Ottawa, Ontario, April 2, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision of a visa officer (Officer) dated February 23, 2006 refusing Parviz Lak (Applicant)’s application for permanent residence on the basis that he does not meet the requirements for the issuance of a permanent resident visa as a member of the Skilled Workers class.
I. Facts
[2] The Applicant is Iranian. He applied for a permanent resident visa as a member of the Skilled Workers class on the basis of the education and the work experience he acquired as an Ophthalmologist in Iran.
[3] The Applicant’s permanent resident application was rejected on February 23, 2006 as the Applicant was two points short of the passing mark of 67 needed to qualify under the Skilled Workers class selection grid, as it is defined at section 78 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (IRPR).
[4] The Applicant asserts that the Officer misinterpreted his education and his qualifications when a score of 20 out of a possible 25 points was awarded to him under the “Education” criterion of the Skilled Workers class selection grid.
II. Issue
(1) What is the appropriate standard of review applicable to decisions of visa officers?
(2) Did the Officer err by awarding the Applicant 20 out of 25 possible points under the “Education” criterion of the Skilled Workers class selection grid?
III. Analysis
(1) What is the appropriate standard of review applicable to decisions of visa officers?
[5] In Wang v. Canada (Minister of Citizenship and Immigration), 2003 FCT 258 at paragraph 6, Justice Linden wrote the following regarding the standard of review applicable to decisions of visa officers:
Our jurisprudence holds the standard of review for this type of administrative decision is the test from Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court should not interfere "[w]here the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose" (see: Skoruk v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1220; Chen v. Canada (Minister of Citizenship and Immigration) 2001 FCT 330; Al-Rifai v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1236; and Jang v. Canada (Minister of Citizenship and Immigration) 2001 FCA 312).
[6] In the case at hand the main submission of the Applicant is that the Officer did not provide adequate reasons for her decision rejecting the Applicant’s permanent residence application. Such an error, if found to exist, would constitute a violation of procedural fairness. The Federal Court of Appeal in Sketchley v. Canada (Attorney General), 2005 FCA 404 at paragraph 46, determined that all questions of procedural fairness are to be reviewed on the correctness standard.
(2) Did the Officer err by awarding the Applicant 20 out of 25 possible points under the “Education” criterion of the Skilled Workers class selection grid?
[7] The Applicant submits that the Officer’s reasons for failing to award the Applicant full points under the Education criterion of the Skilled Workers class selection grid were inadequate and as such the Officer violated procedural fairness. The Applicant claims that he was only awarded 20 points, instead of the full 25 points, under the Education criterion because the Officer failed to properly assess the documentary evidence he provided in his visa application.
[8] According to the Applicant, his medical degree is considered an educational credential at the doctoral level in Iran. Yet, the Officer considered his medical degree a “first level of post-secondary education” when assessing the Education criterion of the Skilled Workers class selection grid.
[9] As the Applicant noted, the Overseas Processing Manual - Federal Skilled Workers (OP 6) states, in a note at Chapter 10.2:
Note: Medical Doctor degrees are generally first-level university credentials, in the same way that a Bachelor of Law or a Bachelor in Pharmacology is a first level, albeit “professional” degree, and should be awarded 20 points. If it is a second-level degree and if, for example, it belongs to a Faculty of Graduate Studies, 25 points may be awarded. If a Bachelor’s credential is a prerequisite to the credential, but the credential itself is still considered a first-level degree, then 22 points would be appropriate. It is important to refer to how the local authority responsible for educational institutions recognizes the credential: i.e., as a first-level or second-level or higher university credential.
This note explains that generally, medical degrees are considered first-level university credentials, as secondary-level university credentials necessitate that a student belongs to a Faculty of Graduate Studies. This being said, OP6 does state that where a Bachelor’s credential is a prerequisite to another first-level credential, a visa officer can appropriately award an applicant 22 points under the Education criterion of the Skilled Workers class selection grid.
[10] This being said, the note contained at Chapter 10.2 of OP6 is merely a guideline to evaluating education credentials under the Skilled Workers class selection grid. The last line of the note emphasizes that a visa officer should refer to how the local authority responsible for the educational institution in question recognizes the educational credentials of an applicant.
[11] In the case at hand, the Applicant submitted a letter from Dr. Hamid Akbari of the Iranian Ministry of Health and Medical Education stating that medical degrees are considered professional doctoral degrees in Iran (Applicant Record, Affidavit of Gerd Damitz, Exhibit D, page 32). Moreover, in the Applicant’s Application for permanent residence in Canada the Applicant indicates his highest level of education completed is a “master’s degree” (Tribunal Record, page 2). The Respondent on their part, point to the Applicant’s university transcript which clearly indicates that the Applicant was enrolled in the “Undergraduate Department of Medicine” (Tribunal Record, pages 89-90).
[12] Having reviewed the evidence, I am of the opinion that as the Applicant’s transcript clearly states that the Applicant while studying medicine was classified as an “undergraduate”, the Officer had reasons to conclude that the Applicant’s medical degree was to be classified as a “first level of post-secondary education”. This being said, the record also clearly indicates that the Officer was aware that she was evaluating the permanent residence application of an “Ophthalmologist”, as the Officer herself stated in her decision: “Your application was assessed based on the occupation in which you requested assessment: Ophtalmology [sic], 3111 in the National Occupational Classification (NOC).” (Applicant’s Record, page 6).
[13] In my opinion, it is reasonable to believe that an Ophthalmologist practicing outside Canada would require specialized medical training beyond what is required to become a general practitioner, as is required in Canada. Yet, there is no indication in the decision that the Officer turned her mind to the evidence relating to the Applicant’s “Ophthalmology” qualification, including whether specialized training beyond obtaining a medical degree was required. This being said, the Applicant submitted in his application an “announcement” that he completed a fellowship in Vitreous Body & Retina at Shiraz University in October 21, 1995, after passing his theoretical and practical examinations (Tribunal Record, page 85). Moreover, the Applicant submitted evidence that he obtained a “Final Certificate (Second 5-Year) for Participating in The Continuous Medical Education Programs” on September 10, 2001 (Tribunal Record, page 95). Thus, at minimum, the Officer should have provided some reference to this evidence and the Applicant’s ophthalmology qualification in her decision. It is possible that had the Applicant’s education credentials been fully considered, the Applicant may have received 22 points for having a bachelor’s degree plus further education credentials, instead of the 20 points he was awarded.
[14] This being said, a fellowship or other specialized training will not inherently lead to a visa officer awarding further points under the Education criterion of the Skilled Workers class selection grid on the basis that an applicant obtained an education credential which necessitated a bachelor’s credential. In my view, only where all an applicant’s educational training and credentials are considered can an Officer make a proper determination as to how many points are to be awarded under the Education criterion of the Skilled Workers class selection grid.
IV. Conclusion
[15] For the reasons stated above, the Officer failed to provide adequate reasons for her decision to refuse the Applicant’s application for permanent residence and as such violated procedural fairness. As violations of procedural fairness are reviewed on the standard of correctness, the Applicant’s application for permanent residence as a member of the Skilled Workers class is to be sent to another visa officer so that it may be revaluated.
[16] The parties were invited to submit a question for certification, but none were submitted.
JUDGMENT
THIS COURT ORDERS THAT:
- The application for judicial review is granted and the Applicant’s application for permanent residence as a member of the Skilled Workers class is sent to another visa officer so that it may be revaluated;
- No questions are certified.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2263-06
STYLE OF CAUSE: PARVIZ LAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MARCH 27, 2007
REASONS FOR ORDER BY: Noël J.
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Ms. Leanne Briscoe
For the Respondent
SOLICITORS OF RECORD: M. Max Chaudhary
Barrister & Solicitor
Toronto, Ontario
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent