Tuesday, February 28, 2012


The Federal Court of Appeal has ruled that no points can be awarded for education  unrelated to the degree in a Skilled Worker application.

Lee v. Canada (Minister of Citizenship and Immigration)
Between Martin Tan Lee, Appellant, and
Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 238

2012 FCA 54

Docket A-213-11

 Federal Court of Appeal
Toronto, Ontario

Layden-Stevenson, Gauthier and Stratas JJ.A.

Heard: February 15, 2012.
Oral judgment: February 15, 2012.

(9 paras.)

Appeal from an Order of the Honourable Madam Justice Snider dated May 26, 2011, Docket No. IMM-6513-10, [2011] F.C.J. No. 790.

The judgment of the Court was delivered by

1     STRATAS J.A. (orally):-- Mr. Lee appeals from a judgment of the Federal Court (per Justice Snider): 2011 FC 617.

2     Mr. Lee had applied for a permanent resident visa under the "federal skilled worker class" described in the Immigration and Refugee Protection Regulations, SOR/2002-227. A designated immigration officer rejected Mr. Lee's application on the basis that he failed to earn the minimum number of points needed to qualify for the visa.

3     The Federal Court dismissed Mr. Lee's application for judicial review, finding that the immigration officer committed no reviewable error. In doing so, it certified the following as a question of general importance:

·       In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time or full-time equivalent studies that did not contribute to obtaining the educational credential being assessed? 

4     Recently, in another appeal, this Court considered this very question and answered it in the negative: Khan v. Canada (Citizenship and Immigration), 2011 FCA 339. The appellant has not convinced us that Khan is manifestly wrong. Accordingly, we must answer the certified question in this case in the negative.

5     In addition to the issue raised by the certified question, Mr. Lee raises other issues in this Court. These broadly relate to the substantive merits of the designated immigration officer's decision and his failure to provide reasons.

6     Mr. Lee raised these same issues in the Federal Court, submitting that the designated immigration officer's decision should be set aside. As mentioned above, the Federal Court found no reviewable error.

7     For substantially the same reasons as the Federal Court, we agree that there is no reviewable error.

8     Finally, in this Court, the appellant submits that the decision was "lawfully invalid" because outdated forms were used. The CAIPS notes show that there was updating of the appellant's file. In our view, the appellant's submission in this respect elevates form over substance.

9     Therefore, notwithstanding counsel's spirited submissions, we shall answer the certified question in the negative and dismiss the appeal.


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