Rahimi v. Canada (Citizenship and Immigration)

Rahimi v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-08-04
Neutral citation
2017 FC 758
File numbers
IMM-1015-16
Decision Content
Date: 20170804
Docket: IMM-1015-16
Citation: 2017 FC 758
Ottawa, Ontario, August 4, 2017
PRESENT: The Honourable Madam Justice Elliott
BETWEEN:
MAHVASH RAHIMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. Overview
[1] Mahvash Rahimi (Dr. Rahimi) seeks judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision made by an immigration officer [the Officer] at the Embassy of Canada in Warsaw on January 18, 2016 refusing her application for a permanent residence visa as a federal skilled worker in the occupation of Specialist Physician – NOC 3111.
[2] Specifically, Dr. Rahimi alleges that the Officer miscalculated the number of points to which she was entitled by:
counting Dr. Rahimi’s medical specialization diploma as a second bachelor degree (22 points) instead of a master’s degree (25 points); and
failing to grant Dr. Rahimi an additional 5 points under adaptability because Dr. Rahimi’s relative with permanent residence in Canada is the husband of Dr. Rahimi’s husband’s late aunt rather than Dr. Rahimi’s uncle by blood.
[3] Dr. Rahimi received a total of 64 points whereas 67 points were required to qualify under the program. If, as alleged by Dr. Rahimi, the Officer erred in either of the two ways noted above then she would have had enough points to qualify.
[4] For the reasons that follow this application is dismissed.
[5] Any sections of the legislation referred to in these reasons are set out in the attached Annex. However, extracts are also contained in the body of these reasons for ease of reference.
II. Background facts
[6] Dr. Rahimi is an Iranian citizen who currently lives in Iran. She is a medical doctor with a speciality in gynecology. Her husband, Mr. Vajar, is an Installation Project Manager with a master’s degree in engineering. Her daughter, born in 1987, possesses a degree in dentistry and as of the time of application was a student in psychology. A second daughter died in 2010 at age 17.
[7] Dr. Rahimi initially applied for permanent residence in 2009. That application was rejected on the basis that she did not have enough points to qualify for permanent residence. However, Dr. Rahimi never received the rejection letter and only learned of it when her counsel submitted an Access to Information request in 2014. After Dr. Rahimi commenced an application for judicial review it was learned that her initial application and rejection letter had been destroyed. As a result, the Minister agreed to re-open her application and the original judicial review application was discontinued.
[8] On July 29, 2015, Dr. Rahimi re-submitted copies of all the documents that she had initially submitted as well as new materials consisting of the application record on the judicial review application. New evidence was also provided showing that Dr. Rahimi had a family member with permanent residence in Canada. Mr. Vajar’s aunt’s husband, a Mr. Darvishali Babapour Amirabadi, [Mr. Amirabadi] who was granted permanent residence in Canada in 2011.
[9] One of the central issues in this application is whether the fact that Mr. Vajar’s aunt died in 2004 means Mr. Amirabadi did not qualify as a relative under the provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. The other central issue is whether the letter from the local authority stating that Dr. Rahimi’s educational credentials equate to a Master of Science (MSc) was rejected by the Officer in error.
[10] On November 17, 2015, the Embassy sent a Procedural Fairness Letter [PFL] to Dr. Rahimi expressing the following concerns:
Based on the relevant guidelines (OP6), a degree granted to a medical doctor is normally considered a first-level university credential warranting 20 points. If, however, a first degree is required before the professional credential, the credential is worth 22 points. If the degree is a second-level degree issued, for example, by a faculty of graduate studies, 25 points may be awarded. There was no evidence that the specialization diploma was from a school of graduate studies and there was no basis to conclude that it was equivalent to a master’s degree. Therefore, it is only worth 22 points for having two bachelor-level credentials and at least 15 years of completed full-time or full-time equivalent study.
Mr. Amirabadi is not Dr. Rahimi’s spouse’s uncle but the husband of Dr. Rahimi’s spouse’s aunt, who died on February 6, 2004. Dr. Rahimi therefore was not entitled to 5 points under the adaptability factor for having a relative in Canada as set out in subsection 83(5) of the Regulations.
