Ijaz v. Canada (Minister of Citizenship and
Immigration)
Between
Minaa Ijaz, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Minaa Ijaz, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 55
2015 FC 67
Docket: IMM-4516-13
Federal Court
Toronto, Ontario
Strickland J.
Heard: November 27, 2014.
Judgment: January 16, 2015.
Docket: IMM-4516-13
Federal Court
Toronto, Ontario
Strickland J.
Heard: November 27, 2014.
Judgment: January 16, 2015.
(56 paras.)
JUDGMENT AND REASONS
1 STRICKLAND
J.:-- The Applicant, Minaa Ijaz, is a citizen of Pakistan who applied for
permanent residence status in Canada as a federal skilled worker (FSW) pursuant
to s. 12(2) of the Immigration and Refugee Protection
Act, SC 2001, c 27, (IRPA) and s. 75(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRP Regulations). A Citizenship and Immigration Canada (CIC)
officer (Officer) denied her application. This is the judicial review of that
decision.
Background Facts
2 In
her May 4, 2013 application for permanent residence, the Applicant identified
her occupation as a financial analyst which corresponded with National
Occupational Classification Code 1112 of the FSW program. As required, she included
with her application a Credential Evaluation and Authentication Report from
World Education Services Canada (WES), an organization which is designated
pursuant to s. 75(4) of the IRP Regulations to conduct equivalency assessments.
3 Along
with complying with other admission criteria, FSW applicants are assessed and
awarded points based on the selection criteria set out in s. 76(1)(a) of the
IRP Regulations: age, education, proficiency in Canada's official languages,
arranged employment, experience and adaptability. Applicants must obtain a
minimum number of 67 points in order for their application to be approved, as
set out in s. 361(4)(b) of the IRP Regulations. By letter dated June 19, 2013,
the Officer advised the Applicant that she had obtained only 57 points,
including 5, of a potential 25, for education. Accordingly, she had not
demonstrated that she would be capable of becoming economically established in
Canada.
4 The
Applicant submits that the Officer erroneously awarded her only 5 educational
qualification points, as opposed to the 19 points, at minimum, that she was
entitled to and contends that had the Officer awarded her the correct number of
points, she would have met the requirements of the FSW program and her permanent
residency would have been granted.
Legislative Framework
5 It
is necessary to set out, in some detail, the legislative framework of this
matter. Pursuant to the Regulations Amending the
Immigration and Refugee Protection Act Regulations,
SOR/2012 274, December 7, 2012, ss. 75(2)(e) and 78 (which came into force May
4, 2013), and ss. 75(4) and 75(8) (which came into force January 2, 2013),
amongst other sections of the IRP Regulations, were amended. At the hearing of
this matter, counsel advised that this was the first time that the amended
provisions had been the subject of judicial review.
6 Section
73(1) of the IRP Regulations defines "Canadian educational
credential" and "equivalency assessment" as follows:
"Canadian educational credential"
·
"Canadian educational
credential" means any diploma, certificate or credential, issued on the
completion of a Canadian program of study or training at an educational or
training institution that is recognized by the provincial authorities
responsible for registering, accrediting, supervising and regulating such
institutions.
"equivalency assessment"
·
"equivalency
assessment" means a determination, issued by an organization or
institution designated under subsection 75(4), that a foreign diploma,
certificate or credential is equivalent to a Canadian educational credential
and an assessment, by the organization or institution, of the authenticity of
the foreign diploma, certificate or credential.
* * *
"diplôme canadien"
·
"diplôme canadien"
Tout diplôme, certificat ou attestation obtenu pour avoir réussi un programme
canadien d'études ou un cours de formation offert par un établissement
d'enseignement ou de formation reconnu par les autorités provinciales chargées
d'enregistrer, d'accréditer, de superviser et de réglementer de tels
établissements.
"attestation d'équivalence"
·
"attestation
d'équivalence" S'entend d'une évaluation faite par une institution ou
organisation désignée en vertu du paragraphe 75(4), à l'égard d'un diplôme,
certificat ou attestation étranger, attestant son équivalence avec un diplôme
canadien et se prononçant sur son authenticité.
7 Section
75(2)(e) of the IRP Regulations requires foreign nationals to submit their
Canadian educational credentials, or, to submit their foreign diploma,
certificate or credential and an equivalency assessment as part of the
information necessary to make the determination of whether they qualify as a
FSW:
Federal Skilled Worker Class
Skilled workers
A foreign national is a
skilled worker if
·
[...]
they have submitted one
of the following:
their Canadian
educational credential, or
their foreign diploma,
certificate or credential and the equivalency assessment, which assessment must
be less than five years old on the date on which their application is
made.
* * *
Travailleurs qualifiés (fédéral)
Qualité
Est un travailleur
qualifié l'étranger qui satisfait aux exigences suivantes:
·
[...]
il a soumis l'un des
documents suivants
son diplôme canadien,
son diplôme, certificat
ou attestation étranger ainsi que l'attestation d'équivalence, datant de moins
de cinq ans au moment où la demande est faite.
