Date: 19990621
Docket: IMM-3389-98
BETWEEN:
WEI SUN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks judicial review of the decision of a visa officer refusing his application for permanent residence in Canada in the independent class as a textile designer described in the Canadian Classification and Dictionary of Occupations (CCDO 3313-146). The visa officer's decision is being challenged on several grounds: the visa officer erred in concluding that the applicant's experience was largely managerial rather than in hands-on textile design and thereby erred in awarding him only four units of assessment for experience; the visa officer breached the principles of natural justice in refusing to consider the textile samples the applicant brought with him to the interview; the visa officer erred in awarding the applicant only five units of assessment for personal suitability.
[2] The CCDO description of the job of textile designer reads:
| Originates designs for fabrication of textile cloth, specifying weave, pattern, colour and gauge of thread, to create new fabrics that meet functional requirements and fashion preferences of consumers: Develops new ideas for fabrics through study of fashion trends and knowledge of textiles and their various uses. Consults with technical and merchandising staff to obtain design ideas and to evaluate customer acceptance of new types and kinds of fabrics. Sketches designs for patterns on graph paper, using pens and rulers. Prepares written instructions to specify such details as weave of fabric, finish to be applied, and colour to be used. Examines sample woven on sample loom and modifies design if necessary. |
| May prepare cost estimates for producing new fabrics. May be designated according to product designed; for example, |
| Rug Designer |
| Woven-Label Designer |
[3] It is necessary, first, to consider the applicant's educational and employment history. The applicant graduated from Fu Jen Catholic University in 1990 with a Bachelor of Science degree in Textile and Clothing. On his application for permanent residence, he indicated that he had worked from April 1991 to January 1993 at Chian Textile Institute as an Engineer of the Testing Department. From January 1993 until February 1995, the applicant was employed as the Chief of the Technical Department at the Chyang Sheng Dyeing and Finishing Co. The certificate of service from this employer provides the following description of his job duties:
| Mr. Sun, Wei began working at CHYANG SHENG DYEING & FINISHING CO., LTD. as a designer on January 15, 1993. He was promoted to the CHIEF of TECHNICAL DEPARTMENT on October 1, 1993, in which position he remained until her (sic) resignation on March 1, 1995. |
| Mr. Sun made great contributions to the organization of this company. Under his design new production, our business dealings increased by a large margin. Moreover, he is a model character who always treated others with dignity and respect, no matter their position. And he is remembered here for his cool-headed approach to problems and design sense. He was well liked and highly respected. |
[4] In March of 1995, he states that he took another job, that of General Manager and Manager of New Production Development with Longway Textile Co. He signed the description of his job in that employment and that description states that his job encompassed:
| a. market investigation & fashion collection |
| b. color forecast & design the procedure of weaving, dyeing & finishing |
| c. cost & profit estimate of new fabrics |
| d. evaluate customer acceptance and improve the fabrics |
| e. apply ISO-9001 to keep the records of design-cycle. |
[5] The visa officer did not give this description much credence because it had been signed by the applicant himself. Another unexplored factor appears to be that his labour card shows that he worked for Fenghin Textile from March 14, 1995 to October 2, 1995, and only commenced working for Longway as of February 29, 1996.
[6] In any event, on July 17, 1996, he took a position in Indonesia with P.T. Artostex, as Research and Development Manager. The certificate of service, from that employer, dated May 9, 1998, described his job and experience there:
| CONCERNING ---- |
| I. Processing design of new production. |
| II. Cost & profit estimate of new production. |
| III. Market investigation & fashion collection. |
| IV. Quality control of new production. |
| V. Evaluate customer acceptance and improve the production. |
| VI. Apply ISO-9002 to keep the records of design-cycle. |
| REMARK: |
| Throughout his 22 months at Artostex Co. Mr. Sun displayed outstanding design and development abilities as well as fine character. |
| We feel confident that he will prove an invaluable help to your country if you would accept him. |
[7] The visa officer questioned the applicant throughout the interview about his various positions and expressed concern that the applicant had worked more as a manager than as a textile designer. The applicant states that the visa officer did not give him any opportunities to answer these questions or address the visa officer's concerns. The visa officer categorically denies the suggestion that he interrupted the applicant or did not give him opportunity to respond.
[8] The visa officer granted the applicant points for two years experience in textile design, that is 4 points. Had the applicant been found to have had four years experience in that field he would have been awarded 8 points.
[9] The applicant took fabric samples to the interview which the applicant says the visa officer disregarded and told him to put away. Both in his affidavit and under cross-examination the visa officer explained that he could not give the evidence of fabric samples any weight because he had no way of ascertaining that the applicant had in fact designed those samples himself.
[10] As for personal suitability, the visa officer states in his affidavit that he asked the applicant some general questions about Canada, including the population, the GNP and the names of the four largest cities in order of size. The applicant was unable to answer any of these questions. The visa officer's CAIPS notes state:
| Applicant made a poor presentation - attitude bordered on the arrogant. Said at one point he was not so much interested in immigrating to Canada as to learn about fashion trends in Toronto as it is a "well known fashion center". ... |
| Applicants knowledge of Canada was virtually nil " said population of Canada was 200 million " could not name the four largest cities in Canada in order of size. |
[11] The applicant states in his affidavit that he was not arrogant and that his comments about moving to Canada must have been misunderstood. He explains that what he said was that he had chosen Toronto as his destination because it is a well known fashion centre and would be the best place for him as a textile designer. Furthermore, he submits that his purchase of a house in Markham, Ontario, north of Toronto demonstrates his motivation and desire to move to Canada. He also suggest that his experience working in Indonesia shows that he is adaptable and capable of living and working in foreign environments.
[12] The visa officer defends his assessment of personal suitability in his affidavit and on cross-examination stating that it was not only the applicant lack of general knowledge of Canada that disturbed him. More importantly, he interpreted the applicant failure to know anything about the garment and textile industry in Canada as an indication of low motivation and initiative. The visa officer was not sure how the applicant intended to pursue his vocation without any information on the major firms in the industry, and so on. The visa officer awarded the applicant five points for personal suitability, that is an average grade.
[13] With respect to the alleged breach of natural justice because of the visa officer's refusal to pay more attention to the fabric samples, the visa officer's reason for not doing so is unassailable.
[14] With respect to the points awarded for personal suitability, one of the general knowledge questions that was asked seems unreasonable " counsel for the applicant states that GNP is no longer the correct terminology, it is now GDP, and many Canadians could not answer the question that had been asked of the applicant. The inability to answer appears to be an unreasonable factor on which to base an evaluation of personal suitability as a potential immigrant to Canada. On the other hand, the comments of the visa officer, that the applicant did not have knowledge of the textile industry in Canada, is very relevant.
[15] Insofar as the assessment of the applicant's experience as a textile designer is concerned, the Court on judicial review does not substitute its opinion for that of the decision-maker. The question to be asked is whether the decision that was made was reasonably open to the decision-maker on the record before him or her. Subsection 18.1(4) of the Federal Court Act defines the question as being whether the decision-maker "based [his] decision [...] on an erroneous finding of fact that [he] made in a perverse or capricious manner or without regard for the material before [him]".
[16] This case is not similar to that in Alireza-Masoud Dianatkhah v. The Minister of Citizenship and Immigration, IMM-1518-97 (September 24, 1998) where the visa officer awarded the applicant zero units for experience in electronic engineering technology, despite an impressive background in that field, because the visa officer doubted that the applicant intended to work as a technologist in Canada, the applicant in more recent years having worked in managerial positions. The applicant's record in this case is not one which led the visa officer to conclude that the applicant did not have experience in the field because he was now in a senior position. The visa officer awarded him points for the years he concluded he had been involved in textile design.
[17] The applicant's experience in many jobs appears to be more closely related to production technology than to textile design itself. In any event, when I apply the required test, in the present case, I cannot conclude that the decision under review is one that I am entitled to set aside.
[18] For the reasons given the application will be dismissed.
Judge
OTTAWA, ONTARIO
June 21, 1999