Case Name:
Rahman v. Canada (Minister of Citizenship and Immigration)
Rahman v. Canada (Minister of Citizenship and Immigration)
Between
Mohammad Mahabubur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Mohammad Mahabubur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 884
2013 FC 835
Docket IMM-8703-12
Federal Court
Toronto, Ontario
Gagné J.
Heard: May 30, 2013.
Judgment: August 1, 2013.
Docket IMM-8703-12
Federal Court
Toronto, Ontario
Gagné J.
Heard: May 30, 2013.
Judgment: August 1, 2013.
(29 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
GAGNÉ J.:--
I. Introduction
1 Mr.
Mohammad Mahabubur Rahman's application for permanent residence as a member of
the economic class [application] was refused by an Immigration Officer who did
not find that he had the ability to become economically established in Canada
in application of subsection 12(2) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], as he
obtained 62 points out of the 67 required.
2 The
Applicant seeks judicial review of that decision, arguing that: (i) the
selection criteria for the federal skilled worker [FSW] class under subsections
75(1) and 76(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations]
entitled him to a greater number of points with respect to education and work
experience; (ii) the Officer did not give him a fair opportunity to contradict
the outcome of a fraud investigation that was not properly disclosed to him;
and (iii) the Officer should have conducted a substituted evaluation under
subsection 76(3) of the Regulations since the number of points awarded to him
was not a sufficient indicator of his ability to become economically
established in Canada.
II. Background
3 The
Applicant is a 36-year-old citizen of Bangladesh. He gave evidence of the
following educational credentials: (i) a Secondary School Certificate [SSC]
from the Board of Intermediate and Secondary Education of Dhaka, dated July 31,
1993; (ii) a Higher Secondary Certificate [HSC] from the Board of Intermediate
and Secondary Education of Dhaka, dated July 1995; (iii) a Bachelor of Science
from the National University of Bangladesh; (iv) a Master of Science in
Mathematics from the National University of Bangladesh; (v) a Dental Office and
Chairside Assistant diploma from CDI College, dated November 3, 2006; and (vi)
a Business Administration in International Trading diploma from Evergreen
College, dated November 2008.
4 According
to the Applicant's transcripts, the duration of his Bachelor of Science and
Master of Science degrees was 3 years and 1 year, respectively. His application
stated that his Bachelor of Science was a 4-year degree and that the duration
of the pre-university SSC and HSC programs was 12 years, for a total of 16
years.
5 The
Applicant worked as a mathematics instructor at Polygon English Academy
[Polygon], part-time from January 22, 2000 to May 2002, and full-time from May
2, 2002 to May 2004. As proof of employment, he presented documents allegedly
issued by the Bangladesh Income Tax Office and by Polygon. Offers of employment
from Polygon, dated January 25, 2000 and April 25, 2002, state that the
Applicant was required to work 26 hours per week as a part-time instructor and
40 hours per week as a full-time instructor.
6 In
August 2004, the Applicant came to Canada on successive study permits and made
his application on November 12, 2008.
7 On
May 9, 2010, the High Commission of Canada in Dhaka found that the Applicant's
tax documents were fraudulent because: (i) they were issued and signed on
January 27, 2010, by an employee who left his position at the tax office on
February 24, 2009; (ii) he was not a taxpayer in Bangladesh or was not issued a
taxpayer number until January 28, 2010; and (iii) the wet seal on the income
tax documents did not match the wet seal used by Bangladesh tax authorities.
8 On
May 9, 2010, an agent of the High Commission went to Polygon to confirm the
Applicant's work experience. He learned that, before 2005, Polygon was a
coaching centre, not an educational institution.
9 As
a result of that investigation, the Officer notified the Applicant that his tax
documents and employer's documents were fraudulent. On May 23, 2012, the
Applicant, through his counsel, sought clarification as the "letter [did]
not make it clear to [him] exactly what information has been verified, when, by
whom and by what means, and what exactly (what part of the information or
documents) is deemed to be 'fraudulent' ".
10 The
Applicant also provided a letter from Polygon confirming his work experience as
a part-time instructor from January 2000 to May 2002 and as a full-time
instructor from May 2002 to May 2004.
11 The
agent of the High Commission made a second site visit to Polygon, who confirmed
that prior to 2005, Polygon was a coaching centre and not a school.
III. Decision under Review
12 The
Officer found that the Applicant could not be selected under subsection 12(2)
of the IRPA because the selection criteria in subsection 76(1) of the
Regulations did not entitle him to the minimum number of points required for FSWs.
The Officer assessed the Applicant under NOC 4131: College and Other Vocational
Instructors National Occupation Classification [NOC 4131 class], awarding him
62 points under the selection criteria; 10 for age; 22 for education; 8 for
official language proficiency; 17 for work experience; and 5 for adaptability.
13 The
Officer awarded the Applicant 22 points for the education factor pursuant to
paragraph 78(2)(e) of the
Regulations. According to certificates provided by the Applicant, the program
of study for his Master of Science degree in Bangladesh only consisted of a
total of 16 years of study: 12 years of pre-university study; 3 years of study
for a bachelor's degree; and 1 year of study for a master's degree.
Consequently, he was ineligible for 25 points under paragraph 78(2)(f) of the Regulations, which requires at
least 17 years of completed full-time or full-time equivalent studies.
14 The
Applicant's two years of work experience at Polygon from May 2002 to May 2004
merited 17 points for work experience under paragraph 80(1)(b) of the Regulations. The Officer did not
award the Applicant points for his previous part-time work as he did not
provide evidence on the number of hours of work he completed or indicate that
he had performed work at the college or vocational level. Nor did the Officer
award him points for work since 2004 as he did not provide evidence of other
work experience at NOC skill type 0 or skill level A or B.
15 As
the Applicant does not contest the way the other selection criteria were
assessed by the Officer, there is no need to summarize his findings for the
purpose of the present reasons.
IV. Issues
Did the Officer assess
the education factor reasonably?
Did the Officer assess
the work experience factor reasonably?
Did the Officer breach
the duty of procedural fairness?
Does the decision raise
a reasonable apprehension of bias?
V. Analysis
Standard of review
16 A
visa officer's assessment of a permanent resident application under the FSW
class involves questions of mixed law and fact that are reviewable on the
reasonableness standard (Mahouri v Canada (Minister of
Citizenship and Immigration), 2013 FC 244, [2013]
F.C.J. No. 278 at para 11). The same standard applies to a decision to exercise
the discretion to conduct a substituted evaluation under subsection 76(3) (Eslamieh v Canada (Minister of Citizenship and Immigration), 2008 FC 722, [2008] F.C.J. No. 909 [Eslamieh]). However, whether a decision raises a reasonable apprehension of
bias is assessed on the correctness standard (Azziz v
Canada (Minister of Citizenship and Immigration), 2010
FC 663, [2010] F.C.J. No. 767).
Assessment of the education factor
17 The
Applicant argues that he was entitled to additional points for education. In
his view, paragraph 78(2)(f) of
the Regulations entitled him to 25 points because he had a university
educational credential at the master's level and a total of 19 years of completed
full-time or full-time equivalent studies. In the alternative, he asserts that
subsection 78(4) of the Regulations required the Officer to award the same
number of points he would be awarded if he had satisfied both requirements for
paragraph 78(2)(f). CitingMcLachlan v Canada, 2009 FC 975, [2009]
F.C.J. No. 1183 [McLachlan], he
argues that subsection 78(4) required the Officer to award 25 points for his
master's degree as if he satisfied the length of study requirement in paragraph
78(2)(f).
18 For
the reasons that follow, I am of the opinion that the Officer's finding that
the Applicant did not establish that he met the duration of study requirement
under paragraph 78(2)(f) is
reasonable (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).
19 Subsection
78(4) did not require the Officer to award the Applicant the points he would
have been entitled to as if he had he satisfied the duration of study
requirement. Paragraph 78(2)(f)
awards 25 points to applicants who demonstrate that they have: (i) a university
credential at the master's or doctoral level; and (ii) a total of at least 17
years of completed full-time or full-time equivalent studies.
