Federal Court Decisions

 

Date: 20120403

Docket: IMM-235-11

Citation: 2012 FC 390

Ottawa, Ontario, April 3, 2012

PRESENT:     The Honourable Madam Justice Bédard

 

 

BETWEEN:

	MOHAMMAD GOLAM SABUR
		Applicant
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The applicant is a citizen of Bangladesh who applied for permanent residence in Canada as a member of the Federal Skilled Worker class. His intended occupation in Canada was that of a Financial Manager as described in the National Occupation Classification (NOC) 0111. His application, filed pursuant to section 11 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act] was rejected by an immigration officer (the immigration officer) on November 8, 2010. The applicant was awarded 64 points whereas he required 67 points to be a successful applicant. This application for judicial review challenges that decision. The issue at bar relates to the points that the immigration officer awarded to the applicant in regard to his educational credentials.

 

[2]               For the reasons that follow, the application is dismissed.

 

I. Decision under review

[3]               The assessment of applications for permanent residence is governed by the grid and parameters provided in the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. Section 78 of the Regulations sets out the points to be awarded with respect to education:

 

 

[4]               The applicant holds a Bachelor of Commerce degree in accounting from the University of Dhaka, a Master’s degree in accounting, also from the University of Dhaka, and a Cost Management Accountant (CMA) degree from the Institute of Chartered Accountants of Bangladesh.

 

[5]               The immigration officer awarded the applicant 22 points for these credentials pursuant to subparagraph 78(2)(e)(ii) of the Regulations. The relevant excerpt of the decision reads as follows:

. . . You were awarded 22 points for Education, on the strength of your full-time equivalents of a 1-year bachelor’s of commerce degree (concentration: accounting) and a 2-year master’s degree (concentration: accounting), respectfully; this is equivalent to 15 years of full-time study and having two or more university credentials. . . .

 

 

[6]               In his Computer Assisted Immigrant Processing System (CAIPS) notes, the officer explains that:

EDUCATION CREDENTIALS ARE NTO TO BE STACKED (RE ACCOUTNING CREDENTIAL). MAX LEVEL OF PA’S STUDY IS A RESUTL OF THE COMBINATION OF HIS BACH AND MASTERS, RESULTING IN 15 YEARS OF STUDY, AND TWO OR MORE UNIVERSITY CREDENTIALS AT THE BACH LEVEL – STACKING OF PA’S ACCOUTNING CREDENTIAL IS NOT AUTHORIZED IN IRPAA AND WOULD NOT QUALIFY FOR CONSIDERATION TOWARD 17 YEARS OF FT STUDY AND A UNIVERSITY CRED AT MASTERS OR PHD LEVEL.

 

[Sic throughout]

 

II. Issue and standard of review

[7]               The only issue to be determined in this case is whether the immigration officer erred in awarding the applicant a mere 22 points for his educational credentials pursuant to subparagraph 78(2)(e)(ii) of the Regulations, rather than the full 25 points to which the applicant believes he is entitled pursuant to paragraph 78(2)(f) of the Regulations. The Federal Court of Appeal in Khan v Canada (Minister of Citizenship and Immigration), 2011 FCA 339 at para 26 (available on CanLII) [Khan] stated that the standard of review in cases such as the one at bar is correctness.

 

III. Analysis

[8]               The applicant argues that all three of his university degrees must be counted towards his years of education for the purposes of section 78 of the Regulations. The applicant alleges that the CMA degree is not simply a second Bachelor’s degree, as characterized by the immigration officer. Rather, the CMA degree must be counted as years of education in the “line of progression” of education, because having a Bachelor’s degree was a prerequisite to enrolling in the CMA program. Further, as the CMA degree is a professional degree akin to a law degree, the CMA degree falls under one of the exceptions mentioned by the Federal Court of Appeal in Khan, above, at paragraph 32. Finally, the applicant argues that his educational background clearly meets the criteria for earning 25 points pursuant to paragraph 78(2)(f) of the Regulations: he holds a Master’s degree and has 17.5 years of study, including his CMA, which accounts for 2.5 years.

 

[9]               The respondent, for his part, argues that the officer did not err in his interpretation and application of the grid set out in section 78 of the Regulations. The respondent maintains that the applicant’s arguments are identical to the ones that failed before the Federal Court of Appeal in Khan, above, and accordingly should fail, once again. Furthermore, the exception mentioned at paragraph 32 of Khan only applies to individuals whose credentials would otherwise earn them 20 points rather than 22 points, but does not apply to individuals whose credentials otherwise earn them 22 points rather than 25 points, as in the applicant’s case. In other words, the exception only applies to paragraph 78(2)(d) of the Regulations, and not to paragraph 78(2)(f).

 

[10]           The applicant’s arguments cannot succeed. Khan, above, provided extremely clear guidance as to how an immigration officer must assess educational credentials pursuant to section 78 of the Regulations, and Khan applies directly to the case at bar. This decision unequivocally explained that the applicant’s interpretation of the Regulations is erroneous.

 

[11]           In Khan, above, the following principles were clearly enunciated:

• Points may only be awarded on the basis of a single educational credential, namely the highest credential or, in other words, the one which awards the highest number of points (paragraphs 78(3)(a) and (b)). Additional credentials may not be considered;
• Points allowed for a credential include points for any prerequisite credentials (paragraph 78(3)(a)); 
• Points are not awarded for multiple credentials of the same level, subject to the exception set out in subparagraph 78(2)(e)(ii) which allows points for two or more credentials at the Bachelor’s level, when obtained through at least 15 years of study;
•  Points are awarded for a combination of educational credentials and years of study; and
• The number of years of study to be considered corresponds to the number of years of study normally required to obtain the credential in the country where the studies were completed. Therefore, years completed in excess of the years normally required to obtain the credential in question are not counted.  

 

[12]           The Federal Court of Appeal in Khan, above, at paragraph 53, summarized its interpretation of subsections 78(3) and (4) of the Regulations as follows:

To summarize, subsections 78(3) and (4) of the Regulations provide that applicants are to be assessed on the basis of their single highest educational credential, without cumulating points for other equal or lesser credentials. Where another credential is a pre-requisite for the higher credential, the years of study associated with that other credential are included in the program of studies for the higher credential established by the national authorities. Where the other credential is not a pre-requisite for the candidate's highest credential, the years of study leading to that credential are not to be cumulated with the years of completed study attributable to the highest credential, since the candidate's application is to be assessed on the basis of a single educational credential.

 

 

[13]           The immigration officer’s approach in the case at bar was the same as the one articulated in Khan, above. He determined that the applicant’s highest credential was a Master’s degree. He then determined that a Master’s degree in Bangladesh was equivalent to 15 years of education. Accordingly, the applicant did not meet the criteria enumerated at paragraph 78(2)(f) of the Regulations to earn 25 points, because a Master’s degree in Bangladesh was not equivalent to 17 years of study. The immigration officer proceeded to determine that the applicant more closely met the criteria enumerated in subparagraph 78(2)(e)(ii) of the Regulations, because he had at least two university credentials and a minimum of 15 years of study. Based on Khan, it was not open to the immigration officer to award any points for the years of study that the applicant completed in excess of the 15 years required to complete a Master’s degree in Bangladesh. As explained by the Federal Court of Appeal in Khan at paragraph 56:

In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, the visa officer does not award points for years of full-time or full-time equivalent studies that did not contribute to the educational credential being assessed. That is, visa officers must give credit only for those years of study which the national authorities identify as the norm for the achievement of the educational credential in issue.

 

 

Furthermore, the “line of progression” analysis raised by the applicant was determined to be fallacious in Khan, above, at paragraph 54 and, therefore, cannot succeed in this case.

 

[14]           For these reasons, I find the immigration officer’s interpretation of the applicant’s educational credentials correct.

 

[15]           The applicant proposed the following question for certification:

In assessing education under s. 78 of the Regulations, should a visa officer award 25 points under s. 78(2)(f), where there is a Master’s degree, 17 years of completed full-time or full-time equivalent studies and there are two educational credentials at the bachelor’s level where one bachelor’s degree is a pre-requisite to the second bachelor’s degree.

 

[16]           The respondent opposed the certification of this question on the grounds that it did not meet the criteria from Canada (Minister of Citizenship and Immigration) v Liyanagamage (1994), 51 ACWS (3d) 910, 176 NR 4 (FCA), being that (1) the question transcends the interests of the immediate parties to the litigation; (2) the question contemplates issues of broad significance or general application; and (3) the question is determinative of the appeal. I agree.

 

[17]           In my view, Khan, above, directly answered the question raised by the applicant. Therefore, it would not be determinative of an appeal and I find it unnecessary to certify the question.

 

 JUDGMENT

 

            THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question is certified.

 

 

"Marie-Josée Bédard"

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-235-11

 

STYLE OF CAUSE:                          MOHAMMAD GOLAM SABUR v MCI

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      March 14, 2012

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          BÉDARD J.

 

DATED:                                             April 3, 2012

 

 

 

APPEARANCES:

 

Chayanika Dutta	FOR THE APPLICANT
Asha Gafar	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Chayanika Dutta Barrister, Solicitor & Notary Public Toronto, Ontario	FOR THE APPLICANT
Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT