2011 FCA 40, 2011 FCA 40

[2012] 4 F.C.R. 99 A-149-10 2011 FCA 40 Minister of Citizenship and Immigration ( Appellant ) v. Zafar Shahid ( Respondent ) Indexed as: Shahid v. Canada (Citizenship and Immigration) Federal Court of Appeal, Noël, Pelletier and Trudel JJ.A.—Toronto, January 11; Ottawa, February 3, 2011.

Citizenship and Immigration –– Status in Canada — Permanent Residents — Construction of “full-time equivalent” — Appeal from Federal Court decision allowing judicial review of immigration officer’s decision denying respondent’s application for permanent residence as skilled worker — Respondent failing to obtain 67-point minimum to qualify since spouse not awarded any points for educational credentials — Federal Court finding immigration officer’s decision unreasonable, certifying question regarding construction of “full-time equivalent” under Immigration and Refugee Protection Regulations , s. 78(2) — Whether Federal Court wrongly holding respondent’s spouse meeting educational requirement under Regulations — D efinition of “full-time equivalent” in Regulations restricted to persons engaged in part-time or accelerated studies; deeming such persons who obtain degree to have studied equivalent number of hours as individual who obtained same degree on full-time basis — Definition not creating any other form of equivalency — Federal Court ignoring definition’s limitation — No discrepancy existing in this case as to time studied — Equivalence identified by Federal Court going to mode or manner of studies rather than time required for completion thereof — Definition not operating this way — Federal Court also failing to consider other related

definitions in Regulations — On correct construction of “full- time equivalent”, respondent’s spouse failing to meet two requirements of Regulations, s. 78(2)(d)(ii) since not obtaining educational credential as defined or achieving 14 years of full-time or full-time equivalent studies — Therefore, Federal Court erring in intervening in immigration officer’s decision — As for certified question, definition of “full-time equivalent” requiring consideration of both nature, quantity of instruction individual receiving — Appeal allowed.

This was an appeal from a Federal Court decision granting the respondent’s application for judicial review of an immigration officer’s decision denying his application for permanent residence as a skilled worker. The respondent was awarded 63 points but needed a minimum of 67 points to qualify for the federal skilled worker class. The immigration officer did not award any points under the adaptability criteria for the educational credentials of the respondent’s spouse.

The respondent claims that he should have been awarded the four available points, which would have given him the minimum requirement of 67 points because his spouse met the educational requirement of the Immigration and Refugee Protection Regulations . The Federal Court found that the immigration officer’s refusal to award the 4 points was unreasonable.

It certified as a question of general importance whether the definition of “full-time equivalent” in subsection 78(2) of the Regulations merely requires an assessment of the period of time that would have been needed to achieve a particular educational credential on a full-time basis or whether a consideration of the nature and quantity of instruction the individual receives is also required. The main issue was whether the Federal Court erred in holding that the immigration officer’s decision was unreasonable and that the respondent was entitled to the 4 points. The certified question also had to be answered.

Held , the appeal should be allowed. What had to be determined was whether the definition of “full-time equivalent” in the Regulations extends to those who successfully complete their studies on their own through independent study. On the face of it, the definition of “full-time equivalent” is restricted to persons engaged in “part-time or accelerated studies” and simply provides that such persons will, upon obtaining an “educational credential” be credited with the number of hours of instruction that would have been required to obtain the same degree on a full-time basis.

The net result is that a person who obtains a degree through “part-time or accelerated studies” is deemed to have studied the equivalent number of hours as someone who obtained the same degree on a full-time basis. No other form of equivalency is created by the definition. The Federal Court’s construction ignored this limitation. In this case, there was no discrepancy in terms of time studied since the respondent’s spouse took two years to obtain a degree that ordinarily takes two years of full-time study to achieve. Thus, there were no hours to equate.

The equivalence identified by the Federal Court went to the mode or manner of studies rather than to the time required to complete them. The definition does not operate this way. As well, the Federal Court’s

interpretation did not take into account other defined words such as “studies” in

section 1 or “educational credential” in

section 73. According to the Federal Court, the definition of “full-time equivalent” would apply whether or not these requirements are met. On a correct construction of the definition of “full-time equivalent”, the respondent’s spouse failed to meet the two requirements of subparagraph 78(2)( d )(ii) of the Regulations in that she did not obtain an educational credential as defined or achieve 14 years of full-time or full-time equivalent studies. Therefore, the Federal Court erred in intervening in the immigration officer’s decision.

As for the certified question, the definition of “full-time equivalent” applies when there is a discrepancy between the time in which a particular “educational credential” is obtained by an individual and the time required to obtain the same credential on a full-time basis by reason of having followed part-time or accelerated studies at an educational or training institution recognized by the authorities. The definition therefore requires a consideration of both the nature and quantity of instruction received by the individual.

STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 12(2).

Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 1 “studies”, 73 “educational credential”, 75(1) (as am. bySOR/2004-167, s. 80(F)), 78(1) “full-time”, “full-time equivalent”, (2)(d)(ii). CASES CITED applied: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193. AUTHORS CITED Canadian Oxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004, “paper”.

APPEAL from a Federal Court decision (2010 FC 130) granting an application for judicial review of an immigration officer’s decisiondenying the respondent’s application for permanent residence as a skilled worker. Appeal allowed. APPEARANCES Alexis Singer and Ada Mok for appellant. Cathryn D. Sawicki for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Green and Spiegel LLP, Toronto, for respondent.

The following are the reasons for judgment rendered in English by [1] Noël J.A.: This is an appeal by the Minister of Citizenship and Immigration (the Minister) against a decision of O’Reilly J. of theFederal Court [2010 FC 130] (the applications Judge) wherein he granted the application for judicial review brought by Mr.

ZafarShahid (the respondent) against a decision of an immigration officer denying his application for permanent residency as a skilled worker. [2] Subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that a foreign national may beselected for permanent residency as a member of the economic class on the basis of his ability to become economically established inCanada.

The Immigration and Refugee Protection Regulations, SOR/2002-227 (the IRPR) set out the applicable criteria for a federalskilled worker class as follows (subsection 75(1) [as am. by SOR/2004-167, s. 80(F)]) : Class75. (1) … persons who are skilled workers and who may become permanent residents on the basis of their ability to becomeeconomically established in Canada and who intend to reside in a province other than the Province of Quebec. [3] In order to determine whether a skilled worker will be able to become economically established in Canada, the IRPR identifyvarious criteria with which a specific number of points is associated; an applicant must be awarded a minimum of 67 points to qualify forthe federal skilled worker class. [4] In the present case, the respondent was awarded 63 points.

The immigration officer did not award any points under theadaptability criteria for the respondent’s spouse’s educational credentials. The respondent claims that he should have been awarded the 4available points, which would have given him the minimum requirement of 67 points, because his spouse meets the educationalrequirement of the IRPR. [5] The applications Judge agreed and quashed the decision of the immigration officer on the basis that his refusal to award the 4points was unreasonable.

THE RELEVANT PROVISIONS OF THE IRPR [6] In order for the respondent to be entitled to the 4 points, his spouse had to meet the requirements set out in subparagraph 78(2)(d)(ii) of the IRPR: 78. … Education (25points) (2) … (d) … (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; [7] The expression “educational credential” is defined in

section 73 as follows:

Definitions 73. … “educationalcredential” « diplôme » “educational credential” means any diploma, degree or trade or apprenticeship credential issued on the completion of aprogram of study or training at an educational or training institution recognized by the authorities responsible forregistering, accrediting, supervising and regulating such institutions in the country of issue.

[ 8 ] The term “studies” is defined in

section 1 as follows:

Definitions 1. … “studies” « études » “studies” means studies undertaken at a university or college, or any course of academic, professional or vocational training. [ 9 ] Finally, the

definitions of “full-time” and “full-time equivalent” are set out in subsection 78(1) of the IRPR :

Definitions 78.

(1) The

definitions in this subsection apply in this section. “full-time” « temps plein » “full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the workplace that forms part of the course of instruction. “full-time equivalent” « équivalent temps plein » “full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis. [ 10 ] The outcome of this appeal essentially turns on the meaning which is to be attributed to these last two

definitions. THE DECISION UNDER APPEAL [ 11 ] The applications Judge briefly alluded to the education system in Pakistan. He noted that “external candidate[s]” can obtain a degree without attending classes on a full-time or part-time basis (reasons, at paragraph 8). In this respect, the evidence shows that external candidates are “not required to attend classes, complete any assigned readings or hand in assignments; [they] simply [have] to write an exam in each subject studied”. The requirements to write an examination as an external candidate are: (

i) register for a scheduled examination session; (ii) complete the appropriate form; and (iii) pay the required fees. Once enrolled for an examination, the external candidate can prepare through independent studies or with the assistance of a private tutor (affidavit of the immigration officer, appeal book, at page 584, paragraphs 4 and 5). [ 12 ] One way of distinguishing an “external candidate” from a “regular” student is through their respective marks sheet.

A regular student’s marks sheet states, inter alia , the program and year in which the examinations were written, the particular school at which the studies were undertaken and the overall result. In contrast, an external candidate’s marks sheet identifies the student as such without any indication of a school or affiliated college (affidavit of immigration officer, appeal book, at page 585, paragraphs 6 and 7). [ 13 ] The applications Judge rendered his decision on the basis that the respondent’s spouse was an external candidate.

He noted that it was clear that she did not meet the definition of “full-time” as she did not provide evidence that she attended classes for 15 hours a week. However, even if she had not achieved 14 years of “full-time studies”, the officer had to consider whether she nevertheless met the definition of “full-time equivalent studies”.

According to the applications Judge, the “full-time equivalent” requirement can be met whether the respondent’s spouse studied on her own or followed a formal course (reasons, at paragraph 9): Even if she studied elsewhere, or on her own, whether part-time or on an accelerated basis, it seems to me she could meet the definition of “full-time equivalent” if she proved that the degree she obtained would ordinarily take 14 years of full-time study to obtain. Here, the evidence showed that she took exams over the course of two years and obtained a degree that ordinarily takes two years of full-time study to achieve.

And she provided proof of twelve years of full-time study preceding her university credential. [ 14 ] Applying this reasoning, the applications Judge held that the decision of the immigration officer was unreasonable because the evidence established that the respondent’s spouse successfully completed exams and obtained a degree that ordinarily takes two years of full-time study to obtain (reasons, at paragraphs 7 and 9). As such, the respondent was entitled to the 4 points.

The applications Judge therefore allowed the application for judicial review and referred the matter to a different immigration officer with instructions that it be reconsidered in accordance with the regulatory requirements as he construed them. [ 15 ] The applications Judge certified the following question of general importance: Does the definition of “full-time equivalent” in [subsection] 78(2) of the [ IRPR ] merely require an assessment of the period of time that would have been needed to achieve a particular educational credential on a full-time basis, or does it also require a consideration of the nature and quantity of instruction the individual receives?

POSITION OF THE PARTIES [ 16 ] The appellant submits that the applications Judge erred in holding that the definition of “full-time equivalent” applied on the facts of this case. The appellant submits that in order for this definition to apply, the respondent had to provide evidence that his spouse studied at an educational institution for a long period on a part-time basis or that she studied for a shorter more intense period to complete her studies.

According to its wording, the definition has no other application. [ 17 ] It follows that the applications Judge could not rely on this definition in order to find that the spouse’s diploma counted towards the 14 years of study she needed to complete before the respondent could be awarded the 4 points for her education. [ 18 ] The respondent for his part takes the position that the applications Judge properly construed and applied the notion of “full-time equivalent”. According to the respondent “full-time equivalent” includes “independent study” as well as “part-time studies” and the

applications Judge properly applied this definition on the facts of this case. [19] In the alternative, the respondent submits that his spouse did in fact attend courses and complete assignments at Sir Syed College—an affiliate of the University of Karachi—in order to obtain her educational credential. In support of this submission the respondentpoints to his spouse’s marks sheet, which clearly states that she took Islamic studies and education studies and mentions “Paper I” in eachcase.

According to the respondent, it is reasonable to infer from this that the respondent’s spouse completed both “coursework” andexams as she had to perform various assignments in order to obtain her credential (memorandum of the respondent, at paragraph 23). ANALYSIS AND DECISION [20] Dealing first with this last issue, I note that the applications Judge did not accept that the respondent’s spouse followed courses ata recognized educational institution or performed assignments, as he rendered his decision on the basis that she was an externalcandidate.

I can detect no error in this regard. [21] The mention of the word “paper” on the spouse’s marks sheet does not necessarily mean that she performed assignments or did“coursework” as the respondent suggests. The word can also mean “a set of questions to be answered … in an examination” (CanadianOxford Dictionary, 2nd ed. Toronto: Oxford University Press, 2004).

