Marr v. Canada (Minister of Citizenship and Immigration), (2011) 387 F.T.R. 138 (FC)

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: March 22, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 387 F.T.R. 138 (FC);2011 FC 367

Marr v. Can. (M.C.I.) (2011), 387 F.T.R. 138 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. AP.013

James Stuart Young Marr (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4501-10; 2011 FC 367)

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

Federal Court

Zinn, J.

March 28, 2011.

Summary:

Marr applied for a Canadian permanent resident visa as a member of the federal skilled worker class. A visa officer of the High Commission of Canada in London, England, refused the application. Marr applied for judicial review. At issue was the interpretation of s. 78 of the Immigration and Refugee Protection Regulations which dealt with the points to be awarded to applicants for their educational accomplishments.

The Federal Court allowed the application, set aside the visa officer's decision and remitted the matter for redetermination.

Administrative Law - Topic 554

The hearing and decision - Decisions of the tribunal - Finality (functus officio) - Power of tribunal to amend or reopen decision - [See first Aliens - Topic 1230 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - Marr, a 49 year old Scot baker, applied for a Canadian permanent resident visa (federal skilled worker class) - Marr had completed 11 years of education and a two-year post-secondary food related certified college course, plus a three year apprenticeship - He inadvertently failed to include a letter evidencing his apprenticeship with his application - A visa officer refused the application, awarding him 65 out of 67 points - When Marr realized he had not submitted the letter he sought reconsideration, but the officer refused to consider the new information as the application was finally refused on June 3, 2010 - Marr applied for judicial review, arguing that the officer erred by failing to reconsider the decision after receiving the letter - The Federal Court allowed the application on this ground - The court held that the doctrine of functus officio did not apply to immigration officers considering applications under the skilled worker category - Here, the officer fettered his or her discretion in so finding - The officer did in fact have the ability to consider new evidence - See paragraphs 49 to 54.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - The Federal Court stated that "Basic fairness and common sense suggest that if a visa officer, within days of rendering a negative decision on an application that has been outstanding for many years, receives a document confirming information already before the officer that materially affects the result of the application, then he or she should exercise his or her discretion to reconsider the decision. Nothing is served by requiring an applicant to start the process over and again wait years for a result when the application and the evidence is fresh in the officer's mind and where the applicant is not attempting to adduce new facts that had not been previously disclosed" - See paragraph 57.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - [See first Aliens - Topic 1230 and first Aliens - Topic 1233.4 ].

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - Marr, a 49 year old Scot baker, applied for a Canadian permanent resident visa (federal skilled worker class) - Marr had completed 11 years of education and a two-year post-secondary food related certified college course, plus a three year apprenticeship - He inadvertently failed to include a letter evidencing his apprenticeship with his application - A visa officer refused the application, awarding him only 65 out of the required 67 points, based on 13 years of education - When Marr realized he had not submitted the letter he sought reconsideration, but the officer refused - Marr applied for judicial review, arguing that the officer factually erred in failing to consider the three year apprenticeship because it was mentioned on his immigration application forms - The Federal Court noted, however, that Marr did not mention the apprenticeship certificate, nor did he provide copies of all his educational credentials as required by the form - The officer could not be faulted for failing to seek out the information - Nor was the officer wilfully blind to the fact that Marr had served an apprenticeship given the information that was provided in the application - The years of education assessed by the officer was not unreasonable in this respect - See paragraphs 16 to 20.

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - Marr, a 49 year old Scot baker, applied for a Canadian permanent resident visa (federal skilled worker class) - Marr had completed 11 years of education and a two-year post-secondary food related certified college course, plus a three year apprenticeship - He inadvertently failed to include a letter evidencing his apprenticeship with his application - A visa officer refused the application, awarding him 15 points for education, based on 13 years of study - Marr applied for judicial review, arguing that even if the apprenticeship period was not included, the officer erred in law in failing to apply s. 78(4) of the Immigration and Refugee Protection Regulations, because he had the credentials, just not the 14 years required to get 20 points under s. 78(2)(d)(i) - He claimed that because Scotland's secondary education was completed in 11 years rather than 12 and since he had a two-year post-secondary credential, these constituted special circumstances triggering s. 78(4) - The Federal Court agreed with that interpretation of s. 78(4) - The fact that Scotland's secondary education was one year shorter than in most of Canada could well be a special circumstance, triggering s. 78(4) - The officer here failed to properly apply s. 78(4) by failing to consider whether there were special circumstances that would warrant awarding Marr full points despite lacking one year of study - See paragraphs 21 to 48.

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - Section 78(4) of the Immigration and Refugee Protection Regulations provided that for purposes of s. 78(2) (points assessment), if a skilled worker had a qualifying educational credential, but not the total number of years of full-time or full-time equivalent studies required for that credential by s. 78(2), "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" - The Federal Court discussed the conflicting lines of authority respecting s. 78(4) - In Bhuiya v. MCI (FC 2008), the court held that s. 78(4) prohibited an officer from awarding full points for the educational credential absent the years of study - In McLachlan v. MCI (FC 2009), the court held that s. 78(4) was engaged and an applicant could be awarded the number of points corresponding to the academic credential, even without the specified years of study, where there were special circumstances - The court held that the Bhuiya interpretation was erroneous - The court also had difficulty with the McLachlan interpretation because it suggested, contrary to the clear wording of s. 78(4), that the officer had a discretion - However, having regard to the heading of s. 78(4) ("Special Circumstances"), the court concluded that s. 78(4) should be read as a potential exception to the years of study requirement in s. 78(2) where, on a discretionary basis, an officer determined that special circumstances existed - See paragraphs 21 to 48.

Aliens - Topic 1233.4

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Education - [See first Aliens - Topic 1230 and first Aliens - Topic 1233.5 ].

Aliens - Topic 1233.5

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Discretion to grant visa - Marr, a 49 year old Scot baker, applied for a Canadian permanent resident visa (federal skilled worker class) - Marr had completed 11 years of education and a two-year post-secondary food related certified college course, plus a three year apprenticeship - He inadvertently failed to include a letter evidencing his apprenticeship with his application - A visa officer refused the application, awarding him only 65 out of the required 67 points - Marr applied for judicial review, arguing that the officer, having found that he had less than the minimum number of points, failed to exercise his or her discretion to engage in a substituted evaluation as provided for in s. 76(3) of the Immigration and Refugee Protection Regulations - The Federal Court held that the CAIPS (Computer Assisted Immigration Processing System) Notes clearly indicated that the officer considered a substituted evaluation, but simply found that it was not warranted in this case - The officer concluded that "the points that you have been awarded are an accurate reflection of the likelihood of your ability to become economically established in Canada" - The officer's reasons were sufficient in the circumstances - See paragraphs 10 to 15.

Aliens - Topic 1233.5

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Discretion to grant visa - Section 76(3) of the Immigration and Refugee Protection Regulations provided that in evaluating the points required for a visa in the skilled worker class, the officer could substitute for the stated criteria their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded was not a sufficient indicator of whether the skilled worker may become economically established in Canada - The Federal Court noted that a number of cases had held that officers were not under a duty to provide reasons for their decision not to exercise their discretion to apply a substituted evaluation under s. 76(3) - However, the court held that whether or not there was a duty to give reasons, that duty was satisfied when, in circumstances where an applicant had not raised any specific factor indicating that the points awarded would not be a sufficient indication of the likelihood that the applicant would become established in Canada, the officer could simply state that he or she was satisfied that the points were a sufficient indicator of the likelihood of establishment - See paragraphs 12 to 13.

Aliens - Topic 1233.5

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Discretion to grant visa - [See second Aliens - Topic 1233.4 ].

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - [See first and second Aliens - Topic 1233.5 ].

Statutes - Topic 1845

Interpretation - Intrinsic aids - Titles, headings and section numbers - Headings and marginal notes - The Federal Court looked to the heading in interpreting s. 78(4) of the Immigration and Refugee Protection Regulations - See paragraph 47.

Cases Noticed:

Hasan v. Canada (Minister of Citizenship and Immigration) (2010), 379 F.T.R. 17; 2010 FC 1206, refd to. [para. 2].

Hussain v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 150; 2009 FC 209, refd to. [para. 10].

Fernandes v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 168; 2008 FC 243, refd to. [para. 10].

Yan v. Canada (Minister of Citizenship and Immigration) (2003), 233 F.T.R. 161; 2003 FCT 510, refd to. [para. 12].

Poblano v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 707; 2005 FC 1167, refd to. [para. 12].

Lackhee v. Canada (Minister of Citizenship and Immigration) (2008), 337 F.T.R. 299; 2008 FC 1270, refd to. [para. 12].

Xu v. Canada (Minister of Citizenship and Immigration) (2010), 366 F.T.R. 230; 2010 FC 418, refd to. [para. 13].

Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (T.D.), refd to. [para. 19].

McLachlan v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 176; 2009 FC 975, refd to. [para. 22].

Bhuiya v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 631; 2008 FC 878, disagreed with [para. 23].

Hameed et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 295; 2009 FC 527, disagreed with [para. 25].

Khan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 649; 2010 FC 983, disagreed with [para. 25].

Kabir v. Canada (Minister of Citizenship and Immigration) (2010), 375 F.T.R. 32; 2010 FC 995, disagreed with [para. 25].

Almrei v. Canada (Minister of Citizenship and Immigration) et al. (2007), 316 F.T.R. 49; 2007 FC 1025, refd to. [para. 28].

Thomasz et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 781; 2010 FC 1159, disagreed with [para. 37].

R. v. Lohnes, [1992] 1 S.C.R. 167; 132 N.R. 297; 109 N.S.R.(2d) 145; 297 A.P.R. 145, refd to. [para. 47].

Kurukkal v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 60; 2009 FC 695, refd to. [para. 49].

Tran v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 783; 2006 FC 1377, refd to. [para. 50].

Bodine v. Canada (Minister of Citizenship and Immigration) (2008), 331 F.T.R. 200; 2008 FC 848, refd to. [para. 51].

George v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 911; 2007 FC 1315, refd to. [para. 51].

Medina v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 324; 2010 FC 504, refd to. [para. 51].

Malik v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 841; 2009 FC 1283, refd to. [para. 53].

Sharma v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 484; 2009 FC 786, refd to. [para. 53].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 60].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 76(3) [para. 8, Appendix]; sect. 78 [para. 2, Appendix]; sect. 78(2)(d)(i) [para. 31]; sect. 78(4) [para. 21, Appendix].

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

Counsel:

Howard P. Eisenberg, for the applicant;

Leila Jawando, for the respondent.

Solicitors of Record:

Howard P. Eisenberg, Hamilton, Ontario, for the applicant;

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

This application was heard at Toronto, Ontario, on March 22, 2011, by Zinn, J., of the Federal Court, who delivered the following reasons for judgment on March 28, 2011.