Date: 20090928
Docket: IMM-4426-08
Citation: 2009 FC 975
Ottawa, Ontario, September 28,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
LINDSAY
HILL MCLACHLAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Lindsay Hill McLachlan, the Applicant, applies for judicial review of an
Immigration Officer’s decision rejecting his application for a permanent
residence visa under the skilled worker category.
[2]
Mr.
McLachlan is a citizen of the United Kingdom. He was 42 years old
at the time of his application and a police officer with the British Transport
Police since 1992. He completed Scottish Ordinary Grades in fourteen years and
had a further two years of training as a police officer. He had 13 years of
experience as a police officer. He applied for permanent residence under the
skilled worker category in January 2006 and included his wife and two children
in his application. His wife had also completed Scottish Ordinary Grades and had
two years of training as a police officer.
[3]
Ms.
Carol A. Turner, the Immigration Officer at the High Commission of Canada refused
Mr. McLachlan’s application for a permanent residence visa. He requested
reconsideration. Ms. Turner advised the decision was final and explained his
application was not approved because of a shortfall in points, 65, two short of
the 67 points necessary for acceptance in the skilled worker category. The shortfall
issue arises under the education and adaptability criteria.
[4]
For
the reasons that follow, I am granting the judicial review.
THE DECISION UNDER
REVIEW
[5]
Ms.
Carol A. Turner, the Immigration Officer at the High Commission of Canada, advised
the Applicant on August 1, 2008 he did not meet the requirements for
immigration to Canada.
[6]
Subsection
12(2) of the Immigration and Refugee Protection Act (IRPA) states a
foreign national may be selected as a member of the economic class on the basis
of ability to become economically established in Canada. The
federal skilled worker class ability to become economically established are
assessed on the prescribed criteria and minimum requirements set out in the Immigration
and Refugee Protection Regulations (the IRPA Regulations). The
criteria are age, education, knowledge of Canada’s official
languages, experience, arranged employment and adaptability. The current pass mark
was 67 points. The assessment criteria for education points are set out in s.
78 of the IRPA Regulations.
[7]
Mr.
McLachlan was assessed as follows:
|
|
POINTS
ASSESSED
|
MAXIMUM POSSIBLE
|
|
AGE
|
10
|
10
|
|
EDUCATION
|
15
|
25
|
|
FIRST
OFFICIAL LANGUAGE PROFICIENCY
|
16
|
16
|
|
SECOND
OFFICIAL LANGUAGE PROFICIENCY
|
0
|
8
|
|
EXPERIENCE
|
21
|
21
|
|
ARRANGED
EMPLOYMENT
|
0
|
10
|
|
ADAPTABILITY
|
3
|
10
|
|
|
|
|
|
TOTAL
|
65
|
100
|
[8]
Since
Mr. McLachlan was assessed at 65 points, below the pass mark of 67, the
Immigration Officer refused his application for a permanent resident visa.
[9]
Mr.
McLachlan requested reconsideration of the education assessment since he
expected to receive 20 points on the basis of having 12 years of study in
completing Scottish Ordinary Grades together with two years of post secondary
education. He had repeated his final year of Scottish Ordinary Grades in order
to achieve higher marks. He relies on subsection 78(2)(d)(i) of the IRPA
Regulations which states:
(d) 20
points for
(i) a two-year
post-secondary educational credential, other than a university educational
credential, and a total of at least 14 years of completed full-time or
full-time equivalent studies
[10]
The
Immigration Officer responded on September 25, 2008 stating that Scottish
Ordinary Grades could be completed in 11 years and is counted as such
regardless of how many years it takes to complete. Accordingly, she considered
Mr. McLachlan as scoring 11 years of study together with two years post
secondary for a total of 13 years of study equating to 15 points under the
education criteria. She refers to s.78(2)(c)(i).
(c)
15 points for
(i) a
one-year post-secondary educational credential, other than a university
educational credential, and a total of at least 13 years of completed full-time
or full-time equivalent studies, or
[11]
The
Officer advised the decision was final and no reconsideration was undertaken.
ISSUES
[12]
Applicant
submits that the issues are:
a.
Did
the Officer err in law by failing to provide the Applicant the correct number
of points for his education?
b.
Did
the officer err in law by failing to provide the Applicant with the correct
number of points for adaptability?
c.
Was
the decision unfair because:
i.
the
Applicant was never advised that his educational score was at issue or given an
opportunity to address this, and
ii.
the
reasons for the decision were inadequate?
STANDARD OF
REVIEW
[13]
I
find the issue in this judicial review turns on a question of statutory
interpretation. As such it will not be necessary to consider procedural
fairness issues.
[14]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, the
Supreme Court of Canada decided there were two standards of review,
correctness and reasonableness. The standard of review for questions of law is
correctness. The standard of correctness must be maintained to promote just
decisions and avoid
inconsistent and unauthorized application of law. Dunsmuir, para. 50.
[15]
The
standard of review is reasonableness for questions of fact and mixed fact and
law. Dunsmuir, para. 53. For a decision to be reasonable, there must
be justification, transparency and intelligibility within the decision making
process. The decision must fall into a possible range of possible, acceptable
outcomes which are defensible in respect of the facts and the law. Dunsmuir,
para. 47.
[16]
The
Supreme Court also held deference is appropriate where a tribunal is
interpreting its own statute or statutes closely related to its function.
Essentially, statutes with which it is familiar. Dunsmuir, para. 54
In such situations, the standard of reasonableness will apply.
THE LEGISLATION
[17]
Subsection
78 of the IRPA Regulations provides:
78. (1)
The definitions in this subsection apply in this section.
“full-time”
"full-time"
means, in relation to a program of study leading to an educational credential,
at least 15 hours of instruction per week during the academic year, including
any period of training in the workplace that forms part of the course of instruction.
“full-time
equivalent”
“full-time
equivalent” means, in respect of part-time or accelerated studies, the period
that would have been required to complete those studies on a full-time basis.
Education
(25 points)
(2) A
maximum of 25 points shall be awarded for a skilled worker's education as
follows:
[…]
(c)
15 points for
(i) a
one-year post-secondary educational credential, other than a university
educational credential, and a total of at least 13 years of completed full-time
or full-time equivalent studies, or
(ii) a
one-year university educational credential at the bachelor's level and a total
of at least 13 years of completed full-time or full-time equivalent studies;
(d)
20 points for
(i) a
two-year post-secondary educational credential, other than a university
educational credential, and a total of at least 14 years of completed full-time
or full-time equivalent studies, or
(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;
[…]
Multiple
educational achievements
(3) For
the purposes of subsection (2), points
(a) shall
not be awarded cumulatively on the basis of more than one single educational
credential; and
(b) shall
be awarded
(i) for
the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph
(2)(f), on the basis of the single educational credential that results in the
highest number of points, and
(ii) for
the purposes of subparagraph (2)(e)(ii), on the basis of the combined
educational credentials referred to in that paragraph.
Special
circumstances
(4) For
the purposes of subsection (2), if a skilled worker has an educational
credential referred to in paragraph (2)(b), subparagraph (2)(c)(i) or (ii),
(d)(i) or (ii) or (e)(i) or (ii) or paragraph (2)(f), but not the total number
of years of full-time or full-time equivalent studies required by that
paragraph or subparagraph, the skilled worker shall be awarded the same
number of points as the number of years of completed full-time or full-time
equivalent studies set out in the paragraph or subparagraph.
(emphasis
added)
[18]
Subsection
83 of the IRPA Regulations provides:
83. (1) A maximum of 10 points for
adaptability shall be awarded to a skilled worker on the basis of any
combination of the following elements:
(a) for the
educational credentials of the skilled worker’s accompanying spouse or
accompanying common-law partner, 3, 4 or 5 points determined in accordance with
subsection (2)
[...]
(2) For the purposes of paragraph (1)(a), an officer
shall evaluate the educational credentials of a skilled worker's accompanying
spouse or accompanying common-law partner as if the spouse or common-law
partner were a skilled worker, and shall award points to the skilled worker as
follows:
[...]
(b) for a spouse or
common-law partner who would be awarded 20 or 22 points, 4 points; and
(c) for a spouse or
common-law partner who would be awarded 12 or 15 points, 3 points.
ANALYSIS
[19]
The
Applicant submits the Immigration Officer erred in assessing his education
since he had a total of 14 years of education based on his 12 years in Scottish
Ordinary Grades and his two year educational credential (his police training)
which should result in 20 points pursuant to subsection 78(2)(c).
[20]
The
Respondent submits that the Immigration Officer’s decision was reasonable. It
submitted the Applicant’s twelfth year in Scottish Ordinary Grades should not
be counted since he had stated:
I actually did sit O Grades in 1981 and
also in 1982 as I chose to stay on for a further year to improve my grades. I
could have left school once I was 16 if I had not chosen to stay on for that
further year.
[21]
The
Respondent contends the Applicant could have completed his Scottish Ordinary
Grades in the regular 11 year period and the twelfth year was of his choosing.
The Officer wrote in her letter of clarification:
Scottish Ordinary Grades could be completed in 11 years
(regardless of how long it may actually have taken to complete them.).
Therefore a two-year post-secondary credential following O grades totals 13
years of study and so equates to 15 points under the education factor.
[22]
The
Applicant argues that the ordinary meaning of a statute should be applied
unless there is some reason to look elsewhere for the meaning of the
legislation. Section 78 of the IRPA Regulations should be read in its
ordinary and grammatical sense. The words “20 points for a two-year
post-secondary educational credential … and a total of at least 14 years of
completed full-time or full-time equivalent studies” should lead to the
understanding that it is only necessary to consider the highest level of
education attained and the total number of years of full time studies
accumulated.
[23]
The
issues with respect to educational and adaptability assessment both turn on
interpretation of s. 78 of the IRPA Regulations. I find the Immigration
Officer’s interpretation of subsection 78(2) to be reasonable as far as it goes.
It is an interpretation that falls within the range of possible acceptable
outcomes which is defensible. (Dunsmuir, para. 78) However, this is not
the end of the necessary analysis.
