Date: 19981221
Docket: IMM-290-98
| BETWEEN: GABRIEL JOACHIM CHUNG |
Appellant
| AND: THE MINISTER of CITIZENSHIP and IMMIGRATION, |
| SECRETARY of STATE |
Respondents
REASONS FOR ORDER
DENAULT J:
[1] This is an application for judicial review of the decision of a visa officer made at the Canadian High Commission in Kingston, Jamaica, on October 23, 1997, denying the applicant permanent resident status. The applicant is seeking an order quashing the visa officer's decision and either an order compelling the Minister to issue an immigrant visa to him or an order referring the matter back to a different officer for reconsideration.
[2] The applicant and his sister left India because they are Chinese Indians. As such, they are apparently subject to "different" or "stricter" laws than are other Indian nationals. They made refugee claims in Canada but were refused refugee status. At the time of filing an application for permanent residence, the applicant had been in Canada 9 years already. He is currently stranded in Kingston, Jamaica; he has been unable to return to Canada since he attended his permanent residency interview in Jamaica on September 9, 1997.
[3] His sister was also interviewed in Jamaica, shortly before him. She obtained permanent resident status as a result of the interview. She had been warned, following the interview that it could take up to 8 weeks before she became landed. On hearing this, her brother, who was still in Canada at the time, canvassed an MP, Mr. Roy Cullen, from Etobicoke. With Mr. Cullen's assistance, the applicant's sister obtained her permanent resident status much sooner than the interviewer had advised. The visa officer's alleged reaction to the applicant's intervention, through political channels, on behalf of his sister is one of the grounds (i.e. reasonable apprehension of bias) of the current judicial review applications. The other grounds include the applicant's belief that the visa officer made findings of fact in a perverse or capricious manner relative to the applicant's personal suitability, education and experience.
[4] The applicant was paperscreened at 64 points, including 6 points for experience and 10 points for education but without noting any points for personal suitability as that is only assessed at the time of the interview. After the interview, the applicant received a letter of refusal, dated September 22, 1997. Shortly thereafter, following correspondence from both the applicant's lawyer and his sister, he received a modified/updated letter of refusal indicating that, although he had now been awarded the 5 bonus points to which he became entitled when his sister received landed immigrant status, he still did not have sufficient points to qualify for permanent residence.
[5] The applicant alleges bad faith on the part of visa officer Kathleen O'Brien. In a letter sent to his counsel the very same day of the intervention, he contends that the visa officer was angry with him for having obtained political assistance for his sister. He maintains that, as a result, he was awarded only 3 (out of 10) points for personal suitability, only 5 (out of 16) for education and only 4 (out of 8) points for experience. Finally, he contends that the officer erred in failing to consider the exercise of discretion. He maintains that such consideration was appropriate and warranted in his case since 1) his sister was a landed immigrant; 2) he had been living in Canada with that sister for 9 years; 3) he was stable, in that he had established himself here and had employment; and 4) he had been away from India, where strict laws apply to him, for 9 years.
[6] Regarding the issue of bad faith, the respondent relies on the affidavit of the visa officer who acknowledges discussing the MP's intervention with the applicant but says she did so only to clarify for him the fact that he was not his sister's "sponsor" (as he had told the MP) and to inform him that this MP was not actually his representative, as his representative was in India. Acknowledging that she conducted the September 9, 1997 interview with an open door, the visa officer maintains that she was neither hostile nor angry and insists that whatever the sister says in her affidavit must be weighed lightly as it is nothing more than hearsay, the sister never having attended at her brother's permanent residence interview. She then goes on to explain her assessment of each of the factors required of a claimant to obtain permanent resident status.
[7] In support of the applicant's application, his sister states in her affidavit that she attended with her brother at the Canadian High Commission on September 9, 1997, for his interview, that she was outside the interview room and that "upon entering the room Ms. O'Brien was very noticeably upset and began screaming at my brother stating that he had no right to go to the MP with respect to my case." (p.12 paragraph 13 of applicant's Application Record).
[8] The test for reasonable apprehension of bias which has long been endorsed by the Supreme Court of Canada was set out by De Grandpré J., in Committee for justice and liberty et al v. National Energy Board, [1978] 1 S.C.R. 369 : whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would consciously or unconsciously decide an issue fairly.
[9] In Newfoundland Telephone v. NFLD. (Public Utilities Bd.), [1992] 1 S.C.R. 623 at page 636, the Supreme Court of Canada indicated:
| All administrative bodies, no matter what their function, owe a duty of fairness to the regulated parties whose interest they must determine. |
| ... |
| Although the duty of fairness applies to all administrative bodies, the extent of that duty will depend upon the nature and the function of the particular tribunal. See Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602. The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. |
[10] In the case at bar, I am satisfied, on preponderance of evidence, that the visa officer, unhappy with the intervention of the applicant and that of a Member of Parliament in his sister's case, exhibited hostility towards him. That hostility raises, in my mind, a reasonable apprehension of bias that led to an unfair assessment of the applicant's claim.
[11] In view of the conclusion that I have reached on the first argument raised by the applicant, I will not need discuss further the argument with respect to the assessment of some of the factors of the claim.
[12] This application for judicial review will therefore be granted, the decision of the visa officer set aside, and the matter referred back to a different officer for reconsideration.
[13] No serious question of general importance pursuant to section 83 of the Immigration Act needs to be certified.
J.F.C.C.