Dong v. Canada (Minister of Citizenship and Immigration)

Dong v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2001-12-11 Neutral citation 2001 FCA 388 File numbers A-261-01 Notes Digest Decision Content Date: 20011211 Docket: A-261-01 Neutral citation: 2001 FCA 388 CORAM: ROTHSTEIN J.A. NOËL J.A. MALONE J.A. BETWEEN: JIANNIAN DONG Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent Heard at Vancouver, British Columbia, on December 11, 2001. Judgment delivered at Vancouver, British Columbia, on December 11, 2001. REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. Date: 20011211 Docket: A-261-01 Neutral citation: 2001 FCA 388 CORAM: ROTHSTEIN J.A. NOËL J.A. MALONE J.A. BETWEEN: JIANNIAN DONG Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT (Delivered from the Bench at Vancouver on Tuesday, December 11, 2001) ROTHSTEIN J.A. [1] This is an appeal, on a certified question, from a judicial review under the Immigration Act. The certified question is Under Schedule 1 of the Immigration Regulations, 1978 is it necessary for an applicant to have a first level university degree before he/she can be awarded points under subparagraph 1(e) of the Education factor for a second level degree? [2] The appellant is a citizen of the People's Republic of China. The appellant did not have a bachelor's or first-level university degree. However he did have a Master of Science degree. Paragraphs 1(c), (d) and (e) of Factor 1 of Schedule I to the Immigration Regulations, 1978 provides (c) where a diploma or apprenticeship certificate that requires at least one year of full-time classroom study has been completed at a college, trade school or other post-secondary institution, the greater number of the following applicable units: (i) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, ten units; (ii) in the case of a diploma or apprenticeship certificate program that requires completion of a secondary school diploma referred to in subparagraph (b)(i) or (iii) as a condition of admission, thirteen units; (d) where a first-level university degree that requires at least three years of full-time study has been completed, fifteen units; and (e) where a second- or third- level university degree has been completed, sixteen units. [3] The Motions Judge found that the visa officer was correct in awarding the appellant only 13 units under paragraph 1(c)(ii) rather than 16 units for his Master's degree under paragraph 1(e). In her view, the existence of a second level university degree is predicated on the existence of a first level university degree. Because the appellant did not have a first level university degree, his second level university degree could not be recognized. Accordingly, she agreed with the visa officer that he was only entitled to 13 units of assessment for his secondary school diploma. [4] We are of the respectful opinion that the learned judge erred in coming to that conclusion. The decision of this Court in Hameed v. The Minister of Citizenship and Immigration, (2001) 268 N.R. 185, is dispositive of this appeal. In that case, Evans. J.A., for the majority, found that paragraphs 1(d) and 1(e) are independent of each other. In other words, an applicant with a second level university degree is entitled to 16 units of assessment even if he does not have a first level university degree that requires at least 3 years of full time study. The appellant in this case had a second level university degree, a Master of Science degree; he should have been awarded 16 units. [5] The Motions Judge distinguished Hameed on the grounds that in that case the appellant had a first level university degree, although not one that required 3 years of full time study, whereas in the present case the appellant simply did not have a first level degree. We do not think that this is a valid distinction. Hameed is authority for the proposition that paragraph 1(e) is independent of paragraph 1(d). In other words, if an applicant has a second level university degree it is irrelevant whether he had a first level degree at all or whether, if he had such a degree, it was one that required 3 years of full time study. [6] The respondent concedes that paragraphs 1(d) and 1(e) are independent. However she argues that for assessment purposes, an individual cannot have a second level university degree without first obtaining a first level university degree. We do not agree with this interpretation of the Regulations. In effect, the respondent is reading out of the Regulations the word "level". In the absence of the word "level" she would be correct that an individual would not have a second university degree without having a first university degree. [7] However the word "level" must be given meaning. A first, second or third level university degree implies a recognized level of study and education, not the obtaining of numbers of university degrees. If an individual has achieved that level of education which is reflected in a second level university degree, he must be awarded the number of units applicable to that level of education. This interpretation accords with the purpose of the unit assessment system, namely to determine an applicant's likelihood of successful establishment in Canada. In this context it is the level of education and not the number of degrees that is relevant. [8] We would answer the certified question as follows Under Schedule I of the Immigration Regulations, 1978, it is not necessary for an applicant to have a first level university degree before he/she can be awarded points under paragraph 1(e) of the Education factor for a second level degree. [9] The appeal will be allowed, the decision of the Motions Judge will be set aside and the matter will be remitted to another visa officer for redetermination in accordance with these reasons. (Sgd.) "Marshall Rothstein" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-261-01 STYLE OF CAUSE:Jiannian Dong v. MCI PLACE OF HEARING: Vancouver, BC DATE OF HEARING: December 11, 2001 REASONS FOR JUDGMENT : ROTHSTEIN J.A. CONCURRED IN BY: NOËL J.A., MALONE J.A. DATED: December 11, 2001 APPEARANCES: Dennis Tanack FOR THE APPELLANT Rama Sood/ Sandra Weafer FOR THE RESPONDENT SOLICITORS OF RECORD: Dennis Tanack FOR THE APPELLANT Vancouver, BC Morris Rosenberg FOR THE RESPONDENT Attorney General of Canada