Kabir v. Canada (Minister of Citizenship and Immigration), (2010) 375 F.T.R. 32 (FC)

• Judge: Heneghan, J.
• Court: Federal Court (Canada)
• Case Date: September 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 375 F.T.R. 32 (FC);2010 FC 995

Kabir v. Can. (M.C.I.) (2010), 375 F.T.R. 32 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. OC.009

Md. Khairul Kabir (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1291-10; 2010 FC 995)

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

Federal Court

Heneghan, J.

October 6, 2010.

Summary:

Kabir, a citizen of Bangladesh, sought judicial review of the decision of an Immigration Officer made at the Canadian High Commission, Singapore, refusing Kabir's application for permanent residence in Canada as a member of the skilled worker class. Kabir argued that the officer erred in assessing his academic credentials.

The Federal Court dismissed the application. 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 obtaining the educational credential being assessed?"

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class - The applicant, a citizen of Bangladesh, completed 18 years of full-time studies and obtained two Master's degrees - Only 16 years were required in Bangladesh in order to obtain a Master's degree - The immigration officer awarded the applicant 22 points for his education, pursuant to s. 78(2)(e) of the Immigration and Refugee Protection Regulations - The applicant argued that the officer should have awarded him "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", on the basis of s. 78(2)(f), and that the officer erred in assessing his wife's academic credentials in the same way - The Federal Court rejected those arguments - Section 78(3) was clear - No points could be awarded for two Master's degrees - Both the applicant and his wife fell within the scope of s. 78(2)(e) - No reviewable error was committed by the officer - See paragraphs 10 to 17.

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class - The applicant sought judicial review of the decision of an immigration officer made at the Canadian High Commission, Singapore, refusing his application for permanent residence in Canada as a member of the skilled worker class - The applicant argued that the officer erred in assessing his academic credentials - He relied on s. 78(4) of the Immigration and Refugee Protection Regulations and the decision in McLachlan (2009) (Fed. Ct.) - The Federal Court discussed judicial comity, including exceptions to the principle, and concluded that two exceptions applied here - The issue to be decided was different, and "[t]his Court in Bhuiya [2008] decided that where an applicant had achieved an academic credential in less years than specified, subsection 78(4) allowed a visa officer to award points corresponding to the number of years of education, not the full points of the level of the academic credential attained" - See paragraphs 18 to 22.

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - [See both Aliens - Topic 1233 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of review - The issue in this judicial review proceeding was whether the immigration officer committed a reviewable error in assessing the applicant's application for permanent residence specifically in relation to the assessment of his educational qualifications and those of his wife - The applicant argued that the officer's decision was wrong in law - He submitted that in denying credit for his second Master's degree and the Diploma, the officer erred in interpreting ss. 78(3) and 78(4) of the Immigration and Refugee Protection Regulations - The Federal Court preferred the Minister's argument that the question in issue was one of mixed fact and law and accordingly, subject to review on the standard of reasonableness - See paragraphs 6 to 8.

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - Counsel for the Minister of Citizenship and Immigration proposed the following question for certification: "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 obtaining the educational credential being assessed?" - The Federal Court held that, in light of the fact that there were differing judicial views about the assessment of educational qualifications, the question should be certified in this proceeding, even though the same question was certified in Khan (2010) - See paragraphs 24 to 26.

Courts - Topic 82

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court - Judicial comity - [See second Aliens - Topic 1233 ].

Cases Noticed:

Khan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 649; 2010 FC 983, refd to. [paras. 9, 26].

Bhuiya v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 631; 2008 FC 878, refd to. [para. 17].

McLachlan v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 176; 2009 FC 975, refd to. [para. 18].

Perez Arias et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 873; 2009 FC 1207, refd to. [para. 19].

Almrei v. Canada (Minister of Citizenship and Immigration) et al. (2007), 316 F.T.R. 49; 2007 FC 1025, refd to. [para. 19].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 247 F.T.R. 320; 2004 FCA 89, refd to. [para. 24].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 78(2)(e) [para. 14]; sect. 78(2)(f) [para. 15]; sect. 78(3) [para. 11].

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

Counsel:

Ian Wong, for the applicant;

Ada Mok, for the respondent.

Solicitors of Record:

Ian Wong, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on September 23, 2010, at Toronto, Ontario, before Heneghan, J., of the Federal Court, who delivered the following order and reasons for order at Ottawa, Ontario, dated October 6, 2010.