Federal Court Decisions

 

 

Date: 20101119

Docket: IMM-5481-09

Citation: 2010 FC 1159

Ottawa, Ontario, November 19, 2010

PRESENT:     The Honourable Madam Justice Heneghan

 

BETWEEN:

	HANS WILHEM THOMASZ SHIROMI PERERA  AYDEN KEON JEREMIAH PERERA
		Applicants
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR ORDER AND ORDER

 

[1]               Mr. Hans Wilhem Thomasz (the “Principal Applicant”), Shiromi Perera, and Ayden Keon Jeremiah Perera (the “Applicants”), seek judicial review of a decision of a Visa Officer (the “Officer”) denying him a permanent resident visa, as a skilled worker, pursuant to the provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”).

[2]               The Principal Applicant applied for permanent resident status as a “skilled worker”. Pursuant to subsection 76(2) of the Regulations, a skilled worker must obtain a minimum number of points, as established by the Minister of Citizenship and Immigration (the “Respondent”), in order to be eligible for entry into Canada. At the time of the Principal Applicant’s application, the number of points was fixed at 67. He obtained a total of 65 points, from a maximum available of 100 points.

 

[3]               The Principal Applicant claimed to have completed 19 years of full-time education, consisting of 5 years of elementary school, 7 years of secondary school and 7 years of post-secondary education. He was given 15 points for his education.  The Principal Applicant included the following information about his education, with his application:

From	To	Institution	Course / Level
1980	1992	St. Benedict’s College	High School
1990	1992	IDM Computer Studies	Post-secondary diploma
1995	1999	Technical Engineering College	Post-secondary diploma
1999	2000	National Institute of Information Technology	Post-secondary diploma
2001	2002	Turnkey Computer System	Post-secondary diploma

 

 

 

[4]               The Computer Assisted Immigration Processing System (“CAIPS”) shows that the only “recognized” post-secondary institution attended by the Principal Applicant was IDM Computer Studies. He completed the two year diploma at this institution while he was still attending secondary school.

 

[5]               The Principal Applicant had submitted a diploma, awarding a Master of Science degree. When the Officer sought further information about this degree, the Applicants’ consultant indicated that the Principal Applicant does not hold a master’s degree and that the document had been submitted in error.

 

[6]               The Officer requested further documentation in 2008. The requested material was submitted on December 29, 2008. On January 26, 2009, the Officer requested more documentation, including transcripts for all post-secondary courses undertaken by the Principal Applicant. This material was submitted on March 19, 2009.

 

[7]               The Applicants’ application was rejected on September 16, 2009. Subsequently, the Applicants’ immigration consultant sent in further submissions, including transcripts and the curricula from the programs the Principal Applicant attended.  The consultant also explained that since the Principal Applicant had a two year educational credential, he was entitled to all of the points associated with the educational credential, even without the necessary number of years.

 

[8]               By letter dated November 4, 2009, the Second Secretary (Immigration) of the High Commission of Canada in London, United Kingdom, confirmed that the Officer’s assessment was correct and refused to consider any documentation that was submitted after the decision of September 16, 2009.

 

[9]               Two issues are raised in this application for judicial review:

a.       Did the Officer breach the duty of fairness by not giving the Applicants the opportunity to address concerns about his education; and

b.      Did the Officer commit an error in law by awarding the Principal Applicant only 15 points for his education?

 

[10]           According to the decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, decisions of statutory decision-makers are reviewable on one of two standards, that is the standard of correctness or the standard of reasonableness.

 

[11]           Questions of procedural fairness are subject to review on the standard of correctness. Questions of fact and questions of mixed fact and law are subject to review on the standard of reasonableness. This application raises a question of mixed fact and law, that is the assessment of the Principal Applicant’s education against the criteria set out in the Regulations, and will be reviewed on the standard of reasonableness.

 

[12]           The Applicants argue that a breach of procedural fairness arose because the Officer did not give then notice, that is a “fairness” letter advising that some of the Principal Applicant’s post-secondary qualifications were not “academic credentials”. They argued that if he had known that the Officer believed that only one of his diplomas qualified, the Principal Applicant could have submitted additional evidence to address this concern.

 

[13]           In my opinion, the Applicants have failed to show that a breach of procedural fairness occurred.

 

[14]           The purpose of a “fairness” letter is to inform an applicant of the case to be met. In this case, the criteria to be met are set out in the Regulations. Section 73 defines an educational credential as follows:

 

[15]           The Principal Applicant submitted his applications in 2006. All of his post-secondary training, as listed in that application, was completed by 2002. However, in the covering letter that accompanied his application, the consultant noted that the Principal Applicant had a “two year diploma in computers, further complimented (sic) by a high diploma in computer programming”.  As well, when projecting the points for which the consultant believed the Principal Applicant to be eligible, the consultant indicated 20 points based on a two year diploma.

 

[16]           In response to the request from the Officer for further information, the consultant submitted further material on December 29, 2008. In that letter, the consultant continued to emphasize the two year diploma.

 

[17]           The only two year diploma held by the Principal Applicant was from IDM Computer Studies, the only recognized institution. That diploma was completed in 1992. The reliance by the Principal Applicant, and his consultant, on the two year diploma and not on the later four year diploma, suggests that the Principal Applicant knew that the other diplomas did not meet the regulatory requirements.

 

[18]           Since the Principal Applicant was aware that the Regulations required the educational credential issue from a recognized institution and further, that he knew that his diplomas did not qualify, he cannot claim a breach of procedural fairness resulting from the failure to give him notice of concerns about his educational qualifications. I am satisfied that no breach of procedural fairness occurred in the present case.

