Date: 19990608
Docket: IMM-4384-98
Between :
QIN ZHAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the decision of Susan Barr, a visa officer at the Canadian Consulate General in Hong Kong, dated July 2, 1998, in which she determined the applicant did not meet the requirements for immigration to Canada, having obtained insufficient units of assessment.
[2] This is a case where I feel justified to intervene on the basis of the existence of a reasonable apprehension of bias on the part of the visa officer.
[3] My colleague Mr. Justice Lutfy summarized when a reasonable apprehension of bias with regard to a visa officer will exist in Jiang v. Canada (M.C.I.) (1997), 138 F.T.R. 230, at pages 232 and 233:
| The proper test to be applied for determining the existence of a reasonable apprehension of bias was set out by Justice de Grandpré in his dissenting reasons in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369 at 394: |
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| ". . . 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. . . . [The] test is 'what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude'." |
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| 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. Similarly, for many applicants, particularly those from cultures substantially different from that of the person representing Canada, these interviews are also stressful. On balance, the visa officer, when challenged by inappropriate conduct by the persons being interviewed, must remain composed in maintaining an orderly meeting. The visa officer presides over the interview. As the decision-maker, the visa officer has the duty to provide, to the extent possible, a calm environment as the applicant attempts to meet the selection criteria. |
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| The evidence in this case dictates a different conclusion. Even assuming that the comportment of the applicant and his wife warranted the visa officer's intervention and the removal of the applicant's spouse from the meeting room, the use of intemperate language in so doing cannot be justified or condoned. On an application for judicial review, the Court is limited by the parties' affidavits in determining how certain events may have occurred. In the absence of affidavit material denying the use of the language attributed to her, I must assume that the visa officer uttered the words "shut up". In my view, such words cross over the line of acceptable language in expressing one's disapproval, particularly when spoken by a person in authority. An informed person, viewing the matter realistically and practically, could hold an apprehension of bias in these circumstances. . . . |
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[4] In the case at bar, the applicant stated the following in paragraphs 19 to 21 of her affidavit:
| 19. While I was in the process of describing this work that I had done in the last few days, the visa officer interrupted me abruptly and she began making comments about my breathing and about Chinese people. She spoke in somewhat angry, impatient and rude manner to me. Specifically, she stated: "Something is wrong with your breathing." and she also stated: "Why do so many Chinese people have bad breathing habits? It's a bad habit!". |
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| 20. I responded by telling her that there is nothing wrong with my breathing, but that the weather conditions in Karamay and in the oil field were bad, that this must be affecting my breathing and that I imagine I will get better shortly. |
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| 21. I felt very uncomfortable with the way in which the visa officer was speaking to me and the manner in she made generalized comments about Chinese people. |
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[5] The applicant also noted that in the visa officer's handwritten interview notes, amongst notes regarding the applicant's work experience, she wrote the following statement: "sinus noises".
[6] The visa officer's response to the above allegations is contained in paragraph 23 of her affidavit:
| 23. With respect to paragraphs 19, 20 and 21 of the Applicant's Affidavit, the Applicant has a very different impression of what transpired at the interview from my own. I noted early in the interview that the Applicant was making numerous loud sinus noises. I let it go for a while, but then stopped the flow of the interview questioning to ask her about her health. This is because all potential immigrants must also meet a statutory requirement to be in good health, and if there is an observable health problem, I am required make this observation to our medical services staff to ensure that proper testing is requisitioned. I have had to do this in other cases. The Applicant, at this point, had not been medically examined yet. The Applicant responded that she has some breathing problems because the air quality is poor in her place of employment. |
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[7] The applicant argues that although the visa officer states that the applicant "has a very different impression of what transpired at the interview from my own" and stated that she was simply inquiring about the applicant's health, the visa officer did not deny making the statements regarding breathing habits as the applicant recounted it. The visa officer's comment regarding the breathing habits of Chinese people is rude and inappropriate. In my opinion, the visa officer's failure to deal with this specific alleged comment in her affidavit would lead an informed person, viewing the matter realistically and practically, to hold an apprehension of bias in the circumstances of this case where the visa officer noted the "sinus noises" of a Chinese applicant. Making a generalized criticism of the breathing habits of Chinese people goes beyond the scope of inquiring about an applicant's state of health and is totally inappropriate. Regardless of the visa officer's intentions, through her behaviour and language, she did not maintain a level of decorum conducive to an open and fair exchange as she is required to do, breaching her duty to provide a calm environment.
[8] Consequently, it will not be necessary to deal with the other arguments raised by the applicant. The application for judicial review is allowed, the decision of the visa officer is quashed and the matter remitted for reconsideration by a different visa officer.
JUDGE
OTTAWA, ONTARIO
June 8, 1999
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