By Sukhram Ramkissoon

Under Canadian immigration law, a spouse of a Post Graduate Work Permit holder may apply for an open work permit with certain requirements to be met by that applicant.  We will examine a case belonging to that category.    

The applicant, Sanjay – not his real name – is a citizen of India. In early 2019, he married his spouse, Kemani – not her real name, who is an Indian citizen, and works in Canada on a Post-Graduation Work Permit.

Sanjay applied for an open work permit basing his application on this legislation. This was his second work permit application. He also previously applied three times for a temporary resident visa, and all were refused.

Sanjay’s application was refused after a Visa Officer interviewed him and his spouse at the High Commission located in New Delhi, India. The Officer doubted the genuineness of their marriage and found that Sanjay is inadmissible to Canada for five years, because of misrepresentation. Sanjay challenged this decision by seeking judicial review.

Sanjay argued that the officer’s decision was unreasonable and lacked procedural fairness.  In support of his judicial review application, Sanjay and Kemani each submitted an affidavit about what transpired at the interview. The court found that this evidence is relevant to the procedural fairness issue raised and therefore admissible.

In addition to the interview notes, which did not correctly reflect Sanjay’s answers, he alleged that:

• the interpreter he brought to the interview was told to leave before it began.
• the interview was conducted in Hindi, not Punjabi as stated in the Global Case Management System [GCMS] notes which form part of the reasons for the decision.
• the interviewer cut him off before he could complete some of his answers.
• the interviewer told him to speak slowly but then said that he was taking too long to answer; and
• the interviewer was rude, did not want to hear from them anymore, indicated she had no more time for them, told them to get lost, invited someone else into the interview room while they were stll there, and threatened to ban Sanjay for five years if they did not leave.

Kemani also disputed the accuracy of the interview notes regarding her answers and made similar allegations about the rudeness, abrupt manner, threats and unprofessionalism of the Visa Officer.  She also corroborated Sanjay’s evidence stated in his affidavit.

The court found that the determinative issue in this case was the lack of procedural fairness based on a reasonable apprehension of bias.

The Minister argued that the GCMS notes should be preferred because they were made contemporaneously, while the affidavits of Sanjay and Kemani were made about five months after their interviews.  The judge replied, “I imagine, however, that if the interviews were conducted in the manner described in the affidavits, Sanjay and Kemani would not forget the experience easily.” Further, the Minister admitted that if the interviews transpired as described, “then the Visa Officer’s behaviour was outrageous and amounted to conduct unbecoming”. It was also noted that the Visa Officer did not file an affidavit to rebut the allegations of Sanjay and his spouse, nor were they cross examined on the same.

The learned judge found that Sanjay has established a reasonable apprehension of bias.  The test, as stated in case law is, “what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude? Would [they] think it is more likely than not that the decision-maker whether consciously or unconsciously would not decide fairly? There is a rebuttable presumption that a tribunal member will act fairly and impartially. Suspicion alone of bias is not enough; a real likelihood or probability of bias must be demonstrated (by the person alleging bias) and the threshold for a finding of real or perceived bias is high.”

The judge stated that in his view, Sanjay’s fresh evidence meets this high threshold. The uncontroverted and direct affidavit evidence of both Sanjay and his spouse demonstrates, at the very least, perceived bias on the part of the Visa Officer.  This warrants the Court’s intervention and granted judicial review, setting aside the Visa Officer’s decision remitting it to a different Visa Officer to conduct a new interview and determine the matter afresh.

As a result of the judge’s decision, this visa officer, in my view, should be disciplined regarding his behaviour and direct actions.   It is hoped that the Minister of Immigration, Refugees and Citizenship Canada is aware of this decision and has taken the appropriate action.  It is hoped Sanjay and his spouse, including others in similar situations, are not be penalised in the future.

Good luck Sanjay and Kemani.

SUKHRAM RAMKISSOON is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.