Showing that the Visa Officer or IRB Member or CBSA Officer Was Biased

Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA”) officer or an Immigration and Refugee Board member is biased against them.

This is not an argument to make lightly.

The Supreme Court of Canada has held that in order for an individual to demonstrate that a government decision maker is biased, then:

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. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

As well, the Supreme Court of Canada has also noted that:

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.

As the Supreme Court of Canada stated, an accusation of bias is not something that should be undertaken lightly, and in the overwhelming majority of cases the Federal Court of Canada has dismissed such accusations.  The most common accusation that individuals often make is that an individual is biased because of their race.  The Federal Court of Canada has categorically rejected such race based allegations, and held that individuals are not entitled to decide who adjudicates their matter, but can only expect that they will be treated fairly.  In my experience, the race and gender of an adjudicator is completely, and thankfully, irrelevant in Canada’s immigration system.

There are, however, instances where the Federal Court did find that a reasonable apprehension of bias existed.

In Guemache v. Canada (Minister of Citizenship and Immigration), the allegation of bias involved the following exchanges and statements between an Immigration and Refugee Board member and an appellant:

Chairperson: I don’t put anybody in jail, I don’t condemn anyone to death, so rest assured, that’s already settled.

Chairperson: You see, I speak quite loudly – not in an attempt to intimidate you, Sir, but so that you understand me . . .

Chairperson.             Okay. And what happened?

R.             I came out to go take the bus, on my way, the distance . . . between the police station . . . the bus stop was . . . is a little bit far from . . . the police station. I was walking on my way and suddenly a car stopped, four people got out from . . . the vehicle, they came toward me, they insulted me, they hit me on the head, they told me that I was . . . what do you call it, a informant for the police.

Q.             And these people, did you know them?

A.             No.

Q.             Had you seen them before?

A.             No.

Q.             Did they say anything to you other than that you were a police informant?

A.             They said to me “You must stop doing this work.”

Q.             Did they . . .

A.             “And don’t think that we’ll . . .we’ll leave you in peace, we’ll get you.

BY THE CHAIRPERSON (addressing the claimant)

Q.             Why did . . . why didn’t they kill you right away, Sir?

A.             I don’t know, maybe I was . . . I was lucky.

. . .

BY THE COUNSELOR (addressing the Chairperson)

Q.             And can I ask a question?

A.             Yes, yes, yes.

BY THE COUNSELOR (addressing the claimant)

Q.             Why did you stay home?

BY THE CHAIRPERSON

Excellent question.

So, Sir, if you gave your passport to your brother on February 7, 8 or 10, 2002, to get a visa, can you explain to me how your brother gave this to someone, then, at some point, the visa was issued on January 28, 2002. So, if it’s a genuine visa, then, there’s like a problem, Sir. How can you give a passport to your brother without a visa on February 7, 8 or 10 and have a visa in your passport dated January 28, 2002

. . .

BY THE CHAIRPERSON (addressing the claimant)

Q.             Sir, does . . . “internal asylum” ring a bell?

The Federal Court ruled that the Member completely overstepped his boundaries, and that the applicant was denied the ability to present his case.  It described the member’s comments as  “gratuitous and uncalled for”.

In Kalkat v. Canada (Citizenship and Immigration Canada), a Citizenship Judge made the following comments to an individual who was requesting a language waiver:

Somebody who does not speak English or French will never be Canadian.

Tomorrow, I will grant citizenship to 800 people who all speak French or English; they all passed the test! Your lawyer has written to us that you cannot be able to learn about our country and language. Unfortunately, we receive this argument from hundreds and thousands of people.

The medical opinion on record was just an opinion of a person not as a doctor because doctors are not linguistic experts.

I am a judge and I apply the law, my first wife was Russian and my second wife was Romanian; they came as immigrants and learned.

During the hearing, I observed that you seem to understand all my questions and that you were able to converse fluently with your interpreter.

Many other people have trouble learning; some work harder at learning and some don’t and you should have learnt with the help of your husband and children.

If a negative decision is rendered, you can go to the Federal Court of Appeal and get an audition.

The Court found that this demonstrated bias, especially the reference to the Citizenship Judge’s ex-wife.

In Dena Hernandez v. Canada (Citizenship and Immigration), Justice Martineau determined that an Immigration and Refugee Board member demonstrated bias through aggressive questioning, and also by implying that twins were not normal.

In Kalombo Kabongo v. Canada (Citizenship and Immigration)Justice Martineau also determined that an Immigration and Refugee Board member demonstrated bias when the member acknowledged that he had pre-written a decision (which the member stressed wasn’t final) so that the member could issue the final written decision quickly.

As is hopefully shown, these examples are particularly blatant and egregious.  Most allegations of bias are unsuccessful because in almost every instance a visa officer, CBSA officer, or IRB member does do their best to maintain impartiality.

Finally, the Federal Court in Delos Santos v. Canada (Citizenship and Immigration) has also ruled that it is not a breach of procedural fairness for the same officer to determine both an applicant’s humanitarian & compassionate (“H&C“) application as well as an applicant’s Pre-Removal Risk Assessment (“PRRA“), and that there was no inherent bias arising from the same officer dealing with both a H&C application and a PRRA application for the same individual.

This decision was based on the Federal Court of Appeal’s (the “FCA“) decision in Oshurova v. Canada (Minister of Citizenship and Immigration) where the FCA answered the following certified question in the negative:

Is there an appearance of bias, in this case, because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the Pre-Removal Risk Assessment?


Appealing Loss of NEXUS Cards and NEXUS Application Rejections

Anyone who travels frequently understands the benefits of NEXUS membership.  I have been a member since August 2012 and it is only a slight exaggeration to say that I remember a life before NEXUS.

At airports, NEXUS members avoid long line-ups and save time using automated self-serve kiosks at eight designated Canadian international airports.  The wait-times are much less than they are for non-NEXUS passengers.  As well, NEXUS members are expedited through Canadian Air Transport Security Authority airport security screening lanes.  This is the case even on domestic flights.

Those crossing the US-Canada border by land enjoy a quick and simplified entry process using dedicated lanes.  Wait-times are generally a fraction of what they are for non-NEXUS members.   It is not uncommon for the NEXUS lane(s) to be empty while the non-NEXUS lanes have wait-times exceeding one hour.

If you’ve never heard of NEXUS, you should read more about it on the CBSA website here.

Considering all the benefits which membership in NEXUS provides, it is understandable why people whose NEXUS membership applications are rejected often seek recourse, as do people who lose their NEXUS.

First Level Recourse Statistics

In 2011-12 (excluding Q4), there were 614 First Level Recourse appeals of NEXUS membership rejections.  The cases were broken down as follows:

  • Customs – 253
  • Criminal – 158
  • Immigration – 85
  • Program Violations – 27
  • Other – 91

Of the 614 cases, 118 were overturned.  This 19% success rate represented a slight decline from the 2011 success rate of 22%.

Second Level Recourse Statistics

In 2011-12 (excluding Q4), there were 44 Second Level Recourse appeals of NEXUS membership rejections.  The cases were broken down as follows:

  • Customs – 17
  • Criminal – 11
  • Immigration – 6
  • Program Violations – 6
  • Other – 4

Of the 44 cases, 14 were overturned.  This 31% success rate represented a slight decline from the 2011 success rate of 38%.

Why Are Overturns Successful? 

There are several reasons why an initial decision by an officer to either reject an applicant’s membership in NEXUS or an officer’s decision to revoke an individual’s NEXUS card might be overturned.  These include:

  • Further analysis determining that there was no immigration violation.  For example, under the NEXUS Strict Standard Policy, immigration violations must be recorded in the FOSS database for an individual to be denied membership in NEXUS; 
  • Seizure appealed successfully, therefore no customs violation (for this reason NEXUS appeals often occur concurrently with Customs Act violation appeals);
  • Member inadvertently used NEXUS lane with a non-member passenger (this is very fact-driven”);
  • Offence did not equate to a criminal conviction.  For example, under the NEXUS Strict Standard Policy, a crime which is ten-years old prosecuted summarily does not necessarily result in a NEXUS violation;
  • Client/member was acquitted of crime; and
  • Applicant was listed as an associate on seizure, not principal.

In one of my successful cases, an individual was denied membership in NEXUS because an officer (reasonably) determined based on incomplete information in the National Crime Information Center that my client had been convicted of an offence when in fact he had been dismissed.  We were able to locate the necessary documents to have the refusal overturned.

In reflecting on that case, I should note that the CBSA officers who work in the NEXUS unit are incredibly helpful.  I have spoken with Security Officers on numerous occasions, and they are always proactive and informative.