Date: 19980220
Docket: IMM-849-97
BETWEEN:
ISHWAR GOBIND SAMTANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McGILLIS, J.
FACTS
[1] The applicant has challenged by way of judicial review the decision of a visa officer that he did not meet the requirements for immigration to Canada as a permanent resident.
[2] The applicant indicated on his application for permanent residence that his intended occupation was Cook-Small Establishment CCDO 6121-114. An immigration program officer paper screened the application and awarded the applicant seventy-six points.
[3] In support of his application for permanent residence, the applicant produced a letter of reference for each of the two jobs which he had held in restaurants in New York City. The first letter of reference, dated January 12, 1996 from the Tandoor Restaurant, was signed by Akbar Himani from a company called "Small Business Management", which operated at the same address as the restaurant. The letter indicated that the applicant had worked and performed various duties at that restaurant from August 1990 to April 5, 1995. The second letter of reference, dated February 7, 1996 from Deli Plus Inc., certified that the applicant worked in that restaurant from June 1995 to the present. Mr. Himani also signed that letter of reference, and stated that "[if] you have any questions, please do not hesitate to contact me at...Small Business Management...".
[4] On January 9, 1997, the applicant attended an interview with the visa officer. During the course of the interview, the visa officer advised the applicant that she was not satisfied that he met the definition of cook as defined in the Canadian Classification and Directory of Occupations. However, she stated that she would review his file and advise him of her decision as soon as possible.
[5] After the interview ended, the visa officer checked the CD ROM Repository of Telephone Addresses which had been updated in the spring of 1995. She determined that there were two Deli Plus restaurants in New York City, neither of which was located at the address noted in one of the applicant's letters of reference.
[6] The visa officer did not at any time raise with the applicant the concern that she had in relation to the authenticity of his letters of reference. Furthermore, she made no inquiries with the person who signed the letters, Mr. Hamani, with a view to clarifying the relationship between his company "Small Business Management" and the two restaurants.
[7] By letter dated January 27, 1997, the visa officer informed the applicant that his application for permanent residence had been rejected on the basis that he lacked the experience and qualifications for his intended occupation, and that he did not have the minimum of seventy units of assessment. She further informed the applicant that he had been awarded sixty-eight units of assessment.
[8] In her affidavit filed in these proceedings, the visa officer indicated that she found the applicant to be not credible on the basis of her concerns relating to the reliability and authenticity of his letters of reference. As a result, she concluded that he did not have the necessary qualifications, training and experience. She further concluded that he was not truthful, and she gave him only one point for personal suitability. In that regard, the visa officer stated as follows in her affidavit:
| In reviewing the Applicant's file I determined that it was not credible that he had the necessary qualifications, training and experience, at least not for Canadian standards, in his intended occupation. Letters of reference did not seem prepared by his employer as they all were signed by the same person, who indicated that he was president of a Small Business Management company in Rego Park, Queens. If this person was not his employer, how could he attest to the Applicant's work experience at these establishments? The Applicant never mentioned that this person was the owner of these two establishments. Furthermore it does not seem credible that he has experience working as a chef in a deli. Due to all this, I concluded that it was not credible that the Applicant had experience as a cook/chef nor that he met the training and entry requirements for his occupation in Canada and did not award him any units of assessment for the factor experience in his intended occupation Cook/Small Establishment. |
...
| In assessing personal suitability, I took several factors into account, such as initiative, motivation and resourcefulness, and also his chances for successful establishment in Canada. As the Applicant's documents did not seem credible, I doubted that he had been truthful in his dealings with this office and did not believe that he could establish successfully in Canada, and felt that I could only award him one unit of assessment for personal suitability. |
ISSUE
[9] The question to be determined is whether the visa officer erred in finding that the applicant's letters of reference were not credible.
ANALYSIS
[10] The evidence in the record confirms that the visa officer determined, on the basis of information contained in the CD ROM Repository of Telephone Addresses, that the Deli Plus Inc. restaurant was not in business at the address indicated on the applicant's letter of reference. However, the CD ROM had been updated in the spring of 1995, and the applicant's letter of reference indicated that he had been employed at the restaurant since June 1995. The CD ROM did not therefore appear to have been updated to include the period covered by the applicant's letter of reference. In the circumstances, I am satisfied that it was patently unreasonable for the visa officer to rely on that evidence alone to reject the two letters of reference as being not credible. In my opinion, the duty of fairness required the visa officer either to raise the matter with the applicant or to make further inquiries from another source in order to clarify whether the restaurant was in operation during the period covered by the reference letter.
[11] Since the visa officer relied on the purported lack of credibility of the reference letters in assessing the qualifications and experience of the applicant, as well as his personal suitability, the decision cannot be permitted to stand.
DECISION
[12] The application for judicial review is allowed. The decision of the visa officer dated January 27, 1997 is quashed and the matter is remitted to a different visa officer for redetermination. The case raises no serious question of general importance.
| Ottawa, Ontario _________________________ |
| February 20, 1998 Judge |