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Reasonable Apprehension of Bias in Immigration/Refugee-Related Decision Making: High Thresholds and Reticent Engagement

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In this long read, I thought it would be interesting to tackle an area I am quite interested in – the legal concept of ‘reasonable apprehension of bias’ and how it applies to Federal Court decisions where counsel are raising this argument. I focus this piece on Federal Court decisions issued in 2018 (one is a FCA decision).

My early thesis is that as administrative burdens on the Government increase along with a growing demand on immigration to Canada (which subsequently will increase the requirement to removal individuals who have ‘fallen out of favour’ – either by status or admissibility), more decisions may be perceived by applicants of demonstrating bias or being grounded in biased policies.

Simultaneously, we may see a subsequent increase in counsel going after the procedural fairness of a decision, on the basis of alleged bias.

What is the current state of the law? How does this all play out?

What is a Reasonable Apprehension of Bias

The test for Reasonable Apprehension of Bias was recently restated by Justice Gagné in Alcina Rodriguez v. Canada (Citizenship and Immigration), 2018 FC  995 (CanLII):

[34]  The test to determine whether there is a reasonable apprehension of bias is established by the Supreme Court of Canada in Committee for Justice and Liberty et al. v National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at page 394, and confirmed in Baker at paragraph 46:

…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.”

[35]  An allegation of bias must be supported by convincing evidence and cannot be made lightly. The burden of proof is on Mr. Rodriguez, and the threshold to be met is high (Fouda v Canada (Immigration, Refugees and Citizenship), 2017 FC 1176 (CanLII) at para 23). In essence, he must demonstrate that the decision-maker was closed-minded and not open to persuasion.

Emphasis added.

Another common setting out of the test of bias quotes from R v. S RD) 1997 3 SCR 484 which can also be found in Justice Brown’s decision in Kamal v. Canada (Immigration, Refugees and Citizenship), 2018 FC 480 (CanLII), at para 32. In the decision, he endorses Justice Kane’s setting of the test in Poczkodi v Canada (Immigration, Refugees and Citizenship), 2017 FC 956(CanLII) at para 50:

[48]  In R v S (RD), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, 151 DLR (4th) 193 [RDS], at para 113, Justices L’Heureux- Dubé and McLachlin referred to the test and noted that the threshold for a finding of real or perceived bias is high, explaining that “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.” The Court cautioned that allegations of bias are serious and should not be made lightly. The same principles apply to allegations against other decision makers.

As set out in Wewaykum Indian Band v Canada, 2003 SCC 45 (CanLII), [2003] 2 SCR 259, recently re-iterated by Justice Strickland at para 27 in Yuan v. Canada (Citizenship and Immigration), 2018 FC 755 (CanLII),  the test is not whether there was any conscious or unconscious bias or to utilize it to fill evidentiary gaps, but to view it from the viewpoint of the objective ‘reasonable person’:

66  Finally, when parties concede that there was no actual bias, they may be suggesting that looking for real bias is simply not the relevant inquiry.  In the present case, as is most common, parties have relied on Lord Hewart C.J.’s aphorism that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (The King v. Sussex Justices, Ex parte McCarthy, [1924] 1 K.B. 256, at p. 259).  To put it differently, in cases where disqualification is argued, the relevant inquiry is not whether there was in fact either conscious or unconscious bias on the part of the judge, but whether a reasonable person properly informed would apprehend that there was.  In that sense, the reasonable apprehension of bias is not just a surrogate for unavailable evidence, or an evidentiary device to establish the likelihood of unconscious bias, but the manifestation of a broader preoccupation about the image of justice.  As was said by Lord Goff in Gough, supra, at p. 659, “there is an overriding public interest that there should be confidence in the integrity of the administration of justice”.

[Emphasis in original]

In Abdi v. Canada (Public Safety and Emergency Preparedness), 2018 FC 733 (CanLII), <http://canlii.ca/t/ht3wq> at para 48, Justice McDonald reminds that the threshold is extremely high:

[48]  The threshold to establish bias is high. The party alleging bias must do more than “hint” that the outcome is tainted (Turoczi v Canada (Citizenship and Immigration),2012 FC 1423 (CanLII) at paras 11-17 [Turoczi]). There must be an evidentiary foundation in support (Zundel v Citron, 2000 CanLII 17137 (FCA), [2000] 4 FC 225 (FCA) at para 36; Southern Chiefs Organization Inc. v Dumas, 2016 FC 837 (CanLII) at para 46).

