Date: 20001124
Docket: IMM-6339-99
BETWEEN:
RUDANI, Himmat Kanjibhai
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision dated December 2, 1999 of Mr. Martin Levine, Visa Officer (the "visa officer") of the Immigration Section of the Canadian High Commission in New Delhi, India, refusing the applicant's application for permanent residence in Canada.
FACTS
[2] The applicant, a citizen of India, applied for landing in Canada in the independent category as Industrial Pharmacist (CCDO 3151-114, now NOC 3131). His application was received at the Canadian High Commission in New Delhi, India, on February 4, 1997.
[3] The applicant graduated in 1987 with a bachelor degree in pharmacy. Since his graduation, the applicant has worked for pharmaceutical companies, as production chemist, from November 1987 until July 1990, in charge of production from July 1990 to December 1994, and as production manager for Parth Parenteral PVT. Ltd., from January 1995 until the moment of his application.
[4] On December 2, 1999, the applicant was interviewed by visa officer, Martin Levine and in a letter also dated December 2, 1999, the applicant was advised that his application for permanent residence in Canada was refused.
DECISION OF THE VISA OFFICER
[5] The applicant was assessed under the occupation of Pharmacy Aide (CCDO 3159-174-NOC 3414) although he had stated on his application that his intended occupation in Canada would be that of an Industrial Pharmacist.
[6] According to the visa officer, the applicant was assessed under the occupation of Pharmacy Aide because he did not meet the entry requirement for the occupation of Industrial Pharmacist since his evidence on the issue of work experience showed that he had only been doing formulation checking and that he had not done any research nor preformed any product or container development.
[7] The applicant received 52 units under the Pharmacy Aide occupation (CCDO 3159-174).
| Age 10 |
| Occupation 00 |
| Education/Training Factor 05 |
| Experience 04 |
| Arranged employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 08 |
| French 00 |
| Personal Suitability 02 |
---
| Total 52 |
APPLICANT'S POSITION
[8] The applicant states that at the interview he handed the visa officer additional documents about his experience but that the visa officer did not show interest in the additional documents nor accepted the additional documents.
[9] The applicant submits that the visa officer based his decision on a finding of facts that he made in a capricious manner and without regards to the material before him.
[10] The applicant alleges that the occupation of Industrial Pharmacist as classified under the NOC does not require experience in research and production or container development as was stated by the visa officer. The applicant further submits that he does not have to show experience in all of the activities indicated under the occupation of Industrial Pharmacist.
[11] The applicant contends that the evidence available to the visa officer demonstrated that he had experience in at least some of the Industrial Pharmacist's duties mentioned in the NOC, such as research and production development.
RESPONDENT'S POSITION
[12] The respondent submits that the visa officer's findings were primarily based on the applicant's answers during the interview and that these oral answers constitute the best evidence of the applicant's experience. The respondent maintains that the applicant's viva voce and personal account of his experience should have precedence over any documentary evidence written by third parties.
[13] The respondent alleges that the documentary evidence tendered by the applicant essentially describes the applicant as a production manager. The respondent contends that the applicant's answers and the documentation submitted do not indicate that the applicant had experience in research and development of pharmaceutical products which are, according to the respondent, essential and unavoidable duties of an Industrial Pharmacist since three of the six duties indicated in the NOC relate to research and development. It is further submitted that the applicant did not show experience in many of the Industrial Pharmacist's other duties as described in the CCDO or NOC.
[14] The respondent contends that upon reading the definitions for the Industrial Pharmacist occupation, some duties appear to bear more weight than others and that research and development is a crucial part of the job of Industrial Pharmacists.
[15] The respondent submits that performing one or some of the duties of an Industrial Pharmacist is not sufficient to qualify as such and to be considered as having experience in that occupation since the NOC requires that "some or all the following duties" must be performed and the CCDO talks of "any combination". As for Schedule 1 of the Immigration Act, R.S.C. 1985, c. I-2 [Immigration Act], it provides that the units of assessment will be awarded in the occupation in which the applicant has performed a substantial number of the main duties, including the essential ones.
[16] As for the applicant's contention that the visa officer did not take into consideration the documents he tendered at the interview, the respondent accepts the visa officer's confirmation in his affidavit that, as a general practice, he considers documents handed to him. The respondent further states that the main document has very little if no probative value since the document was not written by the applicant and it is only a job description which does not state the duties really performed by the applicant.
ISSUE
Did the visa officer err in his interpretation of the entry requirements for the occupation of Industrial Pharmacist?
[17] The CCDO's definition for Pharmacist Industrial (CCDO 3151-114) reads as follows:
| Performs any combination of the following duties in development, production, storage, control and distribution of drugs and related supplies in an industrial establishment: |
| Applies research methods to develop new products and to improve existing ones: such as pharmaceuticals, cosmetics, pesticides, disinfectants and other chemicals. Confers with pharmacists, engineers, chemists, biologists and members of other professional groups on matters, such as manufacturing techniques, ingredients, and operation of complex equipment. Assists with designing, developing and testing suitable equipment for the production of new products. Investigates process problems and suggests improvements in production methods. Tests and analyzes drugs to determine their identity, purity and strength, and to ensure they meet specifies standards. Develops legally-recognized standards for drugs used in preparation of pharmaceuticals. Determines most suitable containers for medical substances, such as coloured glass, plastic, metal and foil, to avoid deterioration of product and to assist with storage and transportation. Evaluates and controls labelling, packaging, and advertising of pharmaceutical products. Gives information and advice concerning uses and effects of drugs and medicines. Examines materials submitted for legal evidence in cases of poisoning and other offences. |
[18] The NOC's general description for the occupation of Pharmacist (NOC 3131), which includes Industrial Pharmacist states:
| Industrial pharmacists participate in the research, development and manufacture of pharmaceutical products. They are employed in pharmaceutical firms and government departments and agencies. |
[19] The main duties of Industrial Pharmacist are stated as follows in the NOC:
| Industrial pharmacists perform some or all of the following duties: |
| - Participate in basic research work for the development of new drugs; |
| - Formulate new drug products developed by medical researchers; |
| - Test new drug products for stability and to determine their absorption and elimination patterns; |
| - Co-ordinate clinical investigations of new drugs; |
| - Control the quality of drug products during production to ensure that they meet standards of potency, purity, uniformity, stability and safety; |
| - Develop informational materials concerning the uses and properties of particular drugs; |
| - Evaluate labelling, packaging and advertising of drug products. |
[20] The visa officer indicates in his affidavit that he asked the interpreter to read the definition of Industrial Pharmacist from the CCDO sentence by sentence to the applicant and after each sentence, the visa officer asked the applicant whether he had any experience in the described activities.
[21] The visa officer concluded that the applicant's experience was only related to formulation checking and that he did not have any experience in research, product development and development of new containers, which are activities described in the CCDO and the NOC. Consequently, the visa officer was of the view that he could not assess the applicant in the occupation of Industrial Pharmacist and decided to assess him in the occupation of Pharmacy Aid (CCDO 3159-174 or NOC 3414).
[22] The applicant contends that the NOC does not require experience in research and product or container development as was stated by the visa officer in his affidavit at paragraph 9 and 10. I have to point out that the NOC does refer to experience in research and product development although it does not refer to container development specifically.
[23] In the NOC's general statement for Industrial pharmacists it says:
| Industrial pharmacists participate in the research, development and manufacture of pharmaceutical products. |
[24] It also states in the main duties for that occupation:
| - Participate in basic research work for the development of new drugs. (This includes research and product development.) |
| - Formulate new drug products developed by medical researchers. (This refers to development.) |
| - Co-ordinate clinical investigations of new drugs. (This refers to research.) |
| - Evaluate labelling, packaging and advertising of drug products. |
[25] The applicant alleges that he does not have to demonstrate that he has experience in all of the areas named in the CCDO or NOC and that he only needs to show that he had experience in some areas. The applicant submits that the evidence before the visa officer demonstrated that he had at least experience in research and production development, two duties enumerated in the CCDO and the NOC.
[26] I agree with the applicant that he does not have to demonstrate that he has experience in all of the areas named in the CCDO or NOC, however, as was stated by the respondent, the applicant has to have performed a substantial number of the main duties, including the essential ones.
[27] Factor 4 of Schedule 1 reads:
| (1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation |
| (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupation Classification; |
| (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
[28] In light of the above, it is clear that the applicant has to be assessed in the occupation for which he has performed a substantial number of the main duties, including the essential ones.
[29] This is further supported by the caselaw.
[30] In Rizk v. Canada (M.C.I.), [1999] F.C.J. No. 1083 (F.C.T.D.), Rouleau J. held at paragraph 17:
| An applicant need not perform all of the tasks described in the CCDO during his or her career, but only a combination thereof. In Muntean v. Canada, Cullen J. wrote: |
| I agree with the applicant that job descriptions in the CCDO should be broadly construed and that an applicant need not perform all of the tasks in the description to qualify in a particular occupational category. If a visa officer mechanically adhered to the CCDO description and demanded that an applicant has performed each job duty, it could be said that the visa officer would be fettering his or her discretion. |
| Nevertheless, a visa officer must ensure that the applicant performed a majority of the tasks listed. In Braganza v.Canada (M.C.I.), Muldoon J. stated: |
| From Muntean what is demanded of a visa officer is to conduct an assessment to determine whether the applicant performed the substantial requirements of the position in order to be able to conclude on a balance of the evidence that the applicant can be classified into that job position. |
| [Footnotes omitted] |
[31] In Bhatia v. Canada (M.C.I.), [2000] F.C.J. NO. 98 (F.C.T.D.), Cullen J. stated at paragraph 13:
| ... It is clear that in order to be considered to have experience in a particular NOC occupation, an applicant does not have to have experience in each and every duty listed therein. The visa officer admitted this under cross-examination. Nevertheless, there is a range of duties performed in any occupation. Simply performing one or two of the duties normally associated with an occupation does not mean that one is working in that occupation. The person's duties altogether must be compared to the duties listed in the NOC. It is impossible to say that exactly half or three-quarters of the duties must be performed in order to qualify. The Immigration Regulations, 1978 are clear: to get credit for an occupation, the applicant must have performed "a substantial number of the main duties set out in the National Occupational Classification, including the essential ones." Whether this has been satisfied by an individual applicant is a matter of judgement and discretion. |
[32] Teitelbaum J., in Manir v. Canada (M.C.I.), [2000] F.C.J. No. 1672 (F.C.T.D.) held as follows at paragraph 13:
| Based on the information garnered at the interview, the visa officer determined that the applicant had performed only two of the listed duties for financial manager, the first and third listed duties. If the applicant has performed only two out of five duties, can it be said that he has performed a substantial number of the main duties? The visa officer concluded that he had not. Based on the evidence which was before the visa officer, this does not appear to be an unreasonable conclusion. |
| The applicant contends that he must be formally assessed in his intended occupation. The visa officer performed an assessment, which is apparent by reference to the CAIPS notes and refusal letter, and determined that the applicant lacked the experience requirement and thus declined to carry out a point calculation. It is not unreasonable for the visa officer to hold that an applicant need not be further assessed in a particular occupational category when it becomes apparent that the applicant does not meet the selection criteria for that occupation: See Cai v. Canada (M.C.I.), [1997] F.T.R. 31 (F.C.T.D.), Raja v. Canada (M.C.I.) (1998), 145 F.T.R. 154 (F.C.T.D.), and Goussev v. Canada (M.C.I.) (1999), 174 F.T.R. 140 (F.C.T.D.). |
[33] Dawson J. in Farooqui v. Canada (M.C.I.) [2000] F.C.J. No. 714, Court File No. IMM-4244-98, held as follows at paragraph 14:
| I accept the submission of counsel for the respondent that the visa officer was entitled to give greater weight to certain duties contained in the NOC description and to conclude on a fair, broad, reading of the whole of the position description that an individual with experience in maintaining, installing and commissioning equipment and supervising a staff, including a staff of engineers and technicians, does not have experience in the occupation of electrical and electronics engineers. |
[34] After reviewing the caselaw, I cannot find that the visa officer erred in concluding that the applicant had not performed a substantial number of the main duties of an Industrial Pharmacist. The evidence before the visa officer supported his conclusions that the applicant had experience only in two of the listed duties i.e. formulation checking and production. He had no experience in research, product development and container development and the evidence further showed that he did not have experience in many other duties stated in the CCDO and the NOC. Considering the evidence, the visa officer's conclusion was not unreasonable.
[35] This application for judicial review is therefore dismissed.
[36] Neither counsel submitted a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
November 24, 2000