Toronto, Ontario, May 28, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4410-06
STYLE OF CAUSE: PRITESH BHARATKUMAR CHOKSI v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Matthew Jeffrey For the Applicant
Sally Thomas For the Respondent
SOLICITORS OF RECORD:
Matthew Jeffrey
Barrister & Solicitor
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent