[2011] 2 F.C.R. D-14
Citizenship and Immigration
Status in Canada
Permanent Residents
Judicial review of visa officer’s decision refusing application for permanent resident visa as member of federal skilled worker class—Applicant, Scot baker, completing 11 years of education, 2-year post-secondary credential—Also completing 3-year baker’s apprenticeship but mistakenly failing to include letter evidencing apprenticeship with visa application—After refusal, applicant providing respondent with copy of letter but request for reconsideration of application denied—Applicant having educational credential referred to in Immigration and Refugee Protection Regulations, SOR/2002-227, s. 78(2)(d)(i) but not having 14 years of study required—Conflicting lines of authority existing as to interpretation of s. 78(4) regarding awarding of points for education—Bhuiya v. Canada (Minister of Citizenship and Immigration), 2008 FC 878 directing visa officers to look to years of study, not credential but Bhuiya’s interpretation of Regulations, s. 78(4) erroneous—S. 78(4) instructing that when applicant having credential but not years of study, skilled worker shall be awarded points as provided in subsection—Not appearing to be any scope for exercise of discretion or consideration of any “special circumstance” other than lack of study years—Only plausible interpretation of Regulations, s. 78(4) is that heading of s. 78(4), “Special Circumstances”, meaning that where officer determining that special circumstances existing, officer shall award number of points related to educational credential despite applicant not having achieved requisite years of full-time study—Reference to “Special Circumstances” in heading only tool available to render s. 78(4) comprehensible—S. 78(4) should be read as potential exception to years of study requirement in s. 78(2) where, on discretionary basis, officer determining that special circumstances existing—Doctrine of functus officio not applying to immigration officers considering applications under skilled worker category—Case law clearly establishing that officer having ability to consider new evidence—In present case, visa officer operating under mistaken assumption that not able to consider applicant’s new evidence—Application allowed.
Marr v. Canada (Citizenship and Immigration) (IMM-4501-10, 2011 FC 367, Zinn J., judgment dated March 28, 2011, 27 pp.)