[2013] 3 F.C.R. 463
2011 FCA 339
A-416-10
MD. Ali Khan (Appellant)
v.
Minister of Citizenship and Immigration (Respondent)
A-419-10
MD. Khairul Kabir (Appellant)
v.
Minister of Citizenship and Immigration (Respondent)
A-484-10
Minister of Citizenship and Immigration (Appellant)
v.
Syed Imam Hasan (Respondent)
Indexed as: Khan v. Canada (Citizenship and Immigration)
Federal Court of Appeal, Sharlow, Pelletier and Stratas JJ.A.—Toronto, September 6; Ottawa, December 6, 2011.
Citizenship and Immigration — Status in Canada — Permanent Residents — Selection criteria — Educational credentials — Appeals from Federal Court decisions in which visa applicants seeking judicial review of visa officer’s decision refusing applications for permanent resident visas — All applicants holding two master’s degrees, spending more than 17 years in full-time studies — Applications refused since only credited with 16 years of full-time studies for master’s degrees, short of 17-year requirement for master’s degree stipulated in Immigration and Refugee Protection Regulations — Applicants, Bangladeshi, applying as members of federal skilled worker class — Visa officer concluding that none of applicants’ two master’s degrees “in line of progression” towards other — Federal Court dismissing two of visa applicants’ applications for judicial review, allowing third judicial review brought by Minister; certifying question as to points to be awarded for education — Whether visa officers having to give credit only for years of study national authorities identifying as norm for achievement of educational credential in issue — Regulations, s. 78(3)(a), (b) providing that points shall be awarded on basis of single educational credential resulting in highest number of points — Visa officer herein entitled to credit visa applicants with 16 years of full-time studies regarding master’s degrees — Requirement that candidate’s assessment be based on single credential together with prohibition on cumulating points suggesting that Parliament intended to standardize assessment of educational credentials — Visa officer’s “line of progression” analysis mistaken since potentially not respecting statutory scheme; however, not impacting on result herein given conclusion that application to be assessed on the basis of single master’s degree — Thus, visa officer not erring in assessing visa applicants’ education for purposes of Regulations, s. 78 — Appeals of visa applicants Khan, Kabir dismissed, appeal of Minister allowed.
These were appeals heard together from three Federal Court decisions in which the visa applicants (appellants in A-416-10, A-419-10; respondent in A-484-10) sought judicial review of a visa officer’s decision refusing their applications for a permanent resident visa. In all three cases, the visa applicants had earned two master’s degrees and had spent more than 17 years in full-time studies. Their applications were refused because they were only credited with 16 years of full-time studies with respect to their master’s degree, one year short of the 17-year requirement for a master’s degree stipulated in the Immigration and Refugee Protection Regulations. All three visa applicants are citizens of Bangladesh who applied for visas as members of the federal skilled worker class. They all have educational credentials awarded by Bangladeshi institutions of higher learning. The respondent Hasan and the appellant Kabir have completed 18 years of full-time study whereas the appellant Khan has completed 19 years of full-time study. In each of these cases, the visa officer credited the applicants with 22 points out of a possible maximum 25 points for educational qualifications, concluding that none of the applicants’ two master’s degrees was in the “line of progression” towards the other; therefore, the officer awarded the maximum points for the years of study leading up to each applicant’s highest university credential, which was 16 years of full-time studies. The 16 years was based, in particular, on national Bangladeshi educational authorities as mandated by the definition of “educational credential” under the Regulations.
The Federal Court dismissed two of the visa applicants’ applications for judicial review and allowed the third judicial review application brought by the Minister. In the case of the first two applicants (Kabir, Khan), it was held that even though they had studied for a total of more than the 17 years as set out in paragraph 78(2)(f) of the Regulations, the visa officer’s decision to consider only the 16 years required to achieve a master’s degree in Bangladesh was reasonable. It found that, based on paragraph 78(3)(a), which provides that education is to be assessed on the basis of a single credential, the visa applicants are not entitled to any credit for a second master’s degree. In the case of the applicant Hasan, the Federal Court followed a different reasoning, finding that the visa officer was required to assess Mr. Hasan’s application on the basis of the second of his two master’s degrees and give him credit for all years of study up to and including the second master’s degree. The question as to whether points are awarded for years of full-time or full-time equivalent studies that did not contribute to the educational credential being assessed when assessing points for education under section 78 of the Regulations was certified.
The issue was whether visa officers must only give credit for those years of study which the national authorities identify as the norm for the achievement of the educational credential in issue or whether officers can recognize other years of study, either under the “line of progression” analysis or on some other basis.
Held, the appeals of the visa applicants Kabir and Khan should be dismissed whereas the appeal of the Minister should be allowed.
Paragraphs 78(3)(a) and (b) provide that points shall be awarded on the basis of a single educational credential, specifically, the one which results in the highest number of points. Paragraph 78(3)(a) provides that points shall not be awarded cumulatively on the basis of more than one single educational credential. This means: that points that would be awarded for the prerequisites to an educational credential are not to be added to the points awarded for that credential; that points are not awarded for multiple instances of the same credential; that the fact that the credential which forms the basis of the assessment is the one which yields the highest number of points necessarily means that ancillary or supplementary credentials are not considered. The visa officer’s authority to impose a limitation on points awarded to the applicants for their full-time studies is found in the definition of “educational credential”. The officer is to be guided by the national authorities not only as to the credentials that are recognized in that jurisdiction but also as to the course of studies leading to that credential. Thus, the visa officer was entitled, on the basis of the information provided by UNESCO and confirmed by the Bangladeshi authorities, to credit the visa applicants with 16 years of full-time studies regarding their master’s degree.
The requirement that a candidate’s assessment be based upon a single credential together with the prohibition on cumulating points suggests that Parliament wished to standardize the assessment of educational credentials so that the relevant period is the number of years of full-time study (or equivalent) required to obtain the candidate’s highest education credential in the ordinary course. That way, all applicants being assessed for a particular educational credential are assessed on the same basis no matter where they obtained that credential. This was the view taken by the Federal Court in Bhuiya v. Canada (Minister of Citizenship and Immigration). In the case of the applicant Hasan, the Federal Court Judge rejected Bhuiya, preferring instead the approach adopted in McLachlan v. Canada (Minister of Citizenship and Immigration). That case was wrongly decided and ought not have been followed.
If the proper approach was the one set out in Bhuiya, then the visa officer’s “line of progression” analysis was mistaken since it may not respect the statutory scheme. It suggested that if one of the visa applicant’s master’s degrees were found to be “in the line of progression” towards the other, the applicant would have been given additional credit for his years of education. The years of study required to obtain a prerequisite to a degree are already included in the years of study associated with that degree in the Regulations. Thus the 17 years of full-time study associated with a master’s degree in paragraph 78(2)(f) include the full-time years of study spent acquiring the prerequisites for that degree. No further credit is available for years of study in the “line of progression” towards that degree. In the case of the visa applicants, the visa officer found, in each case, that their application was to be assessed on the basis of a single master’s degree and concluded that the time spent acquiring the visa applicants’ other credentials was not to be included in the calculation of the applicants’ years of full-time studies because none of those other credentials were prerequisites to the applicants’ master’s degree. The visa officer’s reference to the “line of progression” analysis made no difference in the result. Consequently, the visa officer committed no error in the assessment of the visa applicants’ education for the purposes of section 78 of the Regulations.
Therefore, the certified question was answered in the negative. The visa officer does not award points for years of full-time or full-time equivalent studies that did not contribute to the educational credential being assessed.
STATUTES AND REGULATIONS CITED
Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 73 “educational credential” (as am. by SOR/2010-195, ss. 3(F)), 74 (repealed by SOR/2008-253, s. 6), 75 (as am. by SOR/2004-167, ss. 27, 80), 76 (as am. idem, s. 28(F); 2010-195, s. 4(F)), 78 (as am. idem, s. 5(F)), 79 (as am. by SOR/2004-167, s. 29; 2008-253, s. 7; 2010-195, s. 6(F); 2011-54, s. 1), 80 (as am. by SOR/2010-195, s. 7), 82 (as am. by SOR/2004-167, s. 30; 2010-172, s. 5), 84 (repealed by SOR/2008-202, s. 1), 85 (as am. idem).
Interpretation Act, R.S.C., 1985, c. I-21, s. 14.
CASES CITED
Not followed:
McLachlan v. Canada (Minister of Citizenship and Immigration), 2009 FC 975, 354 F.T.R. 176, 85 Imm. L.R. (3d) 90.
applied:
Bhuiya v. Canada (Minister of Citizenship and Immigration), 2008 FC 878.
referred to:
Patel v. Canada (Citizenship and Immigration), 2011 FCA 187, 98 Imm. L.R. (3d) 175, 419 N.R. 321; Thomasz v. Canada (Citizenship and Immigration), 2010 FC 1159.
APPEALS from three Federal Court decisions (2010 FC 995, 375 F.T.R. 32, 92 Imm. L.R. (3d) 163; 2010 FC 983, 92 Imm. L.R. (3d) 175; 2010 FC 1206, 379 F.T.R. 17, 94 Imm. L.R. (3d) 84)) in which the visa applicants sought judicial review of a visa officer’s decision refusing their applications for a permanent resident visa on the basis of educational points awarded. Appeals of visa applicants Khan, Kabir dismissed and appeal of Minister allowed.
APPEARANCES
Ian R. J. Wong for appellants in A-416-10 and A-419-10 and for respondent in A-484-10.
David Cranton, Ada Mok, Melissa Mathieu and Brad Bechard for respondent in A-416-10 and A-419-10 and for appellant in A-484-10.
SOLICITORS OF RECORD
Gardner Wong in association, Toronto, for appellants in A-416-10 and A-419-10 and for respondent in A-484-10.
Deputy Attorney General of Canada for respondent in A-416-10 and A-419-10 and for appellant in A-484-10.
The following are the reasons for judgment rendered in English by
Pelletier J.A.:
INTRODUCTION
[1] Off-shore applicants for permanent resident visas in the federal skilled worker class are assessed according to a grid system in which points are awarded for various criteria, one of which is education. The Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), provide a scale for the assessment of educational qualifications based on two criteria, educational credentials and years of full-time (or equivalent) study. The issue raised by this appeal is the application of the second of these criteria.
[2] These reasons apply to three appeals which were heard together because they all raise this issue on substantially the same facts. In all three cases, the applicant had earned two master’s degrees and had spent more than 17 years in full-time studies. In all three cases, the visa officer refused their application for a permanent resident visa because they were only credited with 16 years of full-time studies with respect to their master’s degree, one year short of the 17-year requirement for a master’s degree stipulated in the Regulations. A judge of the Federal Court dismissed two of the visa applicants’ applications for judicial review: Kabir v. Canada (Citizenship and Immigration), 2010 FC 995, 375 F.T.R. 32 (Kabir), and Khan v. Canada (Citizenship and Immigration), 2010 FC 983, 92 Imm. L.R. (3d) 175 (Khan). A different judge of the Federal Court allowed the third judicial review application: Hasan v. Canada (Citizenship and Immigration), 2010 FC 1206, 379 F.T.R. 17 (Hasan).
[3] In Kabir and Khan, the following question was certified:
In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time or full-time equivalent studies that did not contribute to the educational credential being assessed?
[4] In Hasan, the Court certified substantially the same question, but for the inadvertent omission of the words “of full-time”.
[5] For the reasons that follow, I would answer the question in the negative, dismiss the applicants’ appeals in Kabir and Khan, and allow the Minister’s appeal in Hasan. To avoid unnecessary repetition of the phrase “the two appellants and the respondent”, I will refer to these individuals collectively as the visa applicants.
[6] These reasons are prepared in the Hasan file (A-484-10) but apply equally to the Kabir (A‑416-10) and Khan (A-419-10) matters. A copy of these reasons will be placed on each of these files.
THE STATUTORY SCHEME
[7] In order to make sense of the visa officer’s decisions, and the Federal Court’s reasons in the applications for judicial review, it is necessary to appreciate the statutory scheme.
[8] Sections 73 to 85 [ss. 73 “educational credential” (as am. by SOR/2010-195, s. 3(F)), 74 (repealed by SOR/2008-253, s. 6), 75 (as am. by SOR/2004-167, ss. 27, 80), 76 (as am. idem, s. 28(F); 2010-195, s. 4(F)), 78 (as am. idem, s. 5(F)), 79 (as am. by SOR/2004-167, s. 29; 2008-253, s. 7; 2010-195, s. 6(F); 2011-54, s. 1), 80 (as am. by SOR/2010-195, s. 7), 82 (as am. by SOR/2004-167, s. 30; 2010-172, s. 5), 84 (repealed by SOR/2008-202, s. 1), 85 (as am. idem)] of the Regulations establish a grid for the assessment of persons seeking admission to Canada as federal skilled workers. The grid is based on the six criteria listed below; opposite each item is the maximum number of points which may be awarded for that item:
- education — 25 points
- proficiency in English and French — 24 points
- experience — 21 points
- age — 10 points
- arranged employment — 10 points
- adaptability — 10 points
The highest possible score is 100 points.
[9] The assessment of an applicant’s educational qualifications is dealt with in subsection 78(2) of the Regulations:
| 78. … |
|
| Education (25 points) |
(2) A maximum of 25 points shall be awarded for a skilled worker’s education as follows: (a) 5 points for a secondary school educational credential; (b) 12 points for a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 12 years of completed full-time or full-time equivalent studies; (c) 15 points for (i) a one-year post-secondary educational credential, other than a university educational credential, and a total of at least 13 years of completed full-time or full-time equivalent studies, or (ii) a one-year university educational credential at the bachelor’s level and a total of at least 13 years of completed full-time or full-time equivalent studies; (d) 20 points for (i) a two-year post-secondary educational credential, other than a university educational credential, and a total of at least 14 years of completed full-time or full-time equivalent studies, or (ii) a two-year university educational credential at the bachelor’s level and a total of at least 14 years of completed full-time or full-time equivalent studies; (e) 22 points for (i) a three-year post-secondary educational credential, other than a university educational credential, and a total of at least 15 years of completed full-time or full-time equivalent studies, or (ii) two or more university educational credentials at the bachelor’s level and a total of at least 15 years of completed full-time or full-time equivalent studies; and (f) 25 points for a university educational credential at the master’s or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies. |
[10] The rules for the assessment of multiple educational qualifications are found at subsections 78(3) and (4) of the Regulations:
| 78. … |
|
| Multiple educational achievements |
(3) For the purposes of subsection (2), points (a) shall not be awarded cumulatively on the basis of more than one single educational credential; and (b) shall be awarded (i) for the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of the single educational credential that results in the highest number of points, and (ii) for the purposes of subparagraph (2)(e)(ii), on the basis of the combined educational credentials referred to in that paragraph. |
| Special circumstances |
(4) For the purposes of subsection (2), if a skilled worker has an educational credential referred to in paragraph (2)(b), subparagraph (2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or paragraph (2)(f), but not the total number of years of full-time or full-time equivalent studies required by that paragraph or subparagraph, the skilled worker shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph. |
[11] The definition of “educational credential” is found at section 73 of the Regulations:
| Definitions |
73. … |
| “educational credential” |
“educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue. |
[12] With these provisions in mind, I turn to the facts underlying these appeals.
FACTS
[13] All three visa applicants are citizens of Bangladesh who applied for permanent resident visas as members of the federal skilled worker class. All have educational credentials awarded by Bangladeshi institutions of higher learning. Mr. Hasan has earned three university degrees: a Bachelor of Commerce, a Master of Commerce in Management and an Executive Master of Business Administration in Marketing. He has completed, in total, at least 18 years of full-time education.
[14] Mr. Kabir has to his credit a bachelor’s degree in Political Science, a master’s degree in Political Science, a master’s degree in Business Administration and a Diploma in Fashion Merchandising. Mr. Kabir has completed, in total, 18 years of full-time study. While the issue of assessing years of study also arises with respect to Mr. Kabir’s wife, the same principles apply to her application. As a practical matter, both of their applications turn on the assessment of Mr. Kabir’s years of study.
[15] Mr. Khan holds a Bachelor of Commerce degree, a master’s degree in Accounting, a Master’s degree in Business Administration and a diploma in Computer Application Programming. In total, he has spent 19 years in full-time studies.
[16] In each of these cases, the visa officer credited the applicant with 22 points out of a possible maximum of 25 points for educational qualifications. The officer applied the same reasoning in all three cases. Using Mr. Hasan’s application as an example, the refusal letter he received from the officer stated:
You obtained 22 points for education based on the evidence that your highest credential is a Master’s degree with the equivalent of 16 years of fulltime education leading up to the completion of your highest degree (your 2 Masters [sic] degrees separately), in a recognized post-secondary institution. Note that you cannot cumulate more years of education by having 2 credentials at the same level.
[17] The officer made her reasoning more explicit in the affidavit that she submitted in the course of Mr. Hasan’s application for judicial review:
I considered the applicant’s education history and concluded that none of his two Masters [sic] Degrees (commerce and business administration) was in the line of progression towards the other. I therefore awarded the maximum points for the years of study leading up to his highest university credential (any of his two Masters [sic] Degrees taken separately) which is 16 years of full time education and I awarded 22 points for education.
[18] The visa officer’s reference to one credential as not being in the “line of progression” towards the other is administrative shorthand, meaning that since educational credentials must be assessed on the basis of the applicant’s single highest credential (paragraph 78(3)(a)), only the years of study required to obtain that credential are considered by the officer. This meant that since one master’s degree was not a prerequisite for obtaining the other master’s degree, Mr. Hasan was only credited for the years of study required to obtain a single master’s degree. The same reasoning was applied to Mr. Kabir’s Diploma in Fashion Merchandising, and to Mr. Khan’s Diploma in Application Programming, neither of which was a prerequisite for their respective master’s degree.
[19] The 16 years of full-time education to which the officer refers in her letter to Mr. Hasan is the time required to complete a master’s degree in Bangladesh, according to UNESCO and the Bangladeshi educational authorities. This deference to the national authorities is mandated by the definition of “educational credential” under the Regulations.