20 While
the Applicant has a Master's degree in mathematics, he did not satisfy the
duration of study requirement. Based on the record, the Officer could
reasonably determine that he had completed only 16 years of full-time or
full-time equivalent studies. First, he consistently stated in his application
materials that he completed 12 years of pre-university studies. Second, while
he stated that his bachelor's and master's degrees were completed in 4 years
and 1 year, respectively, the Officer could reasonably rely on his National
University of Bangladesh transcripts, which stated that he completed his
bachelor's degree in 3 years and his master's in 1 year. Third, his studies at
CDI College and Evergreen College cannot be included in assessing the duration
of study requirement as the Officer was not permitted to award points for years
of full-time or full-time equivalent studies that did not contribute to his
Master's degree (Hasan v Canada (Minister of Citizenship
and Immigration), 2011 FCA 339, [2011] F.C.J. No. 1729
at para 56 [Hasan]). Since the
Applicant could only demonstrate that he had 16 years of study, he did not meet
the duration of study requirement under paragraph 78(2)(f) of the Regulations.
21 Subsection
78(4) does not assist the Applicant. It provides, when applied to the
Applicant's situation, that since he has a master's educational credential
under paragraph 78(2)(f) but not
a total of at least 17 years of full-time or full-time equivalent studies, then
the Officer shall award the applicant the same number of points as the same
number of years of completed full-time or full-time equivalent studies set out
in the paragraph or subparagraph.
22 The
Applicant cites McLachlan,
above, for the proposition that subsection 78(4) required the Officer to award
him the same number of points as if he had satisfied paragraph 78(2)(f).
23 In
Hasan, above, the Federal Court
of Appeal held that a decision-maker could reasonably award 22 points under
subparagraph 78(2)(e) (ii) of
the Regulations where the applicants had two master's degrees but "were
only credited with 16 years of full-time studies with respect to their master's
degree[s]" (at paras 2, 16, 21, and 55). Hasan overruled McLachlan,
concluding that subsection 78(4) did not entitle applicants with educational
credentials who fail to meet the duration of study requirement to the full
point allocation for their educational credential. The Federal Court of Appeal
clearly instructed this Court not to follow McLachlan as it was "wrongly decided" (at para 50) and
"fatally flawed" (at para 52).
Assessment of the work experience factor
24 In
terms of assessing the reasonableness of the decision, the issue of the
education points awarded to the Applicant is determinative. In the absence of
an award of further points under paragraph 78(1)(f), the Applicant could not attain the minimum of 67 points, even if he
were entitled to full points under the work experience factor. Even assuming
that the assessment of the Applicant's work experience is unreasonable, it
could not be determinative of his application. An unreasonable finding must be
determinative in order to be sufficient to return a decision for
redetermination (Lopez v Canada (Minister of Citizenship
and Immigration), 2012 FC 1444, [2012] F.C.J. No. 1567
at para 9).
25 The
same can be said with respect to the alleged apprehension of bias on the
Officer's part for not having given the Applicant the opportunity to contradict
the outcome of the investigation report. As it only concerns the Applicant's
work experience, it has no impact on the Officer's finding that the Applicant
could only be awarded 22 points for education.
26 Consequently,
the Court will not deal with the second and forth issues raised above.
The necessity to conduct a substituted evaluation
27 The
Applicant claims the Officer breached the duty of fairness in not conducting a
substituted evaluation under subsection 76(3) of the Regulations as the number
of points awarded to him was not a sufficient indicator of his ability to
become economically established in Canada. He submits that Jogiat v Canada (Minister of Citizenship and Immigration), 2009 FC 815, [2009] F.C.J. No. 1518 required the Officer to
explain why a substituted evaluation was not warranted.
28 The
Officer was not required to conduct a substituted evaluation under subsection
76(3). Justice Mosley, in Eslamieh, above at para 4, held that a decision-maker need not consider a
substituted evaluation "unless specifically requested to do so" (see
also Chowdhury v Canada (Minister of Citizenship and
Immigration), 2011 FC 1315, [2011] F.C.J. No. 1605 at
para 35). Since the Applicant did not request the Officer to exercise his
discretion pursuant to subsection 76(3), the decision is not unreasonable on
that ground.
VI. Conclusion
29 For
all of the foregoing reasons, the Applicant's application for judicial review
should be dismissed. The parties did not propose any question of general
importance for certification and none arises from this case.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The application for
judicial review is dismissed;
No question of general
importance is certified; and
No costs are
granted.
GAGNÉ J.
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