Counsel was unable to demonstrate why the word “paper” on themarks sheet should be construed as she suggests. [22] Furthermore, when the spouse’s marks sheet is compared to that of the respondent who attended courses at the NationalGovernment College, one notes that, in contrast to her husband, she is labelled as an external candidate and no mention is made as to anyinstitution she might have attended. [23] The respondent also relied on a letter from the Registry of the University of Karachi dated January 2nd, 2008, which certifies thatthe degree obtained by the respondent’s spouse in 1985 “is equivalent to university degree of two years and 14 years of full-timeeducation/studies”. [24] I do not believe that this letter can be of assistance to the respondent as it is apparent that it was framed so as to opine on the veryissue that is to be decided in the present case. [25] The central issue in this appeal turns on the

interpretation of the definition of “full-time equivalent”. This is a pure question ofstatutory construction which stands to be decided on a standard of correctness. In ascertaining the meaning and effect of this definition,the Court must bear in mind that (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at paragraph 21): … the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. [26] It is common ground that the definition of “full-time equivalent” applies to those who obtain an educational credential through“part-time or accelerated studies”.

The question is whether the definition also extends to those who successfully complete their studieson their own through what the parties have described as “self-study” or what I believe is more appropriately described as “independentstudy”. [27] The applications Judge answered this question in the affirmative. He held that the definition applies regardless of the manner inwhich the degree is obtained (reasons, at paragraph 9). [28] On the face of it, the definition of “full-time equivalent” is restricted to persons engaged in “part-time or accelerated studies”.

Itsimply provides that such persons will, upon obtaining an “educational credential” (i.e. a university degree in this case), be credited withthe number of hours of instruction that would have been required to obtain the same degree on a full-time basis.

When, as is the casehere, a university degree is involved, the term ”studies” is defined as those “undertaken at a university” (see the definition of “studies”quoted at paragraph 8, above). [29] Thus for example, a person who engages in part-time studies and obtains a university degree after two years of studies, incircumstances where the same degree can be obtained on a full-time basis after one year, will be credited with having been engaged in aprogram of study of “at least 15 hours of instruction per week” during a single year.

Conversely, a person who engages in acceleratedstudies and obtains a university degree after one year of studies, in circumstances where the same degree is obtained on a full-time basisover the course of two years, is credited with having been engaged in a program of study of “at least 15 hours of instruction per week”over two years. [30] The net result is that a person who obtains a degree through “part-time or accelerated studies” is deemed to have studied theequivalent number of hours as someone who obtained the same degree on a full-time basis.

Significantly, no other form of equivalencyis created by the definition. [31] The construction given by the applications Judge ignores this limitation. There is in this case no discrepancy in terms of timestudied as, based on his own finding, the respondent’s spouse took two years to obtain a degree that ordinarily takes two years of full-time study to achieve (reasons, at paragraph 9). It follows that there were no hours to equate. The equivalence identified by theapplications Judge goes to the mode or manner of studies rather than the time required to complete them.

The definition does not operatethis way. [32] Beyond this, the

interpretation which the applications Judge proposes does not take into account the defined meaning of the word“studies” which, in the case of a university degree means those “undertaken at a university” [emphasis added]. Nor does it take intoaccount the definition of “educational credential” in

section 73 (see paragraph 7, above) which means “diploma, degree or trade orapprenticeship credential issued on the completion of a program of study … at an educational or training institution recognized by theauthorities” [emphasis added]. Based on the applications Judge’s reasoning, the definition of “full-time equivalent” would apply whetheror not these requirements are met.

[ 33 ] On a correct construction of the definition of “full-time equivalent”, the respondent’s spouse failed to meet the two requirements of subparagraph 78(2)( d )(ii) in that she did not obtain an educational credential as defined or achieve 14 years of full-time or full-time equivalent studies.

It follows that the immigration officer came to the proper conclusion and the applications Judge erred in intervening. [ 34 ] I would therefore allow the appeal, set aside the decision of the applications Judge, restore the decision of the immigration officer and answer the certified question as follows: The definition of “full-time equivalent” applies when there is a discrepancy between the time in which a particular “educational credential” (as defined) is obtained by an individual and the time required to obtain the same credential on a full-time basis by reason of having followed part-time or accelerated studies at an educational or training institution recognized by the authorities.

It follows that the definition requires a consideration of both the nature and quantity of instruction received by the individual. Pelletier J.A.: I agree. Trudel J. A.: I agree.