Federal Court Decisions

Date: 20090723

Docket: IMM-4409-08

Citation: 2009 FC 752

Ottawa, Ontario, July 23, 2009

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

H. JAYAWEERA MUHANDIRAMGE

Applicant

and

 

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of the First Secretary (Immigration) of the Canadian High Commission (Officer) in Colombo, Sri Lanka, dated July 22, 2008 (Decision) that refused the Applicant’s application for permanent residence in Canada under the federal skilled worker category.

 

 

 

 

BACKGROUND

 

[2]               The Applicant applied for permanent residence in Canada under the federal skilled worker category of Financial Manager on December 28, 2005 in Colombo, Sri Lanka.

 

[3]               The Applicant indicated that he had completed 18 years of full-time school, including four years of study at the Institute of Chartered Accountants, Sri Lanka.

 

[4]               The Applicant was assessed by the Officer on May 29, 2008.

 

DECISION UNDER REVIEW

 

[5]               The Officer concluded that the Applicant did not meet the requirements for immigration to Canada under the skilled worker category.

 

[6]               The Officer cited subsection 12(2) of the Act, which provides that a foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. Subsection 75(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) provides that the federal skilled worker class is a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada. Pursuant to the Regulations, skilled worker applications are assessed on the basis of the criteria set out in subsection 76(1). The assessment determines whether a skilled worker will be able to become economically established in Canada. The Officer assessed the Applicant in the category of NOC-0111-Financial Manager and awarded the following points:

Points Assessed                                                Maximum Possible

Age                                          8                                                                      10

Experience                               21                                                                    21

Arranged Employment              0                                                                      10

Education                                 15                                                                    25

Official Language Proficiency 10                                                                       24

Adaptability                              4                                                                      10

-------------------------------------------------------------------------------------------------------------

Total                                        58                                                                    100

 

[7]               The Officer disregarded the Applicant’s four years of study at the Institute of Chartered Accountants because he felt it was not accredited with the Tertiary and Vocational Education Commission (TVEC) in Sri Lanka.

 

[8]               This resulted in a score of 15 under the Education factor and a total score of 58. The pass mark is 67.

 

ISSUES

 

[9]               The Applicant submits the following issue for consideration on this application:

 

1.                  Did the Officer err in her interpretation of section 73 of the Regulations when determining that the authority responsible for registering, accrediting, supervising and regulating the Institute of Chartered Accountants in Sri Lanka was the TVEC, rather than the Institute of Chartered Accountants, Sri Lanka?

 

STATUTORY PROVISIONS

 

[10]           The following provisions of the Act are applicable in this proceeding:

 

[11]           The following provisions of the Regulations are also applicable to this proceeding:

 

[12]           The following provisions of the Citizenship and Immigration Canada Overseas Processing (OP-6-Federal Skilled Workers)  Operational Manual (Manual)  are applicable in this proceeding:

 

STANDARD OF REVIEW

 

[13]           The Respondent submits that the Officer’s decision to award the Applicant points under the education factor involves a question of mixed fact and law and that the standard of review is reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir) and Saleem v. Canada (Minister of Citizenship and Immigration) 2008 FC 389 at paragraph 11. I agree with the Respondent.

 

[14]           Discretionary decisions of an officer attract a high degree of deference: Li v. Canada (Minister of Citizenship and Immigration) 2001 FCT 837 at paragraph 11; Bellido v. Canada (Minister of Citizenship and Immigration) 2005 FC 452 at paragraph 5 and Hua v. Canada (Minister of Citizenship and Immigration) 2004 FC 1647 at paragraphs 25-28.

 

 

[15]           In Dunsmuir, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review”: Dunsmuir at para. 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.

 

[16]           The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

 

[17]           In light of the Supreme Court of Canada's decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to the issue raised to be reasonableness. When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”

ARGUMENTS

            The Applicant

 

[18]           The Applicant submits that the Officer interpreted the definition of “educational credential” to mean that the only authority in the entire country of Sri Lanka relevant for the assessment of education was the TVEC.

