Date: 20110606
Docket: IMM-5486-10
Citation: 2011 FC 645
Ottawa, Ontario, June 6, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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PUTHENPURACKAL GOPI PRASAD
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Puthenpurackal Prasad, a citizen of India, applied for permanent
residence in Canada as a skilled
worker. A visa officer at the Canadian High Commission in London concluded
that Mr. Prasad did not meet the 67-point threshold required for a successful
application. Mr. Prasad contends that he would have obtained the required
number of points if the officer had given him proper credit for his educational
qualifications. He asks me to overturn the officer’s decision and order a
reassessment by a different officer.
[2]
I
agree with Mr. Prasad that the officer erred and will allow this application
for judicial review.
[3]
The
main issue is whether the officer awarded Mr. Prasad the correct number of
points in the education category.
II. The Officer’s Decision
[4]
Mr.
Prasad obtained a three-year diploma in computer science at a polytechnical
college after completing higher secondary school. In total, he had completed 15
years of full-time study.
[5]
The
visa officer found that Mr. Prasad could have entered the computer science
program after Grade 10. He did not need to complete Grades 11 and 12 to enter
that particular program. Accordingly, the officer found that Mr. Prasad should
only be credited with a total of 13 years of full-time study.
[6]
Mr.
Prasad had initially planned to attend university, not a technical college, which
is why he decided to complete his higher secondary education. A higher
secondary diploma is required for entry into university in India. As it
turned out, Mr. Prasad’s grades were too low to get into university, so he went
to college instead. (He subsequently obtained a M.Sc. in Information
Technology, but he finished that degree after he submitted his application).
[7]
Under
the Immigration and Refugee Protection Regulations, SOR/2002-227, an
applicant should receive 15 points for a one-year post-secondary educational
credential and a total of 13 years of full-time studies (s 78(2)(c)(i))
(see Annex attached). This is the provision on which the officer relied in Mr.
Prasad’s case. The officer reasoned that since Mr. Prasad could have entered
his diploma program after 10 years of education, the other two years should not
be counted as full-time studies; they were superfluous for the attainment of
his diploma.
[8]
Mr.
Prasad argues that the officer should have invoked s 78(2)(e)(i)
instead. That provision states that applicants should receive 22 points for a
three-year post-secondary educational credential and a total of 15 years of
full-time studies.
III. Case law on
the Interpretation of the Regulations
[9]
The
Minister relies on cases where the Court has found that the Regulations do not
recognize all years of study as counting towards an educational credential. For
example, a diploma achieved after obtaining a Master’s degree could not be
counted towards an applicant’s total years of study since it did not contribute
to obtaining her highest educational credential: Bhuiya v Canada (Minister
of Citizenship and Immigration), 2008 FC 878. There, Justice Anne Mactavish
concluded that the “fact that Ms. Bhuiya may have spent one additional year in
school after obtaining her Master’s degree does not turn her 16 year Master’s
degree into a 17 year Master’s degree” (para 19). (See also Roberts v
Canada (Minister of Citizenship and Immigration), 2009 FC 518; Lee v Canada (Minister of
Citizenship and Immigration), 2011 FC 617).
[10]
The
Minister also points to decisions of Justice Elizabeth Heneghan in which she
found that the years taken to obtain a second Master’s degree could not be
counted as part of the applicant’s years of study because the Regulations (s
78(3)(a)) stipulate that points cannot be awarded cumulatively when the
applicant has acquired multiple educational credentials: Khan v Canada
(Minister of Citizenship and Immigration), 2010 FC 983; Kabir v
Canada (Minister of Citizenship and Immigration), 2010 FC 995.
[11]
In
essence, therefore, the Minister maintains that only those years of study that
are strictly required for the achievement of the applicant’s highest
educational credential should be counted towards the person’s total years of study.
[12]
In
two recent cases, however, the Court has departed from the Khan and Kabir
decisions relied on by the Minister. In the first, Justice Douglas Campbell
held that the applicant’s total educational history should be considered, not
just the years of study that contributed directly to his or her highest
educational credential: Hasan v Canada (Minister of
Citizenship and Immigration), 2010 FC 1206. Justice Campbell found that
the years of study the applicant had followed to obtain his second Master’s
degree should be counted as part of his total years of study. Similarly, in the
second case, Justice Simon Noël found that the years of study required to
obtain a second Master’s degree should be counted: Rabeya v Canada (Minister of
Citizenship and Immigration), 2011 FC 370.
[13]
Perhaps
the case that is most similar to Mr. Prasad’s is McLachlan v Canada (Minister of
Citizenship and Immigration), 2009 FC 975. There, Justice Leonard
Mandamin concluded that an officer erred in failing to consider whether the
applicant’s twelfth year of full-time studies preceding a two-year educational
credential could be counted, even though the applicant could have completed
those studies in eleven years. The applicant had decided to do a twelfth year
to improve his grades. Justice Mandamin concluded that the officer should have
considered s 78(4) of the Regulations which applies in special circumstances
where the applicant has a recognized educational credential but not the
corresponding total number of years of study. Had he done so, the applicant
would have been credited for his two-year credential and fourteen years of
full-time study (para 35).
[14]
Justice
Russel Zinn followed a similar approach in Marr v Canada (Minister of
Citizenship and Immigration), 2011 FC 367. There, he found that the
officer should have gone on to consider whether s 78(4) applied after concluding
that the applicant was short one year of study (para 48).
IV. Did the Officer
Interpret the Regulations Correctly?
[15]
This
case turns on the interpretation of the applicable Regulations. I can overturn
the officer’s decision if I find the officer’s interpretation to be incorrect.
[16]
None
of the cases cited to me involves precisely the same facts as the case at hand.
Still, the Minister suggests that the officer, by counting only the years of study
needed to acquire Mr. Prasad’s college diploma, was respecting the approach
laid down in Bhuiya, Khan and Kabir, above. That approach,
it is argued, requires that only those years of study leading directly to the
applicant’s highest educational credential should be counted. By contrast, Mr.
Prasad argues that there is nothing in the Regulations that specifically supports
the officer’s conclusion here. Further, Mr. Prasad relies on the decisions in McLachlan,
Hasan, and Rabeya.
[17]
The
main issue here is whether two years of Mr. Prasad’s education, not strictly
required to obtain his college diploma, are nonetheless “studies”. In my view,
the grounds given in other cases for not crediting an applicant’s years of
study do not apply here. In particular, Mr. Prasad does not have two degrees at
the same level, as in Khan and Kabir. Nor did he acquire a lesser
diploma after obtaining his highest credential as in Bhuiya. The
interpretative rules mentioned in those cases do not appear to apply here. In
any case, however, even if the officer’s approach was correct, he had a duty to
go on to consider s 78(4). According to McLachlan and Marr, even
if the applicant is lacking the requisite number of years of study, immigration
officers must determine whether special circumstances require that the
applicant receive the number of points corresponding with their educational
credential. Here, the officer did not consider the application of s 78(4) and
that error alone requires that I allow this application for judicial review.
V. Conclusion
and Disposition
[18]
I
conclude that the officer erred in law and must, therefore, allow this application
for judicial review and order another officer to reconsider Mr. Prasad’s
application in light of these reasons. The parties agree that the following
question should be certified:
In assessing points for education under s
78 of the Immigration and Refugee Protection Regulations, does the visa officer
award points for years of full-time equivalent studies that did not contribute
to obtaining the educational credential being assessed?
[19]
I
find that this question qualifies as a serious question of general importance
and, therefore, that it should be stated. The applicant asked for his costs,
but I find no special circumstances that justify a cost award.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
The
following question is stated:
In assessing points for education under s
78 of the Immigration and Refugee Protection Regulations, does the visa officer
award points for years of full-time equivalent studies that did not contribute
to obtaining the educational credential being assessed?
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Regulations, SOR/2002-227
78. (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
…
(e) 22 points for
(i) a three-year post-secondary
educational credential, other than a university educational credential, and a
total of at least 15 years of completed full-time or full-time equivalent
studies, or
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
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.
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Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
78. (2) Un
maximum de 25 points d’appréciation sont attribués pour les études du
travailleur qualifié selon la grille suivante :
[…]
c) 15 points, si, selon le cas :
(i) il a obtenu un diplôme
postsecondaire — autre qu’un diplôme universitaire — nécessitant une année
d’études et a accumulé un total de treize années d’études à temps plein
complètes ou l’équivalent temps plein,
[…]
e) 22 points, si, selon le cas :
(i) il a obtenu un diplôme
postsecondaire — autre qu’un diplôme universitaire — nécessitant trois années
d’études et a accumulé un total de quinze années d’études à temps plein
complètes ou l’équivalent temps plein,
Résultats
(3)
Pour l’application du paragraphe (2), les points sont accumulés de la façon
suivante :
a) ils ne peuvent être additionnés les uns
aux autres du fait que le travailleur qualifié possède plus d’un diplôme;
Circonstances
spéciales
(4)
Pour l’application du paragraphe (2), si le travailleur qualifié est
titulaire d’un diplôme visé à l’un des alinéas (2)b), des sous-alinéas
(2)c)(i) et (ii), (2)d)(i) et (ii) et (2)e)(i) et (ii)
ou à l’alinéa (2)f) mais n’a pas accumulé le nombre d’années d’études
à temps plein ou l’équivalent temps plein prévu à l’un de ces alinéas ou
sous-alinéas, il obtient le nombre de points correspondant au nombre d’années
d’études à temps plein complètes — ou leur équivalent temps plein — mentionné
dans ces dispositions.
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