8 These
educational credentials are evaluated by organizations or institutions
designated for that purpose pursuant to s. 75(4) of the IRP Regulations, and
who are responsible for issuing equivalency assessments:
Designation for equivalency assessment
For the purposes of
paragraph (2)(e) and subsection (2.1), the Minister may designate, for a period
specified by the Minister, any organization or institution to be responsible
for issuing equivalency assessments
if the organization or
institution has the recognized expertise to assess the authenticity of foreign
diplomas, certificates and credentials and their equivalency to Canadian
educational credentials; and
if, in the case of a
professional body, their equivalency assessments are recognized by at least two
provincial professional bodies that regulate an occupation listed in the
National Occupational Classification matrix at Skill Level A or B for which
licensing by a provincial regulatory body is required.
* * *
Désignation pour les attestations d'équivalence
Pour l'application de
l'alinéa (2)e) et du paragraphe (2.1), le ministre peut, en se fondant sur les
critères ci-après, désigner, pour la durée qu'il précise, des institutions ou
organisations chargées de faire des attestations d'équivalences:
l'institution ou
l'organisation est dotée d'une expertise reconnue en matière d'authentification
et d'évaluation des diplômes, certificats ou attestations étrangers visant à
établir leur équivalence avec les diplômes canadiens;
s'agissant d'un ordre
professionnel, ses attestations d'équivalence sont reconnues par au moins deux
organismes provinciaux de réglementation professionnelle régissant une
profession exigeant un permis délivré par un organisme provincial de
réglementation et appartenant au niveau de compétence A ou B de la matrice de
la Classification nationale des professions.
9 Section
75(8) of the IRP Regulations pertains to the evidentiary effect of the
equivalency assessment:
Conclusive evidence
For the purposes of
paragraph (2)(e), subsection (2.1) and section 78, an equivalency assessment is
conclusive evidence that the foreign diplomas, certificates or credentials are
equivalent to Canadian educational credentials.
* * *
Preuve concluante
Pour l'application de
l'alinéa (2)e), du paragraphe (2.1) et de l'article 78, l'attestation
d'équivalence constitue une preuve concluante, de l'équivalence avec un diplôme
canadien, du diplôme, du certificat ou de l'attestation obtenu à
l'étranger.
10 Section
76(1)(a) of the IRP Regulations concerns the minimum number points to be
awarded pursuant to selection criteria, including education:
Selection criteria
(1) For the purpose of
determining whether a skilled worker, as a member of the federal skilled worker
class, will be able to become economically established in Canada, they must be
assessed on the basis of the following criteria:
the skilled worker must
be awarded not less than the minimum number of required points referred to in
subsection (2) on the basis of the following factors, namely,
* * *
Critères de sélection
(1) Les critères
ci-après indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifiés (fédéral):
le travailleur qualifié
accumule le nombre minimum de points visé au paragraphe (2), au titre des
facteurs suivants:
11 Section
78 of the IRP Regulations specifies how points are to be allotted for a skilled
worker's Canadian educational credential or equivalency assessment submitted in
support of an application:
Selection Grid
Education (25 points)
(1) Points shall be
awarded, to a maximum of 25, for a skilled worker's Canadian educational
credential or equivalency assessment submitted in support of an application, as
follows:
5 points for a secondary
school credential;
·
[...]
19 points for a two-year
post-secondary program credential;
23 points for a
university-level credential at the master's level or at the level of an
entry-to-practice professional degree for an occupation listed in the National Occupational Classification matrix at
Skill Level A for which licensing by a provincial regulatory body is required;
and
·
[...]
* * *
Grille de sélection
Études (25 points)
(1) Un maximum de 25
points d'appréciation sont attribués au travailleur qualifié pour tout diplôme
canadien ou pour toute attestation d'équivalence fournis à l'appui de la
demande, selon la grille suivante:
5 points, pour le
diplôme de niveau secondaire;
·
[...]
19 points, pour le
diplôme de niveau postsecondaire visant un programme nécessitant deux années
d'études;
23 points, pour le
diplôme de niveau universitaire de deuxième cycle ou pour le diplôme visant un
programme d'études nécessaire à l'exercice d'une profession exigeant un permis
délivré par un organisme de réglementation provincial et appartenant au niveau
de compétence A de la matrice de la Classification
nationale des professions;
·
[...]
12 Lastly,
s. 78(2)(b) of the IRP Regulations mandates that applicants are entitled to be
awarded the highest number of points justified in their application for their
educational credentials:
More than one educational credential
For the purposes of
subsection (1), points
·
[...]
shall be awarded on the
basis of the Canadian educational credentials or equivalency assessments
submitted in support of an application for a permanent resident visa that
result in the highest number of points.
* * *
·
Plus d'un diplôme
Pour l'application du
paragraphe (1), les points sont accumulés de la façon suivante:
·
[...]
ils sont attribués en
fonction du diplôme canadien ou de l'attestation d'équivalence fournis à
l'appui de la demande de visa de résident permanent qui procure le plus de
points.
Decision Under Review
13 In
his decision the Officer set out the maximum permissible points that may be
allocated and the Applicant's actual allocation of points for age, education,
official language proficiency, arranged employment, experience and
adaptability. With respect to education, the Officer stated that:
·
You were assigned 5 points for
your education Credential at the secondary school credential level this is
based on the Canadian educational credential or equivalency assessment
submitted in support of your application in accordance with R75(8) and
R78(1).
