Last updated on April 14th, 2020
Last Updated on April 14, 2020 by Steven Meurrens
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.
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.
In other words, as the Federal Court noted in Sharma v. Canada, a visa officer interview is not a tea party and visa officers are entitled to ask questions that may appear unpleasant, to consider contentious points regarding the genuineness of documents provided in support of TRV applications, and to question an applicant’s credibility.
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?
Q. Had you seen them before?
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
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?