Date: 20030704
Docket: IMM-5512-02
Citation: 2003 FC 833
Vancouver, British Columbia, July 4, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
JUN WANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") of the decision of Immigration Officer Brenda Heal, Citizenship and Immigration Canada, (the "immigration officer") dated October 18, 2002, wherein it was determined that an exemption would not be granted for the applicant's request for landing within Canada on humanitarian and compassionate ("H & C") grounds.
[2] The applicant is a 39-year-old citizen of the People's Republic of China ("China").
[3] The applicant came to Canada in October 1997 on a visitor's visa. She attended ESL classes for two months and applied and obtained an extension of her status for six months to conduct business and market research.
[4] In February 1998, the applicant married her first husband, Gordon Mullins, a Canadian citizen. In March 1998, Mr. Mullins sponsored the applicant's first H & C application for permanent residence in Canada.
[5] In May 1998, Mr. Mullins passed away. After his death, the applicant sought and obtained an extension of her visitor's visa for the purpose of dealing with legal problems in relation to Mr. Mullins' estate.
[6] On September 29, 1998, the applicant's first H & C application was refused.
[7] In September 2000, the applicant made a Convention refugee claim, alleging a fear of persecution if she were to return to China based on her participation in Falun Gong. This claim was refused in January 2002. The applicant did not seek judicial review of this decision.
[8] In March 2001, the applicant married Raymond Joel, a Canadian citizen.
[9] In July 2001, with the support of Mr. Joel's sponsorship, the applicant applied for permanent residence and requested a discretionary and exceptional exemption pursuant to section 25 of the Act from the requirement under subsection 11(1) of the Act that she apply for an immigration visa outside of Canada.
[10] On June 24, 2002, the applicant and Mr. Joel attended an interview with the immigration officer.
[11] On October 18, 2002, the immigration officer refused the applicant's H & C application.
[12] She was not satisfied that there were sufficient reasons to waive the requirement of subsection 11(1) of the Act. She also determined that the applicant's marriage to Mr. Joel was not bona fides, and that the applicant's goal in coming to Canada was to remain permanently.
[13] The applicant argues that the immigration officer exhibited a reasonable apprehension of bias. According to the applicant, the immigration officer made insensitive and racist comments, bullied the applicant, and was dishonest. The reasons attempt to disguise as reasonable, a decision which based on the immigration officer's comments and conduct at the interview, was decided in advance of the interview.
[14] On the other hand, the respondent argues that there is no evidence of bias on the part of the immigration officer. The respondent relies on the affidavit of the immigration officer, in which she indicates that she conducted the interview in a polite and professional manner.
[15] The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369. The Court stated at page 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. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically--and having thought the matter through - conclude. [...]
[16] In Au v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 435 (Q.L.), Nadon J. held that the standard applied to determine a reasonable apprehension of bias will vary depending on the nature, role and function of the tribunal. With respect to decisions by visa officers, since they are not acting in a judicial or quasi-judicial capacity, a less stringent standard should apply, one which requires an absence of conflict of interest and a mind that is open to persuasion.
[17] In the case at bar, the affidavits of the applicant, Mr. Joel, and the immigration officer provide a depiction of the interview that is completely different. On cross-examination on affidavit, the applicant and Mr. Joel continued to insist that the immigration officer made inappropriate comments and gestures during the interview, whereas the immigration officer denied all the allegations made against her.
[18] The applicant relies on the case of Parihar v. Canada (Minister of Citizenship and Immigration) (1991), 50 F.T.R. 236 in support of her argument that this Court should prefer her version of events. In this case, there was a dispute over whether the immigration officer had given the applicants an opportunity during the interview to explain inconsistencies. Reed J. held that insofar as memory is concerned, one would expect that the individuals being interviewed would have a clearer memory of what occurred, it being a unique experience for them, than the person doing the interviews. As a result, she decided to accept the version of events as set out in the applicants' affidavits.
[19] In my opinion, the present case is different in the sense that it is not a detail of the interview that is being disputed but rather the conduct of the immigration officer.
[20] Furthermore, contrary to the applicant's submissions, the fact that the immigration officer's notes are not detailed does not mean that I should prefer the statements made by the applicant and Mr. Joel in their affidavits. The immigration officer's notes are not intended to be a transcript of the interview.
[21] The applicant's allegations with respect to the immigration officer's conduct at the interview have all been denied by the immigration officer in her affidavit and in cross-examination on affidavit. There is nothing in the immigration officer's notes and Report to File that raises a reasonable apprehension of bias. There is also nothing in the immigration officer's decision that raises a reasonable apprehension of bias.
[22] I note that the alleged improper conduct was reported only after the immigration officer's decision. Neither the applicant nor Mr. Joel ever communicated their allegations to the immigration officer or to her supervisor, even though they both sent the immigration officer correspondence after the interview, seeking an early decision to the applicant's H & C application. The cross-examination of the applicant shows some inconsistencies which may be explained by the fact that her version of the facts is solely based on her memory. Furthermore, in cross-examination, Mr. Joel admitted that he was medicated during the interview and that he was "annoyed, surprised and hurt" when the immigration officer asked questions regarding the bona fides of his marriage to the applicant which may have coloured his perception of what took place.
[23] Of importance is the fact that both the applicant and Mr. Joel testified on cross-examination on affidavit that they left the interview with the expectation of a positive decision, not a refusal. If the allegations of the applicant and Mr. Joel with regard to the immigration officer's statements and conduct during the interview were true, it is difficult to see how they could have left the interview with such a positive impression.
[24] In my view, despite the fact that the parties disagree over what actually transpired during the interview, it still remains that in matters of judicial review, the burden is on the applicant to show that the tribunal has not complied with procedural fairness or has not acted fairly or reasonably (Fehr v. Canada (National Parole Board) (1995), 93 F.T.R. 161. Based on the evidence before me, I am not satisfied that the applicant has succeeded in establishing that there was a reasonable apprehension of bias on the part of the immigration officer.
[25] For these reasons, this application for judicial review is dismissed with costs.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed with costs.
(Sgd.) "Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5512-02
STYLE OF CAUSE: JUN WANG v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: July 3, 2003
REASONS FOR ORDER AND ORDER: TREMBLAY-LAMER, J
DATED: July 4 , 2003
APPEARANCES:
Mr. Warren Puddicombe For Applicant
Ms. Banafsheh Sokhansanj For Respondent
SOLICITORS OF RECORD:
Embarkation Law Group For Applicant
Vancouver, BC
Morris Rosenberg For Respondent
Deputy Attorney General of Canada