 

[19]           The Principal Applicant also submitted that the Officer erred in law in only awarding him 15 points, not the 20 points calculated by the consultant. Subsection 78(2) of the Regulations sets out the selection grid for education. The paragraphs that are relevant to this discussion are paragraphs 78(2)(b) to (d), inclusive, which provide as follows:

 

[20]           The Officer found that the Principal Applicant held a two year post-secondary diploma but had completed only 13 years of education. Pursuant to the application of paragraph 78(2)(c), the Principal Applicant was entitled to be awarded 15 points.

 

[21]           The Applicants argue that subsection 78(4) provides that where he has an educational credential but not the requisite number of years, he is entitled to the points for that credential. Subsection 78(4) is as follows:

 

[22]           The Applicants rely on the decision in McLachlan v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 176 (FC), arguing that McLachlan  supports his interpretation. The same argument was made in the recent cases of Kabir v. Canada (Citizenship and Immigration), 2010 FC 995, and Khan v. Canada (Citizenship and Immigration), 2010 FC 983, and was rejected.

 

[23]           In McLachlan, this Court held that subsection 78(4) is engaged where an individual has attained an academic credential but not the specified years of study. If adequate special circumstances exist the applicant should be awarded the number of points corresponding to the academic credential attained, notwithstanding that the applicant has not completed the specified years of study. The application was allowed due to the officer’s failure to consider the special circumstances of that case.

 

[24]           This Court in Bhuiya v. Canada (Minister of Citizenship and Immigration), 2008 FC 878, decided that where an applicant has achieved an academic credential in less years than specified, subsection 78(4) allowed an Officer to award points corresponding to the number of years of education, not the full points of the level of the academic credential attained. That is, subsection 78(4) cannot be used to award an applicant full points for an academic credential in special circumstances notwithstanding that he or she has not completed the requisite years of study.

 

[25]           In my opinion, the approach taken by Justice Mactavish in Bhuiya is preferable. In adopting that interpretation, I must depart from the decision in McLachlan. In Arias v. Canada (Citizenship and Immigration) (2009), 86 Imm. L.R. (3d) 1 (FC), I referred to the principle of judicial comity as follows:

[20] I am mindful that the principle of judicial comity must be taken into account when a judge of the Court purports to depart from a prior decision of the Court. In this regard, I refer to the decision in Almrei v. Canada (Citizenship and Immigration) (2007), 316 F.T.R. 49 at paras. 61 and 62 where Justice Lemieux said the following about judicial comity:

 

(3) The principle of judicial comity

 

61     The principle of judicial comity is well-recognized by the judiciary in Canada. Applied to decisions rendered by judges of the Federal Court, the principle is to the effect that a substantially similar decision rendered by a judge of this Court should be followed in the interest of advancing certainty in the law….

 

62     There are a number of exceptions to the principle of judicial comity as expressed above they are:

 

1.   The existence of a different factual matrix or evidentiary basis between the two cases;

2.   Where the issue to be decided is different;

3.   Where the previous condition failed to consider legislation or binding authorities that would have produced a different result, i.e., was manifestly wrong; and

4.    The decision it followed would create an injustice [citations omitted].

 

 

[26]           In my opinion, the first and third exceptions from Almrei apply here. The Applicants have not put forward any special circumstances that the Officer failed to consider.

 

[27]           The third exception from Almrei is particularly relevant.

 

[28]           This Court’s decision in McLachlan is precluded by the holding in Bhuiya, which was rendered before McLachlan. 

 

[29]           Following the approach consistent with Bhuiya, the Officer reasonably applied subsection 78(4) in this case. In the result, this application for judicial review is dismissed. No basis for judicial intervention has been shown.

 

[30]           Counsel for the parties have jointly proposed the following question for certification:

When a skilled worker visa applicant has achieved an educational credential referred to in a particular subparagraph in Regulation 78(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 but not the total number of years of study required by that subparagraph, does section 78(4) require the visa officers to award the number of points based on the applicant’s highest educational credential or based on the applicant’s years of study?

 

 

[31]           The test for certification is whether the case raises a question of general importance which would be dispositive of an appeal; see Canada (Minister of Citizenship and Immigration) v. Zazai (2004), 247 F.T.R. 320 (F.C.A.).

 

[32]           Since the cases dealing with this issue are at odds, the question posed is one of general importance, and would be dispositive of an appeal.

 

ORDER

 

THIS COURT ORDERS that this application for judicial review is dismissed and the following question is certified:

When a skilled worker visa applicant has achieved an educational credential referred to in a particular subparagraph in Regulation 78(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 but not the total number of years of study required by that subparagraph, does section 78(4) require the visa officers to award the number of points based on the applicant’s highest educational credential or based on the applicant’s years of study?

 

 

 

 

“E. Heneghan”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-5481-09

 

STYLE OF CAUSE:                          HANS WILHEM THOMASZ, SHIROMI PERERA, AYDEN KEON JEREMIAH PERERA v.

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                    Toronto, ON

 

DATE OF HEARING:                      June 22, 2010

 

 

REASONS FOR ORDER

AND ORDER:                                   HENEGHAN J.

 

DATED:                                             November 19, 2010

 

 

APPEARANCES:

 

Clare Crummey Lorne Waldman	FOR THE APPLICANTS
Marina Stefanovic	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Lorne Waldman Barrister and Solicitor Toronto, ON	FOR THE APPLICANTS
Myles J. Kirvan Deputy Attorney General of Canada Toronto, ON	FOR THE RESPONDENT