Rabeya v. Canada (Minister of Citizenship and Immigration), 2011 FC 370

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: March 03, 2011
• Jurisdiction: Canada (Federal)
• Citations: 2011 FC 370;(2011), 387 F.T.R. 109 (FC)

Rabeya v. Can. (M.C.I.) (2011), 387 F.T.R. 109 (FC)

MLB headnote and full text

Temp. Cite: [2011] F.T.R. TBEd. AP.003

Khatun Rabeya (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2954-10; 2011 FC 370)

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

Federal Court

Noël, J.

March 25, 2011.

Summary:

Rabeya was a citizen of Bangladesh whose application for permanent residence under the Federal Skilled Worker Class was refused. The immigration officer awarded 22 points out of 25 for Rabeya's education credentials. The officer considered only one of two Masters' degrees, and 16 years of fulltime studies, falling short of the 17 years required for Rabeya to be granted 25 points. She applied for judicial review.

The Federal Court allowed the application and sent the matter back for redetermination. As a matter of fact and a matter of law, there were no grounds to exclude the second Masters' degree. The following question was certified: "For the purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters' degree under section 78(2)(f) as the 'single educational credential that results in the highest number of points'?"

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - The immigration officer's decision to consider only one of the applicant's two Masters' degrees was based on an interpretation of the relevant provisions of the Immigration and Refugee Protection Regulations - "Educational credential" was defined in s. 73 - The problem was one of interpretation of the word "credential" - The Federal Court stated that, "[a]s both the English and French version of a statute are authoritative ... the Court must seek to find the common meaning between the two (2) dispositions, in conformity with the Supreme Court's approach to bilingual interpretation ... Once the common meaning is established, the Court must assess whether this common meaning falls within the scope of legislative intent ... Furthermore, sound statutory interpretation requires that when a Court is confronted with two (2) meanings for a provision, it must prefer that which avoids absurd results or strips dispositions of their full effect - See paragraphs 23 and 24.

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - [See second and third Aliens - Topic 1233 ].

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - The central issue in this judicial review application was that the immigration officer awarded 22 points out of 25 for the applicant's education credentials - The applicant contended that 25 points should have been awarded - Those three points would have enabled her to be granted permanent residence under the Federal Skilled Worker Class - The applicant possessed two Masters' degrees - The officer decided to consider only one Masters' degree - The Federal Court, in resolving this matter, noted that the state of the law was divided - More precisely, there was uncertainty in how two Masters' degrees should be assessed under the Immigration and Refugee Protection Regulations - See paragraphs 11 to 21.

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - The applicant obtained a Masters' degree in Arts in 1995, and a Masters in Business Administration in 2009 - The immigration officer considered only one Masters' degree and 16 years of full-time studies, falling short of the 17 years required for the applicant to be granted 25 points - Under ss. 73 and 78 of the Immigration and Refugee Protection Regulations, the applicant could not be twice credited for the same "educational credential" - The Federal Court held that, as a matter of fact and a matter of law, there were no grounds to exclude the second Masters' degree - The problem was one of interpretation of the word "credential" - The common meaning was the more restrictive interpretation of "educational credential", referring to the credential itself, i.e. in French, the "diplôme", not its rank - That interpretation gave effect to the objectives of the Immigration and Refugee Protection Act - There was no "double-counting" of points - It was illogical to discount a second Masters - In fact, s. 78(2)(e)(i) clearly anticipated a situation where two credentials of the same rank were to be considered - See paragraphs 22 to 30.

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - The Federal Court stated that "[p]roper interpretation of the [Immigration and Refugee Protection] Regulations in terms of assessment of education credentials requires that full effect is given to the objectives of the IRPA [Immigration and Refugee Protection Act] as well as the important consideration of whether a potential Federal Skilled Worker can become economically established in Canada, as embodied by the factors of section 78 of the Regulations" - Thus, the court saw no opposition in s. 78(3)(a) and s. 78(3)(b)(ii) of the Regulations when "educational credential" was read as defined by s. 73 - "There is no need to introduce a potentially unpredictable criterion of 'the complete academic history', as this may lead to results that run counter to the Regulations. Rather, the 'latest' and 'highest' educational credential is the one that is to be considered" - In this case, it was the second Masters' degree, which came after 17 years of studies - See paragraph 31.

Aliens - Topic 1233

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment or points - Occupations or economic class (incl. skilled workers) - The Federal Court stated that "The evaluation of education credentials on an objective, points-based basis aims to ensure consistency in the evaluation of credentials ... Hence, the Regulations aim to limit the Officer's discretion in considering academic credentials ... Between absolute discretion in assessing educational credentials, which the points-based system avoids, and a mechanistic analysis, there needs to be balance. This balance is found within the points-based system, where the highest credential is to be considered" - See paragraph 32.

Aliens - Topic 1233.4

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

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - The Federal Court certified the following proposed question, as it was both determinative of the appeal and of general importance - "For the purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters' degree under section 78(2)(f) as the 'single educational credential that results in the highest number of points'?" - See paragraph 37.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See third Aliens - Topic 1233 ].

Statutes - Topic 1803

Interpretation - Intrinsic aids - Bilingual statutes - Interpretation of both versions (incl. where versions conflict and shared meaning rule) - [See first Aliens - Topic 2 and second Aliens - Topic 1233 ].

Cases Noticed:

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

McLachlan v. Canada (Minister of Citizenship and Immigration) (2009), 354 F.T.R. 176; 2009 FC 975, consd. [para. 9].

Khan v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 649; 2010 FC 983, consd. [para. 10].

Kabir v. Canada (Minister of Citizenship and Immigration) (2010), 375 F.T.R. 32; 2010 FC 995, consd. [para. 10].

Thomasz et al. v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 781; 2010 FC 1159, consd. [para. 10].

Hasan v. Canada (Minister of Citizenship and Immigration) (2010), 379 F.T.R. 17; 2010 FC 1206, consd. [para. 10].

Bhuiya v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 631; 2008 FC 878, consd. [para. 11].

Schreiber v. Canada (Attorney General) (2002), 292 N.R. 250; 164 O.A.C. 354; 2002 SCC 62, refd to. [para. 23].

R. v. Sharpe (J.R.) (2001), 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 23].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 339 N.R. 1; 2005 SCC 51, refd to. [para. 23].

R. v. Daoust (C.) et al. (2004), 316 N.R. 203; 2004 SCC 6, refd to. [para. 23].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 24].

Flavell v. Minister of National Revenue (Customs and Excise), [1997] 1 F.C. 640; 117 F.T.R. 1 (T.D.), refd to. [para. 24].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 37].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 73, sect. 78 [para. 3].

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

Counsel:

Erin Roth, for the applicant;

Tamrat Gebeyhu, for the respondent.

Solicitors of Record:

Erin Roth, Toronto, Ontario, for the applicant;

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

This application was heard on March 3, 2011, at Toronto, Ontario, before Noël, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated March 25, 2011.