Date: 20050419
Docket: IMM-4333-04
Citation: 2005 FC 523
BETWEEN:
INDIRA DOWLAT
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
HARRINGTON J.
[1] Ms. Dowlat lives in Guyana. She applied for a work permit to come to Canada as a live-in caregiver. The visa officer declined her application on the grounds that she did not satisfy section 112(b) of the Immigration and Refugee Protection Regulations, which states:
|
112. A work permit shall not be issued to a foreign national who seeks to enter Canada as a live-in caregiver unless they ... b) have successfully completed a course of study that is equivalent to the successful completion of secondary school in Canada; |
112. Le permis de travail ne peut être délivré à l'étranger qui cherche à entrer au Canada au titre de la catégorie des aides familiaux que si l'étranger se conforme aux exigences suivantes : [...] b) il a terminé avec succès des études d'un niveau équivalent à des études secondaires terminées avec succès au Canada; |
[2] Ms. Dowlat submitted evidence that she had attended school for 11 years including a certificate from Zeeburg Secondary School that she had attended there five years and had successfully completed all facets of the curriculum offered. That certificate was accompanied by a transcript of her grades over the five years in question, which ended in July 1983. She also provided a "Caribbean Examinations Council Secondary Education Certificate", on which more will be said. The Council was established by agreement of 15 British Commonwealth Caribbean countries in 1972 and apparently is recognized as the examining body for the area.
[3] Ms. Dowlat also submitted expert opinion in the form of a "Credential Evaluation Report" prepared by World Educational Services of Toronto which appears to be the authorized credential evaluation service of the Ontario government. It says its evaluations have also been recognized by Citizenship and Immigration Canada, as well as Canada Customs and Revenue Agency. The analysis simply indicates that Ms. Dowlat had six years of elementary school and five years of secondary school. The report concludes that the Ontario equivalency is a secondary school diploma. No mention of the Caribbean Examinations Council Secondary Education Certificate.
[4] The visa officer's decision is contained in a letter dated 10 March 2004. She said she determined that Ms. Dowlat had not met the educational requirements. Although she did not explain how she reached that decision, in her notes, which form part of the record, she recorded that Ms. Dowlat had not successfully completed the five years of schooling and that she had not passed the Caribbean Examinations Council exams, a fact admitted by her former counsel.
[5] Ms. Dowlat submits that the visa officer's requirement that she have satisfactorily completed a number of the Caribbean Examinations Council's exams was wrong. She acted outside her jurisdiction and followed criteria not authorized by law and thereby fettered her discretion. Reliance was placed on Mascarenas v. Canada (The Minister of Citizenship and Immigration), [2001] F.C.T. 461, in which Gibson J. held that an analysis consisting of a mere counting of years of primary and secondary school was not a satisfactory method of determining educational equivalency. It was submitted that the visa officer in this case was doing the same thing except that she was adding up courses.
[6] The visa officer noted, but was certainly not bound by, the opinion expressed by the World Educational Services, an opinion which makes no mention of the Caribbean Examinations Council. In this case, the visa officer carried out an appropriate analysis. In addition to dealing with the Caribbean Council, she noted that the transcript of grades does not indicate that Mrs. Dowlat attended the last term, notwithstanding the certificate from Zeeburg Secondary School.
[7] Whether the visa officer was dealing with a pure question of fact, or a mixed question of fact and law, her decision, unfortunately for Ms. Dowlat, was not unreasonable, and so must stand. It was her duty to go behind the Zeeburg Secondary School certificate and to form a view as to what course of study in Guyana would be the equivalent of secondary school in Canada. In both places she would have to have been "successful". There was nothing unreasonable in her methodology or in her conclusion.
[8] The application for judicial review will be dismissed. However, Ms. Dowlat had until 25 April 2005 to submit a question of general importance, and the Minister has until 28 April 2005 to respond.
"Sean Harrington"
Judge
Ottawa, Ontario
April 19, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4333-04
STYLE OF CAUSE: INDIRA DOWLAT
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 14, 2005
REASONS FOR ORDER : HARRINGTON J.
DATED: APRIL 19, 2005
APPEARANCES:
Irvin H. Sherman FOR APPLICANT
Marcel Larouche FOR RESPONDENT
SOLICITORS OF RECORD:
Martinello & Associates FOR APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney-General of Canada