[11] The Officer gave Dr. Rahimi thirty days in which to present any additional documentation that would address their concerns. On December 17, 2015, Dr. Rahimi provided additional documents and submissions to the Embassy. In those submissions counsel for Dr. Rahimi addressed what she believed to be each of the matters raised by the Officer in the fairness letter.
[12] With respect to adaptability, the submissions first set out subsection 83(5) of the Regulations, then explained that the relationship between Dr. Rahimi’s spouse and Mr. Amirabadi’s wife was that she was the aunt of Dr. Rahimi’s spouse. Substantiating evidence to that effect was submitted previously. The submissions included the following comments, which track to the legislative requirements:
Mr. Vajar is the skilled worker’s accompanying spouse;
under the Regulations there is no requirement that the relative be a direct relation; a connection by marriage is eligible for consideration;
the relationship, whether by blood or marriage, may be with the accompanying spouse and does not have to be with Dr. Rahimi;
Mr. Amirabadi is a permanent resident of Canada, residing in Toronto.
[13] Accompanying the submissions made on July 29, 2015 were letters of support from Mr. Amirabadi’s daughter, Tara Babapour, stating that he lived with her and her husband and that he is very close to and very fond of the Rahimis. Ms. Babapour’s husband, David Erwin, also submitted a separate letter of support where he offered not only to host the Rahimi family in his home but also to assist them with obtaining basic documents and navigating matters such as bank accounts, driving tests and searching for employment.
[14] Dr. Rahimi also submitted a certificate from the Ministry of Health, Treatment and Medical Education for the Islamic Republic of Iran, dated December 1, 2015, which stated that for “[g]raduates in General Practice/MD in the Islamic Republic of Iran, . . . after obtaining permanent doctor of medicine diploma . . . their level is evaluated at least as much as the level of Master of Science (MSc).”
[15] The Officer’s decision, dated January 18, 2016 awarded Dr. Rahimi 64 points including 22 of a possible 25 points for education and 5 of a possible 10 points for adaptability. As a result, her application was rejected. Dr. Rahimi received no points for arranged employment as she did not have any offer of employment and she received 6 of 24 possible points for language proficiency. Only the education and adaptability points are challenged in this application.
[16] On February 12, 2016 counsel for Dr. Rahimi requested a reconsideration of both the education and adaptability determinations by the Officer. The reasons provided for the request were essentially the same as the original submissions with the application. One addition was that subsection 78(1)(f) in the then current version of the Regulations [2015-2016 Regulations] was persuasive as it provided that “an entry –to-practice professional degree” is equated with a master’s level degree.
[17] On March 15, 2016 an email sent to counsel for Dr. Rahimi rejected the request for reconsideration. The application for judicial review had been filed on March 8, 2016.
III. Preliminary issues
[18] At the request of the Minister, the name of the Respondent in the style of cause is hereby immediately amended to The Minister of Citizenship and Immigration.
IV. Legislative provisions
[19] Dr. Rahimi applied as a member of the economic class on the basis of her ability to become economically established in Canada as set out in subsection 12(2) of the IRPA. Because her application was first filed before May 4, 2013, the Regulations provisions in force in January 2010 apply and all extracts in these reasons are from that version of the Regulations.
A. The general scheme for federal skilled workers in the economic class
[20] Subsection 12(2) of the IRPA provides that:
(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
(2) La sélection des étrangers de la catégorie « immigration économique » se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
[21] Section 14 of the IRPA provides that the Regulations may prescribe and govern any matter relating to classes of permanent residence or foreign nationals including the classes referred to in section 12.
[22] Section 75 of the Regulations specifies that the federal skilled worker class is “a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada” (s 75(1)). There is no dispute that Dr. Rahimi is a skilled worker within the provisions of the Regulations. The issue is whether she meets the requirement in section 76 of the Regulations that she “will be able to become economically established in Canada” (s 76(1)).
[23] In brief, section 76 of the Regulations establishes the criteria by which a foreign skilled worker will be assessed to determine if they “will be able to become economically established in Canada” (s 76(1)). Section 77 requires that the criteria be met on the date the application is made and the date the visa is issued.
