Date: 20001102
Docket: IMM-6343-99
BETWEEN:
PATEL, Mukeshkumar Shankarial
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of the visa officer Martin Levine (the "visa officer"), dated December 2, 1999, refusing the Applicant's application for permanent residence in Canada on the grounds that he was inadmissible under section 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The Applicant submitted to the Canadian High Commission in New Delhi, India, an application for permanent residence in Canada in the independent category. As a result of an interview conducted on December 2, 1999, the visa officer concluded that the Applicant was not an "analytical chemist" (CCDO 2111-114), a "quality control chemist" (CCDO 2111-134) and a "chemist" (NOC 2112).
[3] As for the occupations "analytical chemist" and "quality control chemist", the visa officer determined that the Applicant lacked experience in various functions and indicated particularly that he lacked experience in analysis that refer to molecular control.
[4] With regard to the occupation "quality control chemist", the visa officer further determined that the Applicant did not possess the relevant supervisory experience.
[5] The visa officer then determined that for the occupation "chemist", the Applicant did not have experience in the main duties described for that occupation.
[6] The visa officer assessed the Applicant against the requirements for Laboratory Tester (CCDO 8176-130). He was awarded 52 units of assessment out of the 70 he needed to qualify.
[7] The visa officer did not file an affidavit.
[8] The issue I must determine is whether the visa officer breached his duty of fairness by failing to take into account relevant documents or by displaying animosity toward the Applicant?
[9] The Applicant alleges that the visa officer did not take into account all of the evidence that was before him. The Applicant submits that the visa officer refused to look at relevant documents which demonstrate the extent of his duties as an analytical chemist.
[10] The Applicant contends that the evidence shows he had ample experience in at least some of the main duties of a chemist, which was sufficient for the purposes of the statute.
[11] According to the Applicant, the evidence suggests there was some animosity between him and the visa officer that may very well have affected the assessment of the Applicant's suitability.
[12] The Respondent submits the visa officer evaluated all of the evidence and also questioned the Applicant on his work activities and duties before concluding that he did not demonstrate that he truly had the experience necessary to be assessed as a "chemist". The notes taken by the visa officer during the interview reveal clearly that he verified the whole of the Applicant's work experience. The Respondent contends that the visa officer made sure he was assessing the nature of the functions occupied in reality by the Applicant by looking further than his work title. He submits the Applicant did not adduce evidence that he met even broad or substantial requirements of a chemist.
[13] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enumerated in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, where MacIntyre, J., stated the following:
| "It is, as well, a clearly-established rule that the court should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. |
| Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere." (at pages 7 and 8) |
[14] This has been confirmed by the Court inTajammul v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 259. In light of the Supreme Court decision in Baker v. Canada (M.C.I.), [1999] 2 R.C.S. 817, it would seem that the standard of review should be reasonableness simpliciter.
[15] In the present case, the visa officer made the following observations in his notes:
| "Does not do basic or applied research. only appears to do a few laboratory analyses, not referring to molecular structure and chemical and physical properties. Does not conduct experiments nor formulate analytical techniques. Does not develop techniques for use of different types of instruments. On his application, Mr. Patel listed Quality Control Chemist 2111-134 as an alternative intended occupation, but he does not have the supervisory role described in that definition. |
| - Similarly, Mr. Patel does not satisfy the NOC definition for Chemist, 2112. He does not perform the main duties described. I have classified Mr. Patel s occupation as Laboratory Tester 8176-130 or NOC 211. Zero occ. factor. |
| I asked Mr. Patel whether he had read the CCDO definitions for the two intended occupations he had listed. He said he had but could not explain why he considered himself qualified. Repeatedly interrupted my explanation of the selection system, referring repeatedly to his sponsorship letter after I had explained that it was not directly relevant. Mr. Patel does not display a realistic attitude or good judgment. Would have serious difficulty in establishing." |
[16] NOC 2112 describes chemists' main duties as follows:
| "Main duties |
| Chemists perform some or all of the following duties: |
