Date: 19991013
Docket: IMM-5564-98
OTTAWA, Ontario, this 13th day of October, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
TONG CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
UPON application by the applicant for judicial review of, and an order setting aside, the decision of a visa officer of the Canadian Consulate General in Hong Kong, recorded in writing September 17, 1998, which denied the immigration application of the applicant;
UPON hearing counsel for the applicant and for the respondent in Toronto on August 18, 1999, when decision was reserved, and upon consideration of submissions then made;
ORDER
THIS COURT ORDERS that the application is dismissed.
W. Andrew MacKay
_______________________________
JUDGE
Date: 19991013
Docket: IMM-5564-98
BETWEEN:
TONG CHEN
Applicant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of and an order setting aside the decision of a visa officer dated September 17, 1998, whereby the applicant's application for permanent residence in Canada, as an independent immigrant for herself, and for her family, was refused.
[2] The applicant is a Chinese citizen who obtained 68 units of assessment in her screening by a visa officer based at the Canadian consulate in Hong Kong. The threshold for acceptance as an independent immigrant is 70 points. The visa officer assessed her as an industrial pharmacist according to the National Occupation Classification ("NOC"). In the assessment category of "Experience", the applicant was awarded six units. Under "Personal Suitability", the applicant received five units. The assessment, particularly with reference to both these categories, is the basis for this application for judicial review.
[3] The applicant's employment history is material to the assessment under the "Experience" category. According to her affidavit, the applicant worked in the Injection Workshop of the Beijing Pharmaceutical Factory from July 1988 to August 1990. This job involved participation in basic research by testing drugs, working on the formulation of new drugs and proposing changes to pharmaceutical products. This work was in a laboratory setting, not in clinical investigation. From September 1990 to December 1993, the applicant worked as a pharmacist, developing and testing new medical products. In January 1994, the applicant joined LLL International, a large pharmaceutical company in Beijing. At LLL International, the applicant reports that she works as a pharmacist and her duties include determining the precise mixtures of chemical compounds for drugs, food products and special health foods. In addition, she ensured stability and taste in the formulation of vitamin additives. After May 1998, the applicant reports in her affidavit that she has also been involved in the development of a new pharmaceutical called Diclofenac. As of the date of her affidavit, the applicant reports that she continues to work at LLL International.
[4] The applicant also includes, as Exhibit A of her affidavit, a "Record of Interview in Hong Kong", dated October 5, 1998. It is her attempt to record, verbatim, her recollection of the interview with the visa officer, which took place on September 17, 1998, almost three weeks before.
[5] Some of the information regarding her experience in her record of the interview is contested by the visa officer in his affidavit. At paragraph 15, he says that the applicant's statements regarding her first employment at the Beijing Pharmaceutical Factory up to September 1990 do not reflect what she communicated during the interview. It was only in the succeeding period, from September 1990 to December 1993, that the visa officer concluded from the interview that the applicant had worked as an industrial pharmacist. Before that, she was considered to have been responsible for overseeing production of a particular work unit, in which he concluded she was not engaged as an industrial pharmacist. In her time at LLL International, after she left Beijing Pharmaceutical Factory, the visa officer concluded that she was not involved with pharmaceuticals. In the result, the visa officer only credited the applicant with three years and four months in the occupation of an industrial pharmacist, based on the second portion of her time at the Beijing Pharmaceutical Factory.
[6] According to the written decision sent to the applicant, the visa officer concluded that her experience, other than that obtained in the second phase of her employment at Beijing Pharmaceutical Factory, was not that of an industrial pharmacist as the occupation is defined in the NOC. The visa officer made the following notes on the CAIPS system regarding this issue, which have not been corrected for typographical errors:
| - SATISFIED THAT PI HAS 3 YRS EXP IONLY AS INDUSTRIAL PHARMACIST. 88-90 PI WROKED IN INJECTION WORKSHOP OF STATE-OWNED PHRAMS FTY. DESCRIBED WORK RESPONSIBILITIES AS TESTING PURITY, STABILITY OF DRUGS PRODUCED, GENERAL QC, CLEANLIENESS OF PRODN AREAS. NO RESP FOR TESTING OF EFFECTS OF DRUGS, ASSESSING DOSAGES, OVERSEEING CLINICAL TRIALS ECT: ONLY RESP FOR OVERSEEING PRODN. 90-93 PI IN MEDICAL DEVLOPMENT LAB OF SAME FTY, RESP FOR PHARMACEUTICAL STIDIES OF NEW DRUGS, TESTING ASORPTION RATES, BLLOD CONCENTRATIONS, DISTRIBUTION OF DURGS IN BODY THROUGH LAB, CLINICAL TESTD. THIS EXP OK AS INDUSTRIAL PHARMACIST. 94 PI TO REP OFFICE OF US-BASED VITAMIN, HEALTH SUPPLEMENT CO. PI RESP FOR CONTROL OF QUALITY, PRODN, DEVELOPMENT OF NUTRITIONAL ADDITIVES, SUCH AS AMINO ACIDS, VITAMINS, MINERALS. CO PREPARES PREMIX OF ADDITIVES, WHICH ARE THEN SOLD TO FOOD COMPANIES, HOSPITALS, MILK COMPANIES. I AM NOT SATISFIED THAT THIS WORK CONSITUTES PHARMACEUTICAL RESEARCH, PRODN. THE PRODUCTS OF THIS CO ARE NOT MEDICINES OR DRUGS OR PHARMACEUTICALS, DO NOT REQUIRE PRESCRIPTION OR MD: THEY ARE NUTRITIONAL SUPPLEMENTS ONLY. PI WORK ON THESE PRODUCTS MAY CONSTITUTE APPLIED CHEMISTRY, BUT NOT PHARMACY. NOC SPECIFIES THAT PHARMACISTS ARE INVOLVED IN RESEARCH AND PRODN AND DISPENSING PHARMACEUTICALS. CURRENT EXP IS NOT IN THIS FIELD. |
[7] The National Occupational Classification class 3131 concerns pharmacists, including industrial pharmacists. It includes a description of their main duties as follows:
| 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 |
It also relates the following Descriptor Profile for industrial pharmacists:
| Occupations in this group are characterized by the following aptitudes, interests and worker functions as they relate to main duties: |
| - General learning ability to participate in the research, development and manufacture of pharmaceutical products |
| - Verbal ability to develop information materials concerning the use and properties of drugs |
| - Numerical ability to test new drug products for stability, and to determine their absorption and elimination patterns |
| - Form perception to make visual comparisons and discriminations when preparing pharmaceutical compounds |
| - Innovative interest in synthesizing drug products by participating in basic research for the development of new drugs and formulating new drug products developed by medical researchers |
| - Methodical interest in precision working to control the quality of drug products during production to ensure that they meet standards of potency, purity, uniformity, stability and safety |
| - Directive interest in speaking to co-ordinate clinical investigations of new drugs; and in evaluating labelling, packaging and advertising of drug products |
[8] The dispute over the assessment of the applicant"s experience in her employment concerns the end-product of her work. For her entire time at LLL International, the applicant contends that she was doing the work of an industrial pharmacist. The visa officer concluded that she was not, as the final product of her work was not prescription drugs or medicines, but vitamins and supplements. In his decision letter to the applicant, the visa officer stated:
| Points under the experience factor have been awarded for the work experience obntained [sic] from September, 1990 to December, 1993 in the Medicine Development department of Beijing Pharmaceutical Factory. Your other work experience, in the Injection Workshop of Beijing Pharmaceutical Factory and at L.L.L. International Inc, is not experience in the occupation of Industrial Pharmacist as define [sic] in the NOC. |
[9] In his affidavit, the visa officer explains his conclusion as follows:
| 7. Ms. Chen advised me that in January, 1994, she joined LLL International Incorporated (Beijing office) in the position of "Engineer". She stated that this company is the China representative office of a U.S. based vitamin and health supplement company. Ms. Chen described her work at this company as involving the development of new nutritional additives, as well as overseeing production and quality control. She described these nutritional additives as mixes of amino acids, vitamins and minerals. She stated that she would develop mixes of these ingredients based on the requirements of customers, such as food processors, dairies and hospitals. I reviewed this work experience against the definition of Industrial Pharmacist contained in the NOC. The NOC specifies that Industrial Pharmacists participate in the research, development and manufacture of pharmaceutical products. I determined that the products which Ms. Chen is involved with at LLL International Inc. are not pharmaceutical products. They are nutritional supplements, widely added to processed foods, consumer vitamins and health foods. They do not require a prescription or the supervision of a pharmacist or physician for their use, and their use is largely unregulated in both China and Canada. They are not generally used for medicinal purposes, or for the specific treatment of illness or disease. As such, they are not pharmaceuticals, and participation in their development and production would not meet the requirements of the NOC regarding Industrial Pharmacists. |
[10] The applicant argues that this is a very narrow reading of the requirements in the NOC and is not in accord with the reality of modern pharmacy practice. As exhibits to her affidavit in support of her application for judicial review, the applicant included a brochure of LLL International, her current employer, describing the nature of the work it does in the development of nutritional pre-mixes and new pharmaceutical forms. She also included information on other pharmaceutical firms and excerpts from a Canadian compendium of pharmaceuticals to indicate that vitamins and nutritional additives are included in the compendium.
[11] I am satisfied that the visa officer's decision on the experience category was based on the evidence presented to him at the interview and in the supporting documents provided by the applicant before and at her interview. The visa officer concluded that certain of her work experience was not that of an industrial pharmacist as defined in the NOC. He then also assessed her on the basis of an alternative occupation classification, but found she was not qualified by points awarded in relation to that classification.
[12] It is urged that the visa officer"s interpretation of the NOC description was patently unreasonable, at least as it should be read in light of the descriptive materials from the industry. I am not persuaded that his interpretation of the NOC can be said to be patently unreasonable in light of the description in the NOC itself. In my opinion, it cannot be said that this decision was made in bad faith, without reference to the evidence presented or was patently unreasonable. On this issue there is no basis for the Court's intervention.
[13] The applicant also takes issue with the score of 5 out of a possible 10 in the category of personal suitability. The visa officer's CAIPS notes do not elaborate on the score. In his affidavit, he indicates at paragraph 9 that he found the applicant, on the basis of her interview and her documentation, to be no more than average in considering the "qualities of adaptability, resourcefulness, initiative and motivation and similar qualities", which are all components of the category of personal suitability.
[14] There is no evidence that this assessment was made in bad faith. It does not appear irrational on the evidence considered by the visa officer. In the absence of bad faith or irrationality apparent on the record, the Court will not intervene.
[15] For the foregoing reasons, this application for judicial review is dismissed.
W. Andrew MacKay
______________________________________
JUDGE
OTTAWA, Ontario
October 13, 1999
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