CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Permanent Residents |
Hameed v. Canada (Minister of Citizenship and Immigration)
A-503-98
Evans, Isaac JJ.A.
8/1/01
13 pp.
Educational requirements--Appeal from Trial Division decision ((1998), 44 Imm. L.R. (2d) 215) dismissing application for judicial review of visa officer's decision refusing to issue visa on basis lacked required number of units of assessment--Visa officer denied appellant three additional units awarded to those with post-graduate university degree as first degree obtained after less than three years of study--Motions Judge certified question as to whether Immigration Regulations, 1978, Schedule I, Factor 1(1)(e) requiring 16 units of assessment be awarded to applicant with second- or third-level university degree, even if applicant has not provided evidence of first-level university degree requiring at least three years of full time study--Appeal allowed, question answered in affirmative--Per Evans J.A. (Stone J.A. concurring): Visa officer erred in law--Textual considerations on balance favour construing Factor 1(1)(d) and (e) as independent--Reasons to that effect in Khan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1720 (F.C.T.D.) (QL) generally agreed with--When considered from perspective of selection policy for independent visa applicants (ability to become established economically in Canada), person with advanced degree not necessarily at disadvantage in labour market simply because had obtained first-level degree after less than three years of full-time study, or equivalent--When interpreting statutory provision in context of fact situation not apparently foreseen by legislator, Court may also appropriately take into account likely practical consequences of possible interpretations--Other considerations permitting, courts should favour interpretation of statutory provision in regulatory scheme compatible with maintaining proper balance between rule and discretion in administration of legislation, thus more effectively rendering accountable any exercise of discretion needed to deal with unusual fact situations--Per Isaac J.A.: Preferable to allow appeal and give affirmative answer solely on basis of reasons in Khan--Immigration Regulations, 1978, SOR/78-172, Schedule I, Factor 1(1)(d), (e).