Date:
20130430
Docket:
IMM-7115-12
Citation:
2013 FC 446
Ottawa, Ontario,
April 30, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
DONARA KHANOYAN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks to set aside the decision of a visa officer
that the applicant does not meet the requirement for permanent residence in Canada as a Federal Skilled Worker under sections 76 to 83 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (Regulations).
[2]
The
visa officer awarded the applicant 65 points in total, two less than the
minimum of 67 points. The applicant asserts that she should have been awarded
22 points for her education, a diploma in nursing and bachelor’s degree in
psychology, and not the 20 she received.
[3]
In
Khan v Canada (Citizenship and Immigration), 2011 FCA 339, the Federal
Court of Appeal ruled that the standard of review of a visa officer’s
interpretation of the Regulations is correctness. More recently however
the Supreme Court of Canada provided that a tribunal’s interpretation of its
home statute will generally attract the standard of reasonableness: Alberta
(Information and Privacy Commissioner) v Alberta Teachers' Association, 2011
SCC 61, [2011] 3 S.C.R. 654, para 30. For a more recent application of
this principle, see B010 v Canada (Citizenship & Immigration), 2013
FCA 87.
[4]
Nothing
turns on this issue, as I see no error in the decision applying either
standard. Accordingly, the application must be dismissed.
[5]
In
Khan, the Federal Court of Appeal provided comprehensive instructions
for the interpretation of section 78 of the Regulations. Points are to
be awarded on the basis of a single educational credential only, the credential
which awards the highest number of points. Points are not awarded for multiple
credentials, subject to the exception set out in subparagraph 78(2)(e)(ii)
which provides 22 points when an applicant has two or more credentials at the
bachelor's level.
[6]
The
applicant’s highest credential is a bachelor’s degree in psychology, entitling
her to 20 points under subparagraph 78(2)(d)(ii). Her two year diploma in
nursing does not entitle her to 22 points because it is neither a three-year
credential with a total of fifteen years of full-time studies under
subparagraph 78(2)(e)(i), nor a second bachelor’s degree under subparagraph
78(2)(e)(ii). The evidence in the record describes the diploma as being awarded
for a two year program at a vocational school.
[7]
Here,
the applicant does not have either of the educational credentials provided for
in paragraph 78(2)(e), as described above, and subsection 78(4) is not
engaged.
[8]
The
applicant also submits that the visa officer should have provided her with
notice of the concerns regarding her education. This is a question of
procedural fairness and is therefore reviewed on a standard of correctness.
[9]
The
applicant bears the onus of establishing that she meets the statutory criteria
and there is no requirement for notice when the visa officer’s concern arises
from that criteria: Veryamani v Canada (Citizenship and Immigration),
2010 FC 1268, paras 34-36. Therefore, this argument fails without merit.
[10]
Additionally,
the applicant’s submission that the visa officer failed to consider her request
for substituted assessment under subsection 76(3) is incorrect. The visa
officer determined that the evidence did not establish that the applicant would
become economically established in Canada despite obtaining less than 67
points. An officer need not provide written reasons for declining to exercise
jurisdiction; it is sufficient that the officer has turned his or her mind to
the issue: per Justice Snider in Lee v Canada (Citizenship and Immigration),
2011 FC 617, 2012 FCA 54. Had the applicant identified particular factors
which could be relevant to this assessment the visa officer may have been
required to provide more detailed reasons: Marr v Canada (Citizenship and
Immigration), 2011 FC 367, paras 12-15.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed. There is no question for certification.
"Donald J.
Rennie"
Email this Content