Date: 19971117
Docket: IMM-1215-97
BETWEEN:
JINGQUAN JIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.
[1] The applicant challenges the visa officer's refusal of his application for permanent residence on two grounds: (a) she erred in law in the allocation of units for his knowledge of English as his first official language; and (b) she demonstrated a reasonable apprehension of bias in making her decision.
[2] The letter convoking the applicant to the interview with the visa officer also directed that his spouse attend. During the meeting, according to the applicant, his wife reminded him in Chinese, on more than one occasion, to remain calm. In his affidavit material, the applicant states that the visa officer "... rudely spoke to my wife: 3Shut up!, I am checking his English.3 " The applicant uses subjective terms such as "sarcastically", "rudely", "unfriendly attitude" and "lost her temper" in describing the visa officer's demeanour.
[3] The visa officer set out her version of this incident in the following paragraphs of her affidavit:
| After each question I posed to the Applicant, his wife would whisper to him in Chinese, in a low tone of voice, and he would then answer the question laboriously. |
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| I asked the Applicant's wife to stop "coaching" her husband so that I could assess his English abilities. |
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| Notwithstanding my request, the Applicant's wife continued to "coach" her husband and I therefore subsequently determined that I was unable to continue the interview with her being present in the room. I asked her to sit outside the office while the interview with the Applicant continued. |
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| I escorted the Applicant's wife outside the office and continued the interview with the Applicant alone. |
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Nowhere in her affidavit does the visa officer deny using the words attributed to her by the applicant. Nor does she specifically deny her demeanour during the interview as characterized by the applicant. The visa officer neither confirms that she understood the language spoken by the applicant's spouse nor otherwise explains how she formed an opinion that the applicant was being "coached".
[4] 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 [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394:
| ... 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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It is not surprising that this statement was applied in immigration law. In Mohammad v. Canada, [1989] 2 F.C. 363 (F.C.A.), Mr. Justice Heald stated (at page 380) that the test is one of "... an informed person viewing the matter realistically and practically, ..." when he considered the reasonable apprehension of bias of an immigration adjudicator in the light of statements made by ministers in the House of Commons. In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, Mr. Justice Cory concluded that the language of a member of the public utility commission, who stated in colourful terms that the salaries and pension benefits of the utility employees were high, raised a reasonable apprehension of bias.
[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. 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.
[6] In Pillay v. Minister of Employment and Immigration (1993), 70 F.T.R. 12 (F.C.T.D.), an immigration official, during the course of an interview to investigate suspicions of a marriage of convenience, was alleged to have said to the applicant: "Don't waste my time because I will call the R.C.M.P. and they will charge you." Justice Denault concluded (at page 18):
| ... the evidence reveals that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the immigration officer would decide the matter fairly. ... [W]hen the interviews took place, there was evidence of a marriage of convenience but the applicant was given an opportunity to respond to the allegations. I see no reasonable apprehension of bias." |
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In Khakoo v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 284 (F.C.T.D.), Justice Gibson considered evidence of the visa officer's cold comportment during the interview and her reference that the applicant had been living on "our government's money". In concluding that this did not constitute reasonable apprehension of bias, Justice Gibson stated at pages 290-1:
| Counsel for the respondent acknowledged that the visa officer had been insistent in her questioning and perhaps had grown somewhat frustrated with the replies she was receiving but did not acknowledge use of the terminology reflected in the notes quoted above. I find no ground on which to conclude that the applicants had a reasonable apprehension of bias arising out of the tone and substance of the interview that took place on January 5, 1995. If the visa officer in fact used the terminology alleged, it was unfortunate. However, even assuming the terminology alleged was used, I am not satisfied that it would provide the basis for reasonable apprehension of bias. |
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[7] 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. In a more practical sense, however, the use of such language would unduly and detrimentally affect the atmosphere in which this applicant had to satisfy the visa officer of his qualifications to enter Canada. The rules of natural justice and procedural fairness require that the applicant be afforded another opportunity to meet the selection criteria and, more particularly, to establish his knowledge of English as his first official language.
[8] For these reasons, the decision under judicial review is set aside and the matter referred for reconsideration before a different visa officer. Neither party has suggested the certification of a question.
Judge
Ottawa, Ontario
November 17, 1997
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