Hussain v. Canada (Minister of Citizenship and Immigration), docket IMM-2330-98

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docket IMM-2330-98

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Date: 19990129

Docket: IMM-2330-98

BETWEEN:

ABDUL RAHMAN HUSSAIN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

EVANS J.

[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 [as amended] in which the applicant requests the Court to review and, among other things, set aside a refusal of a visa officer to issue a visa to him. In his letter of decision, dated March 24, 1997, the visa officer stated that the refusal was based on the applicant's failure to produce documentation required by the visa officer pursuant to subsection 9(3) of the Immigration Act R.S.C., 1985, c. I-2 [as amended] for the purpose of establishing that the applicant's admission to Canada would not be contrary to the Act or the Immigration Regulations, 1978 SOR/78-102 [as amended] (hereinafter "the Regulations").

[2] The applicant is a citizen of Pakistan who applied for admission to Canada as an independent immigrant. He has a B.Sc. in pharmacy from a university in Pakistan and has worked for approximately ten years as a retail pharmacist in Pakistan and Saudi Arabia. On his application form he described his intended occupation in Canada as pharmacist.

[3] In his affidavit, the visa officer stated that he had provisionally awarded 69 units of assessment to the applicant, one short of the 70 units normally required to obtain a visa. However, no formal assessment was ever made or communicated to the applicant pending the production of the required documentation. The documentation that the applicant has failed to produce consists of the results of the applicant's performance in the evaluating examinations conducted by the Pharmacy Examining Board of Canada (the "Board").

[4] The Board's function is to determine whether to accredit the professional qualifications in pharmacy that applicants have obtained from institutions outside Canada, and whether applicants have the requisite knowledge to be eligible to apply for membership in one or more of the provincial bodies that license pharmacists. The Board has advised the applicant that his academic qualifications are from an accredited university, and his counsel informed the Court that he is currently in Canada attempting to pass the Board's examination.

[5] This case turns on whether the visa officer was lawfully justified in requiring the applicant to write and pass the Board's examination before providing a formal assessment of his visa application and either waiving the requirement of an interview, or calling him for an interview. This question, in turn, depends on an interpretation of the relevant provisions in the National Occupational Classification (hereinafter the "NOC") which is incorporated by reference in the Regulations by Schedule I.

[6] Title 3131 of the NOC deals with pharmacists: it describes briefly the principal categories of the occupation of pharmacist. The category that corresponds to the applicant's experience is that of "community and hospital pharmacists" who "compound and dispense prescribed pharmaceuticals. They are employed in community and hospital pharmacies." The other category of pharmacist is "industrial pharmacist"; industrial pharmacists are described as employed by pharmaceutical firms and government agencies in the research, development and manufacture of pharmaceutical products.

[7] The general title also states that licensure is required in all provinces and territories for community and hospital pharmacists but, by inference, not for industrial pharmacists. This distinction is hardly surprising, given the different functions of industrial pharmacists on the one hand, and, on the other, pharmacists who compound and dispense prescribed pharmaceuticals to the public. Title 3131.1 of the NOC provides more detail about each of the two categories of pharmacist and repeats the licensure requirement for community and hospital pharmacists.

[8] Mr. Mohammed argued that the applicant's intended occupation in Canada is pharmacist, and the licensure requirements apply only to community and hospital pharmacists, not "pharmacists", an alternative job title listed in 3131.1 In my view, however, it is quite clear that the reference to the licensure requirements for community and hospital pharmacists in 3131.1 under the heading "Employment Requirements" applies to all who compound and dispense drugs in pharmacies, whether in hospitals or elsewhere in the community. That the applicant described his intended occupation in Canada as "pharmacist" does not exempt him from the licensure requirement.

[9] Counsel for the applicant also pointed out that "pharmacist" is given as an example of a job title for both community and hospital pharmacists in 3131.1, and industrial pharmacists in 3131.2. Although industrial pharmacists, to which the licensure requirements do not apply, may also be described as pharmacists, given the applicant's previous experience this is not the category in which it would have been appropriate to assess him. Having worked as a retail pharmacist for ten years, he was properly assessed as a community pharmacist, to which the licensure requirement applies, and not as an industrial pharmacist, an occupation in which he has had no experience.

[10] Mr. Muslim also suggested that, since the Board did not stipulate that those requiring its approval had to write examinations, the visa officer was not entitled to require documentation of the applicant's performance in the evaluating examinations. In my view, it is a reasonable inference from the information in the record that overseas applicants are required by the Board to write evaluating examinations in order to be eligible for membership in the provincial bodies that license pharmacists. This conclusion is further supported by the fact that the applicant is now preparing to take the examination, and the absence of any evidence in the record that the Board would determine eligibility without an examination.

[11] Accordingly, since the visa officer was entitled to require from the applicant documentation about his performance in the evaluating examinations, he was under no obligation to make a formal assessment of the applicant, to issue a visa or to invite him for an interview to assess his personal suitability, until the required documentation was produced.

[12] Mr. Muslim also argued that the applicant had been denied equality under the law as guaranteed by section 15 of the Canadian Charter of Rights and Freedoms because other persons similarly situated to himself had been granted visas without being required to pass the Board's evaluating examinations. Since no information about these applicants was forthcoming from the respondent, this argument must also fail. Moreover, Mr. Muslim was unable to suggest a plausible ground analogous to those contained in section 15 upon which the respondent may have discriminated against the applicant when he refused to issue a visa to him. While consistency in administrative decision-making is no doubt an important element of administrative justice, inconsistency does not in itself normally amount to a vitiating error of law.

[13] For these reasons the application for judicial review is dismissed.

"John M. Evans"

Judge

TORONTO, ONTARIO

January 29, 1999

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-2330-98

STYLE OF CAUSE: ABDUL RAHMAN HUSSAIN

and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

DATE OF HEARING: WEDNESDAY, JANUARY 27, 1999

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: EVANS J.

DATED: FRIDAY, JANUARY 29, 1999

APPEARANCES: Mr. Mohammed Muslim

For the Applicant

Ms. Cheryl Mitchell

For the Respondent

SOLICITORS OF RECORD: Mohammed Muslim

Barrister & Solicitor

80 Richmond St. W.

Suite 1507

Toronto, Ontario

M5H 2A4

For the Applicant

Morris Rosenberg

Deputy Attorney General

of Canada