·
You submitted a foreign
education credential and the equivalency assessment issued by World Education
Services (WES) who evaluated your educational credential as Secondary School
Diploma, two years of undergraduate study and two years of professional study.
The latter two are not equivalent to a Canadian Educational Credential
therefore you have been awarded points at the Secondary school level
only.
14 As
the Applicant achieved a total of only 57 points, the minimum requirement being
67, the Officer advised that she had not obtained sufficient points to qualify
for immigration to Canada.
Issues
15 The
issues in this application can be framed as follows:
What is the standard of
review?
Did the Officer err in
his treatment of the equivalency assessment?
16 In
her written submissions, the Applicant also submitted that the Officer erred in
failing to reconsider his decision and also that she was entitled to costs.
However, at the hearing before me, her counsel advised that these issues were
no longer being pursued. Accordingly, they are not addressed in this decision.
|
Issue 1:
|
What is the
standard of review?
|
|
Applicant's Position
17 The
Applicant is of the view that the Officer's interpretation of the IRPA and the
IRP Regulations is to be reviewed by this Court on a standard of correctness as
the Federal Court of Appeal in Khan v Canada
(Citizenship and Immigration), 2011 FCA 339 at para 26 [Khan] and Canada
(Citizenship and Immigration) v Patel, 2011 FCA 187 at
para 27 [Patel], held that this
is the standard to be applied to a visa officer's decision. Further, that those
decisions are consistent with Agraira v Canada (Safety
and Emergency Preparedness), 2013 SCC 36 [Agraira] which states that the standard of
review need not be redetermined if past jurisprudence has identified the
standard, which is the circumstance in this case. The Applicant also refers to
the recent Federal Court of Appeal decisions in Canada
(Citizenship and Immigration) v Kandola, 2014 FCA 85 [Kandola] and Kinsel v
Canada (Citizenship and Immigration), 2014 FCA 126 [Kinsel] in support of her position.
18 The
Applicant further submits that, even on the reasonableness standard, the
decision cannot stand as it lacks justification, transparency and
intelligibility (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir];
Lozano Vasquez v Canada (Citizenship and Immigration), 2012 FC 1255; Shirazi v Canada (Citizenship
and Immigration), 2012 FC 306).
Respondent's Position
19 The
Respondent submits that the Officer's interpretation of a provision of the IRP
Regulations is an interpretation of his home statute with which he has
particular familiarity (Dunsmuir,
at para 54; Agraira at para 50; Alberta (Information and Privacy Commission) v Alberta Teachers'
Association, 2011 SCC 61 at paras 30 and 46 [Alberta Teachers']). The Officer was required
to determine whether the Applicant had the educational credentials to meet the
regulatory requirements of s. 78 of the IRP Regulations, which is a question of
mixed fact and law reviewable on a standard of reasonableness (Zhang v Canada (Citizenship and Immigration),
2013 FCA 168 at para 12 [Zhang]; Wangden v Canada (Citizenship and Immigration),
2009 FCA 344 confirming 2008 FC 1230). Even if a question of law were at issue,
the standard of review would still be that of reasonableness (B010 et al v Canada (Citizenship and Immigration), 2013 FCA 87 at paras 68-70 [B010], leave to the SCC granted, 35388 (July 17, 2014); Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at para 18 [Canadian Human
Rights Commission]; Alberta
Teachers' at paras 45-46). And, in any event, there is
no reviewable error in the Officer's determination under either standard.
Analysis
20 As
held in Dunsmuir, in determining
the applicable standard of review, the Court must first ascertain whether the
jurisprudence has already determined, in a satisfactory manner, the degree of
deference to be accorded with regard to a particular category of question. If
that inquiry proves to be unfruitful, then the Court must proceed to an
analysis of the factors making it possible to identify the proper standard of
review (Dunsmuir at para 62; Kandola at para 32). Further, where the
question is one of fact, discretion or policy, deference will usually apply
automatically (Dunsmuir at paras
53 and 54) when a decision-maker is interpreting its own statute or statutes
closely connected to its function with which it will have particular
familiarity (Dunsmuir at para 54;
also see Alberta Teachers' at para
30), the presumption of a deferential standard of reasonableness will apply (Agraira at para 50; Kandola at para 40).
21 In
B010, the Federal Court of Appeal
restated this and also addressed the reasonableness standard as applicable to
questions of law:
·
[64] More recently, in Alberta Teachers', cited above at paragraph
45, the Supreme Court restated the general principle that reasonableness will
usually be the applicable standard of review when a tribunal is interpreting
its own statute or statutes closely connected to its function. At paragraph 30
of the reasons of the majority, this general principle was said to apply:
·
[...] unless the interpretation
of the home statute falls into one of the categories of questions to which the
correctness standard continues to apply, i.e., "constitutional questions,
questions of law that are of central importance to the legal system as a whole
and that are outside the adjudicator's expertise, ... '[q]uestions regarding
the jurisdictional lines between two or more competing specialized tribunals'
[and] true questions of jurisdiction or vires" (Canada
(Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 18, per LeBel and
Cromwell JJ., citing Dunsmuir, at
paras. 58, 60-61).
·
[65] The application of these
principles to the present case leads to my second reason for concluding that
the Federal Court selected the appropriate standard of review.
·
[66] Members of the Board
function in a discrete and special administrative regime. They have expertise
with respect to the interpretation and application of the Act. The nature of
the question of law is the interpretation of the phrase "people
smuggling". This question of statutory interpretation of the Board's home
statute raises neither a constitutional question, nor a question of law of
general importance to the legal system as a whole. Neither does it involve a
question regarding jurisdictional lines between competing specialized tribunals
nor a true question of jurisdiction (to the extent such questions continue to
exist; see, Alberta Teachers' at
paragraphs 33 to 43).
22 The
Court concluded that there was no basis in law for ousting the presumption that
deference should be afforded to the Board's interpretation of the IRPA in that
case (also see Canadian Human Rights Commission at paras 16-18).
23 The
Supreme Court of Canada addressed the presumption that the reasonableness
standard will apply in McLean v British Columbia
(Securities Commission), 2013 SCC 67 [McLean]:
·
[21] Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, this Court has repeatedly underscored that "[d]eference will
usually result where a tribunal is interpreting its own statute or statutes
closely connected to its function, with which it will have particular
familiarity" (para. 54). Recently, in an attempt to further simplify
matters, this Court held that an administrative decision maker's interpretation
of its home or closely-connected statutes "should be presumed to be a question
of statutory interpretation subject to deference on judicial review" (Alberta (Information and Privacy Commissioner) v. Alberta Teachers'
Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para.
34).
·
[22] The presumption endorsed in
Alberta Teachers, however, is not
carved in stone. First, this Court has long recognized that certain categories
of questions -- even when they involve the interpretation of a home statute --
warrant review on a correctness standard (Dunsmuir, at paras. 58-61). Second, we have also said that a contextual
analysis may "rebut the presumption of reasonableness review for questions
involving the interpretation of the home statute" (Rogers
Communications Inc. v. Society of Composers, Authors and Music Publishers of
Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para.
16)...
24 The
Supreme Court found in McLean
that the presumption of the reasonableness standard was not rebutted in that
case. Further:
·
[31] ...The modern approach to
judicial review recognizes that courts "may not be as well qualified as a
given agency to provide interpretations of that agency's constitutive statute
that make sense given the broad policy context within which that agency must
work" (National Corn Growers Assn. v. Canada
(Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1336, per
Wilson J.; see also Council of Canadians with
Disabilities v. VIA Rail Canada Inc., 2007 SCC 15,
[2007] 1 S.C.R. 650, at para. 92; Mowat, at para. 25).
·
[32] In plain terms, because
legislatures do not always speak clearly and because the tools of statutory
interpretation do not always guarantee a single clear answer, legislative
provisions will on occasion be susceptible to multiple reasonable interpretations (Dunsmuir, at para. 47; see also Construction Labour
Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3
S.C.R. 405). Indeed, that is the case here, as I will explain in a moment. The
question that arises, then, is who gets to decide among
these competing reasonable interpretations?
·
[33] The answer, as this Court
has repeatedly indicated since Dunsmuir, is that the resolution of unclear language in an administrative
decision maker's home statute is usually best left to the decision maker. That
is so because the choice between multiple reasonable interpretations will often
involve policy considerations that we presume the legislature desired the administrative decision maker -- not the
courts -- to make. Indeed, the exercise of that interpretative discretion is
part of an administrative decision maker's "expertise".
25 In
this case, the Applicant relies on Khan and Patel to argue
that because visa officers' decisions have previously been reviewed on the
correctness standard, the same standard should be applied to this matter.
However, both of those cases were decided prior to the jurisprudential
development regarding the deference to be afforded to decisions of Ministers
arising from the Supreme Court of Canada's decision in Agraira (at para 63). An issue may be revisited when the standard is
incompatible with subsequent jurisprudential developments (Kandola at para 35; Agraira at para 48). And, while it can be rebutted, the Federal Court of
Appeal has held that the presumption of deference also applies to Ministerial
delegates, in this case the FSW officer (Kandola at para 42).
26 Further,
as noted above, this is the first time that this issue has come before the
Court, as it concerns recent amendments to the IRP Regulations. Although not
concerned with the precise question now before this Court, it is of note that
this Court has previously held that the assessment of an application for
permanent residence under the skilled worker class is a discretionary exercise
involving questions of mixed law and facts and should be given a high degree of
deference (Kaur v Canada (Citizenship and Immigration), 2014 FC 678 at para 9; (Khanoyan v Canada
(Citizenship and Immigration), 2013 FC 446 at para 3; Tabanag v Canada (Citizenship and Immigration),
2011 FC 1293 at paras 11-12 [Tabanag]; Ekladious Mansour v Canada (Citizenship and
Immigration), 2013 FC 343 at para 11).
27 The
foregoing all suggests that the jurisprudence has not previously and
satisfactorily dealt with the standard of review with respect to this issue.
Accordingly, it may be revisited.
