Date: 20000928
Docket: IMM-5472-99
Ottawa, Ontario, this 28th day of September, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
TEJINDER KAUR BHOGAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of W.R. Hetherington ("visa officer") rendered on September 23, 1999, wherein the applications for permanent residence in Canada were refused.
Factual Background
[2] The applicant applied, along with her husband, for immigration to Canada in the independent category and requested assessment in the occupation of Fashion Designer (NOC 5243.2). On September 22, 1999, the applicant attended at an interview at the Canadian High Commission in Kingston, Jamaica.
[3] The NOC for Fashion Designers indicates the following:
Main Duties
| [ · ] Fashion designers design and create clothing and accessories for men, women and children |
Employment requirements
| [ · ] A bachelor's degree in fine arts or visual arts with specialization in . . . clothing design OR |
| Completion of a college or art school program in . . . clothing design is required |
| [ · ] Creative ability, as demonstrated by a portfolio of work, is required. |
[1] At the interview, the applicant was questioned about her educational background and her employment experience. The applicant indicated that she had completed a one year course in "Fashion Design" at the YWCA. This program involved 20 hours of classroom time per week and involved courses in theory, sketching and drafting. The visa officer was under the impression that this course taught technical drawings and technical aspects of sketching and drafting, not "haute couture". The visa officer formed the opinion that this program was not equivalent to a college or art school program in clothing design-as is required by the NOC employment requirements. The applicant also has a Bachelor of Arts degree.
[2] With respect to employment, the applicant had provided information respecting two previous jobs as a fashion designer for two Indian companies. Paulson Enterprises was one such company. The visa officer attempted to contact this company to verify the information in the reference letter the applicant provided, but was not able to make contact. The applicant maintained that she spent 40% of her time at this employment "designing". The applicant explained that "designing" included helping pattern makers and laying out patterns.
[3] The second company was Non Stop Sportswear where the applicant was employed as a Fashion Coordinator. She spent 35% of her time sketching. The applicant made sketches based on directions received from buyers and not based on her own independent creative design work.
[4] The applicant was asked to produce a design portfolio at the interview. She stated that she had a design portfolio, but she did not have it with her. She did provide a binder which contained several sketches of clothing. In her affidavit, the applicant claims to have a portfolio, but that she neglected to bring it to the interview.
[5] Based on the information received at the interview, the visa officer determined that the applicant did not have the education or work experience necessary to be considered a Fashion Designer under the NOC. The applicant was assessed as follows:
| Age 10 |
| Occupational Factor 01 |
| SVP 15 |
| Experience 00 |
| Demographic Factor 08 |
| Education 15 |
| English 09 |
| French 00 |
| Bonus 05 |
| Suitability 03 |
| TOTAL 66 |
Applicant's Arguments
[6] The applicant submits that the visa officer incorrectly found that the applicant did not meet the educational requirements for a Fashion Designer and thereby committed an error of law.
[7] The applicant also submits that the visa officer committed reviewable error by making the inconsistent assessment of one unit for occupational demand and no units for experience. Since the visa officer awarded points for occupational demand, he must have concluded that the applicant met the occupational requirements and therefore should have awarded units of assessment for experience.
[8] The applicant also finally submits that the visa officer breached the duty of fairness by not providing the applicant with an opportunity to respond to his concerns.
Respondent's Argument
[9] The respondent argues that the applicant has failed to provide any evidence that the YWCA in New Delhi is accredited as a "college" or "art school". The visa officer made a reasonable finding in concluding that it was not and that the program pursued by the applicant was merely technical and not creative or intellectual.
[10] The respondent also argues that the applicant has not performed the main duties associated with the occupation in which she sought assessment. The visa officer noted that the applicant did not claim to "design and create clothing".
[11] The respondent argues that the award of one point for occupational factor was a clerical error and that the intent of the visa officer in this case is not ambiguous.
[12] The respondent argues that there was no breach of the duty of fairness in this case, and that the fault is on the applicant for such things as failing to bring a portfolio to the interview.
Issues
[13] The applicant raised the following issues:
| 1. Did the visa officer incorrectly find that the applicant did not meet the educational requirements for a Fashion Designer, thereby committing an error in law? |
| 2. Did the visa officer commit a reviewable error by awarding the applicant one unit of assessment for occupational demand and no units of assessment for experience? |
| 3. Did the visa officer deny the applicant a fair and reasonable opportunity to respond to his concerns, thereby committing a reviewable error? |
[1] Issue 1
Did the visa officer incorrectly find that the applicant did not meet the educational requirements for a Fashion Designer, thereby committing an error in law?
In order to meet the education requirements for the occupation of "Fashion Designer", the applicant must have:
| 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. |
[2] The visa officer noted that although the applicant had a Bachelor of Arts degree, it did not relate to fashion design. As well, the visa officer reviewed the course content of the YWCA programs taken by the applicant and concluded that the courses were more technical than creative in nature. He stated that creative and intellectual components were absent from the YWCA programs. After his assessment of the courses, he concluded that the applicant did not meet "the educational requirements for Fashion Designer as outlined in the National Occupation Classification". My review of the visa officer's conclusions on this point lead me to the conclusion that his decision was a reasonable decision in light of the facts of this case. Even if this Court was of the opinion that it would come to a different conclusion on this point, it is not the role of the Court to substitute its opinion for that of the visa officer. In this case, the evidence shows that the visa officer analysed the evidence relating to the nature of the courses in the program at the YWCA and was of the opinion that the program did not meet the requirements of Fashion Designer (NOC 5243.2), college or art school program in clothing design. I believe that this was a reasonable conclusion and not an error in law. The visa officer made the very determination he was required to make and in so doing, he considered the evidence that was before him on this issue.
[3] Issue 2
Did the visa officer commit a reviewable error by awarding the applicant one unit of assessment for occupational demand and no units of assessment for experience?
The visa officer awarded the applicant one unit of assessment for occupational demand and awarded her zero units of assessment for experience. Both parties agree that it is not correct to award one unit of assessment for occupational demand and zero units for experience as Factor 4(1)(a) contemplates that the applicant has satisfied the experience qualifications at least to some extent. I agree that it was not correct to award one unit of assessment for occupational demand in these circumstances (see Dauz v. MCI (August 20, 1999), IMM-3402-98 (F.C.T.D.)).
| [20] The question which now must be asked is whether this error by the visa officer |
had any material effect on the decision. In other words, could the applicant have obtained the visa if the error had not been made? I have reviewed the decision of the visa officer and he has clearly and unequivocally stated that the applicant does not have any experience as a Fashion Designer. He explained that, for example, she did design clothes but these were changes made to existing designs or were sketches of clothes made to reflect the ideas of a certain buyer. The visa officer also considered that the designing at Paulson Enterprises consisted of:
| . . . were "designing" you advised that you helped pattern makers and helped to "lay out" patterns. From time to time you spoke with buyers, three of them over the course of your employment, and made sketches using the ideas presented by the buyer. For example buyers would indicate to you where the pockets on the garment were to be located, the type of pockets desired and the colours. You would work with the buyer and produce sketches of these ideas. These sketches were then passed on to the pattern maker. |
| [21] I can come to no conclusion other than to agree with the decision that the visa |
officer made in granting zero points of assessment for experience. Since the applicant could not obtain a visa if she received zero points of assessment for experience, the error made by the visa officer could have no effect on the ultimate outcome of the application.
| [22] The decisions of this Court have established that when a visa officer has erred, the |
Court will not intervene if the error is not material in that it would not have changed the outcome of the application (see Barva v. MCI (1998) 157 F.T.R. 65 (F.C.T.D.) and Yang v. Canada (Minister of Citizenship and Immigration) (1998) 44 IMM.L.R. (2nd) 176 (F.C.T.D.)). I have already decided that no visa could issue in any event, since the applicant received zero units of assessment for experience, therefore, I would hold that no judicial intervention is warranted on this issue.
| [23] Issue 3 |
Did the visa officer deny the applicant a fair and reasonable opportunity to
respond to his concerns, thereby committing a reviewable error?
The applicant argues that the visa officer should have told the applicant to bring her portfolio or ask her whether the document presented was her portfolio and that he should have allowed the applicant an opportunity to respond to his concerns regarding her experience, motivation and qualifications. He argued that this constituted a breach of procedural fairness. All of these items raised by the visa officer deal with the very assessment he is required to make pursuant to section 8 of the Immigration Regulations, 1978. There is no requirement that the visa officer allow the applicant to address these concerns other than by way of the applicant presenting her evidence at the interview (see Yu v. Canada (Minister of Employment and Immigration et al) (1990) 36 F.T.R. 296). The onus is on the applicant to establish that she has a right to come to Canada. Subsections 6(1) and 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") state:
| 6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations. |
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure. |
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
| [24] I am of the opinion that the visa officer did not deny the applicant a fair and a |
| reasonable opportunity to respond to the visa officer's concerns and thus, no reviewable error was made. |
| [25] Neither party wished to certify a question pursuant to subsection 83(1) of the Act. |
| [26] The applicant has asked for costs of this application and since she has not |
| succeeded, I will not award her costs. |
| [27] The application for judicial review is dismissed. |
| ORDER |
| [28] IT IS ORDERED that the application for judicial review is dismissed. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Ottawa, Ontario |
| September 28, 2000 |