[24] A system of points is established in sections 78 to 83 for each of the criteria set out in paragraph 76(1)(a). The minimum number of total points required from all the applicable criteria in order to be accepted as a member of the economic class, in this case, is 67 points. Subparagraph 76(1)(a)(i) requires that points for education be determined under section 78 and subparagraph 76(1)(a)(vi) requires that points for adaptability are to be determined under section 83.
B. Adaptability points
[25] Paragraph 83(1)(d) assigns 5 points to an applicant or their accompanying spouse “for being related to a person living in Canada who is described in subsection (5)”. Paragraph 83(5)(a) provides that the relationship can be by way of “blood, marriage, common-law partnership or adoption”. The particular relationship by which Mr. Vajar claims to be related to Mr. Amirabadi is found in subparagraph 83(5)(a)(vi): “a child of the father or mother of their father or mother, other than their father or mother”. In other words, because he was married to Mr. Vajar’s mother’s sister, Mr. Amirabadi is Mr. Vajar’s uncle by marriage.
[26] The relevant parts of the legislative wording under consideration for awarding points for adaptability is as follows, with the critical parts underlined:
76 (1) For the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada, they must be assessed on the basis of the following criteria:
(a) the skilled worker must be awarded not less than the minimum number of required points referred to in subsection (2) on the basis of the following factors, namely,
…
(vi) adaptability, in accordance with section 83;
. . .
77 For the purposes of Part 5, the requirements and criteria set out in sections 75 and 76 must be met on the date on which an application for a permanent resident visa is made and on the date on which it is issued.
. . .
83 (1) A maximum of 10 points for adaptability shall be awarded to a skilled worker on the basis of any combination of the following elements:
. . .
(d) for being related to a person living in Canada who is described in subsection (5), 5 points;
. . .
(5) For the purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points if
(a) the skilled worker or the skilled worker's accompanying spouse or accompanying common-law partner is related by blood, marriage, common-law partnership or adoption to a person who is a Canadian citizen or permanent resident living in Canada and who is
. . .
(vi) a child of the father or mother of their father or mother, other than their father or mother,
76. (1) Les critères ci-après indiquent que le travailleur qualifié peut réussir son établissement économique au Canada à titre de membre de la catégorie des travailleurs qualifiés (fédéral) :
a) le travailleur qualifié accumule le nombre minimum de points visé au paragraphe (2), au titre des facteurs suivants :
. . .
(vi) la capacité d’adaptation, aux termes de l’article 83;
. . .
77. Pour l’application de la partie 5, les exigences et critères prévus aux articles 75 et 76 doivent être remplis au moment où la demande de visa de résident permanent est faite et au moment où le visa est délivré.
. . .
83. (1) Un maximum de 10 points d’appréciation sont attribués au travailleur qualifié au titre de la capacité d’adaptation pour toute combinaison des éléments ci-après, selon le nombre indiqué :
. . .
d) pour la présence au Canada de l’une ou l’autre des personnes visées au paragraphe (5), 5 points;
. . .
(5) Pour l’application de l’alinéa (1)d), le travailleur qualifié obtient 5 points dans les cas suivants :
a) l’une des personnes ci-après qui est un citoyen canadien ou un résident permanent et qui vit au Canada lui est unie par les liens du sang ou de l’adoption ou par mariage ou union de fait ou, dans le cas où il l’accompagne, est ainsi unie à son époux ou conjoint de fait :
. . .
(vi) un enfant de l’un des parents de l’un de leurs parents, autre que l’un de leurs parents,
C. Education points
[27] Subparagraph 76(1)(a)(i) provides that points for education are to be determined in accordance with section 78. In addition an educational credential is defined in section 73. Once again, the relevant excerpts, with the critical parts underlined, are as follows:
78
…
(2) A maximum of 25 points shall be awarded for a skilled worker's education as
follows:
. . .
(e) 22 points for
(i) a three-year post-secondary educational credential, other than a university educational credential, and a total of at least 15 years of completed full-time or full-time equivalent studies, or
(ii) two or more university educational credentials at the bachelor's level and a total of at least 15 years of completed full-time or full-time equivalent studies; and
(f) 25 points for a university educational credential at the master's or doctoral level and a total of at least 17 years of completed full-time or full-time equivalent studies.
78
. . .
(2) Un maximum de 25 points d’appréciation sont attribués pour les études du travailleur qualifié selon la grille suivante :
e) 22 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un diplôme universitaire — nécessitant trois années d’études à temps plein et a accumulé un total de quinze années d’études à temps plein complètes ou l’équivalent temps plein,
(ii) il a obtenu au moins deux diplômes universitaires de premier cycle et a accumulé un total d’au moins quinze années d’études à temps plein complètes ou l’équivalent temps plein;
f) 25 points, s’il a obtenu un diplôme universitaire de deuxième ou de troisième cycle et a accumulé un total d’au moins dix-sept années d’études à temps plein complètes ou l’équivalent temps plein.
V. The decision under review
[28] The Decision and reasons are found in a letter dated January 18, 2016 as well as notes in the Global Case Management System (“GCMS”). The email on March 15, 2016 refusing to reopen the decision contained a further explanation of the reasons for refusing to award more points for adaptability and education.
[29] The January 18, 2016 letter provides only the reasons for arriving at the educational assessment:
You were granted 22 points for Education.
The Overseas Processing (OP) 6 indicates that: “Medical doctor degrees are generally first-level University credentials, in the same way that a Bachelor of Law or a Bachelor of Science in Pharmacology is the first level, albeit “professional” degree and should be awarded 20 points. If it is a second-level degree and if, for example, it belongs to a Faculty of Graduate Studies, 25 points may be awarded. If a bachelor’s credential is a prerequisite to the credential, but the credential its self is still considered a first-level degree, then 22 points would be appropriate.” In this instance, you received a single degree from Iran University of Medical Sciences. There is no indication that there was a Bachelor’s or Master’s degree awarded prior to this degree or that the degree was awarded by a faculty of graduate studies. But since you undertook a specialization after completing your single degree 22 points are awarded for the combination of a medical degree and specialisation from a relevant organisation. Therefore I concluded that your education was equivalent to two university educational credential at the bachelor’s level and at least 15 years of completed full-time or full-time equivalent studies.
[30] While the letter does not address the reasons for the adaptability assessment the relevant portion of the GCMS notes does:
Adaptability
Submission[s] states that Mr. Vajar (spouse) is related to Mr. Amirabadi who was married to his aunt Touran Ghaznavi (deceased). The submission[s] state[] there is no requirement that the relative be in a direct relation i.e. that non-blood relations can be considered. I am of the opinion that because Mr[.] Vajar is not related by blood to his late aunt’s husband five points are not being awarded by virtue of Mr[.] Amirabadi being married to spouse’s aunt.
Award five points if the applicant [Dr. Rahimi] or accompanying spouse or common-law partner has a relative (parent, grandparent, child, grandchild, child of a parent, child of a grandparent, or grandchild or a parent) who is residing in Canada and is a Canadian citizen or permanent resident.
[31] The March 15, 2016 email sent to counsel for Dr. Rahimi rejecting the request for reconsideration contained the following reasons:
I have reviewed additional documentation received and concluded the following:
This application for permanent residence in Canada was carefully considered according to the applicable section of the Immigration and Refugee Protection Act, and Rahimi Mahvash was sent a refusal letter containing the full reasons for refusing this application.
[]
The Applicant was not entitled to points under adaptability for having a relative in Canada since relation by marriage between PA’s spouse and aunt’s husband was presumed terminated by the death of the aunt.
[]
The Applicant is not entitled to additional three points for education since she was awarded 22 points for the combination of a medical degree from an academic institution and a specialization from a relevant organisation.
[]
The decision was based upon the material before me at the time of assessment. [. . .] This application was finally refused on 18 January and will not be re-opened.
[32] As previously stated, during the hearing, the refusal to reopen the application is not before me for consideration but the submissions made by counsel requesting the reconsideration and the responding letter refusing to reopen are each in evidence in this application.
