Date: 20070402
Docket: IMM-2263-06
Citation: 2007 FC 350
Ottawa, Ontario, April 2,
2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
PARVIZ
LAK
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, ch. 27 (IRPA) of a decision of a visa officer (Officer) dated February
23, 2006 refusing Parviz Lak (Applicant)’s application for permanent residence
on the basis that he does not meet the requirements for the issuance of a
permanent resident visa as a member of the Skilled Workers class.
I. Facts
[2]
The
Applicant is Iranian. He applied for a permanent resident visa as a member of
the Skilled Workers class on the basis of the education and the work experience
he acquired as an Ophthalmologist in Iran.
[3]
The
Applicant’s permanent resident application was rejected on February 23, 2006 as
the Applicant was two points short of the passing mark of 67 needed to qualify
under the Skilled Workers class selection grid, as it is defined at section 78
of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (IRPR).
[4]
The
Applicant asserts that the Officer misinterpreted his education and his qualifications
when a score of 20 out of a possible 25 points was awarded to him under the
“Education” criterion of the Skilled Workers class selection grid.
II. Issue
(1) What is the
appropriate standard of review applicable to decisions of visa officers?
(2) Did the
Officer err by awarding the Applicant 20 out of 25 possible points under the
“Education” criterion of the Skilled Workers class selection grid?
III. Analysis
(1) What is the
appropriate standard of review applicable to decisions of visa officers?
[5]
In
Wang v. Canada (Minister of Citizenship and Immigration), 2003 FCT 258 at
paragraph 6, Justice Linden wrote the following regarding the standard
of review applicable to decisions of visa officers:
Our jurisprudence holds the standard of
review for this type of administrative decision is the test from Maple Lodge
Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court
should not interfere "[w]here the statutory discretion has been exercised
in good faith and, where required, in accordance with the principles of natural
justice, and where reliance has not been placed upon considerations irrelevant
or extraneous to the statutory purpose" (see: Skoruk v. Canada
(Minister of Citizenship and Immigration) 2001 FCT 1220; Chen v. Canada
(Minister of Citizenship and Immigration) 2001 FCT 330; Al-Rifai v.
Canada (Minister of Citizenship and Immigration) 2002 FCT 1236; and Jang
v. Canada (Minister of Citizenship and Immigration) 2001 FCA 312).
[6]
In
the case at hand the main submission of the Applicant is that the Officer did
not provide adequate reasons for her decision rejecting the Applicant’s
permanent residence application. Such an error, if found to exist, would
constitute a violation of procedural fairness. The
Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 at paragraph 46, determined that
all questions of procedural fairness are to be reviewed on the correctness
standard.
(2) Did the
Officer err by awarding the Applicant 20 out of 25 possible points under the
“Education” criterion of the Skilled Workers class selection grid?
[7]
The
Applicant submits that the Officer’s reasons for failing to award the Applicant
full points under the Education criterion of the Skilled Workers class selection
grid were inadequate and as such the Officer violated procedural fairness. The
Applicant claims that he was only awarded 20 points, instead of the full 25
points, under the Education criterion because the Officer failed to properly
assess the documentary evidence he provided in his visa application.
[8]
According
to the Applicant, his medical degree is considered an educational credential at
the doctoral level in Iran. Yet, the Officer considered his medical
degree a “first level of post-secondary education” when assessing the Education
criterion of the Skilled Workers class selection grid.
[9]
As
the Applicant noted, the Overseas Processing Manual - Federal Skilled Workers
(OP 6) states, in a note at Chapter 10.2:
Note: Medical
Doctor degrees are generally first-level university credentials, in the same
way that a Bachelor
of Law or a Bachelor in Pharmacology is a first level, albeit “professional”
degree, and should
be awarded 20 points. If it is a second-level degree and if, for example, it
belongs to a Faculty of
Graduate Studies, 25 points may be awarded. If a Bachelor’s credential is a
prerequisite to the credential,
but the credential itself is still considered a first-level degree, then 22
points would be appropriate.
It is important to refer to how the local authority responsible for educational
institutions recognizes
the credential: i.e., as a first-level or second-level or higher university
credential.
This note explains that generally, medical
degrees are considered first-level university credentials, as secondary-level
university credentials necessitate that a student belongs to a Faculty of
Graduate Studies. This being said, OP6 does state that where a Bachelor’s
credential is a prerequisite to another first-level credential, a visa officer
can appropriately award an applicant 22 points under the Education criterion of
the Skilled Workers class selection grid.
[10]
This
being said, the note contained at Chapter 10.2 of OP6 is merely a guideline to
evaluating education credentials under the Skilled Workers class selection grid.
The last line of the note emphasizes that a visa officer should refer to how
the local authority responsible for the educational institution in question
recognizes the educational credentials of an applicant.
[11]
In
the case at hand, the Applicant submitted a letter from Dr. Hamid Akbari of the
Iranian Ministry of Health and Medical Education stating that medical degrees
are considered professional doctoral degrees in Iran (Applicant
Record, Affidavit of Gerd Damitz, Exhibit D, page 32). Moreover, in the
Applicant’s Application for permanent residence in Canada the
Applicant indicates his highest level of education completed is a “master’s
degree” (Tribunal Record, page 2). The Respondent on their part, point to the
Applicant’s university transcript which clearly indicates that the Applicant
was enrolled in the “Undergraduate Department of Medicine” (Tribunal Record,
pages 89-90).
[12]
Having
reviewed the evidence, I am of the opinion that as the Applicant’s transcript clearly
states that the Applicant while studying medicine was classified as an
“undergraduate”, the Officer had reasons to conclude that the Applicant’s
medical degree was to be classified as a “first level of post-secondary
education”. This being said, the record also clearly indicates that the
Officer was aware that she was evaluating the permanent residence application
of an “Ophthalmologist”, as the Officer herself stated in her decision: “Your
application was assessed based on the occupation in which you requested
assessment: Ophtalmology [sic], 3111 in the National Occupational
Classification (NOC).” (Applicant’s Record, page 6).
[13]
In
my opinion, it is reasonable to believe that an Ophthalmologist practicing
outside Canada would
require specialized medical training beyond what is required to become a
general practitioner, as is required in Canada. Yet, there
is no indication in the decision that the Officer turned her mind to the
evidence relating to the Applicant’s “Ophthalmology” qualification, including
whether specialized training beyond obtaining a medical degree was required.
This being said, the Applicant submitted in his application an “announcement”
that he completed a fellowship in Vitreous Body & Retina at Shiraz University
in October 21, 1995, after passing his theoretical and practical examinations
(Tribunal Record, page 85). Moreover, the Applicant submitted evidence that he
obtained a “Final Certificate (Second 5-Year) for Participating in The
Continuous Medical Education Programs” on September 10, 2001 (Tribunal Record,
page 95). Thus, at minimum, the Officer should have provided some reference
to this evidence and the Applicant’s ophthalmology qualification in her
decision. It is possible that had the Applicant’s education credentials been
fully considered, the Applicant may have received 22 points for having a
bachelor’s degree plus further education credentials, instead of the 20 points
he was awarded.
[14]
This
being said, a fellowship or other specialized training will not inherently lead
to a visa officer awarding further points under the Education criterion of the
Skilled Workers class selection grid on the basis that an applicant obtained an
education credential which necessitated a bachelor’s credential. In my view, only
where all an applicant’s educational training and credentials are considered
can an Officer make a proper determination as to how many points are to be
awarded under the Education criterion of the Skilled Workers class selection
grid.
IV. Conclusion
[15]
For the reasons stated above, the Officer failed to
provide adequate reasons for her decision to refuse the Applicant’s application
for permanent residence and as such violated procedural fairness. As violations
of procedural fairness are reviewed on the standard of correctness, the
Applicant’s application for permanent residence as a member of the Skilled
Workers class is to be sent to another visa officer so that it may be
revaluated.
[16]
The
parties were invited to submit a question for certification, but none were
submitted.
JUDGMENT
THIS COURT ORDERS THAT:
-
The application for judicial review is granted
and the Applicant’s application for permanent residence as a member of the
Skilled Workers class is sent to another visa officer so that it may be
revaluated;
-
No questions are certified.
“Simon
Noël”
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2263-06
STYLE OF CAUSE: PARVIZ LAK
Applicant
-
and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY,
MARCH 27, 2007
REASONS FOR ORDER BY: Noël J.
DATED: April 2, 2007
APPEARANCES BY: Mr. M. Max Chaudhary
For
the Applicant
Ms.
Leanne Briscoe
For
the Respondent
SOLICITORS OF RECORD: M. Max Chaudhary
Barrister
& Solicitor
Toronto, Ontario
For
the Applicant
John
H. Sims, Q.C.
Deputy
Attorney General of Canada
For
the Respondent
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