Date: 20010214
Docket: IMM-5387-99
Citation: 2001FCT74
BETWEEN:
Enter Style of Cause just after [Comment] code
- AFSANEH FARZAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON J.
[1] This is an application for judicial review of a decision of a visa officer (the "Officer") at the Canadian Embassy in Damascus, Syria. Afsaneh Farzad (the "Applicant") had sufficient units of assessment or "points" (70) to qualify for permanent resident status, but the Officer nevertheless decided that, pursuant to section 11(3)(b) of the Immigration Regulations, 1978, she would not be able to become successfully established in Canada.
Facts
[2] The Applicant is a 48-year old Iranian citizen who lives in Iran. In 1975, she obtained a Bachelor of Arts degree with First Class Honours in Textiles/Fashion from Liverpool Polytechnic in the United Kingdom. Later, from 1987 to 1997, she worked as a fashion designer for the Mandana Factory & Fashion Co. (now called the Paul Department Store) in Teheran. The Applicant described her duties there as "conceptualising, designing and creating fashion wears [sic] and accessories for women and children and creating bridal gowns".
[3] The Applicant filed an application for permanent residence on December 16, 1997, under the Independent category as a Fashion Designer.
[4] During a lengthy visit to Canada, which lasted from May 1997 to February 1999, the Applicant said that she learned about the Canadian fashion industry by "[c]onsulting Canadian designers, researching business libraries, closely monitoring the media and visiting stores located in and around Toronto's Fashion District". She stated that she was knowledgeable about the trends in the fashion industry, and that she had studied the labour market and explored new market possibilities. She also indicated that she had discovered a market for a line of clothes for elderly women with medical conditions.
[5] While in Canada, the Applicant attended an interview with Mr. Marty Richman. He is the president of the Richman Group, which the Applicant described as Canada's leading gown manufacturer. Mr. Richman reviewed the Applicant's sketches and design concepts and observed that they were "very creative as well as economically feasible for manufacture and distribution at the Canadian market".
[6] The Applicant was interviewed by the Officer at the Canadian embassy in Damascus, Syria, on February 15, 1999. Seven months later, the Officer sent the Applicant a rejection letter dated September 8, 1999 (the "Decision").
The Decision
[7] The Officer indicated that, even though she had received 70 points, the Applicant's application was denied. The narrative portion of the Officer's Decision is reproduced below:
Although you have been awarded 70 points, it is my opinion that you would not, at this time, be able to successfully establish in Canada. It is my view that you are not adequately prepared to enter the Canadian labour market for reasons including the following: as you described your work history at the interview, your experience appears rather limited. You have worked for ten years (1987-1997) for Mandana Factory and Fashion Co. in Teheran, designing women's clothing and bridal outfits for the Iranian market. You have not worked as a fashion designer for the past 2 years. Your skills and experience have limited transferability to the Canadian setting, given that you have never done design work for a western clientele.
Another concern regards your creative ability. The NOC states that for this occupation "creative ability, as demonstrated by a portfolio of work, is required". During the interview, I requested that you do a sample sketch of your work, and provided pen and paper. This design sketch you did demonstrated only a very rudimentary creative ability and design skill. I explained this to you, and you replied that you normally sketch in pencil. Thus I requested you do a pencil sketch after the interview. The design sample you did after the interview also demonstrated very elementary design and creative ability, and does not appear to meet the standards of what a Canadian employer would expect of a professional fashion designer. You also presented your portfolio at the interview, which, as I explained at the time, also does not appear to meet the professional standards expected by Canadian employers in this industry.
Further, you have done only limited research into the fashion design industry in Canada, in spite of having visited Canada for two years (1997-1999). Although you had contacted one person involved in the Canadian fashion industry, you had no knowledge about the practicalities and economics of the Canadian design industry and how fashion designers in Canada work. This is a further barrier to your ability to settle economically in Canada and demonstrates that you are not prepared to enter the Canadian labour market on your arrival, and demonstrates low initiative, motivation, adaptability and resourcefulness.
It is thus my opinion, concurred in by a senior immigration officer in accordance with Section 11(3)(b) of the Immigration Regulations, that points awarded do not accurately reflect your ability to successfully establish in Canada. Your application has therefore been refused.
The National Occupation Classification ("NOC")
[8] On April 24, 1997, subsection 2(1) of the Immigration Regulations, 1978 (the "Regulations") was amended[1] (the "Amendments") by, inter alia, the addition of the following definition:
(1) "National Occupational Classification" means the National Occupational Classification, including the Career Handbook and all other component publications, published by the Minister of Human Resources Development, as amended from time to time;
[9] Section 5243.2 of the Career Handbook deals with fashion designers. The three relevant pages are attached hereto as Annex "A". It includes a statement of the main duties performed by a fashion designer, the employment requirements for a fashion designer, and a section entitled "descriptor profile", which gives the main characteristics of the occupation. Citizenship and Immigration Canada's Operations Memorandum of May 1, 1997, made the Career Handbook available to all visa officers and said at pages 3 and 4:
Using the NOC in Selecting Immigrants:
Pursuant to the new regulations which were pre-published in the Canada Gazette on March 15, 1997, and which will come into force on May 1, 1997, officers using the NOC as an assessment tool must be satisfied that the prospective immigrant has performed a substantive number of the relevant duties outlined under the Main Duties heading of the four digit NOC and meets the employment requirements listed in the Career Handbook... Assessing officers must be satisfied that applicants possess the appropriate qualifications which would allow them to successfully integrate into the labour market and to perform the main duties in their intended occupation in Canada.
[10] The Regulatory Impact Analysis Statement which accompanied the Amendments stated that they were needed because, in 1992, Human Resources Development Canada ("HRDC") abandoned the Canadian Classification and Dictionary of Occupations ("CCDO") referred to in the Regulations. By 1997, HRDC relied instead on the NOC as its occupational classification system. Accordingly, the Amendments were introduced to substitute the NOC for the former CCDO as the occupational classification system for use when points were assigned for some of the items listed in Schedule I of the Regulations, including item 4, which is the occupational factor.
[11] Section 5 of the Amendments provided that the occupational factor would be treated in the following manner:
5. The portion of item 4 of Schedule I to the Regulations in columns I and II is
replaced by the following:
[My emphasis]
It is noteworthy that, unlike the Operations Memorandum quoted in paragraph 9 above, Schedule I does not indicate that the qualifications must lead to an applicant's successful integration into the labour market in Canada.
[12] The employment requirements for Canada, as set out in the Career Handbook (Annex A hereto), are as follows:
• A bachelor's degree in fine arts or visual arts with specialization in theatre design, clothing design or exhibit design
or
Completion of a college or art school program in theatre design, clothing design or exhibit design is required.
• Creative ability, as demonstrated by a portfolio of work, is required.
[13] The main duties for a fashion designer are also set out in the Career Handbook and they read as follows:
• Fashion designers design and create clothing and accessories for men, women and children.
[14] It was uncontested that the number of units of assessment for the occupational factor which were available to be assigned for a particular occupation were not determined by the Officer. They were set at the ministerial level and were based on a national assessment of employment opportunities. In this case, the parties agreed that one unit of assessment was available for a Fashion Designer. It was also uncontested that the Applicant was given the one available point for her occupational factor, but there was a dispute about whether she was assigned the point automatically by a computer or whether it was assigned only after the Officer's assessment. On this issue I have concluded that the evidence shows that the Officer conducted an assessment and that she awarded the Applicant the one available point for her proposed occupation.
The Issues
1. Was the Officer entitled to consider motivation and occupational issues when determining whether the Applicant could establish herself successfully in Canada under section 11(3)(b) of the Regulations?
2. Did the Officer err in using the descriptor profile in the Career Handbook to assess the Applicant's creative ability?
3. Did the Officer reach conclusions about the Applicant's experience, motivation and creative ability that were not supported by the evidence? This issue was the focus of the oral submissions made by counsel for the Applicant.
4. Did the Officer err by ignoring Mr. Richman's letter when she considered the Applicant's creative ability?
5. Did the Officer err when she required the Applicant's skills to be transferrable to a "western" clientele?
Other Issues
[15] The Applicant's written material raised the standard of review and the circumstances of the Applicant's interview as issues, but these matters were not pursued in oral submissions.
Issue 1
[16] Section 11(3)(b) of the Regulations (the "Section") provides for the exercise of negative discretion leading to the denial of a visa to an otherwise successful applicant. It reads:
(3) A visa officer may
... (b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded to not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.
[17] In Chen v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 350 (T.D.); reversed [1994] 1 F.C. 639 (C.A.); affirmed [1995] 1 S.C.R., the Supreme Court of Canada upheld the trial judge's decision and the dissent on appeal. The issue was whether offering a bribe could be a basis for the exercise of negative discretion under the Section and the Court held that an officer must exercise his or her negative discretion only on the basis of matters relating to an applicant's ability to make a living. Specifically, issues of moral turpitude were not to be considered. In my view, this was the ratio of the Chen decision.
[18] However, the trial judge in Chen also explored the relationship between the awarding of points for personal suitability under item 9 of Schedule I to the Regulations and the exercise of negative discretion under the Section. In Chen, although the applicant had been given seven of the ten available points for personal suitability, negative discretion was exercised under the Section on the basis that he lacked personal suitability. The trial judge indicated that the discretion in the Section could only be exercised if an officer had given an applicant a zero for a particular item.
[19] Applying this aspect of the Chen decision to this case, the Officer should not have considered any lack of motivation or employment skills in exercising her discretion under the Section since, instead of a zero, the Applicant was given four points for personal suitability and one point for the occupational factor. However, it is clear that the Officer did consider the Applicant's creativity and her lack of motivation when she exercised her discretion to refuse a visa under the Section. The question is whether, based on Chen, this was a reviewable error. The Applicant says that it was and asks me to strike out the Decision under the Section, thus leaving the Applicant with the 70 points she needs for her visa.
[20] I have concluded that the suggestion in Chen that a zero must be awarded before an item can be considered under the Section is obiter dicta and therefore not binding on this court. I have declined to follow it because it is an approach which may, in some cases, deprive officers of the ability to deal with reality. For example, on the question of personal suitability, I see nothing illogical in awarding the Applicant in this case the relatively low score of four points for personal suitability based on her work history in Iran, but then saying, in the exercise of discretion under the Section that, nevertheless, an award of 70 points does not accurately represent the Applicant's chance of successful establishment in Canada because she showed very little motivation or initiative in connection with her proposed career here during her long visit to Canada. Many situations are not clear-cut and officers must have the flexibility to deal with mixed facts.
[21] The Applicant also said that because one point was given for the occupational factor, the Officer was not entitled to consider matters related to the Applicant's occupation under the Section. However, as noted above, it is my view that Chen is not binding on this issue. An officer could recognize that an applicant fulfilled the requirements for occupational factor in item 4, and then use the Section to say that the skills and training were not of a kind which would lead to successful establishment in Canada. In this case, the Officer correctly addressed this issue under the Section when she spoke of the transferability of the Applicant's skills.
[22] I do agree with counsel for the Applicant that the Officer could not give the Applicant one point for her occupational factor, which required the Officer to conclude that the Applicant was creative, and then exercise negative discretion under the Section for lack of creativity. However, it is also my view that it was the Officer's assessment of the Applicant's occupational factor, rather than her Decision under the Section, which was in error. The Decision makes it clear that the Officer did not consider the Applicant to have the necessary creative ability. This meant, in my view, that she was not entitled to award the Applicant the one point which was available for her occupational factor. It is clear that, to receive units of assessment for item 4, an applicant must meet the employment requirements described in the Career Handbook. While this Applicant's training was accepted, her creative ability was not. Since both requirements must be satisfied, the Officer erred in giving her one point. On the available evidence, it is clear that she should have received a zero for item 4. Once that award was made, the visa application would have failed.
[23] To summarize on this issue, I have concluded that: (i) the Decision makes it plain that the Officer erred in awarding the Applicant one point for item 4 because she did not meet the requirement for creativity; (ii) the Officer was entitled to consider motivation and the transferability of the Applicant's skills in her exercise of negative discretion under the Section even though she had not given the Applicant a zero for items 4 and 9 in Schedule I to the Regulations.
Issue 2
[24] The Applicant submitted that the Officer erred when she used the Descriptor Profile in the Career Handbook to assess the Applicant's creativity. The Applicant said that, because item 4 in Schedule I of the Regulations does not expressly mention the Descriptor Profile, it cannot be used. I have not been persuaded by this submission. In my view, the Amendments included the entire Career Handbook as part of the NOC. Further, the Operations Memorandum of May 1, 1997, made it clear that the NOC was to be used as an assessment tool. In connection with item 4, it must be used to assess the main duties and one of those duties is design work. To suggest that it cannot be used to assess the content of designs/sketches makes no sense.
[25] Further, the Descriptor Profile in the Career Handbook is not irrelevant to design as suggested by Applicant's counsel. It provides that sketch designs should be capable of being used for the production of a garment. As I understand the Officer's Decision, neither the sketches in the Applicant's portfolio nor those drawn at the interview met this requirement since they did not contain construction details.
Issue 3
[26] The Applicant said that, on the evidence, the Officer was not justified in concluding that the Applicant's experience was "rather limited" because she worked for one employer. However, in my view, it is clear that the Officer meant "limited" primarily in the sense of limited to the Iranian market.
[27] The Applicant also said that it was unreasonable for the Officer to conclude that the Applicant's lack of information about the Canadian fashion industry, and her minimal efforts to garner such information, made it doubtful that she could successfully establish herself in Canada. However, I can find no fault with the Officer's reasoning on this topic.
[28] Finally, as noted above, the Officer was obliged to assess the Applicant's creative ability and I have found no reviewable error in her treatment of this subject.
Issue 4
[29] It is clear from the Decision, and from her notes and her Affidavit of February 7, 2000, that the Officer was well aware of the Applicant's letter of support from Mr. Richman of February 10, 1995. However, she does not appear to have given it much weight even though it stated that the Applicant's ideas and sketches were very creative. The Officer may have taken this approach because Mr. Richman did not take the time to describe in any detail which of the ideas and sketches in the Applicant's portfolio he found creative.
[30] The Officer was required to conduct her own assessment of the Applicant's creativity and, given the general nature of Mr. Richman's letter, I have concluded that it was open to the Officer to rely primarily on her own assessment of the Applicant's work.
Issue 5
[31] The Officer made it clear during her cross-examination on her Affidavit of February 7, 2000, that, when she spoke of a "western" clientele in her Decision, she meant a European and North American clientele and not a "white" clientele. In my view, it was not unreasonable for the Officer to have concluded that, if she were to establish herself successfully in Canada as a fashion designer, the Applicant had to have skills which could be transferred to the North American market.
Conclusion
[32] The only reviewable error I have identified is not material because, if corrected, it would not assist the Applicant because she would nevertheless have been denied a visa. If the Officer had included her assessment of creativity in her decision about item 4 of Schedule I to the Regulations as she should have done, the Applicant would have received a zero for item 4 (her occupational factor) and section 11(2)(a) of the Regulations would have applied to deny her a visa. Given the Officer's concerns about the transferability of her skills, she would not have exercised positive discretion and issued a visa under section 11(3)(a) of the Regulations. This application for judicial review will therefore be dismissed.
(Sgd.) "Sandra J. Simpson"
Judge
Vancouver, B.C.
February 14, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
STYLE OF CAUSE: AFSANEH FARZAD
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DOCKET NO.: IMM-5387-99
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 14, 2000
REASONS FOR ORDER: SIMPSON J.
DATED: February 14, 2001
APPEARANCES:
Shoshanna Green for Applicant
Marcel Larouche for Respondent
SOLICITORS OF RECORD:
Green & Spiegel for Applicant
Toronto, Ontario
Morris Rosenberg for Respondent
Deputy Attorney General of Canada
Email this Content