VI. Issues
[33] The parties identified three issues at the hearing of this application:
What is the appropriate standard of review?
Did the Officer err in finding there is no qualifying relative under subsection 83(5)? and;
Did the Officer err in assessing Dr. Rahimi’s educational credentials?
[34] In addition, Dr. Rahimi alleges that the Officer never put his or her concerns about her education or the death of her husband’s aunt to her for further submissions or an oral hearing and that was procedurally unfair. As a result, the fourth issue is:
4. Was the Officer’s decision made in a procedurally unfair manner?
VII. Standard of review
[35] The parties disagree about the appropriate standard of review.
A. Positions of the parties
[36] Dr. Rahimi submits the standard of review for adaptability in this case is correctness as the Officer misinterpreted subsection 83(5) of the Regulations by either improperly requiring a blood relationship or by narrowly interpreting “marriage” in finding that Mr. Amirabadi ceased to be related by marriage to Mr. Vajar upon his wife’s death. Similarly, Dr. Rahimi argues that the Officer’s assessment of her education involved a non-discretionary application of the Regulations’ provision on educational qualifications. By failing to appreciate that Dr. Rahimi’s specialization was her second degree, and that only the “senior” credential should be assessed, the Officer made a legal error reviewable on the correctness standard.
[37] The Minister submits the issues involve questions of mixed fact and law therefore the standard of review is reasonableness. The Minister also submits that prior cases, particularly in the Federal Court to Appeal have been overtaken by more recent development in the common law principles of judicial review. He points out that the Supreme Court of Canada’s jurisprudence post-Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] and certainly post- Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559 [Agraira] represents a significant development in the principles surrounding standard of review. Specifically, the Minister submits that recently the Supreme Court applied the reasonableness standard to an ordinary immigration officer’s interpretation of the IRPA (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 1, 42 - 45, [2015] 3 SCR 909 [Kanthasamy]).
B. Analysis
[38] Earlier cases of this Court that reviewed a visa officer’s determination of eligibility for permanent residence under the skilled worker class found the analysis involves mixed findings of fact and law and is reviewable on a standard of reasonableness: Malik v Canada (Citizenship and Immigration), 2009 FC 1283 at para 22, 183 ACWS (3rd) 817; Veryamani v Canada (Citizenship and Immigration), 2010 FC 1268 at para 26, 379 FTR 153.
[39] The jurisprudence of this Court has recently been divided on whether visa officers are entitled to deference in statutory interpretation. In Ijaz v Canada (Citizenship and Immigration), 2015 FC 67 at paras 20-32, 474 FTR 6 [Ijaz], Madam Justice Cecily Strickland found that the appellate decisions in Khan v Canada (Citizenship and Immigration), 2011 FCA 339, [2013] 3 FCR 463 [Khan], and Canada (Citizenship and Immigration) v Patel, 2011 FCA 187, [2013] 1 FCR 340 [Patel] , in which the Court of Appeal found a correctness standard of review applied, did not satisfactorily determine the question. Applying the standard of review analysis from Dunsmuir, Justice Strickland found that the presumption of reasonableness had not been rebutted, and therefore visa officers are entitled to deference when interpreting the IRPA and the Regulations.
[40] However, in Dashtban v Canada (Citizenship and Immigration), 2015 FC 160 at paras 22-30, 475 FTR 156 [Dashtban] Mr. Justice Keith Boswell applied the correctness standard of review. He found that Ijaz was distinguishable because the question of statutory interpretation was less extricable from the facts, but to the extent Ijaz stood for a general principle on standard of review, he respectfully declined to follow it (at para 26). He found that the hierarchy of the courts required that he follow the Federal Court of Appeal’s guidance post-Dunsmuir unless he could confidently state that they had been implicitly overruled by significant developments in the law (at paras 27-28).
