Date: 20080229
Docket: IMM-2383-07
Citation: 2008 FC 271
Ottawa, Ontario, February 29, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
SAQUIB HAMEED &
ADEELA BASHIR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Canadian High
Commission dated April 2, 2007 wherein the Officer reviewed the Applicant’s
request for reconsideration of the prior refusal of his application for permanent
residence in Canada under the skilled worker category dated February 20, 2007
as it was determined that he had not satisfied the requirements for immigration
to Canada as set out in the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) and the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations).
I. Facts
[2]
The
Applicant, Mr. Saquib Hameed, is a citizen of Pakistan. In October
2001, he applied as a Federal Skilled worker under the occupation of
“Purchasing Agent”, National Occupational Classification (NOC) 1225. The
Applicant did not indicate that his wife or children would accompany him to Canada and he did
not pay a processing fee for any of them. As such, none of his wife’s
information was considered in regards to the Applicant’s application.
[3]
The
Visa Officer, assessing the Applicant’s file, based his decision upon an
assessment of the Applicant pursuant to both the provisions of the former
Immigration Act, R.S.C. 1985, c. I-2 (Immigration Act) and the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Applicant failed to obtain
sufficient points under either Act to give rise to the issuance of a permanent
resident visa.
[4]
On
August 2, 2006, the Officer gave the Applicant a score of 5 points for his
education. The Officer found that the Applicant completed his Bachelor’s degree
as a private student, which meant it could not be considered. He also found
that the Applicant completed his M.B.A. degree at an institution that was not
accredited with the Higher Education Commission of Pakistan, which meant it
also could not be considered (Applicant’s Record, CAIPS notes, pp. 91-92).
[5]
The
Applicant was interviewed on February 1, 2007. Prior to the commencement of the
interview, the Applicant advised that he wished his wife to be considered at
the interview despite not having paid the requisite fees. The Applicant advised
that he wished to know the result of the interview prior to paying. The
Applicant was informed that the fees must be paid if the wife’s information is
to be considered at the interview and was given an opportunity to pay at that
time. The Applicant stated that he could pay but he did not have enough money with
him. The officer refused to wait for two hours as requested to obtain the
money. (Applicant’s Record, CAIPS notes, p. 93).
[6]
During
the interview, the Officer arrived at the same conclusion regarding the
Applicant’s educational credentials as was previously found and explained his
concerns to the Applicant. The Applicant did not agree with the Officer’s
explanation. The Applicant also questioned why his wife’s information was not
considered in the assessment and was advised that he had not paid any fees for
his wife. The Applicant was also advised that even if his wife’s information had
been considered, he still would not have qualified for a skilled worker visa
(Applicant’s Record, CAIPS notes, pp. 93-94).
[7]
A
refusal letter, dated February 6, 2007, was sent to the Applicant. On March 12,
2007, a request fro reconsideration was received by the Visa Officer.
[8]
Shortly
after receiving his negative decision, the Applicant’s new counsel wrote to the
processing office it Islamabad, Pakistan. It was
submitted that the Applicant had erroneously received only 5 points out of a
total of 25 for education, whereas in reality he should have received an
additional 15 points under this category. Based on a review of the Applicant’s
diplomas and transcript, counsel submitted that Mr. Hameed should have been
awarded 20 point for the study and not 5.
[9]
By
letter dated April 2, 2007, a Visa Officer responsible for reviewing requests
for reconsideration advised that the Applicant’s application had been
reconsidered but that his application had been considered on its merits in a
letter dated February 6, 2007 and that despite the additional information
submitted he still did not qualify and the refusal stood. The Visa Officer
re-iterated that the Applicant’s Bachelor’s degree did not merit any points
being awarded. The Visa Officer also advised that there would be no further
correspondence regarding the Applicant’s present application (Applicant’s
Record, p. 43).
[10]
On
April 20, 2007, counsel for the Applicant wrote to the Visa Officer and
submitted that this conclusion failed to take into account the means by which
degrees were conferred by the University of Punjab, as well, was not relevant
to the assessment of points that the Applicant should be awarded (Affidavit of
Lynda DeBraga, Applicant’s Record, Tab 5, Exhibit F).
[11]
No
further correspondence was received from the Visa Office, resulting in the
filing of this application for judicial review in June 2007.
II. The impugned
decision
[12]
In
a letter dated February 6, 2007, the Visa Officer informed the Applicant that
after having assessed the Applicant’s application for a Permanent Resident Visa
of the transitional Federal Skilled Worker class, as prescribed in Section 85.1
of the Regulations, above, he determined that Mr. Hameed did not meet
the requirements for immigration Canada and consequently
refused his application.
[13]
The
Visa Officer’s assessment under the Immigration Act, above, is as follows:
|
Points Assessed
|
Maximum
|
Age
|
10
|
10
|
Occupational Factor
|
01
|
10
|
Education & Training Factor
|
15
|
18
|
Experience
|
06
|
08
|
Arranged Employment
|
00
|
10
|
Demographic Factor
|
08
|
08
|
Education
|
10
|
16
|
Knowledge of English
|
02
|
09
|
Knowledge of French
|
00
|
06
|
Bonus
|
00
|
05
|
Personal Suitability
|
03
|
10
|
Total
|
55
|
100
|
As 70 units were required under the former
Act, the Applicant was considered to not have met the minimum requirement.
Subsequently, the Visa Officer assessed the
Applicant’s application pursuant to the IRPA. His assessment is as follows:
|
Points Assessed
|
Maximum
|
Age
|
10
|
10
|
Education
|
05
|
25
|
Experience
|
21
|
21
|
Arranged Employment
|
00
|
10
|
Official Language Proficiency
English
French
|
07
|
24
|
Adaptability
Education of Spouse/Partner
Prior Work/Study in Canada
Arranged Employment
Close Relative in Canada
|
00
|
10
|
Points
|
43
|
100
|
[14]
Having
obtained a total of 43 points, where in the minimum number of points required
is of 67, the Applicant was equally found to not have satisfied the requirement
under IRPA.
[15]
Consequently,
the Visa Officer concluded that he was not satisfied that the Applicant would
be able to become economically established in Canada and ultimately refused the
Applicant’s application for Permanent Residence (Canadian High Commission’s
Reasons, Applicant’s Record, p. 3-4).
[16]
Furthermore,
by letter dated April 2, 2007, a reviewing officer confirmed the original
determination and indicated to the Applicant that despite the additional information
that was submitted, the applicant could not be awarded any points for his
Bachelors in Arts degree as he completed the course as a private candidate
(Canadian High Commission letter dated April 2, 2007, Affidavit of Lynda
DeBraga, Exhibit E, Applicant’s Record, p. 43).
III. Parties submissions
Applicant’s submissions
[17]
The
Applicant submits that the Visa Officer failed to take into account the means
by which degrees are conferred by the University of Punjab and consequently
placed irrelevant weight on such when assessing the points that Mr. Hameed
should be awarded.
[18]
Furthermore,
they argue that the University of Punjab, which conferred the
degree, is not an attending institution for undergraduate students. Rather it
administers exams for those who have attended other institutions and confers
degrees accordingly. This does not mean, however that Mr. Hameed did not
receive a two-year university educational credential at the bachelor’s level
nor does it mean that he did not complete a total of 14 years of schooling. Mr.
Hameed’s diploma and transcript confirm that he received the university
credential by attending Islamia College Civil Lines Lahore and the letter of
the Higher Education Commission of Pakistan confirms that the granting of the
credential recognizes that Mr. Hameed took 14 years of completed schooling –
thus the requirements of subparagraph 79(1)(d)(ii) of the Regulations are met
(Exhibit F to Lynda DeBraga’s Affidavit).
Respondent’s
submissions
[19]
The
Respondent submits that the Applicant failed to achieve enough points under
either scheme to qualify for a permanent resident visa as a member of the
skilled worker category. As a result, his application was rejected
(Respondent’s Memorandum of Argument, para. 10).
[20]
Furthermore
they contend that the Applicant provided evidence that he obtained his Bachelor
of Arts degree from the University of the Punjab as an
external student. They note that an external student is someone who takes an
examination for a degree or certificate as a private candidate. This means that
the person was not in full-time attendance at the educational institution
granting the degree or at a recognized affiliated college of that
degree-granting institution at the time that person took the final examination
(Affidavit of Georges Ménard, para. 2).
IV. Issue
[21]
The
sole issue before the Court is the following:
(1) Did
the Visa Officer err in relying on irrelevant or extraneous information when he
determined that the Applicant’s Bachelor of Arts degree could not be considered
because he had completed it as a private student?
V. Analysis
Standard of review
[22]
In
this case, the Visa Officer was required to determine if the Applicant had met
the statutory requirements for the award of points relative to the educational
qualifications of the Applicant. Although an element of statutory
interpretation is involved, the Visa Officer was primarily engaged in factual
determinations. Determinations of fact by a specialized decision-maker attract
deference.
[23]
In
Hua, below, the Court concluded that the appropriate standard of review
to apply in the context of a visa officer’s general decision was patent
unreasonableness (Hua v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 2106, para. 28 (QL)).
[24]
The
Court also discussed this issue in Kniazeva, below, stating:
15 […]
This Court has consistently held that the particular expertise of visa officers
dictates a deferential approach when reviewing their decisions. There is no
doubt in my mind that the assessment of an Applicant for permanent residence
under the Federal Skilled Worker Class is an exercise of discretion that should
be given a high degree of deference. To the extent that this assessment has
been done in good faith, in accordance with the principles of natural justice
applicable, and without relying on irrelevant or extraneous considerations, the
decision of the visa officer should be reviewed on the standard of patent
unreasonableness. [citations removed]
(Kniazeva
v. Canada (Minister of Citizenship and Immigration), [2006]
F.C.J. No. 336, para. 15 (QL))
[25]
Justice
Elizabeth Heneghan also determined, following a pragmatic and functional analysis
that much deference should be granted to a Visa Officer’s in respect to the
issuance of visas. She explains that:
[15] On
balance, the four factors tend toward granting a high degree of deference to
the Visa Officer. I conclude that the applicable standard of review in this
case is patent unreasonableness.
(Tervinder Singh Tiwana v. The
Minister of Citizenship and Immigration, 2008 FC 100)
[26]
In
this particular case, I must take into account the fact that the visa officer
who rendered the decision, Sean Carey of April 2, 2007, was inexperienced in
this field. The transcript of the cross-examination on his affidavit showed
that he had only 1 ½ days of training and a short period of experience at the
time he wrote the decision (January to March 2007, on a temporary basis and
resumed his functions on August 13, 2007).
[27]
I
must also acknowledge that after a demand of reconsideration, Georges Menard,
an experienced officer confirmed the decision but it remains that the
determination was made by Mr. Carey, an inexperienced officer.
Legislation framework
[28]
Section
12 of IRPA governs applications for permanent residence on economic grounds. It
states:
12. (2)
Economic immigration – A foreign national may be selected as a member of the
economic class on the basis of their ability to become economically
established in Canada.
|
12. (2) Immigration
économique – La sélection des étrangers de la catégorie « immigration
économique » se fait en fonction de leur capacité à réussir leur
établissement économique au Canada.
|
[29]
Sections
73 through 85 of the Immigration and Refugee Protection Regulations,
above, govern the assessment of applications for permanent residence under the
Federal Skilled Worker Class.
[30]
The
relevant portions of those Regulations are those that relate to the
assessment of education.
[31]
Section
73 of the Regulations states:
73.
The definitions in this section apply in this Division.
“educational credential” means
any diploma, degree or trade or apprenticeship credential issued on the
completion of a program of study or training at an educational or training
institution recognized by the authorities responsible for registering, accrediting,
supervising and regulating such institutions in the country of issue. (diplôme)
|
73. Les définitions qui suivent
s’appliquent à la présente section.
« diplôme
» Tout diplôme, certificat de compétence ou certificat d’apprentissage
obtenu conséquemment à la réussite d’un programme d’études ou d’un cours de
formation offert par un établissement d’enseignement ou de formation reconnu
par les autorités chargées d’enregistrer, d’accréditer, de superviser et de
réglementer les établissements d’enseignement dans le pays de délivrance de
ce diplôme ou certificat. (educational credential)
|
[32]
Paragraph
78(2)(d) of the Regulations states :
78. (2)
A maximum of 25 points shall be awarded for a skilled worker's education as
follows:
[…]
(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;
[…]
|
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 :
(i) il a obtenu un diplôme postsecondaire — autre qu’un diplôme
universitaire — nécessitant deux années d’études et a accumulé un total de
quatorze années d’études à temps plein complètes ou l’équivalent temps plein,
(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;
[…]
|
(1) Did the Visa Officer err in relying on irrelevant or
extraneous information when he determined that the Applicant’s Bachelor of Arts
degree could not be considered because he had completed it as a private student?
[33]
The
Visa Officer determined that the Applicant completed his Bachelor’s degree as a
‘private or external student’ and therefore had not satisfied the “at least 14
years of completed full-time or full-time equivalent studies” as required by
paragraph 78(2)(ii) of the Regulations, above.
[34]
The
Respondent has not however argued that the Applicant did not complete fourteen
years of studies. The Applicant’s studies may be broken down as follows:
-
High
School credential (10 years) (Applicant’s
Record, p. 30);
-
College
- Government College, Baghbanpura, Lahore (2 years) (Applicant’s
Record, p. 31);
-
Bachelor
of Arts (conferred by the University of Punjab) (2 years) (Applicant’s Record, p. 33).
[35]
Furthermore,
a letter from the Higher Education Commission of Pakistan that was brought
before the Visa Officer following the Applicant’s interview confirmed that the
Applicant’s Bachelor of Arts degree from the University of Punjab corresponded to a Bachelor’s degree in the
relevant field involving 14 years of schooling (Applicant’s Record, p. 41).
[36]
The
Visa Officer however awarded zero points for the two-years university level
studies completed by the Applicant and awarded only 5 points for his education.
The Visa Officer based his conclusion on the fact that the Applicant was a
private or external student and therefore had not completed the 14 years of
full-time studies. This decision is inconsistent with the definition of
“educational credential” found in section 73 of the Regulations as
follows:
73 The
definitions in this section apply in this Division.
…
"educational credential" means
any diploma, degree or trade or apprenticeship credential issued on the
completion of a program of study or training at an educational or training
institution recognized by the authorities responsible for registering,
accrediting, supervising and regulating such institutions in the country of
issue.
|
73 Les
définitions qui suivent s’appliquent à la présente section.
…
«diplôme» Tout diplôme, certificat de
compétence ou certificat d’apprentissage obtenu conséquemment à la réussite
d’un programme d’études ou d’un cours de formation offert par un
établissement d’enseignement ou de formation reconnu par les autorités
chargées d’enregistrer, d’accréditer, de superviser et de réglementer les
établissements d’enseignement dans le pays de délivrance de ce diplôme ou
certificat.
|
[37]
In
regards to the Respondent’s allegation, the Applicant notes that the Visa
Officer’s failed to take into account the means by which degrees were conferred
by the University
of Punjab
(Applicant’s counsel letter dated April 20, 2007, Applicant’s Record, p. 46).
[38]
First
it was submitted that the University of Punjab, which conferred the
degree, was not an ‘attending’ institution for undergraduate students. Rather,
it administered exams for those who have attended other institutions and
conferred degrees accordingly. However, this did not mean that the Applicant
did not receive a two-year university educational credential at the bachelor’s
level nor did it mean that he did not complete a total of fourteen years of
schooling (Applicant’s counsel letter dated April 20, 2007, Applicant’s Record,
p. 46).
[39]
Contrary
to Justice Danièle Tremblay-Lamer’s conclusion in Cela v. Canada (Minister
of Citizenship and Immigration), [2004] F.C.J. No. 1324 (QL) wherein the
officer refused the applicant's application for permanent residence in Canada
on the grounds that she was not satisfied that the applicant met the statutory
requirement, the Applicant in the case at bar has provided the Respondent with
evidence as to his credential for his Bachelor’s degree. Justice Tremblay-Lamer
notes that:
[8] The officer acknowledged that the applicant had taken
an adult education course in accounting while living in Canada. However, given the applicant's
failure to establish that the course was a course described in subsection 78(2)
of the Regulations, the officer did not find that the accounting course
justified the award of additional points.
[9] I do not find that the officer erred in her assessment
of the applicant's education. The applicant provided student transcripts from
the Yorkdale Adult Learning Centre attesting to the accounting courses she had
taken. However, none of these documents indicate that the applicant was awarded
a credential for her studies. Thus, I find that the officer reasonably
evaluated the evidence presented and awarded the applicant a sufficient number of
points for her education.
(Cela, above, paras. 8-9).
[40]
Furthermore,
the Respondent does not dispute the fact that the Applicant has a Bachelor’s
Degree nor do they contend that the Applicant has completed 14 years of
schooling. The Respondent argue that the Applicant was not a full-time student
at the time his degree was conferred and that the Applicant was a private
student. The Applicant however explained during the interview the following:
[…] I disagreed with the visa
officer. I had the degree with me and I attempted to show him this degree (found at page 33 of the application
record). I also attempted to show the officer my transcript from the University
of Punjab (found at page 32 of the application record) and my character
certificate from the Government of Islamia College, Civil Lined, Lahore (found
at page 49 of the application record), which confirmed that I had taken my
Bachelor of Arts studies at the College from 1981 to 1983. I took those studies
prior to writing my Bachelor of Arts examinations at the University of Punjab
in 1984. This is a completely normal occurrence as the University of Punjab is
not an attending institution or undergraduate students. Rather, undergraduate
students take their studies at a recognized affiliated institution of the
University of Punjab (such as the one I attended – The Government Islamia
College, Civil Lines, Lahore) and then write their B.A. exams at the University
of Punjab.
(Affidavit of Sean Carey, para.
4; Affidavit of Saqib Hameed, sworn December 14, 2007, para. 3).
[41]
Moreover,
the Applicant explains that :
6. I note that my degree
from the University of Punjab stated that I was an ‘external student’ whereas
that of my spouse does not indicate this. Georges Ménard, in his affidavit
dated August 8, 2007, indicates that that my designation as an external student
meant that I was not in full-time attendance at an affiliated college at the
time I took my final examinations. This is correct in that my full-time studies
were completed in or about June 1983 and I took my final examinations one year
later in order to prepare more fully for the exams. This is why I was
considered an external student whereas my spouse was not considered an external
student because she took her B.A. exams at the University of Punjab in the same
year that she completed her studies at the Queen Mary College, Lahore (another
recognized affiliates institution of the University of the Punjab).
(Affidavit of Saqib Hameed, sworn December 14, 2007,
para. 6)
[42]
During
cross-examination, the Visa Officer confirms the Applicant’s assertion as to
how an individual would be described as an “private or external student”. The
officer explained:
17. Q.
And if an individual attended at that specific affiliated college on a full
time basis and then wrote his exams through the University of the Punjab, would
that person be considered a private or external student, or not?
A. It depends
on when they wrote their exams.
18. Q.
Okay, explain that to me.
A. So if a candidate attends the college full time, competes all his
courses, takes time off in between and writes the exams at the end, he still
writes the exams as a private candidate because he wasn’t in full time
attendance at the time he completed his courses.
(Cross-Examination of Sean Carey,
p. 4-5)
[43]
Thus
the Applicant has satisfied the two criteria for being awarded 20 points under
the educational heading: 1) he had a two-year university educational credential
at the bachelor’s level; and 2) as confirmed by the letter from the Higher
Education Commission and by Sean Carey during his cross-examination and the
Applicant’s educational credential, the Applicant had completed 14 years of
full-time studies despite being described as a private or external student on
his degree.
[44]
Mr.
George Ménard, reviewing officer, alleges that the Applicant simply registered
to write the final examinations required to obtain his B.A. degree from the
University of the Punjab and did not complete the full-time study required for
his Bachelor degree at the institution which granted the degree or at a
recognized affiliates institution. The evidence provided by the Applicant
however demonstrates the opposite. The Applicant’s character certificate from
the Government Islamia College, Civil Lines, Lahore, which was provided to
the Visa Officer, confirmed that he was a university registered student in a
Bachelor of Arts studies program from 1981 to 1983. In addition, as confirmed
by the Higher Education Commission, the Applicant’s Bachelor of Arts degree
conferred by the University of the Punjab was recognized as the equivalent to a
corresponding Bachelor’s degree involving 14 years of schooling as awarded by
other chartered universities/institutions (Affidavit of Georges Ménard, para.
2; Affidavit of Saqib Hameed, sworn December 14, 2007, para. 8).
[45]
Based
on the foregoing, this Court finds that the determination by the Visa Officer
that the Applicant’s degree was taken as a private student was completely
irrelevant to the determination required to be made by subparagraph
78(2)(d)(ii) of the Regulations: this subparagraph requires only that
the applicant demonstrate that he has a two-year university educational
credential at the bachelor’s level and a total of at least 14 years of
completed full-time equivalent studies.
[46]
This
determination also appears to be completely at odds with the Federal Skilled
Workers Program Manual (OP6) which sets out that:
Officers should assess programs
of study and award points based on the standards that exist in the country of
study. The Regulations do not provide comparisons to Canadian educational
standards.
(Citizenship
and Immigration Canada, OP6 Federal Skilled Workers Manual, www.cic.gc.ca/english/resources/manuals/op/op06e.pdf)
[47]
As
Justice Heneghan of the Federal Court noted in her recent decision that:
[23] The definition of
“educational 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.
(Tiwana v. Canada (Minister of Citizenship and
Immigration, 2008 FC 100)
[48]
It
is clear that the standards in Pakistan for granting of a university bachelor’s
degree where met, regardless of whether the Applicant attended the University of Punjab as a private candidate
or otherwise.
[49]
In
summary the officer in misinterpreting or failing to give effect to documents
and a letter of explanation by a competent education authority, whose
authenticity had not been challenged, committed a reviewable error.
[50]
Furthermore,
failure by an administrative decision maker to use rationality or common sense
in a decision can be characterized as a patently unreasonable error, see Zhang
v. Canada (Minister of Citizenship and Immigration), 2006 FC 550, [2006]
F.C.J. No. 692 (QL) at para 31; Lim. v. Canada (Minister of
Citizenship and Immigration), 2005 FC 657, [2005] F.C.J. No. 810 at para.
21-22.
V. Conclusion
[51]
Based
on the foregoing, this Court finds that the Visa Officer erred when he refused
the Applicant’s application for permanent residence in Canada. Therefore, this
application for judicial review is allowed. No question is certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is allowed. No question need be certified.
"Orville
Frenette"