful in arriving at my own
conclusion.
IV. Conclusion
and Disposition
[18]
Having found the
officer’s assessment to be unreasonable, I must allow this application for
judicial review. Under the circumstances, I believe the proper remedy is to
direct the officer who next considers Mr. Hameed’s application to award Mr.
Hameed 20 points in the education category. Counsel expressed a desire to
address me on the issues of costs and a potential question for certification. I
will entertain any submissions on those subjects that are filed within ten (10)
days of this judgment.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1.
The application for judicial review is allowed.
2.
The Court will consider any submissions relating
to costs or certification of a question of general importance that are filed
within ten (10) days of this judgment.
3.
The officer who reconsiders Mr. Hameed’s application
for permanent residence shall award him 20 points in the education category.
“James W. O’Reilly”
Annex
“A”
|
Immigration and Refugee Protection
Regulations, SOR/2002-227
Education (25 points)
...
78(2) A maximum of
25 points shall be awarded for a skilled worker’s education as follows:
…
(d) 20 points for
…
(ii) a two-year university
educational credential at the bachelor’s level and a total of at least 14
years of completed full-time or full-time equivalent studies;
|
Règlement sur l’immigration et la
protection des réfugiés, DORS/2002-227
Études (25 points)
[…]
78(2) Un maximum de 25 points d’appréciation sont attribués pour les
études du travailleur qualifié selon la grille suivante :
[…]
d) 20 points, si, selon le cas :
[…]
(ii) il a
obtenu un diplôme universitaire de premier cycle nécessitant deux années d’études
et a accumulé un total d’au moins quatorze années d’études à temps plein
complètes ou l’équivalent temps plein;
|
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