[24]
Section
73 of the Regulations defines ‘educational credential “ as:
“educational
credential” means any diploma, degree or trade or apprenticeship credential on
the completion of a program of study or training at an education or training
institution recognized by the authorities responsible for registering,
accrediting, supervising, and regulating such institutions in the country of
issue.
[25]
In
Tiwana v. Canada (Minister of Citizenship and Immigration) 2008 FC 100,
Justice Hughes stated:
The
definition of “education credential” in the IRPA Regulations makes it clear
that an award of points in that regard, pursuant to subparagraph 78(2)(d)(ii),
requires completion of a programme and the grant of a diploma or degree.
[26]
No
issue arises with the Applicant’s attainment of a two year educational
credential. The November 24, 2005 letter
from the British Transport Police confirms that the Applicant successfully
completed a two year national police standard training and probationary
program. His two years of police training was accepted as such by the
Immigration Officer.
[27]
In
my view, section 78(4) addresses the Applicant’s special circumstances. That
subsection provides:
(4) For the purposes of subsection
(2), if a skilled worker has an educational credential referred to in paragraph
(2)(b), subparagraph (2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or
paragraph (2)(f), but not the total number of years of full-time or full-time
equivalent studies required by that paragraph or subparagraph, the skilled
worker shall be awarded the same number of points as the number of years of
completed full-time or full-time equivalent studies set out in the paragraph or
subparagraph.
[28]
The principles
of statutory construction were elegantly set out by Elmer Driedger in
Construction of Statutes (2nd ed. 1983): “the
words of an Act are to be read in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act, the object of the
Act, and the intention of Parliament.” Justice Iacobucci elaborated on this
interpretation in the Supreme Court of Canada’s decision in Rizzo &
Rizzo Shoes Ltd. (Re)[1998] 1 S.C.R. 27. He found that beyond the plain
meaning one must look to the scheme of the statute, its object or intention of
the legislature.
[29]
In
Bhuiya v. The Minister of Citizenship and Immigration, 2008 FC 878,
Justice McTavish held that an additional year of study beyond the highest
education credential achieved in another subject area did not turn a 16 year
Master’s degree into a 17 year Master’s degree with its commensurate higher
points. In Hameed v. The Minister of Citizenship of Immigration 2008 FC
271, Deputy Judge Frenette held that a Bachelor’s degree, recognized as
corresponding to a bachelor’s degree in the relevant field involving 14 years
of study, was to be credited as such, notwithstanding whether it was attained
as a private or full time student.
[30]
What
is common to both Bhuiya and Hameed is consideration of the highest
level of educational achievement. In Bhuiya an additional year of study
was not considered as upgrading the level of educational attainment. In Hameed
the highest level of educational attainment was considered, not the method of
qualification to achieve that level. I take from these decisions the
importance of the highest level of educational credential achievement as a
first consideration. In my view the whole of section 78 of the IRPA
Regulations is directed at assessment of educational accomplishment.
[31]
The
Immigration Officer did not look beyond the words of subsection 78(2)(c) and
(d) and consider all of section 78 of the Regulations or indeed the scheme
of the skilled worker provisions. Her analysis focussed on a tallying
of effective years of studies without regard to the level of educational
attainment. Educational attainment is usually, but not always, achieved by
methodical progression of years of study. The legislators were alive to the
possibility of a shortfall in years of study in situations where the
educational credential is valid and that special circumstance was addressed in
subsection 78(4) of the IRPA Regulations.
[32]
The
subsection could be better worded; nevertheless it is sufficiently clear.
Stripping out the wordage unrelated to the Applicant, it reads:
…if a
skilled worker has an educational credential referred to in…subparagraph
…(d)(i)… but not the total number of years of full-time…studies required by
that…subparagraph, the skilled worker shall be awarded the same number of points
as the number of years of completed full-time or full-time equivalent studies
set out in the subparagraph.
[33]
The trigger for Section 78(4) is the attainment of an educational
credential. The special circumstances subsection recognizes the educational
attainment of skilled workers with bona fide educational credentials but
not the specified years of study. Special circumstances could include those
who attended state educational systems with shorter primary and secondary
programs than in Canada.
[34]
The
Applicant clearly has attained the two year education credential in subsection
78(2)(d)(i) by virtue of
his successful completion of two years of police training. It is a substantive
educational accomplishment, the merit of which is amply demonstrated by his 13
years as a police officer.
CONCLUSION
[35]
I
conclude that Mr. McLaughlin comes within subsection s. 78(2)(d)(i) by
application of subsection 78(4). The Immigration Officer erred in not going
further to consider the application in light of subsection 78(4) in respect of educational
attainment. Similar considerations also apply in respect of the adaptability
criteria.
[36]
The
application for judicial review is granted.
[37]
The
Applicant posed a certified question based on interpretation of section 78 of
the IRPA Regulations concerning counting of years of full-time education
that are non-essential to completion of the highest level of degree. In light
of my decision, I do not consider it necessary to certify a question of general
importance on this question.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is granted and remitted back for
reconsideration in light of these reasons.
2. No question
of general importance is certified.
3. No costs are
awarded.
“Leonard
S. Mandamin”
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