Date: 20070528
Docket: IMM-4410-06
Citation: 2007 FC 555
Toronto, Ontario, May 28,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
PRITESH
BHARATKUMAR CHOKSI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Pritesh
Bharatkumar Choksi’s application for permanent residence under the skilled
worker category was rejected by a visa officer, who found that he did not have
the necessary employment experience.
[2]
Mr.
Choksi seeks judicial review of the officer’s decision, asserting that the
reasons provided by the officer for rejecting his application were inadequate.
He says that the officer further erred in finding that he lacked the necessary
experience, in light of the substantial evidence he provided to the officer
with respect to his experience in web design. Finally, he says that the
officer erred in failing to accord points for his wife’s university education.
[3]
For
the reasons that follow, I agree that the officer’s assessment of Mr. Choksi’s
application under the provisions of the Immigration and Refugee Protection Act
was flawed. As a consequence, the application will be allowed.
Background
[4]
In
support of his application, Mr. Choksi provided the officer with evidence
regarding his university degree in electrical engineering, and the significant
number of courses he had taken in web design and software programming. In
addition, the officer was provided with details of his work experience,
including letters of reference from his employers, which demonstrated that he
had been working in skilled occupations since 1995.
[5]
Specifically,
this evidence indicated that Mr. Choksi had worked as a software engineer
between 1995 and 1998, and had worked as a web designer between 1998 and 2006.
In April of 2006, he commenced his present employment as a Senior Software
Engineer.
The Officer’s Decision
[6]
Because
of the timing of the application, Mr. Choksi’s application was assessed under
the provisions of both the Immigration Act and the Immigration and
Refugee Protection Act. Given that this matter can be disposed of on the
basis of the officer’s assessment of Mr. Choksi’s application under IRPA, it is
not necessary to review the other aspects of the officer’s decision.
[7]
In
assessing Mr. Choksi’s application under the Immigration and Refugee
Protection Act, the officer noted that an applicant must demonstrate that
he or she had at least one year of continuous full-time employment experience,
or the equivalent in continuous part-time employment in one or more designated
occupations, in the course of which he or she performed the actions described
in the lead statement for the occupation as set out in the occupational
descriptions of the National Occupational Classification.
[8]
In
addition, the applicant must have performed a substantial number of the main
duties of the occupation as set out in the occupational descriptions of the National
Occupational Classification, including all essential duties.
[9]
An
interview was held with Mr. Choksi to assess his “qualifications and verify
experience in intended occupation and to assess his ability to establish
successfully given his ability in English”.
[10]
After
interviewing Mr. Choksi, the visa officer found that he was knowledgeable in
HTML and CSS, which is evidently a format for web pages. However, the officer
was not satisfied with Mr. Choksi’s explanation as to why he had been hired as
a web designer, given his education as an electrical engineer.
[11]
Furthermore,
the officer’s notes indicate that Mr. Choksi was unable to provide any insight
into the web sites of the companies where he had worked. Finally, the officer
noted that “Total Web Solutions”, where Mr. Choksi had allegedly worked as a
web designer, did not itself appear to have a web site.
[12]
As
a consequence, the officer concluded that Mr. Choksi did not meet the
employment requirements and was thus awarded zero points for experience.
[13]
It
also appears from the CAIPS notes that no points were awarded with respect to
Mr. Choksi’s wife’s education, notwithstanding the fact that she evidently had
a university degree.
Standard of Review
[14]
The
jurisprudence of this Court recognizes that the assessment of an applicant for
permanent residence under the Federal Skilled Worker Class involves an exercise
of discretion that should be given a high degree of deference. To the extent
that such an assessment is carried out in good faith, in accordance with the
principles of natural justice, and without relying on irrelevant or extraneous
considerations, the decision is reviewable on the standard of patent
unreasonableness: see, for example, Kniazeva v. Canada (M.C.I.) (2006),
288 F.T.R. 282, 2006 FC 268, Postolati v. Canada (M.C.I.), [2003] F.C.J.
No. 345, 2003 FCT 251; Singh v. Canada (M.C.I.), [2003] F.C.J. No. 441,
2003 FCT 312; Nehme v. Canada (M.C.I.) (2004), 245 F.T.R. 139, 2004 FC
64; Bellido v. Canada (M.C.I.), [2005] F.C.J. No. 572, 2005 FC 452.
Analysis
[15]
I
have a number of problems with the officer’s assessment of Mr. Choksi’s
application.
[16]
Firstly,
it appears that the companies that Mr. Choksi worked for were consulting
companies, providing web design services to third parties. There is nothing in
the record to suggest that Mr. Choksi had anything to do with the design of his
employers’ own web sites, nor is it apparent to me why Mr. Choksi would have
felt any need to familiarize himself with the contents and format of his
employers’ web sites in advance of the interview.
[17]
Surely
the relevant question was whether Mr. Choksi was familiar with the web sites
that he says that he had actually created. In this regard, the officer was
provided with numerous web addresses for sites that Mr. Choksi says that he had
worked on, and it would have been very easy for the officer to determine if he
could demonstrate the degree of familiarity with the sites that one would have
expected of an individual intimately involved in the creation of the sites in
question.
[18]
Secondly,
while the officer was understandably concerned by the fact that “Total Web
Solutions”, a company where Mr. Choksi had allegedly worked as a web designer,
did not itself appear to have a web site, no clear finding was made by the
officer with respect to the bona fides of Mr. Choksi’s work experience
with this company, and we are left to speculate as to whether the officer
accepted that he had this experience or not.
[19]
Finally,
Mr. Choksi provided the officer with considerable documentation supporting his
claim to have substantial training and experience in web design. No reference
was made by the officer with respect to any of this documentation. While the
officer is presumed to have considered all of the documentary evidence, this
evidence ran directly contrary to the officer’s finding, and should therefore
have been specifically addressed: Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1425, 157 F.T.R. 35 at ¶ 14
– 17.
[20]
I
also do not accept the Minister’s contention that the application should be
dismissed as it would be futile to send the matter back for reconsideration.
According to the Minister, even if Mr. Choksi was accorded full marks for
experience, he would still have fallen short of the total required for a visa,
and thus there would be nothing to be gained by referring the matter back for
reconsideration.
[21]
This
is because it appears from the record that Mr. Choksi’s wife was not accorded
any points for her education. Given that she claims to have a university
degree, points should have been accorded in this regard, or an explanation
provided by the officer for the decision not to do so.
[22]
When
the matter of Mr. Choksi’s work experience and his wife’s education are taken
together, it is not clear that the couple’s application would necessarily fail.
Conclusion
[23]
For
these reasons, the application for judicial review is allowed.
Certification
[24]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-determination; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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