Date: 20010411
Docket: IMM-2502-00
Citation: 2001 FCT 321
BETWEEN:
Enter Style of Cause just after [Comment] code
- JIANNIAN DONG
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This is an application pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision of a visa officer (the "Officer") dated April 28, 2000, wherein the Officer refused the Applicant's application for permanent residence (the "Decision").
Background
[2] The Applicant is a citizen of the People's Republic of China ("China"). In 1978, he began university studies in engineering at the East China Institute of Technology (the "Institute") in Nanjing, China, and majored in radio. He attended the Institute from December 1978 to July 1981, a period of two years and seven months. In 1981, he obtained a diploma in engineering (the "Diploma"). However, he did not pass the exams which led to a bachelor's degree.
[3] After receiving his Diploma, the Applicant continued to work at the Institute. His duties included maintaining and repairing the electrical equipment used by the students, and designing electrical circuits and assisting in their installation.
[4] In 1986, with the encouragement of his employer, the Applicant commenced a masters of science program at the Institute, majoring in ballistics. After a program of study which lasted two years and four months, he obtained his master's degree in science in 1989 (the "Master's Degree"). Following his receipt of this degree, the Applicant continued to work at the Institute. In 1994, he assumed additional responsibilities and, by 1998, was considered to be a senior engineer.
[5] In October of 1998, the Applicant applied to become a permanent resident of Canada under the Independent category as an Electronics Engineer. In support of his application, he arranged to have the Canadian Council of Professional Engineers ("CCPE") conduct an informal assessment of his educational qualifications. In his affidavit dated June 23, 2000, the Applicant said that the CCPE "accepted my educational background as sufficient to qualify as an engineer in Canada".
[6] On April 27, 2000, the Applicant attended an interview with the Officer in the Canadian Consulate in Hong Kong. The next day, the Officer made her Decision and awarded the Applicant only 68 units of assessment. Since this award was short of the required 70 units, the Officer rejected the Applicant's application for permanent residence.
The Issues
[7] The Applicant says that the Officer erred when she awarded 13 instead of 16 units for his education. As well, it is alleged that she erred by making an award which was confusing. Finally, the Applicant says that the Officer erred when she awarded five units (of a possible ten) for personal suitability. I will deal with each matter in turn.
Education
[8] Item 1 of Schedule I to the Immigration Regulations, 1978 (the "Regulations") contains the rules for assessing an applicant's educational qualifications. The Officer determined that ss. (1)(c)(ii) applied and she therefore gave the Applicant 13 units. Section 1 of Item 1 reads as follows:
(1) Subject to subsections (2) to (4), units of assessment shall be awarded as follows:
(a) where a diploma from a secondary school has not been completed, zero units;
(b) where a diploma from a secondary school has been completed, the greater number of the following applicable units:
(i) in the case of a diploma that does not lead to entrance to university in the country of study and does not include trade or occupational certification in the country of study, five units,
(ii) in the case of a diploma that may lead to entrance to university in the country of study, ten units;
(iii) in the case of a diploma that includes trade or occupational certificate in the country of study, ten units;
(c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units:
(i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, ten units;
(ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, thirteen units;
(d) where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and
(e) where a second- or third- level university degree has been completed, sixteen units.
[My emphasis]
[9] The Applicant submits that the Officer erred when she awarded him 13 units for his Diploma under ss. (1)(c)(ii) of Item 1. The Applicant says that, because the decision of the Federal Court of Appeal in Hameed v. M.C.I. [2001] F.C.J. No. 10 (C.A.) (QL) requires that subsections 1(d) and 1(e) be considered independently, he should have received 16 units for his second level Master's Degree under 1(e) even though it is acknowledged that he did not complete a first level degree.
[10] In Hameed, the applicant had a Bachelor of Arts from the University of Karachi based on two years and five months of part-time study, as well as a Master of Arts following two years and three months of further part-time study. The officer who assessed Mr. Hameed awarded him 13 units of assessment based on his secondary school and engineering diplomas, but refused him the units of assessment for his first and second level degrees because the study time associated with his first level degree was less than the three years of full-time study required by section 1(d). The Court concluded that sections 1(d) and 1(e) are to be considered separately and the applicant was therefore entitled to an award of units of assessment for his second level degree under 1(e), even though his first level degree did not qualify under 1(d).
[11] However, in Hameed, the Court of Appeal considered only whether an applicant who had obtained a first level degree, but had not undertaken the three years of study required by section 1(d), could be awarded units for a second level degree under section 1(e). The Court did not consider the problem in this case, which is whether an applicant who does not have a first level degree can be awarded 16 units of assessment for a second level degree under 1(e).
[12] In my view, when section 1(e) is read alone, as required by the decision in Hameed, it says that an award of 16 units of assessment is made for the completion of a second (or third) level university degree. In Canada, in the ordinary course, one cannot earn a second level degree without first obtaining a first level degree. Therefore, by necessary implication, the existence of a second level degree is predicated on the existence of a first level degree. In view of Hameed, the first level degree need not be based on three years of full-time study, but in my view, the first level degree must nonetheless exist and cannot be replaced by a combination of other credentials. My conclusion therefore is that to be awarded units of assessment for a second level degree an applicant must have a first level degree. This means that the Applicant in this case was correctly awarded 13 units of assessment for his Diploma.
[13] I should observe that, in cases such as this in which the educational institutions in an applicant's country grant second level degrees without first level degrees, and in situations such as this in which the CCPE endorses a candidate's educational qualifications, it would be open to an officer to exercise positive discretion and issue a visa under section 11(3)(a) of the Regulations. However, no such decision was made in this case.
Confusion
[14] The Applicant argued that the Officer's assessment should be set aside because it was confusing in that the Applicant was given 13 units of assessment on the basis that he had only the Diploma and not a bachelor's degree, but was awarded five units for his occupational factor which required that he have a bachelor's degree. However, I am not persuaded that these contradictory awards caused the Applicant any confusion. Since he knew that he did not have a Bachelor's Degree, he would have known that the Officer erred when she awarded him five units to which he was not entitled. The National Occupational Classification, 1992 makes it clear, at item 2133, that a bachelor's degree is required for the Applicant's occupational factor. It reads, in part:
Employment Requirements
• A bachelor's degree in electrical or electronics engineering or in an appropriate related engineering discipline is required.
Personal Suitability
[15] Lastly, counsel for the Applicant said that the Officer erred when, in her assessment of his personal suitability, she faulted him for not having visited Canada. However, I am not satisfied that that fact, although referred to in the CAIPS notes, was taken into account in a negative way. Rather, I interpret the notes to mean that it was a neutral rather than a positive fact. All the notes say is:
PI has never been to Canada. PI states that friend will offer assistance. PI states that he has also done job search from internet (some evidence presented at interview). PI states that he has been taking evening English classes to improve language skills (no proof presented at interview). Some motivation and initiative shown.
[16] For all these reasons, the application for judicial review will be dismissed.
Certification
[17] I have considered whether the answer to the certified question stated below could dispose of the appeal and have decided that it could. I reached this conclusion taking into account that the Applicant received five units for his occupational factor to which he was not entitled. This fact drops his assessment to 63 units. However, if the Court of Appeal were to conclude that he was entitled to 16 units for his Master's Degree instead of the 13 units he received for his Diploma, he would have 66 units. It might also be that, with a better score for education and a recognized Master's Degree, he would be awarded more units for personal suitability. In that event, even though he would still have zero for his occupational factor, positive discretion might be exercised to grant him a visa under s. 11(3)(a) of the Regulations. Accordingly, if he succeeds on appeal, the Court of Appeal might feel that there is reason to have his application considered by a different officer.
[18] Counsel for the Applicant and for the Respondent asked that the following question be certified. I accept that it is a serious question of general importance and it will be certified in the order which accompanies these reasons.
Under Schedule 1 of the Immigration Regulations, 1978 is it necessary for an applicant to have a first level university degree before he/she can be awarded points under subparagraph 1(e) of the Education factor for a second level degree?
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
April 11, 2001
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: JIANNIAN DONG
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
DOCKET NO.: IMM-2502-00
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: April 2, 2001
REASONS FOR ORDER: SIMPSON J.
DATED: April 11, 2001
APPEARANCES:
Mr. Dennis Tanack for Applicant
Ms. Rama Sood for Respondent
SOLICITORS OF RECORD:
Dennis Tanack for Applicant
Barrister & Solicitor
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada