Date: 20010403
Docket: IMM-1583-00
Neutral citation: 2001 FCT 284
Ottawa, Ontario, Tuesday the 3rd day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JITINDER KUMAR SHARMA
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] At the conclusion of oral argument I advised counsel that, for reasons to be delivered in writing, I would be allowing the application for judicial review. These are my reasons.
[2] Mr. Sharma brings this application for judicial review of the decision made on February 3, 2000 by Mona Fahmy, a visa officer at the Canadian Embassy in Cairo, Egypt, refusing Mr. Sharma's application for permanent residence in Canada.
[3] A single issue is raised: did the visa officer err when she found that Mr. Sharma did not meet the employment requirements for his intended occupation in Canada?
[4] Mr. Sharma's intended occupation was a Computer Hardware Engineer, National Occupational Classification ("NOC") 2147.1. The employment requirements for that occupation are specified in the NOC as follows:
· Computer hardware engineers require a bachelor's degree in computer engineering, electrical or electronics engineering or engineering physics.
[5] Mr. Sharma provided evidence that he obtained the degree of "Master of Science in Engineering" which stated that he had specialized in "Electronic Computing Machines, Complexes Systems and Networks". A transcript of the courses taken, and marks and the hour credits for each course was also provided. The degree was awarded from the Petersburg State University of Means & Communication in St. Petersburg, Russia, after four years of study. There was no suggestion that the degree was false or in any way suspect.
[6] Mr. Sharma's application for permanent residence was refused because, as stated in the refusal letter, "[a]lthough you claim to have obtained a second level degree (Master's) you have not satisfied the requirements of the first level (Bachelor's) degree. I regret to advise you that I am unable to award you any units of assessment in the occupational demand factor as you do not meet the Education Training Factor (ETF) as set [out] in the National Occupational Classification".
[7] In the affidavit sworn in opposition to this application the visa officer expanded upon her decision as follows:
According to his IMM8 and education documents submitted, I noted that he had obtained a Masters' degree in Electronic Computing Machines from Petersburg State University, without first obtaining a Bachelors' degree. This information was reconfirmed on his IMM8 (page 13 of the record) and documentation submitted (pages 28 to 35 of the record). Since the Applicant did not first satisfy the requirements for a first level University degree, it follows that he did not qualify for a second level University degree. I therefore awarded him 10 units of assessment for education. [See Hameed vs MCI 44 Imm. L.R. (2d) 215-322].
[8] Counsel for the Minister candidly admitted that the visa officer was obliged to inquire into the equivalence of Mr. Sharma's degree to a Canadian bachelor's degree and further admitted that the only analysis as to equivalence done by the visa officer was as to the absence of an underlying bachelor's degree. It was submitted on the Minister's behalf that it was reasonable for the visa officer to conclude that because in Canada one needs a bachelor's degree in order to proceed on to a master's degree, Mr. Sharma's master's degree was not equivalent.
[9] I do not find that argument persuasive.
[10] An inquiry into the equivalence of a degree should be directed to the skills and knowledge acquired during the course of study. The name of the degree should not be determinative. By way of example, it may well be that a particular bachelor of laws degree is equivalent to a particular doctor of jurisprudence degree, notwithstanding the fact one may appear to be a degree at the doctorate level.
[11] Had the visa officer inquired into the equivalence of Mr. Sharma's master's degree to a Canadian bachelor's degree, the visa officer may have concluded that the four-year degree was in fact equivalent. It was a reviewable error for the visa officer to fail to make that inquiry.
[12] In light of this conclusion it is not necessary to deal with the visa officer's apparent error in awarding zero units for the occupational factor because Mr. Sharma did not meet the education and training factor as set out in the NOC while at the same time awarding Mr. Sharma 17 units under the education and training factor.
[13] The application for judicial review is allowed. Neither counsel submitted a question for certification.
JUDGMENT
[14] IT IS ORDERED AND ADJUDGED THAT:
The decision of the visa officer made on February 3, 2000 is hereby set aside and the matter is remitted for redetermination before a different visa officer.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
April 3, 2001