 

[19]           The Applicant submits that, based on section 10.2 of the Manual, visa officers should award units of assessment for the education factor based on how the credential is considered in the country where the study was acquired. The Officer was of the view that the TVEC accreditation was determinative on the matter of whether the education administered by the Institute of Chartered Accountants, Sri Lanka, should attract points under the education factor. However, the TVEC does not govern courses administered by the Institute of Charted Accountant, Sri Lanka, because the ICA is self-governing and its courses are not within the mandate of the TVEC.

 

[20]           The Applicant notes that chartered accountants in Sri Lanka are autonomously governed by the Institute of Chartered Accountants of Sri Lanka. This institution has set the requirements and standards for its practitioners since the consolidation of its act of incorporation, the Act of Parliament No. 23 of 1959. The Institute of Chartered Accountants of Sri Lanka educates its members in the same way as the Law Society of Upper Canada. Section 3(a)(ii) of the Act of 1959 sets out one of the objectives of the Institute:

 (The objects of the Institute shall be) to enroll, educate and train members who are desirous of learning or improving their skills and knowledge, in disciplines such as auditing, financial management and taxation.

 

 

[21]           The Applicant submits that sections (1) through (33) of the Institute of Chartered Accountants of Sri Lanka Amendment Law No. 34 of 1975 clearly set out the nature of the Examinations of the Institute and the Practical Training requirement, and meticulously details the examination process. Section 3 describes the structure of the examination process as follows:

The Qualifying examinations for membership of the Institute shall consist of:

a.       an Intermediate Examination; and

b.      a Final Examination.

 

[22]           The Applicant says that, given the mandate and scope of the responsibility of the Institute of Chartered Accountants, Sri Lanka, it is clear that the Institute itself, as per section 73 of the Regulations, has “the authorit[y] responsible for registering, accrediting, supervising and regulating such institutions in the country of issue.”

 

[23]           The Applicant submits that it was an error for the Officer to require that the Applicant’s chartered accountancy courses be registered with TVEC, given the self-regulation of the Institute of Chartered Accountants, Sri Lanka.

 

[24]           The Applicant points out that the autonomous regulation of the Institute of Chartered Accountants, Sri Lanka, is analogous to the self-regulation of lawyers in Ontario by the Law Society of Upper Canada. The Applicant contends that the Officer’s analysis would be more applicable to vocational and technical courses that are administered in Sri Lanka, not chartered accountancy courses.

 

[25]           The Applicant also refers to some of the objectives of the TVEC posted on that organization’s website at http://www.tvec.gov.lk/English/about_us.htm:

To implement the national system of quality assurance through registration of institutes and accreditation of training courses.

 

To ensure the establishment and maintenance of standards by TVET institutions.

 

To develop and maintain a national system of vocational qualifications.

 

To develop TVET institutes through management development programmes and financial assistance.

 

 

[26]           The Applicant relies upon an affidavit of the President of the Institute of Chartered Accountants, Sri Lanka, who states that requiring TVEC registration for recognition purposes is “tantamount to putting the Act of Parliament to subservience.”

 

[27]           The Applicant also submits that the Respondent has conceded that his education should have been considered by the Officer. However, the Respondent’s assertion that, even if the Officer had considered it, it would only have led to a score of 22 points under the education factor, is not relevant because the basis for the assertion is not in the record. Rather, the record contains the assessment of education by the officer. In the record, the Officer accepted that the Applicant required a Masters degree but did not complete at least 17 years of education as per regulation 78(2)(f) :

 

[28]           The Applicant submits that the Officer did not make the two findings that the Respondent now asserts in submissions: (1) that the Chartered Accountant education should not be considered by the Officer as it is not a university credential; and (2) that the education was not a prerequisite to a Master’s degree acquired by the Applicant.

 

[29]           The Applicant states that paragraphs 78(3)(a) and 78(3)(b)(i) of the Regulations are not relevant because they deal with cases where an applicant has acquired two Master’s degrees, or two Bachelor’s degrees, and the Regulations ensure that the Applicant cannot collect double points in such situations. However, paragraph 78(3)(b)(i) of the Regulations says that points should be awarded on the basis of the single educational credential that results in the highest number of points, which in this case would be a Master’s degree, irrespective of the prerequisites of that masters degree (contrary to the Respondent’s assertion).