28 The
Applicant also submits that this is a circumstance similar to the recent
Federal Court of Appeal decision in Kandola, where the correctness standard was found to apply to a question of
statutory interpretation. In that case, the applicant had sought judicial
review of the rejection of an application for Canadian citizenship. The issue
was whether the Canadian father of a child conceived through assisted human
reproduction technology, without any genetic link to him or to the foreign
birth mother, obtains derivative citizenship pursuant to s. 3(1)(b) of the Citizenship Act.
29 The
Federal Court of Appeal revisited the standard of review jurisprudence and
acknowledged that the analysis must start from the premise that reasonableness
applies to the review of the citizenship officer's interpretation of s. 3(1)(b)
of the Citizenship Act.
However, the Court of Appeal found that the presumption was rebutted in that
case:
·
[42] ...However, as in Takeda (paras. 28 and 29), this presumption
can be quickly rebutted (McLean,
para. 22; Rogers Communications Inc. v. Society of
Composers, Authors and Music Publishers of Canada, 2012
SCC 35, para. 16).
·
[43] Specifically, there is no
privative clause and the citizenship officer was saddled with a pure question
of statutory construction embodying no discretionary element. The question
which he was called upon to decide is challenging and the citizenship officer
cannot claim to have any expertise over and above that of a Court of Appeal
whose sole reason for being is resolving such questions.
·
[44] In this respect, I note
that construing paragraph 3(1)(b)
requires a consideration of the shared meaning rule in the application of
bilingual enactments as well as the use that may be made of the French text
given that it was enacted in the context of a revision. There is no suggestion
that an citizenship officer was ever asked to consider either of those
questions and nothing in the structure or scheme of the Act suggests that
deference should be accorded to the citizenship officer on the question which
he had to decide.
·
[45] I am therefore satisfied
that the presumption is rebutted.
30 A
similar rebuttal of the presumption of the application of the reasonableness
standard was subsequently reached by the Federal Court of Appeal in Kinsel. There, the Court of Appeal also found,
on the basis of McLean, that
where the ordinary tools of statutory interpretation lead to a single
reasonable interpretation, and the administrative decision-maker adopts a
different interpretation, that interpretation will necessarily be unreasonable
(Kinsel at para 32). Having
conducted the required textual, contextual and purposive analysis of the
relevant legislation, the Court of Appeal was satisfied that there was only one
reasonable interpretation. Therefore, whether as a result of the rebuttal of
the presumption of reasonableness, or as a result of the fact that there was
only a single reasonable interpretation, it was required to interpret the
relevant legislation and verify that the delegate's interpretation was
consistent with that interpretation (Kinsel at para 34).
31 In
this case, the underlying question is one of statutory interpretation.
Specifically, whether an equivalency assessment conducted for the purpose of
awarding points based on education under s. 78 of the IRP Regulations requires
a foreign diploma, certificate or credential to be the equivalent of a
completed Canadian educational credential. Applying the Dunsmuir analysis, the Officer was interpreting his home statute and related
regulations - the IRPA and IRP Regulations. Therefore, the starting point must
be that the reasonableness standard must apply to the Officer's interpretation.
Deference will usually result where a tribunal is interpreting its own statute
or statutes closely connected to its function, with which it will have
particular familiarity (Dunsmuir
at para 54; Smith v Alliance Pipeline Ltd, 2011 SCC 7, at para 28).
32 In
my view, in this matter the presumption has not been rebutted and its
circumstances more closely align with B010 and McLean than with Kandola and Kinsel. While there is no privative clause this, in and of itself, does not
prescribe the correctness standard (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paras 21 and
25). Further, immigration officers form a part of a discrete and special
administrative regime in which the decision-maker has special expertise (Philbean v Canada (Citizenship and Immigration), 2011 FC 487 at para 7; Debnath v Canada
(Citizenship and Immigration), 2010 FC 904 at para 8; Roohi v Canada (Citizenship and Immigration),
2008 FC 1408 at para 33). In this instance, that expertise comes to bear in
making a determination of whether the technical requirements of the IRPA and
IRP Regulations have been met. Specifically, whether in the circumstances of
the case, the required number of points have been achieved to permit
qualification in the FSW class. In assessing the education component, this
requires the interpretation of ss. 78 and 73 of the IRP Regulations, as well as
the results of the equivalency assessment. In my view, this is a question of
mixed fact and law and is entitled to deference. Further, the statutory ambiguity
at the heart of this judicial review does not fall within one of the categories
of questions to which the standard of correctness continues to apply --
constitutional questions, questions of law that have central importance to the
legal system as a whole and that are outside the adjudicator's expertise,
questions regarding the jurisdictional lines between two or more competing
specialized tribunals and true questions of jurisdiction or vires (Canadian Human
Rights Commission at para 18, Dunsmuir at paras 58, 60-61; Alberta Teachers' at para 30).
33 Reasonableness
is concerned with the existence of justification, transparency and
intelligibility, and with whether the decision falls within a range of
possible, acceptable outcomes (Dunsmuir at para 47).
Issue 2: Did the Officer err in his treatment of
the equivalency assessment?