[41] The Supreme Court of Canada determined in Dunsmuir and in Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] SCC 61 [Alberta Teachers’], that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Alberta Teachers’ at para 30 citing Dunsmuir at para 54). Recently several cases in the Supreme Court have confirmed and re-inforced this principle by holding that reasonableness is the presumptive standard of review when considering a decision by a tribunal reviewing its home statute: Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293; Green v Law Society of Manitoba, 2017 SCC 20, 407 DLR (4th) 573; Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 SCR 300; McLean v British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895.
[42] To rebut the presumption of reasonableness the issue must fall into one of the four categories articulated by the Supreme Court in Dunsmuir: “constitutional questions regarding the division of powers, issues “both of central importance to the legal system as a whole and outside of the adjudicator’s specialized area of expertise”, “true questions of jurisdiction or vires”, and issues “regarding the jurisdictional lines between two or more competing specialized tribunals””: Edmonton East at para 24 citing Dunsmuir at paras 58-61. “The [p]resumption [of reasonableness] is not easily rebutted”: Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132 at para 31, [2017] FCJ No 638 (QL).
[43] In Donovan v Canada (Citizenship and Immigration), 2015 FC 359, at para 14, [2015] FCJ No 316 (QL) [Donovan], released after both Ijaz and Dashtban, Mr. Justice James Russell relied on decisions in the Federal Court of Appeal - Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 FCR 335 [Kanthasamy FCA] and Lemus v Canada (Citizenship and Immigration), 2014 FCA 114, 372 DLR (4th) 567, – which were heard together in the Court of Appeal. Justice Russell found that the Supreme Court in Agraira had determined the standard of review of a visa officer’s decision under the IRPA was reasonableness. He saw no reason to find the standard would be different in the context of a permanent residence decision. I share that view as the examining officer is the same in each instance.
[44] The determination by Justice Russell that Kanthasamy FCA changed the standard of review to be applied to a visa officer’s statutory interpretation of the IRPA and the Regulations was made clear when the Supreme Court determined Kanthasamy. There, the Court found the standard of review of a visa officer dealing with a humanitarian and compassionate application for permanent residence was that of reasonableness (at para 44).
[45] Notably, Mr. Justice Stratas has observed that in Kanthasamy the Supreme Court found that reasonableness was the standard of review for a visa officer even when the visa officer did not explicitly consider their statutory powers or engage in statutory interpretation: Canada (Citizenship and Immigration) v Singh, 2016 FCA 300 at para 10, [2016] FCJ No 1311 (QL).
[46] In light of the several recent decisions from the Supreme Court stressing the presumption of reasonableness as first articulated in Dunsmuir it is my view that it would be irrational to find a visa officer interpreting sections of their home statute dealing with granting of permanent residence, with which they are very familiar, would be reviewed on a correctness basis for some decisions such as interpreting the provisions for federal skilled workers and on a reasonableness standard for others decisions such as humanitarian and compassionate relief. The same visa officer must interpret the legislation in each case.
[47] The Supreme Court found in Kanthasamay that a visa officer has the expertise to interpret the IRPA and the Regulations and it held that the application of such expertise is reviewable on the basis of reasonableness (at para 44). Kanthasamay was determined after Ijaz and Dashtban. It is my view that it is a positive answer to the question of whether the previous determination of the standard of review in jurisprudence such as Khan and Patel has been significantly displaced.
[48] The presumption of reasonableness has not been rebutted. The only category that could be considered is whether the Officer’s interpretation of related by marriage is a question of law of central importance to the legal system and outside the adjudicator’s specialized expertise. If it is, that would import a possible correctness review. The question though is narrow and specific to one particular section of this legislation. As counsel for Dr. Rahimi said, with respect to a possible certified question about the interpretation of the word “marriage”, that the interpretation is specific to this case. Accordingly the decisions under review will be considered on the standard of reasonableness unless there is a legitimate issue of procedural fairness in which case the standard will be correctness for such issue: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339.
[49] As is well known, a decision is reasonable if the decision-making process is justified, transparent and intelligible resulting in a determination that falls within the “range of possible, acceptable outcomes which are defensible on the facts and law”: Dunsmuir at para 47.
