Digests

Khan v. Canada (Minister of Citizenship and Immigration)

IMM-5318-99

Lemieux J.

16/10/00

20 pp.

Judicial review of visa officer's refusal of application for permanent residence in Canada in independent category--Applicant awarded 68 units of assessment, but needed 70--Immigration Regulations, 1978, Sch. I, s. 1(1)(d) providing where first-level university degree requiring at least three years of full-time study completed, 15 units of assessment shall be awarded--S. 1(1)(e) providing where second- or third-level university degree completed, 16 units of assessment shall be awarded--Both paragraphs subject to subsection 1(4), providing number of units of assessment set out in applicable paragraph that awards greatest number of units shall be awarded--Applicant's first university degree received after two years of full-time attendance--Visa officer only awarding 13 points for education as first-level degree not three-year full-time program--Second-level degree not taken into account--Regulations, s. 11(3) permitting visa officer to issue visa to immigrant not awarded number of units of assessment required if, in his opinion, good reasons why number of units of assessment awarded not reflecting chances of becoming successfully established in Canada and those reasons approved by senior immigration officer--Senior immigration officer denying recommendation for positive discretion because of applicant's age (46); funds for settlement, no apparent ties to Canada--Application allowed--Standard of review where question of interpretation of regulations correctness--Visa officer erred in denying applicant 16 units when interpreted s. 1(1)(e) as dependent upon meeting requirements of s. 1(1)(d)--In identical factual situation, Rothstein J. in Hameed v. Canada (Minister of Citizenship and Immigration) (1998), 44 Imm. L.R. (2d) 215 (F.C.T.D.) holding must first satisfy requirements of first-level university degree requiring at least three years of full-time study to qualify for 16 units of assessment for second- or third-level university degree--Certified question to that effect not heard by Court of Appeal as of date of reasons herein--In circumstances, Lemieux J. considering permissible to advance different point of view--Meeting requirements of s. 1(1)(d) not necessary condition to application of s. 1(1)(e) for following reasons--(1) Where wanted to make diploma conditional upon completion of lower level requirement, drafter expressly said so--Visa officer's interpretation results in rewriting s. 1(3)--Such rewriting not permissible--(2) Each paragraph of s. 1 beginning with "where", "lorsque", suggesting, unless specifically linked to previous paragraph, self-contained independent requirement--(3) S. 1(4) prohibition against cumulation not necessary if respective paragraphs not independent, and gives substance to intent greatest number of units shall be awarded--(4) S. 1(1)(d) not speaking to other circumstances where first-level degree not requiring three years of full-time study--Such silence should not be interpreted to turn purpose of s. 1(1)(d) into precondition to obtaining 16 units where master's or doctor's degree completed--(5) Failure to accord s. 1(d) independent status creating disharmony with other provisions--(6) No-linkage interpretation between s. 1(1)(b), (e) best promoting purpose of assessment system prescribed in Regulations--Senior immigration officer's refusal to approve visa officer's recommendation unreasonable--Exercise of discretion under s. 11(3)(a) must be approached from economic perspective related to ability of applicant for permanent residence to make living in Canada--Purpose underlying discretion to cover situations where selection criteria failed to properly assess what designed to do, i.e. to determine ability of applicant to successfully establish himself in Canada--Discretion broad, but not unrestricted--Must be exercised based on proper principles such as good faith, no irrelevant considerations, not ignoring relevant ones--Standard of review reasonableness--Evidentiary foundation for decision lacking in respect of settlement funds where account could not have been taken of $67,000 represented by applicant's property in Bangladesh because not mentioned in visa officer's written recommendations--Senior immigration officer not explaining how applicant's age negative element for intended occupation i.e. human resource officer, occupation in demand in Canada, and where visa officer recognized applicant having employment possibilities in Canada--Apparently not taking into account those aspects of visa officer's reasons supporting positive recommendation i.e. high proficiency in English, high occupational demand, work abroad, resourcefulness--Ignored applicant's distant relatives in Canada who offered assistance in transition--Question certified: whether interpretation of educational factor correct--Immigration Regulations, 1978, SOR/78-72, s. 11(3)(a) (as am. by SOR/84-461, s. 1) Schedule I, s. 1 (as am. by SOR/93-412, s. 17).