[20] The result in Mr. Hasan’s case, as in the other two cases, was that he failed to score 67 points, which is the minimum number of points required to be granted a permanent resident visa. In each case, the applicant would have met the 67-point threshold if he had been awarded the maximum 25 points under the education factor. In short, the points awarded for the education factor were determinative of each of these applicants’ request for a permanent resident visa.
THE DECISIONS UNDER APPEAL
[21] In Khan and Kabir, the Federal Court Judge held that even though the visa applicants had studied for a total of more than the 17 years stipulated in paragraph 78(2)(f) of the Regulations, the visa officer’s decision to consider only the 16 years required to achieve a master’s degree in Bangladesh was reasonable. The Federal Court Judge found that this result flowed from paragraph 78(3)(a) which provides that education is to be assessed on the basis of a single credential, so that the visa applicants are not entitled to any credit for a second master’s degree.
[22] The Federal Court Judge declined to follow another decision of the Federal Court, McLachlan v. Canada (Minister of Citizenship and Immigration), 2009 FC 975, 354 F.T.R. 176 (McLachlan), in which it was held that subsection 78(4) of the Regulations required the visa officer to consider whether special circumstances existed and, if they did, to award the number of points corresponding to the educational credential achieved, even if the visa officer considered that the applicant had not completed the required number of years of study. The Judge in the Kabir and Khan cases preferred the interpretation of subsection 78(4) found in Bhuiya v. Canada (Minister of Citizenship and Immigration), 2008 FC 878 (Bhuiya), in which the Federal Court found that subsection 78(4) allowed the visa officer to award an applicant the number of points most closely corresponding to the number of years of full-time studies undertaken by the applicant. Thus an applicant who was credited with 16 years of full-time studies would be entitled to 22 points, which is the number of points awarded to a person with 15 years of full-time studies, the period corresponding most closely to, but not exceeding, the number of years of full-time study attributed to the applicant. This is, in fact, the number of points awarded to Messrs. Khan and Kabir by the visa officer.
[23] In Hasan, the Federal Court Judge declined to follow the reasoning set out in Khan and Kabir. The Judge acknowledged [at paragraph 18] that the “line of progression” analysis employed by the visa officer was an attempt to bring clarity to badly worded regulations. Notwithstanding its laudable purpose, the Judge identified the issue as whether this analysis was supported by the language of the Regulations. In the Judge’s view, the two factors mentioned in paragraph 78(2)(f) must be read disjunctively so that the years of full-time study credited to an applicant are not dependent on a single educational credential. The Judge considered that the visa officer was required to assess Mr. Hasan’s application on the basis of the second of his two master’s degrees and to give him credit for all years of full-time study, up to and including the second master’s degree. If this were done, Mr. Hasan, while nominally getting credit for a single master’s degree (the last), would be granted credit for the time required to obtain two master’s degrees and would therefore be entitled to 25 points with respect to the education factor. As a result, the Federal Court Judge allowed Mr. Hasan’s application for judicial review.
THE QUESTION TO BE DECIDED
[24] I reproduce the certified question for ease of reference:
In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time or full-time equivalent studies that did not contribute to the educational credential being assessed?
[25] It is necessary to clarify the question somewhat. Just as points are not awarded for educational credentials alone, nor are they awarded for years of study alone. The question is the relation between the years of study and the educational credential which forms the basis of the assessment. In effect, the issue in this appeal is whether visa officers must only give credit for those years of study which the national authorities identify as the norm for the achievement of the educational credential in issue, or whether officers can recognize other years of study, either under the “line of progression” analysis or on some other basis.
ANALYSIS
[26] This Court has held that the standard of review to be applied to a visa officer’s decision is correctness: see Patel v. Canada (Citizenship and Immigration), 2011 FCA 187, 98 Imm. L.R. (3d) 175, at paragraph 27; consequently, the standard of review of the visa officer’s decisions in these cases is correctness.
[27] The issue in this case is the construction of subsections 78(2) and (3) of the Regulations. The former is a listing of educational credentials and associated years of full-time study, while the latter sets out how those credentials are to be assessed. In particular, subsection 78(3) deals with two questions: which educational credential will form the basis of the assessment, and how are the years of full-time (or equivalent) studies to be assessed?
[28] Which credential will form the basis of the assessment? Paragraphs 78(3)(a) and (b) provide that points shall be awarded on the basis of a single educational credential, specifically, the one which results in the highest number of points.
[29] I note in passing that educational credentials, by themselves, are not a basis upon which points are awarded. They are awarded on the basis of educational credentials and years of study. Thus subparagraph 78(3)(b)(i) must be read as though it said “points shall be awarded on the basis of the single educational credential that results in the highest number of points, assuming that the years of study requirement for that credential have been met”.
