Date:  20090123

Docket:  IMM-792-08

Citation:  2009 FC 68

Ottawa, Ontario, January 23, 2009

Present: The Honourable Mr. Justice Shore 

 

BETWEEN:

BARAR HANIF

Applicant

and

 

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

I. Preliminary

[1]               Evidence is not a toy to be manipulated any which way. Its meaning should be clear, precise and unambiguous. Examining a piece of evidence from all angles reveals its inner weakness. Like a transparent crystal, it will cast light, as well as shadows, when observed over time. Therefore, with the passage of time, evidence in and of itself should not turn into something it never was to begin with; it should not be a toy to be manipulated one way or another, depending on the parties involved, to become, ultimately, meaningless.

 

[2]               [9]          I do not find that the officer erred in her assessment of the applicant’s education. The applicant provided student transcripts from the Yorkdale Adult Learning Centre attesting to the accounting courses she had taken. However, none of these documents indicate that the applicant was awarded a credential for her studies. Thus, I find that the officer reasonably evaluated the evidence presented and awarded the applicant a sufficient number of points for her education.

 

(Cela v. Canada (Minister of Citizenship and Immigration), 2004 FC 1092, 133 A.C.W.S. (3d) 166).

 

II. Judicial proceeding

[3]               This is an application for judicial review of the decision dated January 17, 2008, by a visa officer of the Canadian High Commission in Islamabad, Pakistan, rejecting the applicant’s application for permanent residence under the skilled workers class. The visa officer rejected the application on the basis that the applicant failed to obtain the 67 points required for the issuance of a visa under the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).

 

III. Facts

[4]               The applicant, Barar Hanif, is a political science specialist in Pakistan. He is married to Samina Choudhry, and they have two children. On January 10, 2002, he applied to the Canadian High Commission in Islamabad, Pakistan, for permanent residency under the skilled workers class.

 

[5]               The (federal) skilled worker class is evaluated on the basis of the minimal requirements set out in subsection 75(2) and the criteria set out in subsection 76(1) of the Regulations. The criteria refer to the following factors: age, education, language proficiency, experience, arranged employment and adaptability. A maximum of 25 points may be awarded for education, and subsection 78(2) of the Regulations indicates the number of points that may be awarded for specific “educational credentials”.

 

[6]               The applicant’s application for permanent residence was refused in a letter dated January 17, 2008. That decision is the subject of this application.

 

IV.  Decision under review

[7]               The visa officer made the following evaluation under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA):

 

[8]               As Mr. Hanif obtained a total of only 46 points, whereas the minimum number required is 67, the visa officer refused the application for permanent residence because she was not satisfied that he would be able to become economically established in Canada.

 

[9]               Mr. Hanif provided evidence that he had obtained four post-secondary educational credentials, namely, a Bachelor of Arts from the University of the Punjab, a Bachelor of Laws from the University of Karachi, a Master of Arts in political science from the University of the Punjab and a Master of Arts in Punjabi from the University of the Punjab. The visa officer awarded him only 5 points out of 25 points for education. In her refusal letter, she explained that Mr. Hanif’s post‑secondary studies do not meet the requirements of subsection 78(1) of the Regulations because he is considered to be an external or private candidate.

 

V. Issues

[10]           (1) Did the visa officer err in determining that she could not consider the applicant’s post‑secondary credentials because he had completed his studies as an external student?

            (2) Did the visa officer err in failing to consider, in her decision, the education of the applicant’s spouse?

            (3) Did the visa officer base her decision on an erroneous finding of fact that she made in a capricious manner, without regard for the material and evidence before her?

 

VI. Analysis

Standard of review

[11]           The visa officer had to determine whether Mr. Hanif met the statutory requirements for obtaining points for his studies: “. . . the Visa Officer was primarily engaged in factual determinations. Determinations of fact by a specialized decision-maker attract deference” (Hameed v. Canada (Minister of Citizenship and Immigration), 2008 FC 271, 165 A.C.W.S. (3d) 516 at paragraph 22). In Tiwana v. Canada (Minister of Citizenship and Immigration), 2008 FC 100, 164 A.C.W.S. (3d) 145 at paragraphs 10-15, Justice Elizabeth Heneghan concluded, following a pragmatic and functional analysis, that the applicable standard of review is patent unreasonableness. Therefore, before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S. C. R. 190, the appropriate standard of review to apply in the context of a visa officer’s discretionary decision was patent unreasonableness (also: Hameed, above, at paragraphs 22-25; (Kniazeva v. Canada (Minister of Citizenship and Immigration), 2006 FC 268, 288 F.T.R. 282 at paragraph 15).

 

[12]           Dunsmuir, at paragraphs 57 and 62, states that, if a standard of review has already been determined, the four factors of the former pragmatic and functional analysis should not be applied. In this case, since the visa officer’s decision is one based on an analysis of the facts, the standard of review is reasonableness. 

 

            Legislation

[13]           Subsection 12(2) of the IRPA governs the selection of permanent residents based on economic reasons:

 

[14]           Sections 73 to 85 of the Regulations govern the evaluation of applications for permanent residence in the (federal) skilled worker class. The relevant provisions of the Regulations are those relating to the evaluation of studies.

 

[15]           The definition of “educational credential” in the Regulations is as follows:

 

 

[16]           The definitions of “full-time” and “full-time equivalent” are as follows:

 

[17]           The selection criteria for studies are at subsection 78(2) of the Regulations:

 

[18]           The selection criteria for adaptability related to the education credentials of the applicant’s accompanying spouse or accompanying common-law partner are found at subsections 83(1) and (2) of the Regulations:

 

(1)   Did the visa officer err in determining that she could not consider the applicant’s post‑secondary credentials because he had completed his studies as an external student?

 

[19]           First, it should be mentioned that, even if Mr. Hanif were to be awarded 20 additional points for his studies, he would have a total of only 66 points, which falls short of the 67 points required; therefore, to attain the points required, Mr. Hanif must also obtain points for the second question regarding the eligibility of his spouse’s studies. Otherwise, subsection 76(3) of the Regulations grants the visa officer the discretion to substitute for the criteria set out in paragraph (1)(a) his or her evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada. This Court does not have to rule on that last question. 

 

[20]           Mr. Hanif provided evidence that he had obtained his degrees from the University of the Punjab. The following is the list of Mr. Hanif’s studies:

- Primary and secondary school diplomas;

- Bachelor of Arts conferred by the University of the Punjab;

- Bachelor of Laws conferred by the University of Karachi;

- Master of Arts in political science conferred by the University of the Punjab;

- Master of Arts in Punjabi conferred by the University of the Punjab.

 

Mr. Hanif claims that he completed 10 years of primary and secondary schooling and 11 years of post‑secondary studies, totalling more than 20 years of formal training.

 

[21]           Mr. Hanif claims that, according to paragraph 78(2)(f) of the Regulations, he should have been awarded 25 points because he had a university educational credential at the master’s or doctoral level and a total of at least 17 years of full-time studies.

 

[22]           However, the Minister claims that the evidence showed that Mr. Hanif was an external or private student. Notes in the Computer Assisted Immigration Processing System (CAIPS) indicate that the visa officer determined that the diplomas submitted seemed to be legitimate (Record at page 156). She also wrote in the CAIPS:

EDUCATION: FN’S POST SECONDARY EDUCATION FROM U OF PUNJAB TAKEN AS A PRIVATE STUDENT PER TRANSCRIPTS. THESE DEGREES ARE OBTAINED AFTER PASSING THE REQUIRED EXAMS WITHOUT ATTENDING CLASS. THEREFORE, DOES NOT MEET THE DEFINITION OF FULL TIME STUDENT AS SET OUT IN R78(1). POINTS AWARDED FOR EDUCATION WHERE FN WAS A FULL TIME STUDENT.

(05 POINTS)

 

(Record at page 156).

 

 

[23]           In her affidavit, the visa officer explained her reasons for determining that Mr. Hanif had obtained his degrees as an external candidate:

9.  First, the introductory statement of both degrees reads: “of the Sheikhupura district”. This means that the Applicant approached the University of Punjab as a resident of the Sheikhupura district and applied to write the final exam for each degree at the University of Punjab.

 

10. Second, both degrees contain a “z” in the registration number. If a person is in full-time attendance at the University of Punjab, the registration number contains the initials of the college or high school that the person applied from, instead of the letter “z”.

 

(Affidavit of Janice Molsberry).

 

The visa officer found that, according to the facts, Mr. Hanif, as an external or private student, had never taken any classes at the University of the Punjab. Consequently, Mr. Hanif was not a regular full‑time student as required by subsection 78(1) and paragraph 78(2)(d) of the Regulations.

 

[24]           The definition of educational credential at section 73 of the Regulations does not indicate whether the applicant must have obtained the credential as an internal or external candidate. However, paragraph 78(2)(f) of the Regulations requires that the skilled worker must have obtained a university educational credential at the master’s or doctoral level and a total of at least 17 years of full-time studies. The two statements in this paragraph are separated by “and”, but it is not clear whether a university educational credential must have been obtained at the institution where the full‑time studies were done. Consequently, the provision allows for the possibility of studying full time in one university while receiving a university degree from another.

 

[25]           The recent decision Hameed, above, rules on the same provisions with similar facts. Justice Orville Frenette found that the University of the Punjab was not an “attending” institution for undergraduate students:

[38]      . . . Rather, [the University of the Punjab] administered exams for those who have attended other institutions and conferred degrees accordingly. However, this did not mean that the Applicant did not receive a two-year university educational credential at the bachelor’s level nor did it mean that he did not complete a total of fourteen years of schooling . . . .

 

 

[26]           Moreover, in Hameed, the Court found that the Higher Education Commission of Pakistan confirmed that Mr. Hameed’s Bachelor of Arts degree conferred by the University of the Punjab was recognized as the equivalent to a corresponding bachelor’s degree involving 14 years of schooling as awarded by other chartered universities/institutions (Hameed at paragraph 44). Even though this practice does not correspond exactly with Canadian standards, the guidelines do not call for comparisons to the Canadian educational system: “Officers should assess programs of study and award points based on the standards that exist in the country of study” (Citizenship and Immigration Canada, Overseas Processing, OP6 Federal Skilled Workers Manual at section 10.2).

