Esmaili v. Canada (Minister of Citizenship and Immigration), (2013) 442 F.T.R. 302 (FC)

• Judge: Annis, J.
• Court: Federal Court (Canada)
• Case Date: October 16, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 442 F.T.R. 302 (FC);2013 FC 1161

Esmaili v. Can. (M.C.I.) (2013), 442 F.T.R. 302 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. NO.027

Mojtaba Esmaili (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-11086-12; 2013 FC 1161; 2013 CF 1161)

Indexed As: Esmaili v. Canada (Minister of Citizenship and Immigration)

Federal Court

Annis, J.

November 14, 2013.

Summary:

The applicant applied for judicial review of an immigration officer's decision that denied his application for permanent residence as a member of the Federal Skilled Worker Class.

The Federal Court granted the application.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - [See Aliens - Topic 1239 ].

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - Esmaili, a citizen of Iran, had a bachelor's and master's degree in computer engineering - During his studies, he worked part-time for the Apasay Kish company as a technical assistant and technical sales advisor - In 2009, after completing his master's degree, he began working full time for the company as an information systems manager - In 2011, he applied for permanent residence as a member of the Federal Skilled Worker class under NOC 0213 (computer and information systems managers) - A former professor provided a recommendation letter stating that Esmaili was very intelligent and a first-class student - The Director Manager of the Apasay Kish company provided a reference letter that included a description of Esmaili's duties since 2004 - An immigration officer refused the application - The officer's notes stated that he was not satisfied, based on the Director Manager's letter, that Esmaili had performed the actions described in the lead statement of NOC 0213 or the main duties of NOC 0213 - The Federal Court allowed Esmaili's application for judicial review - The officer's finding that Esmaili did not have the required work experience was unreasonable - The officer did not say anything about lacking information about the duties of NOC 0213, only that he was not satisfied that those duties had been performed - The officer provided no reasons at all for rejecting the letter as proof of the required year of work experience - It was neither transparent nor intelligible why the officer did not find Esmaili's actual work experience sufficient - The officer's reasons did not allow Esmaili to understand why his application was rejected - See paragraphs 26 to 31.

Aliens - Topic 4064

Practice - Judicial review - Time for (incl. extension of) - Esmaili, a citizen of Iran, applied for permanent residence as a member of the Federal Skilled Worker class - An immigration officer sent Esmaili a letter refusing the application on May 16, 2012 - On June 13, 2012, the immigration consultant that Esmaili had retained to assist with his application wrote to the Canadian Embassy in Ankara seeking an opportunity to provide further documents and claiming procedural fairness had been breached - The Embassy did not respond - The officer made a note that "No reply sent as file is pending litigation" - It was only after the immigration consultant contacted a law firm to obtain legal advice that Esmaili became aware of the 60 day time limit for applying for judicial review - Esmaili retained the law firm and filed a notice of application on October 30, 2012, along with a request for an extension of time - Bedard, J., granted leave without commenting on the request for an extension - The Federal Court found that Bedard, J.'s leave order did not implicitly grant the extension of time - Since the order did not explicitly grant the extension, the court retained jurisdiction to decide the issue - The court concluded that it was in the interests of justice to grant the order - Esmaili had a more than arguable case - Where Esmaili lived in a foreign country and was unaware of how the Canadian legal system functioned, he was blameless in relying on the consultant - The immigration officer contributed to the problem by not responding to the consultant's letter - Pending litigation was not an appropriate reason not to show common courtesy - Esmaili's intention throughout was to challenge the decision - See paragraphs 16 to 25.

Cases Noticed:

Khan v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 415; 2013 FC 891, refd to. [para. 15].

Uluk v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 70; 2009 FC 122, refd to. [para. 15].

Villatoro v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 461; 2010 FC 705, refd to.[para. 16].

Strungmann v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 754; 2011 FC 1229, refd to. [para. 16].

Chen v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 583; 2010 FC 899, refd to. [para. 16].

Washagamis First Nation of Keewatin v. Ledoux et al., [2006] F.T.R. Uned. 763; 2006 FC 1300, refd to. [para. 18].

Canada (Minister of Human Resources Development) v. Hogervorst (2007), 359 N.R. 156; 2007 FCA 41, refd to. [para. 19].

Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.), refd to. [para. 28].

Saha v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 806; 2003 FC 1325, refd to. [para. 28].

Jogiat v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 752; 2009 FC 815, refd to. [para. 28].

Kamchibekov v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 864; 2011 FC 1411, refd to. [para. 29].

Khowaja v. Canada (Minister of Citizenship and Immigration) (2013), 437 F.T.R. 219; 2013 FC 823, refd to. [para. 30].

Counsel:

Krassina Kostadinov, for the applicant;

Asha Gafar, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on October 16, 2013, before Annis, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on November 14, 2013.