 

 

 

 

 

 

The Respondent

            Immaterial Error

 

[30]           The Respondent submits even if the Applicant obtained education points below the maximum education points available, this would not assist the Applicant in obtaining a permanent residence visa.

 

[31]           The Respondent concedes that the Officer made an error by not considering the education received by the Applicant from the Institute of Chartered Accountants, Sri Lanka; however, even if the Officer had accepted that education, the Applicant would not have enough education points. The Respondent alleges that there was no evidence before the Officer that the Institute of Chartered Accountants, Sri Lanka, is a university; therefore, the education obtained through the Institute of Chartered Accountants, Sri Lanka, would be considered a non-university credential and the maximum years that could be recognized is 3, according to paragraph 78(2)(e)(i) of the Regulations, making a total of 15 years of education for the Applicant. Hence, the maximum number of education points that the Applicant could obtain is 22 points, which would place the Applicant at 65 points. This is 2 points shy of the required number of 67.

 

[32]           The Respondent also submits that the Applicant could not obtain the maximum amount of education points because the education obtained through the Institute of Chartered Accountants, Sri Lanka, was not a prerequisite to his Masters degree. The prerequisite program to complete the Masters was the Diploma in Professional Shipping. Therefore, the  Institute of Chartered Accountants, Sri Lanka, education would not be included in the calculation of education years pursuant to subsection 78(3) of the Regulations, which prohibits a cumulative calculation. The calculation is based on the highest degree obtained. Based on his Masters degree the Applicant would not have obtained 17 years of full-time or full-time equivalent study, but 15 years of study. Paragraph 78(2)(e)(i) of the Regulations indicates that the maximum amount of education points obtained would be 22 points. This amounts to 65 overall points on the skilled worker application, which is still not enough points to grant the application. See: Bhuiya v. Canada (Minister of Citizenship and Immigration) 2008 FC 878.

 

[33]           The Respondent concludes that the Officer’s error is immaterial. The Applicant would not have had sufficient points to qualify for a permanent residence visa. Errors related to matters which are not material to a decision do not justify setting the decision aside. See: Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (F.C.A.) at paragraphs 3-5; Miranda v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 437 (F.C.T.D.); Nyathi v. Canada (Minister of Citizenship and Immigration) 2003 FC 1119 at paragraphs 18 and 24 and N’Sungani v. Canada (Minister of Citizenship and Immigration) 2004 FC 1759 at paragraph 25. Therefore, the Applicant’s application should be dismissed.

 

ANALYSIS

 

[34]           The Respondent concedes that the Officer did make an error in not considering the education received by the Applicant from ICASL but contends that the error was immaterial because, even if the Officer had accepted the ICASL education, it would still not have yielded sufficient education points to bring the Applicant’s overall score to 67.

 

[35]           The Officer’s notes make clear that he accepted that the Applicant had a Master’s degree. This would mean that, under Regulation 78(2)(f), the Applicant needed to show “a total of at least 17 years of completed full-time or full-time equivalent studies.”

 

[36]           However, as the Respondent points out, the education obtained by the Applicant through ICASL was not a pre-requisite to the Master of Science in Shipping Management, which the Applicant was awarded in 1998 from the World Maritime University of Sweden. This would mean that the Applicant only has 15 years, and not 17 years, of pre-requisite studies leading to the Master’s degree. His maximum points in education would be 22, which would not take him to the 67 points needed overall.

 

[37]           The Applicant says it is undisputed that he had at least 17 years of education prior to his Master’s degree, so that he qualifies for 25 points under Regulation 78(2)(f), which brings his total to the required 67 points.

 

[38]           The disagreement between the parties appears to be whether the years spent by the Applicant at ICASL could count towards the computation of the “17 years of completed full-time or full-time equivalent studies” under Regulation 78(2)(f). The Applicant says that they do count or, at least, it is not appropriate for the Court to decide this issue and the matter should be returned for re-consideration by a different officer. In essence, the Applicant says that, in computing the 17 years, he does not need to show a related course of study and merely has to show that the years of education progressed to the Master’s degree.

 

[39]           The Respondent says there is no point in sending this matter back for reconsideration because it is obvious that the ICASL years cannot be used in this case. They were not a pre-requisite to the Master degree but were part of an extraneous and parallel education.

 

[40]           I think the Respondent is correct in saying that if, notwithstanding the error in the Officer’s not considering the ICASL education, no purpose is served by sending the matter back for re-determination (because the Applicant has no possibility of having his skilled work application accepted) then I should dismiss the application. See Persaud v. Canada (Minister of Citizenship and Immigration), [2009] F.C.J. No. 229 at paragraph 40. So the issue before me is whether there is no possibility of the Applicant being awarded 25 points for education because his ICASL education cannot count in the computation of years of completed full-time study under Regulation 78(2)(f).

 

[41]           As Justice MacTavish held in Bhuiya at paragraph 13, subsection 78(3) of the Regulations provides that points are to be awarded on the basis of the single educational credential that results in the highest number of points. The parties in the present case agree that the Applicant’s highest educational credential is his Master’s degree.

 

[42]           On the facts of Bhuiya, Justice MacTavish concluded, at paragraph 19, that the “fact that Ms. Bhuiya may have spent one additional year in school after obtaining her Master’s degree does not turn her 16 year Master’s degree into a 17 year Master’s degree.” But the facts before me raise a somewhat different issue.

 

[43]           The issue in the present case is whether, in computing how many years led up to the Applicant’s Master’s degree, his time at ICASL would have been counted by the Officer if he had turned his mind to that issue.

 

[44]           The Respondent says these years could not be counted because they were not relevant to the Master’s degree and were, in fact, unrelated, extraneous and parallel because they led to another qualification. The Applicant says the requirement is simply that the Applicant is required to have at least 17 years of education, and that the Applicant does not need a related course of study, he just has to progress to the highest credential. At the very least, the Applicant says the Officer needs to address whether the ICASL requirement was part of the years of study that led to the Master’s degree. There is nothing in the Regulations that excludes the ICASL years from being part of the computation under Regulation 78(2)(f).

 

[45]           In the Bhuiya case relied upon by the Applicant, the Officer had specifically found that Ms. Bhuiya’s post-graduate diploma in personnel management was “not in the line of progression towards the highest credential,” namely Ms. Bhuiya’s Master’s degree. So the year that Ms. Bhuiya spent on the post-graduate diploma was not included in the computation of the years leading to the Master degree. Justice MacTavish endorsed this approach and concluded that such an interpretation of the Regulations was consistent with both the Immigration Manual and the policy objectives described in the Regulatory Impact Assessment Statement relating to the Regulations.

 

[46]           While I agree with the Respondent that the decision in Bhuiya does not turn on the fact that one year spent on the diploma came after Ms. Bhuiya obtained her Master’s degree, the Officer in the present case made no determination that the Applicant’s years at ICASL were not in the line of progression to the highest credential and there is insufficient evidence before me to make such a determination. Consequently, it is not possible for me to determine whether the Officer’s mistake was immaterial, or whether another officer who did not make the mistake of not considering the education received by the Applicant from ICASL would regard the Applicant’s years at ICASL as being in the line of progression towards his highest credential.

 

[47]           In the end, I have to conclude that, had the mistake not been made, a different conclusion favouring the Applicant might have ensued. Consequently, this matter should be returned for consideration by a different officer.

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that

 

1.                  The application is allowed and the matter is returned for reconsideration by a different officer in accordance with these reasons.

 

2.                  There is no question for certification.

 

 

“James Russell”

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

COURT FILE NO.:               IMM-4409-08

 

STYLE OF CAUSE:              H. JAYAWEERA MUHANDIRAMGE

                                               

v.

           

THE MINISTER OF CITIZENSHIP AND MMIGRATION

 

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

DATE OF HEARING:                      June 2, 2009

 

REASONS FOR JUDGMENT:       RUSSELL J.

 

DATED:                                             July 23, 2009

 

 

WRITTEN REPRESENTATIONS BY:

 

Max Chaudhary                                                            FOR THE APPLICANT

 

Jocelyn Clarke                                                  FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Mr. M. Max Chaudhary                                               FOR THE APPLICANT

Barrister & Solicitor

North York, Ontario

                       

John H. Sims, Q.C.                                                      FOR THE RESPONDENT

Deputy Attorney General of Canada