Dashtban v. Canada (Minister of Citizenship and Immigration), 2015 FC 160

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: November 12, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 160;(2015), 475 F.T.R. 156 (FC)

Dashtban v. Can. (M.C.I.) (2015), 475 F.T.R. 156 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.056

Hamid Dashtban (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5324-13; 2015 FC 160)

Indexed As: Dashtban v. Canada (Minister of Citizenship and Immigration)

Federal Court

Boswell, J.

February 6, 2015.

Summary:

An immigration officer denied Dashtban's application for permanent residence as a member of the federal skilled workers class (dentist). Dashtban applied under s. 72(1) of the Immigration and Refugee Protection Act for judicial review of that decision, seeking to have the decision set aside and remitted for re-determination by a different immigration officer. Dashtban fell one point short of the required 67 points.

The Federal Court dismissed the application.

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - [See Aliens - Topic 1233.4 ].

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - An immigration officer denied Dashtban's application for permanent residence as a member of the federal skilled workers class (dentist) - Dashtban applied under s. 72(1) of the Immigration and Refugee Protection Act for judicial review of that decision, seeking to have the decision set aside and remitted for re-determination by a different immigration officer - Dashtban fell one point short of the required 67 points - Dashtban argued that the officer made two errors: (1) he unreasonably concluded that Dashtban's degree in dentistry was equivalent to only a bachelor's degree rather than a Master's degree (two more points) and (2) he incorrectly interpreted the Regulations and wrongly denied Dashtban three points for adaptability because his wife's many educational courses did not lead to "a one-year post-secondary educational credential" - The Federal Court dismissed the application - The correctness standard of review applied to the officer's interpretation of ss. 76(2) and 83(2) of the Regulations (assessment of points for education and adaptability) - The remaining issues were reviewable on the reasonableness standard - The officer incorrectly interpreted s. 83(2) by requiring that the one-year credential be obtained on a full-time or full-time equivalent basis, but, notwithstanding the error, the finding that a one-year post-secondary educational credential was not obtained was a reasonable conclusion that fell within the range of possible, acceptable outcomes defensible on the facts and the law - Further, the officer's decision that the educational credential obtained was not at the master's or doctoral level was also reasonable - The court stated that "Since there was no clear and convincing evidence adduced by [Dashtban] that his specialization qualified as graduate studies, the decision was left to the Officer's discretion and the Court is satisfied that this conclusion was reasonable." - See paragraphs 22 to 54.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - [See Aliens - Topic 1233.4 ].

Cases Noticed:

Nikoueian v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 236; 2014 FC 514, refd to. [para. 13].

Kastrati v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 815; 2008 FC 1141, dist. [para. 14].

Anabtawi v. Canada (Minister of Citizenship and Immigration) (2012), 415 F.T.R. 66; 2012 FC 856, refd to. [para. 16].

Sedighi v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R. 302; 2013 FC 445, refd to. [para. 18].

Mahouri v. Canada (Minister of Citizenship and Immigration) (2013), 428 F.T.R. 263; 2013 FC 244, dist. [para. 18].

Ghajarieh v. Canada (Minister of Citizenship and Immigration) (2013), 435 F.T.R. 211; 2013 FC 722, refd to. [para. 20].

Najafi v. Canada (Minister of Public Safety and Emergency Preparedness) (2013), 438 F.T.R. 135; 2013 FC 876, affd. (2014), 466 N.R. 82; 2014 FCA 262, refd to. [para. 22].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 22].

Shahid v. Canada (Minister of Citizenship and Immigration), [2012] 4 F.C.R. 99; 419 N.R. 259; 2011 FCA 40, refd to. [para. 24].

Patel v. Canada (Minister of Citizenship and Immigration), [2013] 1 F.C.R. 340; 419 N.R. 321; 2011 FCA 187, refd to. [para. 24].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 25].

Ijaz v. Canada (Minister of Citizenship and Immigration) (2015), 474 F.T.R. 6; 2015 FC 67, dist. [para. 25].

Vuktilaj v. Canada (Minister of Citizenship and Immigration) (2014), 449 F.T.R. 8; 24 Imm. L.R.(4th) 234; 2014 FC 188, refd to. [para. 27].

Qin v. Canada (Minister of Citizenship and Immigration), [2014] 3 F.C.R. 373; 427 F.T.R. 163; 2013 FC 147, refd to. [para. 27].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 27].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161; 255 D.L.R.(4th) 633 (C.A.), refd to. [para. 27].

Di Santo v. Pennsylvania (1927), 273 U.S. 34; 47 S.Ct. 267, refd to. [para. 27].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Kandola v. Canada (Minister of Citizenship and Immigration) (2014), 456 N.R. 115; 372 D.L.R.(4th) 342; 2014 FCA 85, refd to. [para. 28].

Qin v. Canada (Minister of Citizenship and Immigration) (2013), 451 N.R. 336; 21 Imm. L.R.(4th) 98; 2013 FCA 263, refd to. [para. 29].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 29].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 31].

Hameed et al. v. Canada (Minister of Citizenship and Immigration) (2008), 324 F.T.R. 109; 2008 FC 271, refd to. [para. 31].

Shirazi v. Canada (Minister of Citizenship and Immigration) (2012), 406 F.T.R. 290; 2012 FC 306, refd to. [para. 31].

Lak v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 227; 2007 FC 350, refd to. [para. 42].

Rabiee v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 537; 2011 FC 824, refd to. [para. 45].

Mohagheghzadeh v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 243; 2013 FC 533, refd to. [para. 46].

Ahrairoodi v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 317; 2013 FC 862, refd to. [para. 47].

Dehghan v. Canada (Minister of Citizenship and Immigration) (2013), 453 F.T.R. 18; 2013 FC 680, refd to. [para. 48].

Sharifian v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 315; 2013 FC 665, refd to. [para. 49].

Silva v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 476; 63 Imm. L.R.(3d) 176; 2007 FC 733, refd to. [para. 51].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 78(1), sect. 78(2)(b) [para. 33]; sect. 78(2)(e), sect. 78(2)(f) [para. 38]; sect. 83(1)(a), sect. 83(2)(c) [para. 33].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Julia Huys, for the applicant;

David Knapp, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on November 12, 2014, at Toronto, Ontario, before Boswell, J., of the Federal Court, who delivered the following judgment on February 6, 2015.