Applicant's Position
34 The
Applicant submits that in assessing the number of points that should be
awarded, the Officer was required to refer to the educational equivalency assessment
provided by the Applicant which was conclusive evidence that her foreign
diplomas, certificates or credentials are equivalent to Canadian educational
credentials. Accordingly, the Officer cannot call the educational assessment
into question and must award points according to the Canadian educational
equivalent set out in the assessment. The educational assessment that the
Applicant was provided stated that she had the equivalent of two years of
studies at the university undergraduate level and two years of studies at the
professional degree level. Accordingly, pursuant to IRP Regulation s. 78(c),
her two years of undergraduate study should have been evaluated as worth 19
points, and, pursuant to IRP Regulation s. 78(f), she should have received 23 points
for her professional degree. There is no requirement that the assessment show
that the foreign degree is the equivalent of some specific Canadian degree or
diploma.
35 The
Officer failed to properly apply ss. 78(c) and (f) and, given the WES educational
assessment, was in error in finding that the Applicant's two years of
undergraduate study and two years of professional study are not equivalent to a
Canadian Educational Credential.
Respondent's Position
36 The
Respondent submits that the Officer did not err in awarding the Applicant 5
points for education.
37 The
Respondent submits that s. 73(1) of the IRP Regulations specifies that a
"Canadian educational credential" is issued upon completion of a
program of study and that an equivalency assessment must indicate whether the
foreign education credential is equivalent to a Canadian educational
credential. Given the reference to "Canadian educational credential"
in the definition of "equivalency assessment", the criteria of the
"Canadian educational credential" definition must be fulfilled for a
foreign credential to be found equivalent to a Canadian educational credential.
Thus, a foreign credential must be assessed as equivalent to a completed
Canadian program of study in order to award points for the foreign credential.
The Respondent points out that the provisions of the IRP Regulations in issue
are new and submits that its interpretation of them is supported by the Regulatory Impact Analysis Statement which
accompanied the original publication of the amended provisions, as well as the
OP 6-C -- Federal Skilled Worker Class -- Applications received on or after May
4, 2013 manual [OP 6-C Manual].
38 While
the WES assessment indicates that the Applicant's post-secondary credentials in
Pakistan are equivalent to two years of post-secondary study and two years of
professional study in Canada, it does not indicate that they are equivalent to
a completed Canadian two-year post-secondary school credential. The only
educational credential equivalent to a completed Canadian credential in the
Applicant's application is her Higher Secondary Certificate in Pakistan, which
the WES assessment indicates is equivalent to a Canadian secondary school
diploma. Accordingly, the Officer did not err and his interpretation of how the
Applicant's education meets the regulatory criteria is a determination of mixed
fact and law that should be afforded deference.
Analysis
39 The
starting point for this analysis is the actual content of the WES Credential
Evaluation and Authentication Report. This states:
·
CANADIAN EQUIVALNCY SUMMARY
·
Two years of undergraduate study
and two years of professional study
·
CREDENTIAL ANALYSIS
Credential
Authentication: Official transcripts were sent directly from the institution
|
|
Country:
|
Pakistan
|
|
|
|
Credential:
|
Higher Secondary
Certificate
|
|
|
|
Year:
|
1996
|
|
·
Awarded By: Federal Board of
Intermediate and Secondary Education, Islamabad
Admission Requirements: Secondary School
Certificate
·
Length of Program: Two
years
·
Major/Specialization: Science
Stream
·
Canadian Equivalency: Secondary
school diploma
Credential
Authentication: Transcripts were verified by the institution
|
|
Country:
|
Pakistan
|
|
|
|
Credential:
|
Bachelor of
Science
|
|
|
|
Year:
|
1999
|
|
|
|
Awarded By:
|
University of
Punjab
|
|
·
Institution Status:
Recognized
·
Admission Requirements:
Intermediate Examination Certificate
·
Length of Program: Two
years
·
Major/Specialization:
Science
Canadian Equivalency: Two years of undergraduate
study
Credential
Authentication: Transcripts were verified by the institution
|
|
Country:
|
Pakistan
|
|
·
Credential: Intermediate and
Professional Examination Results
|
|
Year:
|
2006
|
|
·
Awarded By: Institute of Cost
and Management Accountants of Pakistan
·
Institution Status:
Recognized
·
Admission Requirements:
Bachelor's degree
·
Length of Program: Not
applicable
·
Major/Specialization:
Accounting
Canadian Equivalency: Two years of professional
study
·
Remarks: Upon completion of the
program, Ms. Ijaz was awarded a Certificate of Membership
40 As
pointed out by the Respondent, "Canadian educational credential" is
defined by s. 73(1) of the IRP Regulations as meaning a diploma, certificate or
credential, issued on the completion of a Canadian course of study that is
recognized by the provincial authorities responsible for accrediting and
regulating such institutions. "Equivalency assessment" is defined as
meaning a determination, issued by a designated organization, that a foreign
diploma, certificate or credential is equivalent to a Canadian educational
credential. In my view, this clearly suggests that what the foreign issued
diplomas, certificates or credentials of an applicant are being compared to are
those issued by a Canadian institution for the purpose of determining if the
former is equivalent to the latter.
41 While
it is clear from the WES report that the Applicant completed the Canadian
equivalent of two years of undergraduate study, there is no indication in the
report that this was equivalent to a Canadian Bachelor of Science degree or a
two-year post-secondary program Canadian credential.
42 The
Regulatory Impact Analysis Statement (RIAS) accompanied the issuance of the
revised IRP Regulation provisions. It states as follows:
·
The Immigration
and Refugee Protection Regulations (IRPR) establish the
selection criteria for the FSWC and prescribe the weight given to each
selection factor... Applicants will be required to submit either their Canadian
educational credentials or an assessment of the Canadian equivalency of foreign
educational credentials, issued by a designated organization. Points will be awarded based on the equivalent completed Canadian
educational credential...
·
[...]
Requiring a foreign
educational credential assessment and changing education points [...]. Designated organizations will work on a case-by-case basis to
authenticate diplomas, certificates or credentials obtained in foreign
jurisdictions and determine their equivalent value in
Canada. This measure allows CIC to benefit from a better
assessment of the value of a foreign educational credential in Canada.
Applicants whose credentials are not equivalent to any Canadian programs of
study as well as those who do not have a credential
equivalent to a completed Canadian credential are not
eligible for FSWC. Points will be awarded according to
how an applicant's foreign educational credential equates to completed
educational credential in Canada.
·
[emphasis in italic added]
·
[RIAS to the Regulations Amending the Immigration and Refugee Protection
Regulations, PC 2012-1643 December 6, 2012, Canada Gazette vol 146, no 26, December 19,
2012].
43 While
a RIAS may be used as an interpretive tool, it cannot be used to override the
clear language of regulations (Teva Canada Limited v
Sanofi-Aventis Canada Inc, 2014 FCA 67 at para 77).
However, in this case I see no inconsistency or ambiguity between the language
of the IRP Regulations and the RIAS. Further, the RIAS again clearly suggests
that what is being assessed is whether the diploma, certificate or credential
obtained from a foreign institution is the equivalent of a completed Canadian
diploma, certificate of credential.
44 The
Respondent also refers to the OP 6-C Manual. Operational manuals are
departmental policy documents which do not have the force of law, but can be
valuable to the Court as an interpretative aid in determining whether a
particular outcome is reasonable (Singh Sran v Canada
(Citizenship and Immigration), 2012 FC 791 at para 17; Agraira at para 60; Baker
v Canada (Minister of Citizenship and Immigration),
[1999] 2 SCR 817 at para 72). The OP 6-C Manual states:
·
11.1 Education
·
To be awarded points for
education, the applicant must provide evidence that they have earned a Canadian
secondary or post-secondary educational credential AND/OR submit their
completed foreign educational credential and the equivalency assessment (ECA report)
issued by a designated organization or institution. The ECA report must
indicate an equivalency to a completed Canadian
secondary or post-secondary educational credential.
·
In order to maximise points for
education, applicants may submit evidence of more than one completed
educational credential. However, any completed foreign educational credential
submitted must be accompanied by an ECA report. For example, an applicant may
have completed a Canadian post-secondary program and the equivalent of a Canadian
post-secondary program of three years or longer at an educational institution
outside of Canada. In this case, the applicant would submit proof of the
completed Canadian educational credential, the completed foreign educational
credential, and the ECA report demonstrating its
equivalency to a completed Canadian post-secondary program credential.
·
R78(2)(b) provides that points
shall be awarded on the basis of the completed Canadian educational credentials
or equivalency assessments (ECA reports) submitted in support of the
application for permanent residence that result in the highest number of
points.
·
[...]
·
Pursuant to R78(1), officers
should assess the application and award the applicant up to a maximum of 25
points for educations as follows...
·
[emphasis in italic added]
45 In
this case, the WES assessed the Applicant's higher secondary certificate
credential as equivalent to a Canadian secondary school diploma. It assessed
her foreign two-year Bachelor of Science credential as equivalent to two years
of Canadian undergraduate study and her Intermediate and Professional
Examination Results credential as equivalent to two years of Canadian
professional study. It summarized this as being the Canadian equivalent of
"Two years of undergraduate study and two years of professional
study".
46 In
my view, based on the foregoing, it was open to the Officer to interpret the
WES educational assessment and the IRP Regulations as he did, being that the
WES equivalency finding of two years of undergraduate study and two years of
professional study were not the equivalent of a Canadian Educational
Credential. The WES educational assessment did not state that that the
Applicant's credentials were equivalent to Canadian educational credentials,
and the Officer relied on this as conclusive evidence as required by s. 75(8)
of the IRP Regulations. Thus, while the Officer had discretion in interpreting
ambiguous language in the WES, he had no discretion on the points to be awarded
once the meaning of the report had been ascertained.
47 The
Officer explained in his letter what educational points had been allocated,
referenced the WES assessment which determination was on the record before him
and stated that the WES finding of two years of undergraduate and two years of
professional study was not equivalent to a Canadian Educational Credential,
which was in keeping with both the WES assessment and s. 73(1) of the IRP
Regulations. For that reason, he awarded the Applicant points only at the
secondary level. Accordingly, I find the Officer's assessment to be reasonable.
48 It
is also of note that each of the statutory point allocations set out in s.
78(1) of the IRP Regulations refers to the subject program
"credential". Under s. 78(1), points are allocated for a skilled
worker's equivalency assessment based on the identified "credential".
In the absence of a determination by WES that two years of undergraduate study
is equivalent to a two-year post-secondary "credential", in my view it
was open to the Officer to conclude that the allocation of 19 points pursuant
to s. 78(1)(c) was not permissible.
49 The
Applicant also submits the Officer's interpretation of the IRP Regulations was
in error as it leads to an absurd result (Rizzo &
Rizzo Shoes Ltd (Re), [1998] 1 SCR 27; Wise v Canada (Minister of Public Safety and Emergency Preparedness), 2014 FC 1027) in that the Applicant is awarded no points when she
has clearly demonstrated that she holds a two-year Bachelor of Science degree
and a professional certificate and the WES equivalency assessment credits her
with two years of undergraduate study and two years of professional study.
50 However,
if the purpose of an equivalency assessment is to determine if a foreign
diploma, certificate or credential "is equivalent to" a Canadian
educational credential - which is a diploma, certificate or credential issued
on the completion of a Canadian program of study or training - then the result
is not absurd, but is as intended. In other words, if the Applicant's two-year
Bachelor of Science degree is not the equivalent of a Canadian diploma, degree
or credential granted upon completion of a course of study, but is only the equivalent of two years of
undergraduate study in Canada,
then not allocating points would not be absurd, as the Applicant may not have
the educational skills required to qualify as a FSW.
51 Having
reached the conclusion that the Officer's decision was reasonable, I would also
note that the alternate interpretation suggested by the Applicant was also a
possible outcome. However, when there is more than one reasonable possible
outcome the Officer is to be afforded deference (McLean at paras 39-41; Canadian Human Rights
Commission at para 30).
Certified question
52 The
Applicant submits, and I agree, that the wording of the WES educational
assessment in this matter was less than a model of clarity. In the future it
may be that designated organizations such as WES will be instructed to issue
clear and unambiguous determinations. It is also true that the wording of s. 78
could be clearer and, as noted above, that the relevant provisions of the IRP
Regulations can potentially be interpreted in more than one way. In recognition
of this, the parties have each proposed a question for certification.
53 The
Applicant submits the following question:
·
In order to award points for
education in a Federal Skilled Worker Class application pursuant to s. 78 of
the Immigration and Refugee Protection Regulations, do the Regulations require that an equivalency credential report
describe the foreign education as being the equivalent of some specific type of
completed Canadian educational credential, or is an equation of the relative
value in education years sufficient?
54 The
Respondent proposes as follows:
·
In order to award points for
education in a FSWC class application pursuant to s.78 of the Immigration and Refugee Protection Regulations,
do the Regulations require that an equivalency assessment of a foreign diploma,
certificate or credential provided in an educational credential report be
equivalent to a completed Canadian educational credential?
55 The
test for certification of a question pursuant to s. 74(d) of the IRPA was
recently reiterated by the Federal Court of Appeal in Zhang at para 9:
·
[9] It is trite law that to be
certified, a question must (i) be dispositive of the appeal and (ii) transcend
the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance. As a corollary,
the question must also have been raised and dealt with by the court below and
it must arise from the case, not from the Judge's reasons (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S. (3d) 910 (F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (C.A.) at paragraphs 11-12; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at paragraphs 28, 29 and
32).
56 In
my view, the test is met in this case and I accordingly certify the following
question:
·
When assessing a federal skilled
worker class application for permanent residency and the points to be awarded
for education under s. 78 of the Immigration and Refugee
Protection Regulations (IRP Regulations), do the IRP
Regulations require an equivalency assessment, as required by s. 75(2) and
defined by s. 73(1), of a foreign diploma, certificate or credential to be
evaluated and explicitly stated as being equivalent to a diploma, certificate
or credential issued on the completion of a Canadian program of study or
training, as defined in s. 73(1) as a "Canadian educational
credential"?
·
Or, is a determination and
statement of the equivalent value of the foreign diploma, certificate or
credential, expressed as a number of years of study in Canada, sufficient to
award points pursuant to s. 78(1)?
JUDGMENT
·
THIS COURT'S JUDGMENT is that
The application for
judicial review is dismissed; and
The following question
is certified pursuant to s. 74(d) of the IRPA:
·
When assessing a federal skilled
worker class application for permanent residency and the points to be awarded
for education under s. 78 of the Immigration and Refugee
Protection Regulations (IRP Regulations), do the IRP
Regulations require an equivalency assessment, as required by s. 75(2) and
defined by s. 73(1), of a foreign diploma, certificate or credential to be
evaluated and explicitly stated as being equivalent to a diploma, certificate
or credential issued on the completion of a Canadian program of study or
training, as defined in s. 73(1) as a "Canadian educational
credential"?
·
Or, is a determination and
statement of the equivalent value of the foreign diploma, certificate or
credential, expressed as a number of years of study in Canada, sufficient to
award points pursuant to s. 78(1)?
STRICKLAND J.
3 comments:
How much time is taken by the Fedral Court of Appeal to decide the certified question ?
Any development on the issue of certified question ? We are eagerly waiting judgement.
hi
any progress
Fedral Court of Appeal to decide the certified question ?
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