| Analyze, synthesize, purify; modify and characterize chemical or biochemical compounds |
| Develop and conduct programs of analysis to ensure quality control of raw materials, chemical intermediaries or final products |
| Conduct programs of sample and data collection and analysis to identify and quantify environmental toxicants |
| Conduct research to develop new chemical formulations and processes and devise new technical applications of industrial chemicals and compounds |
| Conduct fundamental and applied research into the synthesis and properties of chemical compounds and the mechanisms of chemical reactions |
| Investigate chemical aspects of the mechanism of drug action, the diagnosis and treatment of disease, organ function and the assessment of health |
| Participate in interdisciplinary research and development projects working with chemical engineers, biologists, microbiologists, agronomists, geologists or other professionals |
| Act as technical consultant in a particular field of expertise" |
[17] The record before the visa officer contains four different documents that purport to show the Applicant worked as an Analytical Chemist. The first one is a letter from Altra Analytical Laboratories and reads as follows:
| "This is to certify that Mr. M.S. PATEL was working with us from 25/8/86 to 25/7/87 as an Analytical Chemist." |
[18] The second one, from Acron Pharmaceuticals, reads as follows:
| "This is to certify that Mr. Mukesh S. Patel has worked as a Manufacturing Chemists in our Liquid and Oral, Tablet and Ointment departments during the period from 1.9.87 to 1.4.1993. |
| He has worked as assistant Chemist and approved manufacturing Chemist in our Tablet and Liquid Oral Department and as an Assistant Chemist in our Ointment Department from 1.1.91 to 1.4.91 and from 1.7.92 to 31.3.93." |
[19] The third one, from Rajdip Pharmaceuticals, reads as follows:
| "This is to certify that Mr. Mukesh S. Patel B.Sc. (Chem.) has worked with us as incharge Analytical Chemist from 01-05-93 to 01-06-96 in our Quality Control Department. |
| During his service he has also looked after matters regarding Food and Drug Control Administration as per drugs, and cosmetics acts and rules there under." |
[20] The last letter is from K.B. Institute of Pharmaceutical Education & Research and it reads as follows:
| "This is to certify that Mr. Mukesh S. Patel is serving in this Institute as Laboratory Assistant since 1'st October, 1996. He has been responsible for the upkeep and maintainance of the Pharmacognosy laboratory in this Institute. |
| During his stay of last 3 months, I found him sincere, hardworking and devoted to his work. He has acquired adequate knowledge about the subject in this short time and he manages the laboratory very nicely." |
[21] These four documents were the only ones which were viewed by the visa officer when he determined the Applicant did not perform the duties of a chemist. These documents merely show the Applicant's various work titles. In order to correctly determine whether the Applicant performed the relevant duties, the visa officer had to look further than those work titles (Muntean v. Canada (M.C.I.) (1995), 103 F.T.R. 12 (F.C.); Khchinat v. M.C.I., IMM-3239-97, June 30, 1998, (Dubé, J.)), which is what he appears to have done by questioning the Applicant on his various work duties.
[22] The Applicant's affidavit makes reference to two documents that purport to established what occurred during his interview. One is a translation from his notes and the other bears the title "Minutes of the Interview". According to the Applicant, these documents were made by him, at the suggestion of his counsel, after he walked out of his interview. Though this is self-serving evidence, it should be regarded with utmost circumspection as it cannot be objectively verified.
[23] The visa officer did not file an affidavit to support the CAIPS notes. The status of the visa officer's notes in the absence of any affidavit from that officer has been clarified by the Court in Chou v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 314, (F.C.T.D.). In that case, Madame Justice Reed stated the following:
| "I accept, then, that the CAIPs notes should be admitted as part of the record, that is, as the reasons for the decision under review. However, the underlying facts on which they rely must be independently proven. In the absence of a visa officer's affidavit attesting to the truth of what he or she recorded as having been said at the interview, the notes have no status as evidence of such. |
| Counsel argues that I should accept the truth of the facts stated in the notes, unless they are contradicted in the applicant's affidavit. I do not accept that position. As noted above, to give the contents of the notes that status would be to treat them as evidence, when they cannot be so treated." |
[24] This course of action has been followed in Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1098, (F.C.T.D.), Gibson, J. (See also Ayubi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 777, (F.C.T.D.), Pinard, J.).
[25] In his memorandum of fact and law, the Applicant makes extensive reference to his translated notes and `Minutes of the Interview". He alleges that, at the end of the interview, he asked the visa officer to hear him and allow him to produce various documents, including a letter from K.B. Institute of Pharmaceutical Education & Research outlining the nature of the Applicant's duties at that Institution (these documents are found at section 5 of the Applicant's affidavit). This letter reads as follows:
| "This is to certify that Mr. Mukeshkumar Shankarlal Patel had been working in our institution as a laboratory assistant (Chemist) from 1st October 1996 to 30th September 1997. Since 1st October 1997 he has been working as an analytical chemist. |
| He has the following experiences as an analytical chemist at this and other institutions: |
| Preparation and standardization of volumetric solutions and benchreagents. |
| Analysis of water for acidity, ammonium test, calcium test, heavy metal test, chloride test, sulphate test, suspended solids test, total dissolved solids etc. |
| Calibrating various analytical instruments like balance, glass wares, thermometers, pH meter, spectrophotometer, conductometer etc. as per pharmacopoeial/approved standards. |
| Performing the analysis of pharmaceuticals by spectroscopy, titremetry etc. |
| Imparting the training to our laboratory technicians. |
| To conduct the program of analysis to ensure quality of raw materials. Sampling and analysis of raw materials, in process materials and finished goods. |
| Preparation and upgradation of standard operating procedures for various instruments and cleaning procedures. |
| Scrutinizing various laboratory reports, specifications and other documents and coordinating the work of other laboratory technicians. |
| Validation of various test procedures and calibration procedures." |
[26] The contents of this letter appear to be clearly relevant to the determination of the Applicant's duties. If the letter was presented to the visa officer and he refused to take it into account and even look at it, as the Applicant alleges in his "Minutes of the Interview", then I would agree that the visa officer breached his duty of fairness by failing to take into account a relevant piece of evidence and by not providing the Applicant with a fair opportunity to make his case. The fact that the visa officer's notes indicate that it was a sponsorship letter that was shown to him cannot be taken as proof of what actually occurred, as the visa officer did not file an affidavit in support of his notes. No attempt to contradict the allegations: the applicant's affidavit was on file since February, 2000.
[27] The Applicant alleges the evidence suggests animosity between the Applicant and the visa officer and that no evidence was filed by the visa officer to counter this evidence.
[28] I note this purported evidence of animosity is again found in the "Minutes of the Interview" and "translation from notes" documents filed with the Applicant's affidavit. He alleges that the visa officer was hostile from the beginning of the interview, that he refused to look at documents and that his approach was neither cooperative nor courteous.
[29] Two allegations of the Applicant's affidavit deal with the presence of animosity in the following words:
| "11. I find it unsustainable, and unreasonable to grant me « 2 » at suitability, on a possible « 10 » . I am afraid this is the result of the Visa Officer's apparent annoyance from my Interrogation to him as to the value of the sponsorship I benefited from; |
| 12. I am afraid the Visa Officer was biased and that tainted his assessment of my overall capacity to adapt well to Canada. I fail to see how this questioning is an indication of lack of realistic attitude and good judgment, and a sign I could not adapt well to Canada;" |
[30] The Applicant is correct in stating that the Respondent has not disputed these allegations.
[31] Upon a comprehensive reading of the documents submitted, I find that the intent of the Applicant was to establish he had in fact presented the visa officer with documents that would have showed that he performed the duties of his intended occupation. I further note in his evaluation he refers to the applicant's "lack of experience in analysis that refer to molecular control" and states that he lacked "supervisory experience", neither of which appear to be required in the categories in which he was seeking to qualify. Clearly there appears to be a lack of fairness.
[32] Accordingly, the application for judicial review is allowed and the matter is returned for redetermination.
JUDGE
OTTAWA, Ontario
November 2, 2000