 

[27]           The visa officer’s determination that Mr. Hameed’s degree was taken as a private student was completely irrelevant to the determination required to be made by subsection 78(2) of the Regulations:

[45]      [The provisions at subsection 78(2) of the Regulations require] only that the applicant demonstrate that he has a two-year university educational credential at the bachelor’s level and a total of at least 14 years of completed full-time equivalent studies.

 

(Hameed, above).

 

 

[28]           In Hameed, Justice Frenette ultimately found that the standards in Pakistan for granting a university bachelor’s degree were met, regardless of whether the applicant attended the University of the Punjab as a private candidate or otherwise (Hameed at paragraph 48).

 

[29]           The major difference between Hameed and this case is that Mr. Hameed submitted evidence confirming that he was a university-registered student in a Bachelor of Arts studies program recognized by the Higher Education Commission of Pakistan.

 

[30]           In Cela, above, Justice Danièle Tremblay-Lamer was not satisfied that the applicant met the conditions set out in subsection 78(2) of the Regulations, as the applicant had not submitted any documents indicating that she had been awarded a credential for her studies:

[8]        The officer acknowledged that the applicant had taken an adult education course in accounting while living in Canada. However, given the applicant’s failure to establish that the course was a course described in subsection 78(2) of the Regulations, the officer did not find that the accounting course justified the award of additional points.

 

[9]        I do not find that the officer erred in her assessment of the applicant’s education. The applicant provided student transcripts from the Yorkdale Adult Learning Centre attesting to the accounting courses she had taken. However, none of these documents indicate that the applicant was awarded a credential for her studies. Thus, I find that the officer reasonably evaluated the evidence presented and awarded the applicant a sufficient number of points for her education.

 

[31]           It is trite law that only information that was before the administrative tribunal can be considered by a reviewing court on judicial review. In this case, Mr. Hanif submitted no attendance record or transcript indicating that he was a full-time student. Therefore, to succeed, Mr. Hanif would require confirmation from the Higher Education Commission of Pakistan that the Bachelor of Arts conferred to Mr. Hanif by the University of the Punjab was recognized as the equivalent to a corresponding bachelor’s degree as awarded by other chartered universities/institutions. In other words, Mr. Hanif would need to provide an attendance record or a transcript indicating that he was a full-time student at another accredited university.

 

[32]           Since Mr. Hanif has not provided this type of evidence, the Court finds that the visa officer did not err in determining that she could not consider the applicant’s post-secondary educational credentials.

 

(2)   Did the visa officer err in failing to consider, in her decision, the education of the applicant’s spouse?

 

[33]           In the CAIPS notes, the visa officer writes:

FN IS MARRIED WITH TWO CHILDREN. SPOUSE AND CHILDREN ARE NOT ACCOMPANYING.

 

…

 

SPOUSE HOLDS BACHELORS DEGREE BUT NOT ACCOMPANYING AND NO FEES PAID. HOWEVER, SPOUSE WAS EXTERNAL STUDENT SO EVEN IF FEES PAID, NO POINTS WOULD BE AWARDED.

 

(Record at pages 155-156).

 

 

[34]           In the visa officer’s affidavit, she states that Mr. Hanif’s spouse was added as the worker’s accompanying spouse. Therefore, the education of Mr. Hanif’s spouse was considered. Mr. Hanif received no points because his wife’s studies were not considered, since she was an external or private candidate. In following the above-mentioned analysis, the visa officer did not err in determining that she could not consider the post-secondary educational credentials of Mr. Hanif’s spouse. There is no evidence in the record that Mr. Hanif’s spouse was a full-time student at another accredited university.

 

(3)   Did the visa officer base her decision on an erroneous finding of fact that she made in a capricious manner, without regard for the material and evidence before her?

 

[35]           Within its jurisdiction, the Court has the discretion to quash the visa officer’s decision if it was based on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7).

 

[36]           The visa officer made a number of findings regarding Mr. Hanif’s post-secondary educational credentials, but the Court cannot disturb these findings absent unreasonableness. The CAIPS notes and the visa officer’s affidavit provided a detailed explanation for her findings of fact relating to the documents submitted as proof of education. In this case, there is no unreasonable error.

 

VII. Conclusion

[37]           For all these reasons, the application for judicial review is dismissed.

 

 

JUDGMENT

THE COURT ORDERS that

1.         The application for judicial review be dismissed;

2.         No serious question of general importance be certified.

 

 

“Michel M.J. Shore”

 

 

 

 

Certified true translation

Tu-Quynh Trinh

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-792-08

 

STYLE OF CAUSE:                          BABAR HANIF

                                                            v. MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      January 19, 2009

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                    THE HONOURABLE MR. JUSTICE SHORE

 

DATED:                                             January 23, 2009

 

 

 

APPEARANCES:

 

Hind Mali	FOR THE APPLICANT
Agnieszka Zagorska	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

GOULET, MALI & ASSOCIÉS Gatineau, Quebec	FOR THE APPLICANT
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT