Date: 20030213
Docket: IMM-4546-01
Neutral citation: 2003 FCT 161
BETWEEN:
MI SOOK OH
BORA OH
YOONHWAN OH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek judicial review of, and an order setting aside, the decision of an immigration officer made August 21, 2001, whereby the applicants' application for landing in Canada on humanitarian and compassionate grounds was refused.
[2] The applicants are citizens of the Republic of Korea. They arrived in Canada in November 1996 to visit Mrs. Oh's parents. They have continued to live in Canada since then. Mrs. Oh subsequently retained an immigration consultant and applied for an employment authorization for herself and student authorizations for her children, and she also applied for permanent residence for all three of them. An employment authorization was obtained in April 1997 and student visas were then obtained for her children, who commenced attending school and Mrs. Oh commenced working.
[3] The application for permanent residence was refused by early 1999.
[4] In February 1999, Mrs. Oh opened a business in Toronto which she operated until the summer of 2000 when she was charged with operating a common bawdy house in contravention of the Criminal Code. This charge, of which she professes innocence, was still outstanding when the decision in question, in August 2001, was made.
[5] In March 1999, Mrs. Oh met with an immigration officer at Pearson Airport who, after interviewing her, ultimately issued a direction pursuant to section 27(3) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, to conduct an inquiry. On January 12, 2000, Mrs. Oh filed an application for herself and her children for landing from within Canada on humanitarian and compassionate grounds. In March 2000, at the inquiry pursuant to section 27, an adjudicator determined that the applicants' immigration documents were fraudulent and that they were in Canada illegally. A deportation order was issued against them on March 5, 2001. The adjudicator's decision was the subject of an application for leave and judicial review in this Court, but that application was dismissed.
[6] On July 26, Mrs. Oh, with counsel and a translator, attended an interview with an immigration officer concerning the applicants' H & C application. Counsel in attendance with Mrs. Oh by sworn affidavit states that the officer made several comments, including:
i) when remarking that the children were not in attendance at the interview, the officer stated: "I guess children do not count". Counsel notes that the children had not been requested to attend and that the officer refused then and later to have the children attend.
ii) when discussing Mrs. Oh's criminal charge, the officer remarked: "I have processed lots of women that would work for someone like Mrs. Kim".
iii) following Mrs. Oh's reference to the fact that as the eldest daughter, she was responsible for the care of her parents who were not well, the officer commented: "Isn't that always the case? If the youngest daughter was here, she would be telling me that care giving is the youngest daughter's responsibility."
iv) with reference to Mrs. Oh's sister's marriage to a Canadian, the officer commented: "Isn't that what they do in that situation? Get married to a Canadian to avoid deportation?"
No objection to these remarks was made at the time of the interview. Then, counsel did provide the officer with documentation concerning the establishment of the applicants in Canada. Following the interview, counsel wrote a three page letter to the officer providing a synopsis of the case for the applicants, including reference to the factual background, financial support, the establishment of the applicants in Canada, and undue hardship they would face if they were returned to Korea.
Thereafter, August 21, 2001, the applicants' H & C application was refused.
In this application, it is urged that the officer misapprehended evidence and ignored relevant facts in several respects. For the most part, those concerns relate to the appropriate weight to be given to aspects of the evidence. The criticisms arise largely from summary notes prepared by the officer, dated the same day as the decision. The allegations that the officer failed to consider certain evidence are not borne out simply by reason of the fact that same evidence is not referred to in the officer's notes. To the extent that evidence was before the officer, the general assumption is that it was considered, and indeed, the notes do make reference most of the matters referred to by the applicant. Perhaps the one matter on which I would agree that the officer erred, concerns the officer's notes that indicate there was no evidence of upgrading of skills or community involvement by Mrs. Oh. There was in fact some evidence of upgrading, a claim to have taken English as a second language program which the officer did note, and a claim to have completed an aromatherapy program of the Canadian School of Natural Health Sciences. Further, there was evidence of her membership in and participation with a church in Toronto. However, that error by the officer was not a matter on which the decision was significantly based. It is not a ground for intervention by this Court.
A further error is alleged in relation to the officer's failure to interview the minor children of Mrs. Oh. It is well settled that an interview or a hearing is not required in connection with an H & C application. (See: Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 at 843). The failure to interview the children in this case was not an error in law. The applicants' concern is that the interests of the children may not have been adequately considered, i.e. the children's years of education in Canada, including the fact that the son had received all formal education in this country, and the difficulties they would face on return to Korea. Yet those matters are clearly referred to as considered in the officer's notes. In my view, the applicants' concerns relate to the weight to be given to the evidence about the children. In the circumstances, there is no basis to find legal error, or unfairness, in the process because it did not include interviews of the child applicants.
The principle argument, stressed at the hearing of this matter, is that the officer's remarks at the hearing, attested to by the affidavit of counsel for Mrs. Oh, were inappropriate and demonstrated prejudice and bias on the part of the officer in the consideration of the applicants' application. The officer concerned, by his affidavit, does not acknowledge that the comments complained of were made, but at the same time does not directly deny them. In the circumstances, I am prepared to accept the evidence by Mrs. Oh's counsel, in attendance at the hearing, about comments that were then made.
At the very least, such comments seem to be inappropriate. The reasonable person looking on at the time of the interview might well have had a reasonable apprehension of bias. That apprehension could arise from the perception that there might be a denial of natural justice by a decision maker who was not deemed to be impartial. For purposes of this decision I find a reasonable apprehension of bias was raised by the officer's comments.
[13] When a reasonable apprehension of bias arises in the course of a hearing of a tribunal, or an interview by an immigration officer, whose decision has substantial significance for the person concerned, it may make the proceeding voidable. But where the person concerned is aware of the circumstances and of a reasonable apprehension, and of his or her right to object and fails to take advantage of a reasonable opportunity to do so, he or she may in effect waive the right to raise objection to the decision on grounds of bias after the decision is made. (See: Abdalrithah v. M.E.I. (1988) 40 FTR 306; See also Gill v. M.E.I. (1988), 5 Imm. L.R. (2d) 82 (F.C.T.D.).)
In Khakh v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 548 (T.D.), Mr. Justice Nadon, as he then was, allowed an application for judicial review of a decision of an adjudicator whose comments at a hearing were found by the learned judge to create a reasonable apprehension of bias, where no objection was made by the person concerned until the adjudicator's decision was subject to a judicial review. The application was allowed. I note that the learned judge specifically comments that in that case, the person concerned was not aware that the comments made by the adjudicator gave him the right to make an objection, and had the applicant been represented by legal counsel who could be expected to object, to perceived bias at an early opportunity, but did not do so, the determination might have been different.
In Khakh, Mr. Justice Nadon reviewed authorities and a number of treatises whose authors discuss the concept of waiver. Among these Dussault and Borgeat in Administrative Law: A treatise, Vol. 4, 2nd ed., (Toronto: Carswell, 1990) at pp. 296-7 comment as follows:
At common law, it is also a fundamental rule of natural justice that an agency or inferior tribunal manifest neither bias nor interest: nemo judex in sua causa. Contrary to actual bias, which as we have seen affects the tribunal's capacity to act and therefore may impair its jurisdiction, mere apprehension of bias will remove capacity to act only if it is invoked within the time frame available.
David J. Mullan in Administrative Law, Title 3, Vol. 1 of the Canadian Encyclopedic Digest, 3rd ed., (Ontario, Carswell, 1979) comments at p. 57:
A possible defence to an allegation of bias is waiver. If a party to proceedings, with full knowledge of all the facts, consents nevertheless to the continued presence of an adjudicator in whom there is a reasonable apprehension of bias, that person is precluded from subsequently complaining about the particular adjudicator's presence and participation in the decision-making process. Indeed, a failure to object has at times been held sufficient to constitute a waiver of any future right to complain.
In this case, the comments now complained of in this application for judicial review were made at an interview when counsel was present, and no objection was then made. Nor was objection made following the interview when counsel wrote to the officer concerned to provide further written submissions in support of the applicants' application. Concern about apprehended bias was first raised when the application for leave and for judicial review was filed, some forty days after the decision in question and more than two months after the interview was held.
In the circumstances, there is no doubt that the applicant, assisted by counsel, had ample opportunity to object to any apprehension of bias on behalf of the immigration officer. Failure to do so, with reasonable despatch, implies acquiescence in the process followed by the decision-maker. That implied acquiescence may, in effect, be considered as waiver of the right to contest validity of the proceedings. In my opinion, the applicants in this case impliedly acquiesced in the procedure of the interview by failing to object at or reasonably after the interview. By so doing, they waived any right to object when the application for leave and judicial review was filed.
Conclusion
The Court, by separate order, orders that the application for judicial review is dismissed.
Counsel propose no question for certification pursuant to paragraph 74 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, as a serious question of general importance. No question is certified.
"W. Andrew MacKay"
JUDGE
OTTAWA, Ontario
February 13, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4546-01
STYLE OF CAUSE: MI SOOK OH et al v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 16, 2002
REASONS FOR ORDER : The Honourable Mr. Justice MacKay
APPEARANCES:
Young H. Lee FOR THE APPLICANTS
Amina Riaz FOR THE RESPONDENT
SOLICITORS OF RECORD:
LEE TOMLINSON FOR THE APPLICANTS
TORONTO, ONTARIO
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA