Date: 20090508
Docket: IMM-2626-08
Citation: 2009 FC 477
Ottawa, Ontario, May 8, 2009
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
BHARATKUMAR
KANTIBHAI PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 2002, Mr. Bharatkumar Patel, a citizen of India, applied for permanent residence in Canada as a skilled worker (a chemist). A
visa officer in New Delhi
denied Mr. Patel’s application in 2008 on the basis that Mr. Patel’s experience
did not match the description of the role of a chemist as set out in the
National Occupational Classification (NOC 2112).
[2]
Mr. Patel argues that the officer failed to
conduct a proper assessment of his application and treated him unfairly in the
process. I agree with Mr. Patel on the former ground, and will allow this
application for judicial review on that basis.
[3]
The issue is whether the officer conducted a
proper assessment of Mr. Patel’s application when he found that Mr. Patel’s
experience fell outside the NOC description of a chemist.
I.
Factual Background
[4]
In his application, Mr. Patel stated that he had
worked as a “laboratory chemist” with a firm called Synthopharm Chemicals from
2000 to 2004. From then on, he worked as a “quality control chemist” with
Astral Polytechnik Ltd. He submitted a letter from Synthopharm but, because the
letter did not set out what his duties were, the officer did not consider the
letter helpful. Mr. Patel also supplied two documents from Astral Polytechnik
that described his duties there. In his role as Senior Chemist for Quality
Assurance and Quality Control, Mr. Patel’s duties included:
• operating various instruments for analyzing and
testing compounds, including sieve analysis, moisture content, viscosity, bulk
density, vicat softening point, melting point apparatus, refractive index burst
pressure testing, water bath, hot air oven, zero degree chamber, injection
moulding machines and sulphated ash content tester;
• compounding and mixing raw material for the manufacture
of PVC pipes and fittings;
• implementing good laboratory practices; and
• achieving ISO 9001 approval for the plant’s
testing practices from the American Society of Testing of Materials.
II.
Did the Officer Perform a Proper Assessment?
[5]
I can overturn the officer’s decision only if I
find that it was unreasonable.
[6]
To succeed in his application, Mr. Patel had to
show that he had at least one year’s experience performing the actions
described in the NOC’s “Lead Statement”, and a substantial number of the main
duties. The Lead Statement for NOC 2112 (Chemists) says that chemists “conduct
research and analysis” for various purposes including “quality control”. They
also conduct research into basic chemical processes “to create or synthesize
new products”. They work in various settings including “quality control
laboratories” and “manufacturing” establishments.
[7]
The NOC goes on to list the main duties of a
chemist. They include:
• Analyze
chemical compounds;
• Develop
programs of analysis to ensure quality control;
• Conduct
programs of sample and data collection and analysis; and
• Conduct research into the properties of
chemical compounds or to evaluate new products.
[8]
After reviewing Mr. Patel’s application, the
officer stated in his notes that Mr. Patel’s duties were “not at all the duties
of a Chemist”. In his letter of refusal, the officer said that Mr. Patel’s
responsibilities did “not match the lead statement or main duties of a
Chemist”.
[9]
In my view, the officer’s conclusion was unreasonable
in the sense that it was not justified, transparent or intelligible. Nor
does it fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New
Brunswick, 2008 SCC 9, para. 47). As I read them, Mr. Patel’s
responsibilities at Astral Polytechnik lined up with the NOC’s Lead Statement
and corresponded with many of the specified duties of a chemist. The officer
appears not to have appreciated what Mr. Patel’s role was at Astral Polytechnik
or the purposes for which Mr. Patel was operating various testing instruments
at the plant.
III.
Conclusion and Disposition
[10]
In my view, the officer’s assessment of Mr.
Patel’s application was unreasonable because it did not take account of Mr.
Patel’s role or responsibilities as a senior chemist. Accordingly, I must allow
this application for judicial review and order a re-assessment of Mr. Patel’s
application by a different officer. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for re-assessment.
2.
No
question of general importance is stated.
“James W.
O’Reilly”
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