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.
Test for Bias
In Committee for Justice and Liberty et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 SCR 369, the Supreme Court of Canada 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.
Finally, in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, (Yukon) the Supreme Court of Canada noted:
[26] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.):
… allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding. [Emphasis added by the Supreme Court; para. 141.]
Federal Court of Canada Decisions
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 other words, as the Federal Court noted in Sharma v. Canada (Citizenship and Immigration), 2020 FC 381, 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.
In Younis v. Canada (Immigration, Refugees and Citizenship), 2021 FCA 49, the Federal Court of Appeal the Federal Court of Appeal found that a judge using an unfortunate choice of words that they apologize for does not in of itself demonstrate bias. The exchange was:
The Federal Court of Appeal stated:
Tense exchanges between a judge and counsel, even if the judge’s statements are discourteous, do not necessarily lead to a conclusion that a judge is biased. As noted by the Supreme Court in Miglin:
[26] […] We see no reason to interfere with the Court of Appeal’s assessment of the record, nor with its conclusion that although the trial judge’s comments were intemperate and his interventions at times impatient, they do not rise to the level necessary to establish a reasonable apprehension of bias.
Similarly, the Ontario Court of Appeal in Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60, (Stuart Budd) noted:
It is important to acknowledge from the outset that it takes much more than a demonstration of impatience with counsel or even unwarranted discourtesy to rebut the strong presumption of impartiality: Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111, at para. 21.
However, courts will be rightly troubled when a motion judge is consistently discourteous towards counsel for no apparent reason. Derisive remarks will therefore be relevant to the issue of bias: see Yukon, at para. 52.
[54] The Nova Scotia Court of Appeal also noted, “[m]omentary friction is not bias” (2446339 Nova Scotia Ltd. v. AMJ Campbell Inc., 2008 NSCA 9, at para. 105).
As the Federal Court further found in Binu v. Canada (Citizenship and Immigration), 2021 FC 743, a visa officer providing greater reasoning than normal for a study permit application refusal is not an indication of bias.
Examples of Where Bias Found
There are, however, instances where the Federal Court did find that a reasonable apprehension of bias existed.
InGuemache v. Canada (Minister of Citizenship and Immigration), 2004 FC 870), 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. The Federal Court described the Member’s comments as “gratuitous and uncalled for”.
In Kalkat v. Canada (Citizenship and Immigration Canada), 2012 FC 646), 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), 2010 FC 179), 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), 2011 FC 1106), 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.
When the Same Officer Decides Multiple Decisions
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?