Date: 19990531
Docket: IMM-4676-98
BETWEEN:
HOU XIAHONG
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant, a citizen of China, seeks judicial review of the decision of a visa officer, dated August 5, 1998, wherein the applicant"s application for permanent residence in Canada was refused.
[2] The two issues are: (1) whether the applicant was denied procedural fairness during the interview, and in particular, whether there is a reasonable apprehension of bias on the visa officer"s part; (2) whether the visa officer considered all material before her.
[3] A visa officer must not conduct herself so as to raise a reasonable apprehension of bias. The test as set out in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at 636, is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.
[4] When the applicant stated she had done some translating as part of her job duties, the visa officer stated in what the applicant said was a sarcastic tone: "Wow. It sounds to me like you can do everything." The visa officer also refused to answer the applicant"s questions as to what supplemental documents she should submit, and made the following remarks: "[y]ou"re from Queen"s [University]. You"re a smart lady ... You know." She also said: "I"m asking the questions, not you." When the applicant apologized, the visa officer stated: "I"m not here to listen to your apologies." The visa officer never denied making these statements to the applicant.
[5] The visa officer stated five months after the interview, in her affidavit, that:
| The interview lasted one hour and fifteen minutes. Throughout the interview, I made every possible effort to be fair and thorough with the Applicant, and the interview was conducted in a respectful and professional manner. There was no suggestion of hostility or sarcasm during the interview. At no time did the Applicant express that she was uncomfortable during the interview for any reason, including my tone, manner or questions. |
[6] It is interesting to note that in the CAIPS notes, written shortly after the interview, the visa officer stated:
| There is nothing notable about the tone or manner of the interview. |
[7] The applicant clearly frustrated the interviewer because the visa officer could not get direct answers to many of her questions. This does not justify the the visa officer"s ill-conceived remarks. The question I must answer is whether the visa officer simply exhibited bad manners or exhibited grounds for a reasonable apprehension of bias. Justice Gibson stated in Khakoo v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 284 (F.C.T.D.) at 290-91:
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, I am not satisfied that it would provide a basis for a reasonable apprehension of bias.
In the case before me, I am concerned that the visa officer"s judgment may have been clouded and I am satisfied that her remarks provide a basis for a reasonable apprehension of bias. The words spoken by the visa officer cannot be interpreted in any way other than hostile or sarcastic. In my view, a reasonable person would form the view that her remarks indicate a reasonable apprehension of bias.
[8] In light of my findings with respect to a reasonable apprehension of bias, and the necessity to return the matter for redetermination by a different visa officer, I do not believe it would be of assistance to review the other concerns expressed by the applicant.
[9] The application for judicial review is granted. The matter is returned to be redetermined by a different visa officer.
William P. McKeown
JUDGE
OTTAWA, Ontario
May 31, 1999