Date: 20030417
Docket: IMM-1769-01
Citation: 2003 FCT 449
Ottawa, Ontario, this 17th day of April, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
NAZIA IFTIKHAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Reasons and order delivered orally from the Bench on March 18, 2003)
[1] Nazia Iftikhar seeks judicial review of the decision of the visa officer refusing her application for permanent residence. She asked to be assessed against the requirement for Education Program Coordinator (NOC-4166.0).
[2] In the last twenty years, Mrs. Iftikhar has been an elementary school teacher, a reading coordinator and a school Head or Principal in Pakistan. She holds a Bachelor of Art degree (a 2 year course) from the University of Punja and a Bachelor of Education degree (1 year course) from the Government College of Education for Women, Lahore, Pakistan.
[3] The visa officer refused her application principally because he found that she did not have the qualifications listed by the NOC for this occupation that is a Bachelor in Education or in a discipline such as Social Science or Business Administration. With 0 unit in this category (occupational factor) Mrs. Iftikhar could not qualify as a permanent resident pursuant to section 11(2) of the Immigration Regulations, 1978, SOR 78-172, (the "Regulations") unless she had an offer of suitable employment in Canada, which was not the case.
[4] With respect to the other criteria referred to in the Regulations, the following units were awarded to the applicant:
Age 02
Occupational Factor 00
ETF/SVP 17
Experience 00
Demographic Factor 08
Education 13
English 09
French 00
Bonus 05
Personal Suitability 06
Total: 60
[5] Mrs. Iftikhar submits that the visa officer erred in law in his findings that she did not have a Bachelor of Education as required by the NOC because in doing so he based himself solely on the length of the course she followed (1 year) versus the 3 years normally required to obtain a similar degree in Canada.
[6] The applicant argues that this error impacted on the visa officer's assessment in four categories and are as follows:
Occupational Factor 1 *
Education 2 *
Experience 8 *
Personal Suitability 2 *
* Number of additional units which should have been awarded.
The correct total number of units would then have been 73, that is more than what is required under the Regulations.
[7] The respondent argues that the visa officer was entitled to look beyond the title of Mrs. Iftikhar's Bachelor degree and to consider that her degree was not a proper equivalent of the Canadian Bachelor degree required under the Regulations. His decision was therefore reasonable on the face of the evidence put forward by the applicant.
[8] The Court finds that there is no indication in the CAIPS notes or the refusal letter that the visa officer looked at anything other than the length of the course followed by Mrs. Iftikhar to obtain her Bachelor degree.
[9] In any event, having made this finding of fact, the visa officer was, according to the respondent, entitled to discard the applicant's experience because she carried out those duties without being qualified. This argument is based on the wording of the introductory paragraph of Schedule I, section 3 (Experience) of the Regulations.
[10] The Court agrees with the reasoning of Dawson J. in the Chatterjee v. Canada (Minister of Citizenship and Immigration) 2001 FCT 240 and finds that the visa officer erred in law in not considering whether Mrs. Iftikhar's Bachelor degree was equivalent to the degrees those required under the NOC by virtue of factors other than simply the years of study.
[11] This means that Mrs. Iftikhar could have been entitled to an additional 9 units under the occupational factor and experience criteria.
[12] However, the Court does not agree with the applicant that she was entitled to an extra 2 units under "education" for, in order to get those units, she had to have "a first level University degree that requires at least 3 years of full time study" (Schedule I, section 1(d) of the Regulations).
[13] The applicant argues that in calculating those units, the visa officer should have added all the degrees or diplomas of the applicant, in this case, 2 years plus 1 year. However, section 1 (Education) (3)(4) of Schedule I states clearly that:
| (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.
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(3) Lors de la détermination du nombre de points d'appréciation à attribuer, selon l'alinéa applicable du paragraph (1), un seul diplôme ou certificat est pris en considération.
(4) Les points d'appréciation visés aux alinéas (1)b) à e) ne peuvent être attribués cumulativemetn et seul le nombre de points le plus élevé, parmi les alinéas applicables, est retenu.
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None of Mrs. Iftikhar's Bachelor degrees required 3 years of full time study. She was thus, not entitled to any additional units in this category.
[14] With respect to "personal suitability", Mrs. Iftikhar recognizes that the assessment is discretionary and that one could not forcefully argue that the officer should have awarded her an additional 2 units, rather she says that he may have. The Court finds that the visa officer properly considered how Mrs. Iftikhar's academic record and the fact that she followed a shorter course could put her at a disadvantage and impair her abilities to compete for employment in Canada and to successfully establish herself in Canada. His decision in this respect was not unreasonable and Mrs. Iftikhar is not entitled to any additional units in this category.
[15] In light of the foregoing, the Court must conclude that even though the visa officer made a reviewable error with respect to his assessment under "occupational factor" and "experience", the total that Mrs. Iftikhar would have obtained is 69 units. Thus, this reviewable error is immaterial to the ultimate decision and cannot justify the Court granting this application (See Bedi v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1596 (QL) and Syed v. Canada (Attorney General), [1999] F.C.J. No. 451 (QL)).
[16] The parties agreed that there are no questions to be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general importance is certified.
" Johanne Gauthier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1769-01
STYLE OF CAUSE: Nazia Iftikhar v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 18, 2003
REASONS FOR ORDER AND ORDER: GAUTHIER J.
DATED: Delivered orally on the Bench and filed on
April 17, 2003
APPEARANCES:
Ms. Wennie Lee FOR APPLICANT
Ms. Mielka Visnic FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Wennie Lee FOR APPLICANT
610-255 Duncan Mill Road
Toronto, Ontario, M3B 3H9
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
3400-130 King Street West,
Toronto, Ontario, M5X 1K6