VIII. Did the Officer err in finding there is no qualifying relative under subsection 83(5)?
A. Overview
[50] The determinative issue with respect to the Officer’s assessment of the adaptability factor is whether the relationship of uncle and nephew by marriage was terminated when Mr. Vajar’s aunt died. In other words, did the marriage of Mr. Amirabadi to Mr. Vajar’s aunt have to be subsisting at the time of the application and time of the Decision?
[51] The pertinent facts to consider in connection with this issue are:
- the aunt of Mr. Vajar died in February, 2004;
- the original application under consideration was made in 2009;
- Mr. Amirabadi became a permanent resident of Canada in 2011;
- Dr. Rahimi refiled the original application with updated submissions in July 2015;
- the decision under review occurred in early 2016;
- Mr. Amirabadi never remarried.
[52] Both sides agree there is no qualifying blood relationship to a permanent resident or citizen of Canada. Whether Mr. Amirabadi falls within the provisions of subparagraph 83(5)(a)(vi) so that he is related to Mr. Vajar by marriage is the question. It has been approached by the parties from two different perspectives.
[53] Dr. Rahimi’s position is, in effect, “once a marriage always a marriage” and Mr. Amirabadi clearly falls within the provision, in that he is related to his former wife’s nephew. The legislation does not require that the marriage remain in place in order to fall within the concept of “related by marriage”.
[54] The Minister’s position is that the death of Mr. Vajar’s aunt terminated her marriage to Mr. Amirabadi. As a result, he cannot fit within subparagraph 83(5)(a)(vi) as, in order to have a relationship by marriage there must be an existing marriage creating the relationship.
[55] In my view, which I further elaborate below, the finding by the Officer that there was no marriage at the time the application was filed by Dr. Rahimi was both reasonable and correct. The legislation cannot be stretched to be read the way that Dr. Rahimi urges. There is no suggestion that there was a blood relationship between the Mr. Amirabadi and Mr. Vajar; the only possible relationship was by virtue of Mr. Amirabadi being married to Mr. Vajar’s aunt. As his aunt died five years before the application was filed there was no subsisting marriage to support the claimed relationship.
B. Position of Dr. Rahimi
[56] Dr. Rahimi argues that the language in paragraph 83(5)(a) of the Regulations is broadly worded and it is plain and clear: non-blood relationships which are created by marriage or by common law partners qualify for the purpose of awarding points under adaptability. As Mr. Amirabadi was married to Mr. Vajar’s aunt he is related to Mr. Vajar by virtue of subparagraph 83(5)(a)(vi). Since Mr. Vajar is the accompanying spouse to the applicant, Dr. Rahimi, 5 points should have been awarded for having a family relationship in Canada.
[57] Dr. Rahimi also referred to the December 19, 2012 Regulatory Impact Analysis Statement ((2012) C Gaz II, Vol 146, No 26, 2902) [2012 RIAS] which indicated the legislative change to the adaptability factors made in 2012 was done partly to reflect the fact that having an adult relative in Canada would “play a role in facilitating the economic and social integration of the applicant” (at 2913), and by extension appears to argue that this was the purpose for the original inclusion in the adaptability factors of a relative who is a Canadian Citizen or permanent resident living in Canada. Dr. Rahimi urged that the letters of support from the family of Mr. Amirabadi indicating how important he has been in the life of Mr. Vajar shows he will be able to assist and that his ability to assist is what was anticipated when Parliament in 2012 (in force May 4, 2013) added as criteria for being a qualifying relative that the person be a minimum age of eighteen.
[58] Dr. Rahimi submits that subparagraph 83(5)(a)(vi) should be read harmoniously with the purpose of the regulation – to prioritize individuals with family in Canada that will be able to help them integrate economically and socially with Canadian society. There is no indication that a relative by marriage in Canada will become less likely to help with integration merely because the blood relative that links the two individuals has died.
[59] Finally, Dr. Rahimi urges that the marital relationship was not dissolved by the aunt’s death and Mr. Amirabadi should be considered a relative by marriage until or unless he remarries.
C. Position of the Minister
[60] Although put forward in the written materials, the Minister does not rely on the fact that Mr. Amirabadi became a permanent resident after the date of the original application, contrary to section 77 of the Regulations. The Minister does state though that Mr. Amirabadi was not married to the aunt at the time he became a permanent resident in 2011 nor at the time of the original application. Section 77 requires that the criteria in section 76 be met on the date the application for permanent residency is made and on the date it is issued. The criteria under section 76 includes the awarding of points for adaptability under section 83.
[61] The Minister also submits that the fact that Mr. Amirabadi has not remarried is irrelevant to the determination of whether at the relevant time he was married to a person who falls within the list of relatives described in subparagraph 83(5)(a)(vi). As Mr. Vajar’s aunt died five years before the original application was filed there was no longer a qualifying marriage in place when Dr. Rahimi submitted that application or the re-opened application in 2015.
[62] The Minister also relies upon the wording of the Regulations section 2 of which defines “marriage” as:
Interpretation
2 The definitions in this section apply in these Regulations.
. . .
marriage, in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law. (mariage)
Définitions
2 Les définitions qui suivent s’appliquent au présent règlement.
. . .
mariage S’agissant d’un mariage contracté à l’extérieur du Canada, mariage valide à la fois en vertu des lois du lieu où il a été contracté et des lois canadiennes. (marriage)
[63] The Minister notes the definition is drafted in the present tense requiring that there is a valid marriage. Counsel also notes that paragraph 83(5)(a) is drafted in the present tense – “is related by marriage” – and section 77 stipulates that “the requirements and criteria … must be met at the time an application … is made as well as at the time the visa is issued” [emphasis added]. The provisions therefore clearly anticipate a presently subsisting marriage, not a former marriage.
[64] The Minister says that although Mr. Vajar may consider Mr. Amirabadi to be his uncle and may have a close relationship with him it is not the role of the parties or the Court to convert a familial notion of relationship into a legal relationship that is not set out in the legislation: Biosa v Canada (Public Safety and Emergency Preparedness), 2014 FC 431 at para 27, 454 FTR 36 [Biosa].
[65] Dr. Rahimi responds that Biosa is distinguishable and does not apply because it dealt with a different regulation (section 159.1 of the Regulations) which specifically included that a family member could include an aunt, uncle, nephew or niece. Dr. Rahimi further points out that those relationships were not defined in the same manner nor did section 159.1 encompass the expanded provision found in paragraph 83(5)(a) that a person could be related to another person by marriage or common-law partnership.
D. Analysis
[66] I agree that Biosa does not directly assist in answering the present question of whether the death of Mr. Vajar’s aunt terminated his familial relationship to Mr. Amirabadi. However, in Biosa Mr. Justice Simon Noël makes the point that a term of convenience should not be imported into a legal context “where stability and predictability must prevail to ensure that everyone’s claim is treated equally”: Biosa at para 27. Applying that principle to this case it is important that the interpretation of the word marriage not lead to uncertainty as to who falls within the definition of being a family member who is “related by marriage”.
[67] The argument between the parties is whether a marriage survives the death of one spouse when it comes to determining familial relationships as described in subparagraph 83(5)(a)(vi). To determine whether Parliament intended to include people not related by blood but who, prior to the death of a blood relation, were at one time related through marriage, is a matter of statutory interpretation which has not previously been determined in relation to subsection 83(5) of the Regulations.
[68] Statutory interpretation begins with the approach that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 7 citing Elmer A. Driedger, The Construction of Statutes, (Toronto: Butterworths, 1974) at 67; see also Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27 at para 21, 36 OR (3d) 418). However, the grammatical and ordinary sense of a legislative provision is not determinative. The court must “consider the total context of the provision[s] to be interpreted, no matter how plain the disposition may seem upon initial reading” ATCO Gas and Pipelines Ltd. v Alberta (Energy and Utilities Board), 2006 SCC 4 at para 48, [2006] 1 SCR 140.
[69] The plain reading of paragraph 83(5)(a) that is urged by Dr. Rahimi is only plain if the word marriage is interpreted as she suggests it ought to be which is that there is a marriage, even after death of a spouse, unless the surviving spouse remarries. The plain reading of that paragraph to the Minister is that the word “is” in th