Docket:
IMM-11086-12
Citation: 2013 FC 1161
Ottawa, Ontario, November 14, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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MOJTABA ESMAILI
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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
Introduction
[1]
The applicant in this matter seeks judicial
review, pursuant to section 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the IRPA], of a decision made by an Immigration Officer
on May 16, 2012 denying his application for permanent residence in Canada as a
member of the Federal Skilled Worker Class.
[2]
For the following reasons, the application is
granted.
Background
Facts
[3]
Mr. Esmaili is an Iranian citizen, born in
1984. He enrolled at Shirvan Azad University in 2004. During his studies, he
was hired part-time by the Apasay Kish company as a technical assistant in
2004, then promoted to technical sales advisor in 2006. He graduated in 2007
with a bachelor’s degree in computer engineering, then ceased working for the
company temporarily and took a master’s degree from Girne American University, Cyprus. The head of the Department of Management Information Systems, Professor Christopher Payne,
provided a recommendation letter saying that Mr. Esmaili had been “a
first-class student” and “a serious, highly intelligent man” with a wide
knowledge in his field, who had “regularly achieved the uppermost grade in his
courses”, had written a thesis (on intelligent software systems) of
“publishable quality”, and was “perfectly fluent in both written and spoken
English.” Mr. Esmaili was rehired as a full-time information systems manager
by Apasay Kish in 2009 after his masters’ degree graduation and remains
employed by the company. His sister is a permanent resident of Canada and lives in Newfoundland and Labrador.
[4]
In 2011, Mr. Esmaili, then aged 26, applied to
come to Canada as an Information System Manager, NOC 0213. He submitted an
application, the $550 processing fee, and documentation of his educational
credentials and the required minimum of one year’s work experience in the
desired occupation. Mr. Shahab Shariatfar, Director Manager of the Apasay Kish
company, provided a letter of reference in which he stated that he “highly
recommends Mr. Mojtaba Esmaili as a challenging and hardworking staff to any
company or institution who would hire him for a similar job position” and
provided the following description of his duties:
2009-02/2010-08
Information System Manager
(Full-time, 40H/W)
Direct,
monitor and organize the work of company’s system analysts and computer support
specialists, coordinate activities such as installing and upgrading software
hardware and network, estimate the risk and substitute new procedures to make
competitive advantages based on the potential of the company, deal with the
operational and strategic aspects of the company and determine immediate and
long-term personnel and equipment requirements, stay informed and tuned with
the latest technological and managerial advances.
2006-06/2007-06 Sales Advisor (Part-time, 24H/W)
Assist
the Sales Manager in preparing market analysis and developing short-term
activities and long-term comprehensive market plans, carry out market research
activities as requested, identify new business opportunities and market needs,
advise customers to choose their best.
2004-06/2006-06 Technical Assistant (Part-time, 24H/W)
Provide
customers with their required services including: fix corrupted computer
systems, install software, diagnose and repair software errors, set up network
and prepare systems for sharing documents and printers, repair and upgrade
hardware, substitute new systems with old systems, guarantee customers’
satisfaction through effective handling of customer problems.
[5]
The NOC 0213 description online at Human
Resources and Skills Development Canada reads:
0213 Computer and
information systems managers
Computer
and information systems managers plan, organize, direct, control and evaluate
the activities of organizations that analyze, design, develop, implement,
operate and administer computer and telecommunications software, networks and
information systems. They are employed throughout the public and private
sectors.
Example
Titles
EDP
(electronic data processing) manager, computer systems manager, data centre
manager, data processing director, information systems manager, manager, data
processing and systems analysis manager, management information system (MIS)
manager, software engineering software development manager, systems development
manager
Main
duties
Computer
and information systems managers perform some or all of the following duties:
•
Plan, organize, direct, control and evaluate the
operations of information systems and electronic data processing (EDP)
departments and companies
•
Develop and implement policies and procedures
for electronic data processing and computer systems development and operations
•
Meet with clients to discuss system
requirements, specifications, costs and timelines
•
Assemble and manage teams of information systems
personnel to design, develop, implement, operate and administer computer and
telecommunications software, networks and information systems
•
Control the budget and expenditures of the
department, company or project
•
Recruit and supervise computer analysts, engineers,
programmers, technicians and other personnel and oversee their professional
development and training.
Employment
requirements
•
A bachelor's or master's degree in computer
science, business administration, commerce or engineering is usually required.
•
Several years of experience in systems analysis,
data administration, software engineering, network design or computer
programming, including supervisory experience, are required.
[6]
The application was screened by a Centralized
Intake Officer in Sydney, Nova Scotia, and recommended to the visa office for a
final determination of eligibility. An immigration official in Ankara, Turkey, recorded in the Computer Assisted Immigration Processing System [CAIPS] on
May 5, 2012 that:
Subject
is applying under noc 0213. based on the
letter provided by shahab shariatfar dated 06 sept i am not satisfied that pa
has preformed [sic] the
actions described in the lead statement of noc 0213 or the main duties of noc
0213. there [sic] not
satisfied that the ministerial instructions have been meet [sic]. refused on eligibility. ecp please prepare
the letter and refund fees.
[7]
On May 16, 2012, a letter refusing the
application was issued.
[8]
Pursuant to section 72(2) of the IRPA, a person
seeking judicial review by the Federal Court of a decision of a Case Officer is
required to apply for leave to the Court within 60 days, in the case of a
matter arising outside Canada, after being notified of the decision. The
applicant exceeded this deadline by more than three months and seeks an
extension of time permitting the application to be brought.
[9]
The applicant had retained an immigration
consultant in Ontario to assist in making his application. After learning that
his application had been rejected, the representative wrote to the Canadian
embassy in Ankara on June 13, 2012 seeking an opportunity to provide further
documents and claiming procedural fairness had been breached.
[10]
The embassy did not answer. A note in the
Global Case Management System [GCMS] indicated that: “Request for
reconsideration was rcvd on June 13, 2012. No reply sent as file is pending
litigation.” In his affidavit filed in support of the application, the
applicant states that he thought the best option was for his consultant to send
a letter to the Canadian embassy and that he was not aware of deadlines for
filing an application for leave of the court. It was only after his consultant
contacted a law firm to obtain legal advice that he became aware of this
requirement whereupon he immediately retained the firm and instructed it to
bring a leave application.
[11]
A notice of application was filed on October 30,
2012 which included a request for an extension of time. Justice Bédard granted
leave on July 18, 2013 without commenting on the request for extension.
[12]
The applicant highlights the fact that as of
July 1, 2012, the respondent Citizenship and Immigration Canada is no longer
accepting applications within this federal skilled worker stream. Applicants
must have an arranged offer of employment or fit within the PhD stream in order
to apply. The outcome of the present judicial review is therefore highly
significant to the applicant.
Impugned
Decision
[13]
The officer who signed the refusal letter
indicated to Mr. Esmaili that: “you have not provided sufficient evidence that
you performed the actions described in the lead statement for the occupation,
as set out in the occupational description of the NOC that you performed all of
the essential duties and a substantial number of the main duties, as set out in
the occupational descriptions of the NOC. As such, I am not satisfied that you
are a Computer and Information Systems Manager – 0213. Since you did
not provide evidence that you have work experience in the listed occupations,
you do not meet the requirements of the Ministerial Instructions and your
application is not eligible for processing.”
Issues
[14]
The following issues are raised:
a.
Is the applicant time-barred from bringing this
application?
b.
Was the Officer’s finding that the applicant did
not have the required work experience unreasonable?
c.
Did the Officer’s failure to give adequate
reasons amount to a breach of procedural fairness?
Standard of
review
[15]
It is well established in jurisprudence that the
standard of review for an Officer’s consideration of evidence and the Officer’s
ultimate decision with regard to whether an applicant meets the criteria of a
NOC is reasonableness. (See for instance Khan v Canada (MCI), 2013 FC 891,
at para 13). The standard of review for an alleged failure to
address key evidence, and the standard of review for procedural fairness
generally, is correctness. (See for instance Uluk v Canada (MCI), 2009 FC 122, at para 16).
Analysis
A. Is the applicant time-barred from bringing this application?
[16]
The respondent submits that the applicant should
be non-suited for failing to provide a reasonable explanation for missing the
deadline by over three months. The fact that Justice Bédard gave leave without
speaking to the request for an extension of time is not treated as an implicit
granting of an extension. Since the leave order did not explicitly grant the
extension of time, the respondent argues that the Court retains jurisdiction to
dismiss the application without a hearing on the merits. (Villatoro v
Canada (MCI), 2010 FC 705, at paras 22-23; Strungmann v Canada (MCI), 2011 FC 1229 [Strungmann], at para 15; Chen v Canada (MCI), 2010 FC
899 [Chen], at paras 30-35). I agree and accordingly must decide whether
to grant the extension accordance with the principles governing extensions.
[17]
Moreover, it would appear that extensions of
time should quite properly be left to the judge conducting the judicial review,
inasmuch as the strength of the case is considered the overriding factor in
terms of meeting the ends of justice in granting an extension. That
consideration is obviously best carried out by the applications judge who
conducts the review and has the benefit of more fulsome written and oral
submissions.
[18]
In my view, Justice Barnes summarizes the law in
respect of extensions of time for the purposes of this case in Washagamis
First Nation v Ledoux, 2006 FC 1300 [Washagamis First Nation], as
follows:
23
The considerations that are typically applied to the exercise of the discretion
to extend time under Rule 8 have been frequently discussed. In 687764 Alberta
Ltd. v. Canada, [1999] F.C.J. No. 545, 166 F.T.R. 87, Justice Karon Sharlow
held as follows:
14
There are no hard and fast rules that will determine in any particular case
whether leave will be granted to extend a time limit for the commencement of a
legal proceeding. The purpose of the time limit is to give effect to the
principle that there must be an end to litigation. On the other hand, giving
the court the discretion to extend the time limit recognizes that an extension
of time may be necessary to do justice between the parties. These competing
considerations must be borne in mind in considering whether to grant the
extension: Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263
(F.C.A.); Consumers' Ass'n (Can.) v. Ontario Hydro [No. 2], [1974] 1 F.C. 460
(F.C.A.).
15
The cases set out the factors to be taken into account. The most important
of these is that the applicant must demonstrate an arguable case for the
remedy sought or, as is said in some cases, a reasonable chance of success. In
addition, the delay should be explained or justified, and there should
be evidence that the applicant exercised reasonable diligence in asserting its
rights. Usually this consists of evidence of a bona fide intention, in
existence within the statutory time limits, to seek redress for the impugned
decision, and evidence of the steps taken to pursue the matter. Any prejudice
to the respondent or third parties must be taken into account.
24
More recently in Jakutavicius v. Canada (Attorney General), [2004] F.C.J. No.
1488, 2004 FCA 289, Justice Marshall Rothstein confirmed the relevant
considerations for extending time as noted above by Justice Sharlow. He went on
to state that this list of considerations was not exhaustive and should not
be applied mechanically. He also confirmed that the weight to be applied to
the factors may well vary from case to case.
[Emphasis added]
[19]
In addition, Martineau J noted in Strungmann
at para 9 “an extension of time may still be granted if one of the criteria is
not satisfied”, citing Canada (Minister of Human Resources
Development) v Hogervorst, 2007 FCA 41, at para 33.
[20]
With respect to clients’ responsibility for
errors committed by lawyers, in this case by an immigration consultant, Justice
Barnes in Washagamis First Nation summarized his conclusions at
paragraph 33 as follows:
33
I am inclined to the view that where a litigant establishes that it clearly
instructed its counsel to proceed on a timely basis and that the failure to do
so was solely the result of an error by counsel, the litigant should not
be constructively held to have been a party to the error. Such an approach is
also consistent with that adopted by other courts in dealing with solicitor
error and missed limitation periods: see Woudstra v. Piston, [2004] O.J. No.
594, [2004] O.T.C. 160 (S.C.J.); Dreifelds v. Burton (1998), 38 O.R. (3d) 393,
[1998] O.J. No. 946 (C.A.) and Tait v. CNR (1984), 11 D.L.R. (4th) 460, 64
N.S.R. (2d) 187, [1984] N.S.J. No. 398 (S.C.).
[Emphasis
in original]
[21]
I interpret the foregoing passage to indicate
generally that clients should not be held responsible for their
representatives’ errors so long as they do not contribute to the actions
causing delay.
[22]
Applying these principles in this matter, I
conclude that the extension should be granted. First, because I find that the
applicant should succeed, he obviously has a more than an arguable case. As
Justice Sharlow pointed out, this is the most salient factor in determining
whether to extend time.
[23]
Second, I am also satisfied that the applicant
was blameless in relying on his consultant, particularly in the circumstances
of someone living in a foreign country and unaware of how the Canadian legal
system functions.
[24]
Third, I am of the view that the Officer contributed
to the problem by not responding to the consultant’s letter on the basis of
pending litigation. This is not an appropriate reason not to show the common
courtesy to others that our public service is known for. This left the
consultant, who was highly deficient in protecting his client’s interests,
adrift and stymied wondering if some response was forthcoming as an explanation
for a good part of the delay. It was only upon the consultant’s consulting
lawyers that his errors became apparent.
[25]
Fourth, I am satisfied that the applicant’s
intention throughout was to challenge the decision Why else would his
consultant be seeking further information from lawyers as what to do, which
information was acted upon immediately once the appropriate procedure was
known? I conclude in the interest of justice that the extension should be
granted.
B. Was the
Officer’s finding that the applicant did not have the required work experience
unreasonable?
[26]
I find first of all that the respondent is
attempting to supplement the Officer’s reasons by explaining what the letter
did not mention that it should have mentioned in order to be sufficient. The
Officer did not say anything about lacking information about the duties of the
NOC, merely that he was not satisfied (for some reason) that these duties had
been performed. Second, acknowledging the existence of the letter does not
constitute analysis of its contents. The Officer provided no reasons at all
for rejecting the letter as proof of the required year of work experience and
this was clearly unreasonable. Third, it is impossible to confirm whether the
Officer in fact mistook the Director Manager’s name for the company name,
further casting doubt on the quality of his consideration of the letter, but
this is immaterial given the total absence of justification for the finding
that he was not satisfied that the applicant had performed either the lead
statement tasks or the main duties tasks of the NOC.
[27]
Finally, the decision appears clearly
unreasonable on its face. The applicant had a bachelors and master’s degree in
his field, as well as a glowing recommendation from a professor at the graduate
studies level. He had risen through the ranks at his company over the course
of four and a half years, performing various functions in the general area of
information systems management, and had documentation showing a year and a
half’s experience as a full-time information systems manager directing
employees and running the IT operations of the organization. In the absence of
any explanation from the Officer, it is neither transparent nor intelligible
why this was not thought to be sufficient, and the decision does not represent
a possible, acceptable outcome.
C. Did the
Officer’s failure to give adequate reasons amount to a breach of procedural
fairness?
[28]
The applicant submits that CAIPS notes can
constitute reasons, but only where they contain enough detail for the applicant
to know why his request was denied (Ogunfowora v Canada (MCI), 2007 FC
471, at para 60). In the present case, the CAIPS notes provide no explanation
of why the list of duties given by the employer was not sufficient to show that
the applicant had performed the duties required under NOC 0213. The Officer
had the obligation to provide reasons which were clear, precise, and
intelligible, and he did not do this (Mehterian v Canada (MEI), [1992]
FCJ No 545 (QL) (FCA); Saha v Canada (MCI), 2003 FC 1325, at para 8; Jogiat
v Canada (MCI), 2009 FC 815, at paras 39-41).
[29]
The respondent argues that the applicant has not
explained what more he would have needed to know, saying that the requirements
of NOC 0213 are publicly accessible and therefore the Officer’s reasons stating
that he did not meet them were clear and adequate. As recently stated by this
Court in Kamchibekov v Canada (MCI), 2011 FC 1411, at para 22, “The
officer’s reasons are sufficient as long as he gave an explanation to the
applicant as to why he did not qualify [. . .] While the officer’s reasons may
be brief [. . .] they are clear and enable the applicant to understand why his
application was rejected.”
[30]
The requirement to provide sufficient reasons is
not onerous. I reproduce reasons which were challenged for being inadequate,
but were found by Justice Strickland at para 5 of her decision in Khowaja v
Canada (Minister of Citizenship and Immigration), 2013 FC 823 to be
sufficient for the same occupation:
The GCMS Notes state,
in part:
The
information submitted to support this application is insufficient to
substantiate that client meets the occupational description and/or a
substantial number of the main duties of NOC 0213. Client submitted a work
reference letter from TRG in Pakistan. The letter describes client as a Project
Manager, Data Entry and Data Processing Dept. No explanation is provided as far
as the essence of the projects in which client was involved is concerned. No
budgetary responsibilities or recruitment of its analysts, engineers,
programmers is mentioned, only hiring of supervisors and data entry processing
teams, who appear to be employees who are simply recording data in data bases.
The job description provided appears to more closely resemble the one of a Data
Entry Supervisor as per NOC 1211. In view of all of the concerns mentioned
above, I am not satisfied that client completed a period of one year of
experience in NOC 0213. Am not satisfied on basis of the information on file
that client performed the duties specified in NOC 0213.
Conclusion
[31]
I find that being able to “understand why his
application was rejected” is precisely what was lacking in this case. The
Officer’s decision is unreasonable, it lacked transparency and intelligibility.
For the above reasons, the application for judicial review is granted.
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