Date: 20010108
Docket: A-503-98
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
MOHAMMAD NAZIM HAMEED
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on Monday, November 20, 2000.
Judgment delivered at Ottawa, Ontario on Monday, January 8, 2001.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STONE J.A.
CONCURRING REASONS BY: ISAAC J.A.
Date: 20010108
Docket: A-503-98
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
MOHAMMAD NAZIM HAMEED
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
This case is about the interpretation of an aspect of the educational factor used in the selection of those seeking to become permanent residents in Canada. More particularly, the question is whether a visa officer must give credit to a visa applicant for a post-graduate degree when the applicant's first degree was obtained after less than three years of study.
The appellant, Mohammad Nazim Hameed, is forty years old, married and a citizen of Pakistan. He holds two degrees from the University of Karachi: a Bachelor of Arts, which he was awarded after two years and five months of study as a part-time or "private" student, and a Master of Arts, for which he also studied "privately" on a part-time basis for two years and three months. In addition, he has a diploma of associate engineer from the Government College of Technology, which is also in Karachi.
For several years Mr. Hameed has been residing, without immigration status, in the United States of America, where he has been helping out relatives who own a convenience store. In January 1997, he applied to the Canadian Consulate General at Buffalo, New York, for a visa to enter Canada as a permanent resident in the independent category. His application was assessed in the occupation of Textile Technologist. After paper-screening, his file was transferred to the Consulate General in Detroit, Michigan, where he was interviewed by a visa officer.
The officer refused to issue a visa to the appellant because he was awarded only 66 units of assessment, four short of the 70 normally required for independent applicants. The visa officer awarded Mr. Hameed 13 units of assessment for education on the basis of his secondary school and engineering diplomas, but denied him the additional three units awarded to those with post-graduate university degrees.
His application for judicial review of this refusal was dismissed. The question certified by the Motions Judge under subsection 83(1) of the Immigration Act, R.S.C. 1985, c. I-2, was whether Schedule I of the Immigration Regulations, 1978, SOR/78-172, requires that 16 units of assessment must be awarded to an applicant with a second- or third-level university degree, even if the applicant has not provided evidence of a first-level university degree requiring at least three years of full time study.
This was the only issue argued on the appeal. It turns on the interpretation of the following criteria of Factor 1 in Schedule I of the Regulations, which, counsel agreed, the visa officer must have interpreted correctly if the decision to refuse a visa is to survive scrutiny for error of law on an application for judicial review.
| 1. Education
(1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
[...]
| (d) where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and |
| (e) where a second- or third-level university degree has been completed, sixteen units. |
[...]
(3) Only a single diploma, degree or apprenticeship certificate shall be taken into consideration when determining the units of assessment to be awarded in accordance with the applicable paragraph of subsection (1).
(4) The units of assessment set out in paragraphs (1)(b) to (e) shall not be awarded cumulatively, and the number of units of assessment set out in the applicable paragraph that awards the greatest number of units shall be awarded.
|
1. Études
(1) Sous réserve des paragraphes (2) à (4), des points d'appréciation sont attribués selon le barème suivant:
[...]
| d) lorsqu'un diplôme universitaire de premier cycle, comportant au moins trois ans d'études à temps plein, a été obtenu, 15 points; |
| e) lorsqu'un diplôme universitaire de second ou de troisième cycle a été obtenu, 16 points. |
[...]
(3) Lors de la détermination du nombre de points d'appréciation à attribuer, selon l'alinéa applicable du paragraphe (1), un seul diplöme ou certificat est pris en considération.
(4) Les points d'appréciation visés aux alinéas (1)b) à e) ne peuvent être attribués cumulativement et seul le nombre de points le plus élevé, parmi les alinéas applicables, est retenu.
|
The Motions Judge dealt with this issue briefly in reasons delivered from the Bench and reported at (1998), 44 Imm. L.R. (2d) 215 (F.C.T.D.). He held (supra, at page 217, paragraph 3) that a person was only entitled to the additional units of assessment awarded for a post-graduate degree if the person also satisfied the statutory criteria respecting a first-level degree. He elaborated on this conclusion (supra, at pages 217-18, paragraph 4) as follows:
| The progression from lower to higher education and lesser to greater numbers of educational units is linear. It follows that for an applicant to qualify for sixteen (16) units of assessment for a second or third level university degree that require at least three (3) years of full-time study. He was unable to do so. Therefore no error by the visa officer in awarding only thirteen (13) units for education. |
The same legal issue has arisen in two subsequent cases. In Desai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1608 (F.C.T.D.) (QL), Hansen J. agreed with the reasons of the Motions Judge in the instant case. However, in a more recent decision, Khan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1720 (F.C.T.D.) (QL), Lemieux J. decided not to follow them. He pointed out that paragraph (1)(e) of Factor 1 of Schedule I is not worded so as to make it clear that only a person who has a first degree as defined in paragraph (1)(d) is entitled to the 16 units that a person holding second- or third-level degrees must be awarded. Thus, he said (at paragraph 26):
| ... where the draftsperson wanted to make a diploma conditional upon completion of a lower level requirement, the draftsperson said so. For example, paragraph 1(c)(i) reads "in the case of a diploma or apprenticeship program that requires completion of a secondary school diploma ... as a condition of admission." It seems to me the visa officer's interpretation results in rewriting paragraph 1(e) so as to say "in the case of a second or third level university degree that requires completion of a first level university degree referred to in paragraph 1(d) as a condition of admission, 16 units." In my view, such rewriting is not permissible. |
Lemieux J. supported his conclusion by other considerations as well. For example, he noted that the fact that each paragraph is introduced by the word "when", and in the French text by "lorsque", suggests that each is a self-contained requirement. In addition, he doubted whether the prohibition in section 4 of Factor 1 against cumulating points under more than one educational criterion would be necessary if, in the absence of clear words to the contrary, the paragraphs were not to be read independently.
Further, he noted that paragraph (1)(d) only expressly requires three years of full-time study before a person can be awarded 13 points for a first-level degree. It says nothing about the units to be awarded to a person with advanced degrees, whose first- level degree, if standing alone, would not have met the requirements of paragraph (1)(d). Finally, Lemieux J. concluded that interpreting paragraph (1)(e) independently of paragraph (1)(d) better served the statutory purpose of admitting those likely to be successful in establishing themselves economically in Canada.
While I find these reasons generally persuasive, the structure of the educational criteria relevant to this appeal may also be considered to point to the opposite conclusion, namely that the legislator regarded the possession of a first degree that complies with paragraph (1)(d) as so important that compliance with it was also intended to be a prerequisite for eligibility for the additional unit of assessment awarded to those with post-graduate degrees.
This is because five more units are awarded for a first-level degree, as defined in Factor 1(1)(d) of Schedule I, than for a secondary school diploma leading to university entrance, whereas only one more additional unit is awarded to a university graduate because he or she has an advanced degree, for which no minimum period of study is prescribed. It might seem contrary to the statutory scheme to award the maximum number of educational units (16) to a person who had not completed a first-level degree that satisfied the statutory surrogate for quality control, namely three years of full-time study (or, presumably, its part-time equivalent), simply on the basis of, say, a master's degree for which the Schedule does not specify a minimum qualifying period of study.
Moreover, it might also be surmised that it was unnecessary for the Schedule to prescribe additional specific minimum requirements that must be met by the person with a post-graduate degree who was claiming the one extra point awarded under paragraph (1)(e), because the requirement of three years of study for a first degree also operates as a prerequisite for claiming 16 units of assessment.
The truth of the matter is that factual situations can be imagined that present difficulty from a policy perspective for each of the two possible readings of the relevant provisions. This suggests that the drafter had not applied his or her mind to whether the first-level degree held by a person with a second- or third-level degree must also comply with paragraph (1)(d) before a visa applicant is entitled to 16 units of assessment.
Thus, if the appellant were correct, a person who had completed a first-level degree after six months of part-time study, and a second-level degree following an additional six months of part-time study, would be entitled to the full 16 points under the Education Factor. In contrast, a person with a bachelor's degree obtained after two and half years of full-time study would, in the absence of other qualifications, receive only the 10 points awarded under Factor 1, subparagraph 1(1)(b)(ii) to a person with a secondary school diploma that may lead to university entrance.
On the other hand, on the visa officer's interpretation of paragraphs (1)(d) and (e), a person who obtained a bachelor's degree after less than three years of full-time study (or its equivalent) could never qualify for more than the 10 units awarded to those with a secondary school diploma that makes them eligible for university entrance, no matter how many advanced degrees the person subsequently obtained, and regardless of the years of study involved. Such a conclusion would seem contrary to the legislative purpose of attracting to Canada as permanent residents those who are likely to establish themselves successfully economically by virtue of their high educational attainments.
