Date:
20121114
Docket:
IMM-882-12
Citation:
2012 FC 1321
Ottawa, Ontario,
November 14, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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PRASHANT JAYANAND SHETTY
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the December 21, 2011, decision of a visa
officer (“the Officer”) at the Consulate General of Canada in Los Angeles,
California. In the decision, the Officer refused the Applicant’s application
for permanent residence under the Federal Skilled Worker class.
[2]
For
the reasons that follow, the application for judicial review is allowed.
I. Facts
[3]
The
Applicant, Mr. Prashant Jayanand Shetty, is an Indian citizen who is a resident
of the United States. He was deputed to the United States in July 2006 by his
employer at the time, Persistent Systems Limited. He worked for Persistent
Systems in India from November 2001 until July 2006, and for the company’s
American subsidiary in California until August 2008. He is currently an
employee of SENA Systems, Inc., an identity and access management services
company.
[4]
Mr.
Shetty applied for permanent residence in Canada as a Federal Skilled Worker in
early 2010
on the basis of his minimum of one year’s experience in a designated National
Occupation Classification (NOC). His application was made pursuant to the
instructions published by the Minister of Citizenship and Immigration (“the
Minister”) on November 28, 2008. Specifically, Mr. Shetty applied on the basis
of his experience in NOC 0213 – Computer and Information Systems Managers,
relying on the tasks he carried out during the time he worked for Persistent
Systems in the United States.
II. Decision
under Review
[5]
The
Officer evaluated Mr. Shetty’s application on the basis of the documents
submitted, and was not satisfied that he performed the actions described in the
lead statement for the occupation of a Computer and Information Systems Manager
– NOC 0213. Specifically, the Officer found it “questionable” that the
employment verification letter came from the Indian office of Persistent
Systems, rather than the American office, where Mr. Shetty purportedly carried
out the duties that would fall in the category of NOC 0213.
[6]
The
Officer further found that, based on the employment verification letter
supplied by the Applicant, that his work was primarily consultative in nature,
and not as managerial as required by NOC 0213. The Officer was convinced that
Mr. Shetty’s dealings with his employer’s clients were limited to specific
projects with limited duration, and “in concert with the clients, rather than
taking over primary control.”
[7]
The
Officer determined that Mr. Shetty’s experience in the ten years preceding his
application did not fall into any other categories identified by the Minister
in his instructions of November 28, 2008. Additionally, since he is not
currently a resident of any form in Canada, nor does he have a job offer in Canada,
Mr. Shetty was not qualified to come to Canada under the Federal Skilled Worker
category.
III. Issues
[8]
The
determinative issues in this case are:
a) Whether
the Officer breached a requirement of procedural fairness by failing to convoke
the Applicant for an interview; and
b) Whether
the Officer’s conclusions with respect to the Applicant’s experience were
reasonable.
IV. Standard of Review
[9]
Questions
of procedural fairness are reviewable on the standard of correctness (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 43).
[10]
Discretionary
decisions made by visa officers are entitled to a high degree of deference. Unless
the Officer’s decision is unreasonable or based on irrelevant or extraneous
considerations, this Court should not interfere with his decision (Talpur v
Canada (Minister of Citizenship and Immigration), 2012 FC 25, [2012] FCJ No
22 at para 19; Khan v Canada (Minister of Citizenship and Immigration),
2009 FC 302, [2009] FCJ No 676 at para 9). Indeed, the standard of
reasonableness is concerned “mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
A. Procedural
Fairness
[11]
The
Applicant contends that he should have been given an opportunity to disabuse
the Officer of his concerns with respect to the Applicant’s work experience. Specifically,
the Applicant submits that the Officer’s concerns went to the credibility,
accuracy or genuine nature of the documents before him.
[12]
It
is incumbent upon applicants to submit the relevant documentation to
demonstrate that they meet the criteria of the particular category in which
they are applying for status in Canada. This Court has held on several
occasions that “an officer is generally not under a duty to inform a skilled
worker class applicant about his concerns when they arise directly from the
requirements of the legislation or regulations” (Li v Canada (Minister of
Citizenship and Immigration), 2012 FC 484, [2012] FCJ No 509 at para 34; Hassani
v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2006]
FCJ No 1597 at para 24; Gulati v Canada (Minister of Citizenship and
Immigration), 2010 FC 451, [2010] FCJ No 771 at para 43).
[13]
After
considering the evidence, I tend to agree with the Respondent’s characterization
of the Officer’s concerns as pertaining to the Applicant’s documentation to
demonstrate relevant work experience, a concern that arises directly from the
requirements of the legislation or regulations. The Officer was thus under no
duty to convoke the Applicant for an interview, and did not breach his duties
of procedural fairness in this case.
B. Reasonableness
of the Decision
[14]
The
Applicant’s arguments that the Officer fettered his discretion hinge on the
Officer’s interpretation of the NOC requirements, and are thus more
appropriately analyzed under the rubric of reasonableness.
[15]
In
that vein, the Applicant submits that the Officer erred in treating the lead
statement as a “threshold hurdle for the Applicant to overcome,” rather than as
merely a part of the whole description of the NOC category, which the Officer
was required to read in a fair and broad manner. The Applicant finally posits
that the evidence he submitted to describe the duties he performed at
Persistent Systems “clearly” demonstrated that he performed a management role,
which the Officer erred in attributing to NOC categories 2171 (Information
Systems Analyst and Consultant) and 2174 (Senior Programmer Analyst).
[16]
The
Respondent contends that that it was open to the Officer to find that the
Applicant performed the work described in NOC 2171, based on the evidence
before him, and that, apart from his finding with respect to identifying the
supervision of other IT professionals as a function of NOC 2171 positions, the
Officer’s decision was reasonable.
[17]
I
find that the Officer’s cumulative reasoning renders his decision unjustifiable
on the facts of this case. First, as the Applicant points out, the Officer’s
concerns with respect to where the Applicant carried out the tasks described in
the employment verification letter from Persistent Systems are not relevant to
the evaluation of the Applicant’s experience. While it may be relevant for
determining the length of time for which he was responsible for the listed
tasks, it was already established in the record that he carried out these
activities for a minimum of one year.
[18]
Second,
the Officer determined that the Applicant did “not plan, organize, direct,
control and evaluate the activities and operations of the information systems/technology
and EDP department of his employer, nor of its clients,” while the employment
verification letter stated that the Applicant was responsible for (see
Application Record at 65):
• Evaluating
the operations of the current Identity and Access Management Systems within the
client organization.
• Requirement gathering
& complete design of User Provisioning and Federation model.
• Discussions with
client on specifications, costs and timelines for deployment and integration.
• Leading the complete
upgrade of Oracle Access Manager from 7.0.4.3 to 10.1.4.2.0.
• Develop and implement
policies and procedures for access control within the organization.
• Leading the
Middleware Operations team in supporting and maintaining the Identity and
Access Management infrastructure on client side.
• Preparing Training
Guides and training the Client Operations team on the deployment of Oracle IdM
products.
• Involved in
recruitment and mentoring of Software Engineers and Programmer Analysts, and
overseeing their professional development and training.
[19]
The
Officer’s finding that these responsibilities do not involve any planning,
organizing, directing, or evaluating the activities and operations of aspects
of his employer’s business – the description included in the lead statement for
NOC 0213 positions – appears to ignore the description in the Applicant’s
employment verification letter. This finding is particularly troublesome after
looking at the main duties attributed to NOC 0213 positions.
[20]
Finally,
and most problematically, the Officer determined that the Applicant’s dealings
with his employer’s clients were “limited to working on specific projects with
limited duration, and he does so in concert with the clients, rather than
taking over primary control.” There is no basis in the record for the
conclusion that the Applicant does not take “primary control” in his dealings
with his employer’s clients. Absent an explanation for this finding, I find
the decision unreasonable.
[21]
Given
my finding on this point, there is no need to address the Applicant’s argument
with respect to the proper burden of proof employed by the Officer.
VI. Conclusion
[22]
While
the Officer did not breach a duty of procedural fairness owed to the Applicant
by not convoking him for an interview, the Officer’s overall decision was
unreasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed and the matter is sent back for re-determination by a different
officer.
“ D. G. Near ”
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