[30] Paragraph 78(3)(a) provides that points shall not be awarded cumulatively on the basis of more than one single educational credential. I take this to mean three things. First, the points that would be awarded for the prerequisites to an educational credential are not to be added to the points awarded for that credential. This is made clear in the French version of the text, which provides that points are not to be added one to the other on the basis that the applicant holds more than one credential.
[31] For example, admission to a bachelor’s level program is normally limited to persons who have a high school diploma. The effect of paragraph 78(3)(a) is that in awarding points for a bachelor’s degree, one would not add the points associated with a high school diploma (5 points) to the points awarded for a bachelor’s degree (15 to 20 points). To hold otherwise would result in double counting in the sense that the points awarded for the higher credential already account for the fact that one must first obtain the lower credential.
[32] The second point to be taken from paragraph 78(3)(a) of the Regulations is that points are not awarded for multiple instances of the same credential. Thus a person who has two bachelor’s degrees would not be entitled to the maximum 25 points on the basis that they were entitled to 20 points for the first bachelor’s degree plus 20 points for the second. There is a limited exception to this rule in subparagraph 78(2)(e)(ii) to account for certain professional qualifications, such as law, which requires two bachelor’s degrees.
[33] Lastly, the fact that the credential which forms the basis of the assessment is the one which yields the highest number of points necessarily means that ancillary or supplementary credentials are not considered. Only the “senior” credential is considered.
[34] This part of the analysis is not contentious. Everyone agrees that a master’s degree is the highest credential possessed by each of these applicants. None of the visa applicants argues that they were entitled to the maximum number of points on the basis that they have two master’s degrees and are thus entitled to double the points awarded for a single master’s degree. They do argue however that they are entitled to the maximum number of points because, in the course of their studies, they accumulated more than the number of years of full-time study stipulated in paragraph 78(2)(f) and thus are entitled to the maximum 25 points for their educational qualifications.
[35] This leads to the question of how the years of full-time study are to be assessed. The visa officer only credited the visa applicants with 16 years of full-time study for a master’s degree because UNESCO and the Bangladeshi educational authorities confirmed that, in Bangladesh, the normal course of studies for a master’s degree is 16 years. The visa officer’s authority to impose this limitation is found in the definition of “educational credential”, quoted above, but reproduced below for ease of reference:
| Definitions |
73. … |
| “educational credential” |
“educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of a program of study or training at an educational or training institution recognized by the authorities responsible for registering, accrediting, supervising and regulating such institutions in the country of issue. |
[36] The key words in this provision are “issued on the completion of a program of study or training”. The visa officer is to be guided by the national authorities not only as to the credentials that are recognized in that jurisdiction but also as to the course of studies leading to that credential. As a result, the visa officer was entitled, on the basis of the information provided by UNESCO and confirmed by the Bangladeshi authorities, to credit the visa applicants with 16 years of full-time studies with respect to their master’s degree.
[37] This takes us to the critical issue in these cases, which is whether the visa applicants are entitled to any credit for years of full-time study in excess of the 16 years required to complete a master’s degree in their country of origin?
[38] The visa applicants’ position is that all full-time years of study completed in the successful pursuit of a credential are to be credited to an applicant. In support of this position, they point to the wording of subsection 78(2) of the Regulations in which no causal link is made between the educational credential and the years of full-time study. For example, paragraph 78(2)(f) dealing with master’s degrees reads:
| 78. … |
|
| Education (25 points) |
(2) … (f) 25 points for a university educational credential at the master’s or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies. |
[39] The visa applicants point out that the Minister’s position requires one to treat the provision as though it reads: “master’s or doctoral level requiring a total of at least 17 years”. If Parliament has chosen not to use those words, they say, the Court should not read them in.
[40] The visa applicants’ position amounts to saying that while points will be awarded solely on the basis of a single educational credential, the time spent acquiring other educational credentials is to be considered even if the other credentials themselves are not.
[41] The difficulty with this position is that it too requires reading a number of limitations into the statutory language. For example, the visa applicants conceded in argument that a year of full-time studies which resulted in a failure, i.e. which did not advance the student’s candidacy for a particular educational credential, would not be considered a year of full-time studies. So, for example, a candidate for a master’s degree who had to repeat a year would not be able to count that year as a year of full-time studies. While this is a sensible position, it is an implied limitation on the otherwise unqualified words used in subsection 78(2).
[42] Another implied limitation may well arise in relation to years spent in a program of study which is later abandoned. For example, if a candidate begins a master’s program in engineering, successfully completes one year of studies in that program and then switches to an unrelated field, the inclusion of that year of studies in the assessment of the candidate’s education would give the candidate credit for a year of studies which was unrelated to any educational credential. This cannot have been Parliament’s intention.
[43] In the end, the language used in relation to the years of study requirement is ambiguous and requires the Court to read in limitations, no matter which position is adopted. The question is: which limitations are more consistent with the statutory objectives?
[44] In my view, the requirement that a candidate’s assessment be based upon a single credential together with the prohibition on cumulating points suggests that Parliament wished to standardize the assessment of educational credentials, so that the relevant period is the number of years of full-time study (or equivalent) required to obtain the candidate’s highest education credential in the ordinary course. In that way, all applicants being assessed for a particular educational credential are assessed on the same basis, no matter where they obtained that credential.
[45] This was the view taken by the Federal Court in Bhuiya, cited above, at paragraphs 15–19:
Such an interpretation of the Regulations is consistent with both the Immigration Manual, and the policy objectives described in the Regulatory Impact Assessment Statement or "RIAS" relating to the Regulations.
Dealing first with the RIAS, this Court has held that although a RIAS is not a part of Regulations, it is nonetheless a useful tool in analyzing the legislative intent, as it was prepared as part of the regulatory process: see, for example, Merck & Co. v. Canada (Attorney General) (1999), 176 F.T.R. 21 (F.C.T.D.) and Bayer Inc. v. Canada (Attorney General) (1999), 87 C.P.R. (3d) 293 (F.C.A.).
In this case, a review of the RIAS discloses that the reason for requiring that a candidate have both a particular degree and a specified number of years of education was to promote consistent standards in the assessment of a candidate’s education and training, given the range of education and formal training systems around the world.
The RIAS uses a Master’s degree as an example, noting that to qualify for the maximum number of points for a Master’s the candidate must also have 17 years of education. In other words, the years of education requirement is clearly intended to establish minimum standards for each type of degree.
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. [Emphasis in original.]
[46] See, to the same effect, Thomasz v. Canada (Citizenship and Immigration), 2010 FC 1159, at paragraphs 24–25.
[47] In Hasan, the Federal Court Judge rejected the reasoning in Bhuiya, preferring instead the approach adopted in McLachlan, cited above. In that case, the Federal Court Judge resolved the issue of years of study by reference to subsection 78(4) of the Regulations which I reproduce below for ease of reference:
| 78. … |
|
| Special circumstances |
(4) For the purposes of subsection (2), if a skilled worker has an educational credential referred to in paragraph (2)(b), subparagraph (2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or paragraph (2)(f), but not the total number of years of full-time or full-time equivalent studies required by that paragraph or subparagraph, the skilled worker shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph. |
[48] McLachlan involved a visa applicant with “Scottish Ordinary Grades” plus 2 years of post-secondary police training. The national standard time for completion of Scottish Ordinary Grades was 11 years, but the applicant had repeated the final year in order to achieve higher marks. As a result, he had in fact studied for 12 years at the secondary school level. The visa officer awarded 15 points for education pursuant to subparagraph 78(2)(c)(i), which required “a total of at least 13 years of completed full-time or full-time equivalent studies”. The applicant claimed to be entitled to 20 points pursuant to subparagraph 78(2)(d)(i), which required “a total of at least 14 years of completed full-time or full-time equivalent studies”. The Federal Court Judge set aside the visa officer’s assessment, reasoning as follows (at paragraphs 31–33):
The Immigration Officer did not look beyond the words of subsection 78(2)(c) and (d) and consider all of section 78 of the Regulations or indeed the scheme of the skilled worker provisions. Her analysis focused on a tallying of effective years of studies without regard to the level of educational attainment. Educational attainment is usually, but not always, achieved by methodical progression of years of study. The legislators were alive to the possibility of a shortfall in years of study in situations where the educational credential is valid and that special circumstance was addressed in subsection 78(4) of the IRPA Regulations.
The subsection could be better worded; nevertheless it is sufficiently clear. Stripping out the wordage unrelated to the Applicant, it reads:
… if a skilled worker has an educational credential referred to in … subparagraph … (d)(i) … but not the total number of years of full-time … studies required by that … subparagraph, the skilled worker shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the subparagraph.
The trigger for Section 78(4) is the attainment of an educational credential. The special circumstances subsection recognizes the educational attainment of skilled workers with bona fide educational credentials but not the specified years of study. Special circumstances could include those who attended state educational systems with shorter primary and secondary programs than in Canada. [Emphasis in original.]
[49] The result was that the applicant who had an educational credential but lacked the required number of years of completed studies applicable to that credential was nonetheless granted the full point allocation for that credential as though he satisfied the years of study requirement.
[50] In my view, McLachlan is wrongly decided and ought not to be followed. The interpretation of subsection 78(4) adopted by the Federal Court in that case cannot be sustained when the disposition is read carefully.
[51] It is true, as the Federal Court Judge noted in McLachlan, that subsection 78(4) is intended to be a remedial measure and that it is badly drafted. If subsection 78(4) is applied literally, its effect is rather punitive. It provides that a person who comes within the subsection shall be awarded the same number of points as the number of years of completed full-time or full-time equivalent studies set out in the subparagraph. To use paragraph 78(2)(f) as an example, a candidate who had a master’s degree but lacked the required 17 years of completed studies would be awarded 17 points since that is the number of years set out in paragraph 78(2)(f). This is fewer points than the person would receive if they applied on the basis of either a two-year post-secondary education credential (20 points for 14 years of full-time studies) or a three-year post-secondary educational credential (22 points for 15 years of full-time studies).
[52] Since subsection 78(4) is remedial, it is unlikely that this was the result desired by Parliament. However, this result cannot be avoided by reading the words “as the number of years of completed full-time or full-time equivalent studies” [emphasis added] out of the disposition, as the Federal Court Judge in McLachlan appears to have done, relying on the marginal note “Special circumstances” in the official version of the Regulations to do so. Section 14 of the Interpretation Act, R.S.C., 1985, c. I-21, makes it clear that marginal notes form no part of an enactment. As a result, the interpretation of subsection 78(4) set out in McLachlan is fatally flawed.
[53] To summarize, subsections 78(3) and (4) of the Regulations provide that applicants are to be assessed on the basis of their single highest educational credential, without cumulating points for other equal or lesser credentials. Where another credential is a prerequisite for the higher credential, the years of study associated with that other credential are included in the program of studies for the higher credential established by the national authorities. Where the other credential is not a prerequisite for the candidate’s highest credential, the years of study leading to that credential are not to be cumulated with the years of completed study attributable to the highest credential, since the candidate’s application is to be assessed on the basis of a single educational credential.
[54] If this is correct, then the “line of progression” analysis employed by visa officers may not respect the statutory scheme. For ease of reference, I reproduce below the comments made by the visa officer in the affidavit she submitted for the purposes of Mr. Hasan’s application for judicial review of her decision:
I considered the applicant’s education history and concluded that none of his two Masters [sic] Degrees (commerce and business administration) was in the line of progression towards the other. I therefore awarded the maximum points for the years of study leading up to his highest university credential (any of his two Masters [sic] Degrees taken separately) which is 16 years of full time education and I awarded 22 points for education.
This suggests that if the visa officer had found that one of Mr. Hasan’s master’s degrees had been “in the line of progression” towards the other, Mr. Hasan would have been given additional credit for his years of education. If I have understood the visa officer’s reasoning correctly, I must say that it is mistaken. Just as one does not get additional credit for having completed high school before obtaining a bachelor’s degree, the 12 years spent completing high school cannot be added to the years of study associated with a bachelor’s degree on the basis a high school diploma is in the line of progression towards a bachelor’s degree. The years of study required to obtain a prerequisite to a degree are already included in the years of study associated with that degree in the Regulations. Thus the 17 years of full-time study associated with a master’s degree in paragraph 78(2)(f) include the full-time years of study spent acquiring the prerequisites for that degree. No further credit is available for years of study in the “line of progression” towards that degree.
[55] In the case of these visa applicants, the visa officer found, in each case, that their application was to be assessed on the basis of a single master’s degree. The visa officer held that, based on the information provided by UNESCO and the national authorities, the normal course of studies for a master’s degree in Bangladesh is 16 years. In each case, the visa officer concluded that the time spent acquiring the visa applicants’ other credentials was not to be included in the calculation of the appellant’s years of full-time studies because none of those other credentials were prerequisites to the appellant’s master’s degree. The visa officer’s reference to the “line of progression” analysis made no difference in the result. As a result, I find that the visa officer committed no error in the assessment of the visa applicant’s education for the purposes of section 78 of the Regulations.
CONCLUSION
[56] In the result, I would dismiss the appeal in Khan and Kabir and I would allow the Minister’s appeal in Hasan. I would answer the certified question as follows:
In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, the visa officer does not award points for years of full-time or full-time equivalent studies that did not contribute to the educational credential being assessed. That is, visa officers must give credit only for those years of study which the national authorities identify as the norm for the achievement of the educational credential in issue.
Concurred in by: Sharlow and Stratas JJ.A.