Date: 20030606
Docket: IMM-3904-02
Citation: 2003 FCT 714
Vancouver, British Columbia, Friday, the 6th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
JUN YAN FU
Applicant(s)
- 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, of a decision by Visa Officer Larry Penn of the Canadian Embassy in Beijing, People's Republic of China [the visa officer], made on June 12, 2002 and communicated to Jun Yan Fu [the Applicant] on July 2, 2002, which decision refused the Applicant's application for permanent residence.
FACTS
[2] The Applicant was born on January 5, 1965, in the city of Nanjing, province of Jiangsu, in the People's Republic of China.
[3] In April 2000, the Applicant submitted an application for permanent residence in Canada under the National Occupational Classification of Computer Programmer [NOC 2163.0].
[4] At the Applicant's request, his application was transferred from the Hong Kong Mission to the Beijing Embassy in March 2001.
[5] In his application, the Applicant indicated that he could speak English "well" and that he could read and write it "fluently".
[6] On May 9, 2000, the Applicant's application was assessed on a preliminary basis by a Department of Citizenship and Immigration Canada [the DCIC] employee. Based on the paper screening, the DCIC employee determined that the Applicant might receive 70 units of assessment, which was the number of units required to qualify for an immigrant visa under the Immigration Act [the Act](which act was used by the visa officer) and the Immigration Regulations [the Regulations].
[7] Following that preliminary assessment, the DCIC invited the Applicant to write an International English Language Testing System [IELTS] examination, an independent English test conducted by the British Council, to confirm his evaluation of his language skills.
[8] As a matter of practice, the DCIC advised applicants who had been invited to write an IELTS examination that processing of their application might be facilitated depending on their examination results, but that they were not required to take the examination and submit the results.
[9] Around January 2001, the DCIC received the Applicant's IELTS examination results. Such results are reported as a band score between 0 and 9. The Applicant's results were band 4.5 for listening; band 4.5 for reading; band 4 for writing; and band 3 for speaking. His overall result was band 4.0. Under Schedule I of the Regulations, these results equate to "with difficulty" for reading and writing and "not at all" for speaking.
[10] The DCIC determined that a selection interview would be required to assess the Applicant's application.
[11] On June 10, 2002, after completing an English reading test, the Applicant was further interviewed by immigration officer Olga Proleeva. Ms. Proleeva was not a designated immigration officer or otherwise authorized to refuse an application for a visa. Therefore, when Ms. Proleeva found that the Applicant might not receive enough units of assessment to qualify for a visa, she left the interview room with the interpreter and approached the visa officer to discuss her preliminary findings.
[12] After he reviewed Ms. Proleeva's notes of the interview and discussed it with her, the visa officer interviewed the Applicant with the assistance of the interpreter.
[13] As the parties seem to disagree on the particulars of the interview, it is important to summarize these differences.
[14] In his affidavit, the Applicant submits that during the interview, the visa officer appeared to be reviewing his file and that he told him that he couldn't get more than two points for his English ability, that he didn't have sufficient units to qualify, that he should improve his English ability and apply again. The Applicant doesn't recall either Ms. Proleeva or the visa officer telling him that they had concerns about his application.
[15] The visa officer contends that he assessed the Applicant on the basis of the factors listed in Schedule I of the Regulations and that he told the Applicant that the reason why he was interviewing him after the initial interview with Ms. Proleeva was because he had concerns about his application and the responses that he had given to her questions. Particularly, the visa officer alleges that he told the Applicant that he had concerns about his language skills and personal suitability.
[16] The visa officer alleges that it is a standard practice for him to raise his concerns with applicants during his interviews to allow them an opportunity to respond to the said concerns and provide additional information.
[17] Furthermore, the parties disagree as to the duration of the interview. In their affidavits, respectively, the Applicant submits that it only lasted a few minutes, whereas the visa officer argues that it lasted at least 10 to 15 minutes.
[18] On June 12, 2002, the visa officer sent the refusal letter to the Applicant, informing him that he had completed his assessment of the application and that he was not satisfied that the Applicant met the requirements of the Act and Regulations. The visa officer therefore refused the said application for permanent residence.
[19] On July 2, 2002, the Applicant received the refusal letter.
ISSUES
1. Did the visa officer err by considering the results of the Applicant's IELTS examination when assessing his English writing abilities?
2. Did the visa officer fail to exercise his jurisdiction by delegating the assessment and decision-making process to another visa officer?
3. Did the visa officer demonstrate a reasonable apprehension of bias in making his decision to refuse the Applicant's application?
ANALYSIS
Standard of Review
[20] First and foremost, it is necessary to determine the standard of review applicable to a visa officer's decision. In Al-Rifai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1703, Beaudry J. expressed:
[para. 29] I adopt the principles in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (F.C.A.) (QL) and Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1, of patently unreasonableness in discretionary decisions from the VO.
[para. 30] Turning to the substantive submissions of the applicant, it is important to note that the ability of the Court to intervene in the decisions of visa officers is very limited. The Court has so stated on several occasions. In Skoruk v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1687, 2001 FCT 1220, Nadon J. (as he then was) notes that the standard of review with respect to administrative decisions involving the exercise of statutory discretion is that laid out in Maple Lodge Farms Ltd., supra. If the discretion is exercised in good faith and in accordance with the principles of natural justice, a court will not interfere. That standard applies to the decisions of visa officers.
[21] The Federal Court of Appeal's decision of Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 351, confirmed such standard of review, when Linden J. stated:
[para. 6] Our jurisprudence holds the standard of review for this type of administrative decision is the test from Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court should not interfere "[w]here the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose" (see: Skoruk v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1220; Chen v. Canada (Minister of Citizenship and Immigration) 2001 FCT 330; Al-Rifai v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1236; and Jang v. Canada (Minister of Citizenship and Immigration) 2001 FCA 312).
[22] This Court has held that the decision of a visa officer is discretionary in nature. The fact that it may have reached a different conclusion on the evidence does not permit this Court to intervene in a discretionary decision lightly. Therefore, it would seem that the standard of review applicable to the decision of a visa officer is that of patently unreasonable.
1. Did thevisa officer err by considering the results of the Applicant's IELTS examination when assessing his English writing abilities?
[23] The Applicant submits that in relying on the results of the IELTS examination rather than assessing his English writing ability, the visa officer committed a jurisdictional error. He bases his argument on the decisions of Muliadi v. Canada (Minister of Employment and Immigration) (1982) 2 F.C. 205 (F.C.A.) [Muliadi] and Valentinov v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 258 (F.C.T.D.) [Valentinov].
[24] In Muliadi, supra, the applicant had been refused a visa to be admitted to Canada for permanent residence as an independent immigrant in the entrepreneur category on the basis of an unfavourable assessment of the his business plan provided by the Ontario Small Business Operations Division of the provincial Department of Industry at the request of the visa officer. It was held by this Court that the report should have been disclosed so as to give the applicant an opportunity to attempt to correct errors and to bring to the visa officer's attention the fact that no inquiries of the business had been made.
[25] Valentinov, supra, was also concerned with a judicial review of a visa officer's decision refusing the applicant a visa to be admitted to Canada. In that case, immediately prior to the interview, the visa officer's assistant administered two tests to the applicant in order to determine the level at which he read, wrote and comprehended English. In her affidavit, the visa officer attested that she reviewed her assistant's comments about how the applicant read the text and determined that he read well. The applicant received a total of 69 units of assessment. Gibson J. held:
[para. 10] That being said, I find nothing authorizing a visa officer to delegate her or his responsibility under subsection 8(1) of the Immigration Regulations. Where a decision-maker such as the visa officer here delegates her or his statutory responsibility, or a part thereof, without authority to do so, the visa officer commits a jurisdictional error. [See Note 5 below]
Note 5: Muliadi v Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 at 218 (C.A.).
[para. 11] I can reach no other conclusion but that there was, on the facts on this matter, as clearly shown on the face of the visa officer's affidavit, an unauthorized delegation of the visa officer's duty to assess Mr. Valentinov's ability to read english. In the circumstances, the visa officer's decision is based on jurisdictional error and must be declared invalid, notwithstanding that, if the visa officer had herself assessed Mr. Valentinov's ability to read english, the result might well have been the same.
[26] In Takotev v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 267 [Takotev], Rothstein J. held that Valentinov, supra, could be distinguished, based on the evidence that the visa officer had reviewed the applicant's reading test directly with the applicant. He stated:
[para. 9] Having regard to the particular facts of this case, I agree with the respondent that Valentinov can be distinguished. Here the visa officer reviewed the result of the applicant's reading test with the applicant. Even if there was an improper delegation when the personal assistant performed the reading test and recorded the errors made by the applicant, that error was corrected by the visa officer reviewing the reading test directly with the applicant. This review of the applicant's reading test directly with the applicant is sufficient to constitute an assessment by the visa officer of the applicant's ability to read English.
[para. 10] As to the applicant's second argument, that he was denied an opportunity to disabuse the visa officer of misconceptions, no authority was cited that was relevant to the circumstances here. In any event, by reviewing the applicant's reading and writing tests with him and meeting with the applicant to assess his ability to speak English, the visa officer gave the applicant an ample opportunity to disabuse her of any misconception she may have had with his ability with the English language.
[Emphasis added]
[27] In the case at bar and in contrast to the decision of Takotev, supra, the Applicant submits that it is the fact that the visa officer relied on the results of the IELTS examination, rather than the results of the reading test completed by him during the interview, that gave rise to a jurisdictional error.
[28] As written in the CAIPS notes, the Applicant was asked to proceed with the IELTS examination in May 2000. The Applicant completed and payed an IELTS application form on or about September 9, 2000 and took the test on or about November 11, 2000. The results of the examination came out on or about November 24, 2000. The Consulate General of Canada in Hong Kong received the results on January 18, 2001, after which the Applicant's file was transferred to the Beijing office.
[29] As previously mentioned, the Applicant's results were band 4.5 for listening; band 4.5 for reading; band 4 for writing; and band 3 for speaking. His overall result was band 4.0. Under Schedule I of the Regulations, these results would equate to "with difficulty" for reading and writing and "not at all" for speaking.
[30] In the CAIPS notes, one can read:
HAVE ACCEPTED IELTS AS ACCURATE ASSESSMENT OF WRITING ABILITY...
[31] In Takotev, supra, that which permitted Rothstein J. to dismiss the application for judicial review of the visa officer's decision (i.e. the fact that the visa officer reviewed the reading test directly with the applicant) by distinguishing his case from Valentinov, supra, is not as clear cut in the case at bar.
[32] I find myself unable to determine if indeed a review of the IELTS examination was undertaken by the visa officer directly with the Applicant.
[33] In any event, I am of the view that the above determination is immaterial, for the following reason. Even if the visa officer had assessed the Applicant's writing ability as "fluently" (rather than "with difficulty"), which would have entitled him to five credits (two for speaking, zero for reading, three for writing) under paragraph 3(b) of the knowledge of English factor in Schedule I of the Act, the Applicant would still have received two units.
[34] Indeed, had the visa officer reviewed the IELTS examination and its results with the Applicant like in Takotev, supra, or had he not considered the results of the IELTS examination but rather submitted another test to the Applicant, either way, and no matter the English writing results of the Applicant, he would still have been awarded the same amount of units of assessment.
[35] It is therefore my opinion that another visa officer could not have come to a different conclusion. Accordingly, the following words of Linden J.A. in Sivakumar v. Canada (Minister of Employment and Immigration) (C.A.), [1994] 1 F.C. 433, apply equally well to this case:
[para. 34] In some cases, the inadequacy of the Refugee Division's findings would require the case to be sent back to the Refugee Division for a new determination. However, as MacGuigan J.A. held in Ramirez, supra, this Court may uphold the decision of the Refugee Division, despite the errors committed by the panel, if "on the basis of the correct approach, no properly instructed tribunal could have come to a different conclusion" (pages 323-324). In my opinion, under the standard articulated in Ramirez, supra, it is not necessary to send this matter back to the Refugee Division for a new determination for no properly instructed tribunal could come to any other conclusion than that there were serious reasons for considering that the appellant had committed crimes against humanity.
2. Did the visa officer fail to exercise his jurisdiction by delegating the assessment and decision-making process to another visa officer?
[36] The Applicant contends that at least the English and personal suitability assessments were conducted by Ms. Proleeva rather than by the visa officer. By so doing, the visa officer in fact delegated his statutory responsibility.
[37] In Silion v. Canada (Minister of Citizenship and Immigration), (1999) 173 F.T.R. 302, [1999] F.C.J. No. 1390 [Silion], MacKay J. stated:
[para. 10] This case concerns a decision to refuse a visa. The decision was clearly made by the visa officer, as he avers in his affidavit. This is supported by the affidavit of the IPO and further by the applicant's own affidavit which acknowledges that when she was advised of the decision to refuse her application she was told that the immigration officer made the decision, not the IPO.
[para. 11] The decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here that followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the applicant.
[38] Chin v. Canada (Minister of Citizenship and Immigration), (2002) 223 F.T.R. 214, [2002] F.C.J. No. 1296, was an application for judicial review of a decision where a representative of the Minister of Citizenship and Immigration declined the applicant's request for permanent residence in Canada. In dismissing the application, Heneghan J. confirmed MacKay J.'s foregoing comments and stated:
[para. 21] On the basis of these authorities, I am of the opinion that the decision here under review does not attract the principle that he who hears must decide. This is an administrative decision involving the exercise of considerable discretion, similar to the circumstances in Silion, supra. In my opinion, the procedure followed in this case was procedurally fair.
[39] In light of the above decisions, I cannot see what it is in the visa officer's conduct that equates to him not having exercised his jurisdiction. Although I am of the opinion that the visa officer should have indicated the fact that the CAIPS notes above his had been taken down during Ms. Proleeva's interview with the Applicant, the fact that he read them, discussed them with Ms. Proleeva and than proceeded with an interview of the Applicant himself, confirms that he made the ultimate decision as to the refusal of the Applicant's application.
[40] The Applicant submits that Ms. Proleeva did much more than simply gather information for the visa officer. According to him, the following CAIPS notes show that she made the determination and assessment that should have been made by the visa officer:
EXPLAINED DO PA THAT I MUST REVIEW MOTIVATION, RESOURCEFULNESS, INITIATIVE, ADAPTABILITY AND OTHER SIMILAR QUALITIES TO DETERMINE THE PERSONAL SUITABILITY OF PA TO BECOME SUCCESSFULLY ESTABLISHED (ECONOMICALLY) IN CANADA. ...
...
IN VIEW OF THE DEGREE OF KNOWLEDGE AND PREPARATION AS SHOWN BY THE ANSWERS AND DOCUMENTS PRESENTED DURING THE INTERVIEW, I FEEL THAT A TOTAL OF 3 UNITS OF PERSONAL SUITABILITY ACCURATELY REFLECTS YOUR CHANCES TO BECOME SUCCESSFULLY ESTABLISHED (ECONOMICALLY) IN CANADA
... I CONCLUDE THAT YOUR LIMITED KNOWLEDGE ABOUT CANADA DEMONSTRATES A LACK OF RESOURCEFULNESS AND INITIATIVE TO RESEARCH THE PLACE WHERE YOU WANT TO SETTLE.
...
FOR THESE REASONS I HAVE CONCERNS ABOUT YOUR ABILITY TO SUCCESSFULLY ADAPT TO THE CANADIAN ENVIRONMENT
...
[41] However, the CAIPS notes that follow the above notes are those taken by the visa officer:
HAVE SPOKEN TO PA AND HIS ABILITIES ARE WELL IN SPEAKING. HIS READING ABILITY IS WITH DIFFICULTY BASED ON THE READING TEST, HE SCORED 1/10 NOT FLUENT / WELL AS CLAIMED, PA IS UNABLE TO COMPREHEND A DOCUMENT OF A GENERAL, NON-ABSTRACT NATURE
AT MOST WILL GET 2 UNITS FOR LANGUAGE.
PA IS NOT WELL PREPARED FOR INTERVIEW AND BASED ON A REVIEW OF MOTIVATION, RESOURCEFULNESS, INITIATIVE, ADAPTABILITY AND OTHER SIMILAR QUALITIES TO DETERMINE THE PERSONAL SUITABILITY OF PA TO BECOME SUCCESSFULLY ESTABLISHED, 3 UNITS IS AN ACCURATE REFLECTION OF THIS ABILITY.
APPLICATION IS REFUSED BASED ON POINTS.
[42] As stated in the Respondent's Further Memorandum of Argument, although Ms. Proleeva was an immigration officer, she was not a designated immigration officer or otherwise authorized to refuse an application for visa when an applicant did not receive sufficient units of assessment.
[43] From my understanding, it seems that if that situation arose, Ms. Proleeva would have to "transfer" the case to an immigration officer with adequate authorization; the latter officer becoming the signing officer of the decision, as is the visa officer in the case at bar.
[44] The Applicant's submission to the effect that the CAIPS notes were in fact Ms. Proleeva's is irrelevant. During the visa officer's cross-examination on affidavit, he mentioned that Ms. Proleeva entered notes taken from her interview with the Applicant into a Word Perfect document, which notes the visa officer himself entered into the CAIPS system after his interview with the Applicant.
[45] The following passage taken from the visa officer's cross-examination on affidavit confirms that he neither committed a breach of procedural fairness nor fettered his discretion of the decision-making process (page 10):
MR. TANACK: Okay. Now, when you put Officer Proleeva's notes in the CAIPS system and then put your initials on them, was it your intention by doing that to adopt her notes as your own? And what I mean by that is that did you intend that - that, you know, how she conducted the interview, that you were satisfied with her conduct of the interview and that you were satisfied with all of her comments as evidenced by her notes?
...
A I would assume I've adopted them in terms of the information that she gathered.
MR. TANACK: Okay. She gave several opinions in those notes too. Did you adopt her opinions as well?
A No. I formulated my own opinion on an application if I'm assessing it.
[46] To allege that the visa officer cannot be said to have gone into the interview with an open mind, unaffected by the opinions, determinations and assessments made by Ms. Proleeva, is incorrect. After discussing the Applicant's file with Ms. Proleeva, the visa officer not only reviewed his file, but also interviewed him.
[47] I don't believe that the visa officer, during his interview with the Applicant, had an obligation to go through every element of information given previously to Ms. Proleeva.
[48] It seems obvious to me that one of the visa officer's main concerns was the Applicant's English ability. Ms. Proleeva and the visa officer seem to agree that the English speaking ability of the Applicant could be characterized as "well". However, on his English reading test, the Applicant correctly answered one question out of 10. I went through the said reading test, and from his answers, it is clear to me, as it was to the visa officer, that the Applicant was unable to grasp the elements of a general text.
[49] As to the parties' contradictory evidence with regard to the length of the interview, I am afraid that the Applicant's evidence is inconsistent. In his affidavit, he argues that the visa officer's portion of the interview only lasted a "few minutes", and that at the end of the interview he told the Applicant that he should improve his English ability and apply again.
[50] However, during his cross-examination on affidavit, the Applicant states:
Q Do you remember how long that interview lasted?
A More than 20 minutes.
...
Q. In that paragraph, you say the female officer left the room and then came back in with a white man, the male officer, is that correct?
A Yes.
Q Okay. How long had the interview been going on at that time?
A Half of the time - more than 20 minutes. The [reading] test took about ten minutes, and then the talk [with Ms. Proleeva] lasted about 10 to 15 minutes.
...
Q When the officer left the room, ..., how long was she gone?
A No more than five minutes.
...
Q Did she explain why to you why she was leaving the room?
A She said she would like to discuss the matter with another person.
...
Q Now you've indicated that the male officer was in the room for about half of the interview; is that right?
A He was not present for the majority of the time. He came in and stayed there for about just five minutes. He just came in to give me a conclusion.
[51] From the Applicant's cross-examination, one can conclude: the entire interview, that is with Ms. Proleeva and the visa officer, lasted more than 40 minutes; of which the English reading test took 10 minutes; Ms. Proleeva's portion of the interview lasted 10 - 15 minutes; and she then went to see the visa officer for about five minutes. Accordingly, the visa officer's portion of the interview must have lasted anywhere between 10 - 20 minutes.
[52] I am therefore positive that in this 10 - 20 minute period, the visa officer was able to obtain sufficient information upon which to make a decision on the Applicant's suitability for immigration to Canada.
[53] Indeed, this is not a case like that of Muliadi, supra, wherein the decision to refuse the Applicant's application was made by a person other than by the visa officer. In that decision, Stone J. held:
[para. 18] Secondly, the evidence before us strongly suggests that the decision to refuse the appellant's application was made by a Government of Ontario official rather than by the visa officer. That evidence appears in paragraph 3(m) of the appellant's affidavit of February 25, 1984. It relates to what transpired at the appellant's interview of December 1982 by the visa officer. He states:
was told straight away by Mr. Lukie that my application was being refused and he showed me as constituting the reason therefore, a telex sent to him from what I understood to be the Province of Ontario, refusing my application. I asked him, why did he call me for an interview if an assessment by him was not to be made, and he said he was very sympathetic to my case, but he was sorry for as the decision was made by the authority who sent the telex, there was nothing he could do about it.... The interview left me with no doubt that the decision (or assessment) had not been made by him but rather by the person or authority who sent the telex and that he had neither authority or discretion in the matter. [Emphasis added.]
That evidence, as I have already observed, has not been contradicted in any way by the respondents.
[para. 19] It is elementary that the decision on the application had to be made by the visa officer and that it could not be delegated in the above fashion. The visa officer appears to have allowed it to be made by the person in Ontario from whom he received information regarding the viability of the appellant's business plan. Though he was entitled to receive information on that subject from that source it remained his duty to decide the matter in accordance with the Act and the Regulations. It was therefore a serious error to allow the decision to be made by the Ontario official rather than kept in his own hands where it properly belonged. That being so, I think the appeal should succeed on this ground as well.
[54] In any event, I am of the view that, after considering Ms. Proleeva's notes, not only did the visa officer interview the Applicant, he also raised his concerns about the Applicant's English language abilities and personal suitability before making a decision on his application.
[55] Therefore, it is my view that the visa officer properly exercised his jurisdiction.
3. Did the visa officer demonstrate a reasonable apprehension of bias in making his decision to refuse the Applicant's application?
[56] The proper test to be applied for determining the existence of a reasonable apprehension of bias was set out by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, at page 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, 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 a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. ...
[57] This comment was applied in immigration law, inter alia, by Lutfy J., as he then was, in Jiang v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1560 (F.C.T.D.) as stated at paragraph 4:
[para. 4] ...
... In Mohammad v. Canada, [1989] 2 F.C. 363 (F.C.A.), Mr. Justice Heald stated (at page 380) that the test is one of "... an informed person viewing the matter realistically and practically, ..." when he considered the reasonable apprehension of bias of an immigration adjudicator in the light of statements made by ministers in the House of Commons. ...
[para. 5] The principles of natural justice and procedural fairness apply to the visa officer's meeting with the applicant. The visa officer has a serious responsibility during such interview in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying. Similarly, for many applicants, particularly those from cultures substantially different from that of the person representing Canada, these interviews are also stressful. On balance, the visa officer, when challenged by inappropriate conduct by the persons being interviewed, must remain composed in maintaining an orderly meeting. The visa officer presides over the interview. As the decision-maker, the visa officer has the duty to provide, to the extent possible, a calm environment as the applicant attempts to meet the selection criteria.
[58] Also, in Manabat v. Canada (Minister of Citizenship and Immigration) 2002 FCT 712, Gibson J. held:
[para. 13] Counsel for the applicant urged that a review of the CAIPS notes would lead an informed person, viewing the matter realistically and practically, and having thought the matter through, to conclude that the decision under review was essentially made by program assistants, who had no authority to make the decision, and not by the visa officer who had the program officers' notes before him when he first considered the file, along with a draft refusal letter. In the result, it was urged, the visa officer could reasonably be presumed to have a reasonable apprehension of bias based on the advice coming forward to him.
[para. 14] In contrast, counsel for the respondent referred to the visa officer's affidavit filed on this matter and to the transcript of his cross-examination on that affidavit, and urged that I should accept the visa officer's sworn assurances that he in fact independently assessed the applicant's application and reached his own decision which, by chance, simply corresponded quite directly to the positions adopted by the program assistants. Counsel urged that, given the pressures on the visa officers at the Canadian embassy in Manila, the use of program assistants to assist in the management of a very heavy workload was only reasonable and that, therefore, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not perceive that the visa officer, whether consciously or unconsciously, would not decide fairly.
[para. 15] I prefer the position advocated on behalf of the respondent. The strategies adopted by the Canadian Embassy in Manila to manage the immigration workload were, I am satisfied, entirely reasonable. I find no basis whatsoever on which to doubt the visa officer's assurances that he, and he alone, made the decision that is here under review. Further, I find that he could not reasonably be perceived to have been biased in so doing.
[59] Furthermore, as this is an administrative decision, I find the previously cited comment of MacKay J. in Silion, supra, quite pertinent to this issue:
[para. 11] The decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here that followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the applicant.
[60] In the case at bar, I am of the view that an informed person viewing the matter realistically and practically would conclude that there was no reasonable apprehension of bias on the visa officer's part.
[61] I agree with the Respondent that the mere fact that the visa officer considered Ms. Proleeva's notes before making his decision on the Applicant's application and that his own assessment of the Applicant's personal suitability might have simply corresponded with Ms. Proleeva's, does not create a reasonable apprehension of bias.
ORDER
THEREFORE, this application for judicial review is dismissed. No question for certification.
(Sgd.) "Pierre Blais"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3904-02
STYLE OF CAUSE: JUN YAN FU v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: June 3, 2003
REASONS FOR ORDER AND ORDER: BLAIS J.
DATED: June 6, 2003
APPEARANCES:
Mr. Dennis Tanack FOR APPLICANT
Ms. Sandra Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Can-Achieve Consultants Ltd. FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada