Date: 20001102
Docket: IMM-1883-00
OTTAWA, ONTARIO, THE 2ND DAY OF NOVEMBER, 2000
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
Between:
Ms. RUAN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
The application for judicial review is allowed. The panel's decision is set aside and the matter is returned to another officer for him to conduct a reassessment.
"Danièle Tremblay-Lamer"
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001102
Docket: IMM-1883-00
Between:
Ms. RUAN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision rendered on April 11, 2000 by Ms. Jocelyne Brunet (a visa officer) refusing the applicant's request for permanent residency in Canada, which had been filed in Hong Kong.
[2] The applicant, domiciled and residing in the People's Republic of China, filed an application for an immigrant's visa for Canada in accordance with subsection 9(1) of the Immigration Act[1] (hereinafter the Act). The applicant applied under the independent immigrant class pursuant to subsection 9(1.3) of the Act.
[3] On March 23, 2000, the applicant reported to the Consulate General of Canada in Hong Kong to have her application assessed in accordance with subsection 22.1(1) of the Immigration Regulations, 1978[2] (hereinafter the Regulations).
[4] The application for residence was refused by the visa officer on March 30, 2000, because the applicant had not obtained a sufficient number of assessment points as required by the Regulations.
[5] The applicant alleges that the visa officer demonstrated an apparent bias in her decision. In her affidavit, the applicant states that the interview lasted only 15 minutes, ten of which were spent on the English test.
[6] The applicant maintains that the interview began in an untimely and aggressive way and that the visa officer was not attentive to her replies. During the few minutes of the interview, in which she asked her only four questions, the officer was interrupted twice for discussions with other colleagues, and this caused her to lose track of what the applicant was explaining to her.
[7] The applicant's affidavit is not contradicted by the respondent, which did not submit any affidavit by the visa officer explaining how the interview proceeded. Although I do not think she had any obligation to file an affidavit in support of her notes, I have no reason not to accept the version proposed by the applicant, given the visa officer's silence.
[8] The text for reasonable apprehension of bias was described by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al.:[3]
...the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. ... [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?"[4]
[9] I am satisfied that the applicant's evidence shows that a reasonable person would conclude that the visa officer's conduct is sufficient cause for a reasonable apprehension of bias.
[10] As Lutfy J. stated in Jiang v. M.C.I.:[5]
The principles of natural justice and procedural fairness apply to the visa officer's meeting with the applicant. The visa officer has a serious responsibility during such interviews in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying.
[11] The interview must be significant. It requires that the officer provide the applicant with a genuine opportunity to be heard. The interview must therefore be held in a calm atmosphere that encourages communication, allowing the officer to make an adequate and honest assessment of the applicant's situation.
[12] Although an interview may be of short duration, it must be sufficiently complete to enable an applicant to present the reasons why he or she will be able to settle successfully in Canada.
[13] The record indicates to me that the visa officer's conduct adversely affected the atmosphere that must exist for an applicant to attempt to prove that he or she meets the prescribed criteria. An informed person, viewing the matter realistically and practically, and having thought the matter through, would reach that conclusion.
[14] The application for judicial review is allowed. The panel's decision is set aside and the matter is returned to another officer for him to conduct a reassessment.
"Danièle Tremblay-Lamer"
J.
OTTAWA, ONTARIO
November 2, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-1883-00
STYLE: Ms. RUAN LIN v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 30, 2000
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: NOVEMBER 2, 2000
APPEARANCES:
Mr. Pierre Masson FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pierre Masson FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
[5] (November 17, 1997), IMM-1215-97 (F.C.T.D.).
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