Each of these fact situations may, of course, be dealt with by the exercise of the discretion conferred on visa officers by subsection 11(3) of the Immigration Regulations:
| (3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
|
|
| (3) L'agent des visas peut
a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier.
|
|
Thus, if the more liberal interpretation for which the appellant contends were accepted, the officer could exercise the negative discretion under paragraph 11(3)(a) in order to refuse a visa to a person who was awarded 70 units, partly as a result of receiving 16 units of assessment for education, but who had spent so little time in study that the degrees could not be regarded as equivalent to a three-year bachelor's degree from a Canadian university. In these circumstances, a visa officer might well be justified in concluding that 70 units of assessment overestimated the applicant's ability to become economically established in Canada.
Conversely, if the more restrictive interpretation of paragraphs (1)(d) and (e) were adopted, an officer could exercise the positive discretion conferred by paragraph 11(3)(b) of the Regulations in favour of a person who, despite holding two post-graduate degrees awarded after a period of study similar to that required for analogous degrees from a Canadian university, had not attained 70 points because the person had obtained a first degree after something less than three years of full-time study. In these circumstances, a visa officer might well conclude that a visa should be issued to the person because the units of assessment awarded underestimated his or her ability to become economically established in Canada.
In my opinion, the officer's interpretation of paragraphs (1)(d) and (e) was wrong and, in the absence of argument to the contrary, I am prepared to assume that the refusal to issue a visa to the appellant was therefore erroneous in law. I have concluded, largely for the reasons that appealed to Lemieux J. in Khan, supra, that textual considerations on balance favour construing paragraphs (1)(d) and (e) as independent. Moreover, when the issue is considered from the perspective of the selection policy for independent visa applicants, namely, an applicant's ability to become established economically in Canada, a person with an advanced degree would not necessarily be at a disadvantage in the labour market simply because she or he had obtained a first-level degree after less than three years of full-time study, or its equivalent.
When interpreting a statutory provision in the context of a fact situation not apparently foreseen by the legislator, the Court may also appropriately take into account the likely practical consequences of the possible interpretations. As I have already indicated, each of the interpretations of Factor 1(1)(e) that are in contention here can lead to a result that a visa officer may well think requires the exercise of discretion under subsection 11(3) of the Regulations: the broad interpretation may sometimes require the exercise of negative discretion, while an exercise of positive discretion may be called for in some situations if the narrow interpretation were correct.
Other considerations permitting, a court should favour the interpretation of a statutory provision in a regulatory scheme that is compatible with maintaining a proper balance between rule and discretion in the administration of the legislation, and thus more effectively renders accountable any exercise of discretion that is needed to deal with unusual fact situations. As counsel for the Minister noted, there is a heavier onus on a visa officer to justify the exercise of negative discretion under paragraph 11(3)(b) of the Regulations than there is with respect to the exercise of, or refusal to exercise, a positive discretion under paragraph (a): see, for example, Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350, 363 (F.C.T.D.); Sadeghi v. Canada (Minster of Citizenship and Immigration), [2000] 4 F.C. 337 (F.C.A.).
It was argued by counsel for the Minister that, even if the Court concluded that the visa officer was wrong in law not to award the appellant 16 units, the decision refusing him a visa should not have been set aside by the Motions Judge because the error was not material: the appellant would still be one unit short of the 70 normally required before a visa officer will issue a visa.
In my opinion, this is not sufficient to justify the Court in exercising its discretion not to set aside a legally erroneous decision. It is possible that, if the appellant had been credited with the appropriate number of units under the education factor, the visa officer might have found an additional unit under the personal suitability factor or exercised a positive discretion. Beyond this, it is not appropriate for the Court to speculate on the ultimate disposition of the appellant's visa application.
| For these reasons, I would answer the certified question, |
| does Schedule I of the Immigration Regulations, 1978, SOR/78-172, require that 16 units of assessment must be awarded to an applicant with a second- or third-level university degree, even if the applicant has not provided evidence of a first-level university degree requiring at least three years of full time study? |
in the affirmative, allow the appeal, set aside the order of the Trial Division and the decision of the visa officer and remit the matter to another visa officer to redetermine the appellant's visa application in accordance with these reasons.
"John M. Evans"
J.A.
"I agree
A.J. Stone J.A."
Date: 20010108
Docket: A-503-98
CORAM: STONE J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
MOHAMMAD NAZIM HAMEED
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ISAAC J.A.
I have had the privilege of reading the reasons of my colleague Evans J.A. I would prefer to dispose of the appeal on the basis of the reasons given by Lemieux J. in Khan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1720 (F.C.T.D) (QL).
Consequently, I would answer the question posed by the Motions Judge in the affirmative, set aside the Order of the Motions Judge, allow the appeal with costs and refer the
appellant's application for permanent residence in Canada to another visa officer for redetermination in accordance with the reasons of Lemieux J., which I adopt as my own.
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