We also know that:

“a reasonable apprehension of bias does not arise merely because the same officer has made the decision on the different processes whereby an applicant seeks legal status in Canada.”

[IRB Legal Policy Guide – https://irb-cisr.gc.ca/en/legal-policy/legal-concepts/Documents/SpoPar11_e.pdf – citing Kouka, Serge v. M.C.I. (F.C., no. IMM-1823-06), Harrington, October 17, 2006; 2006 FC 1236.}

2018 FC Decision Citing the Reasonable Apprehension of Bias in the Context of Immigrants and Refugees

In this data set, I looked at 19 cases that directly mentioned “reasonable apprehension of bias.” Fourteen are immigration and refugees cases and one is in the context of a CSIS matter, but significantly similar so I included it.

The cases are included in numerical order, from earliest in the year to latest in the year. I acknowledge that there could be other ones that address bias under procedural fairness. In narrowing the list, some decisions where reasonable apprehension of bias were raised at earlier tribunal levels but not raised to the Federal Court, were excluded. Those cases where the Court acknowledged but did not directly address the arguments were also included.

Given the above, how did the reasonable apprehension of bias argument fare in 2018 judicial reviews related to immigration? Out of the 19 cases analyzed,  not a single ‘reasonable apprehension of bias’ argument, was altogether responsible for the granting of a judicial review. Indeed, in the large number of cases where JR was dismissed, the analysis of the failure of the argument was more robust compared to those where JR was allowed (see Analysis below).

I tried to provide a brief quasi-summary where there wasn’t a paragraph in the decision that did it clearly. Some descriptors are longer than others for that reason

I also decided to go with replicating portions of decision that addressed reasonable apprehension of bias as opposed to attempting to summarize the decision. This choice was made consciously to allow us to look at the exact wording.

[1] Malit v. Canada (Citizenship and Immigration), 2018 FC 16 (CanLII), <http://canlii.ca/t/hppb2> – McDonald J. – JR Dismissed.

The Applicant (a Filipino national) was refused a study permit as the accompanying spouse of a study permit holder on the basis of financial inadmissibility (s.39 IRPA).

On the question of whether the Officer demonstrated a reasonable apprehension of bias, Justice McDonald writes:

[18]           Although the Applicant suggests that the Officer was operating under a bias, the Applicant was not able to identify any evidence or indication on the record which would support this contention.

…….

[21]           Here the Applicant’s assertions of bias are not substantiated by any evidence. Therefore the Applicant’s bias arguments are without merit.

[2] Oyejobi v. Canada (Citizenship and Immigration), 2018 FC 107 (CanLII), <http://canlii.ca/t/hq5jv> – Ahmed J. – JR Granted.

The Applicant’s (a Nigerian national) judicial review of a  RAD decision upholding a RPD rejection of a protection claim based on sexual orientation. RPD member noticed similarities of BOC with that of another claimant. Applicant tried to have RPD member recused. Decision was refused on negative credibility. Applicant argues that there a reasonable apprehension of bias, erred credibility assessment, and failure to analyze Applicant’s claim under s.97. Justice Ahmed reclassifies the issue as whether there was a breach of procedural fairness and focuses attention on RAD’s failure to determined whether RPD followed Rule 27 of the RPD Rules by not notifying Minister.

[3] Hosseini v. Canada (Immigration, Refugees and Citizenship), 2018 FC 171 (CanLII), <http://canlii.ca/t/hqhd0> – O’Reilly J. – JR Granted.

The Applicant (an Iranian national) found inadmissible pursuant to s.34(1)(d) IRPA, re: an Iranian chemical engineer who was formerly worked for the National Iranian Oil Company Company (NIOC). Justice O’Reilly finds that the decision was procedurally unfair and in doing so does not address the Applicant’s third argument on reasonable apprehension of bias.

[5]  The issues are:

  • 1.Did the officer treat Mr Hosseini unfairly?
  • 2.Was the officer’s conclusion unreasonable?

[6]  The applicants also argued that the officer’s analysis gives rise to a reasonable apprehension of bias. In light of my rulings on the first two issues, it is unnecessary to address the question of bias.

[4] Mathurin v. Canada (Immigration, Refugees and Citizenship), 2018 FC 172 (CanLII), <http://canlii.ca/t/hqg19> – O’Reilly J. – JR Dismissed.

The Applicant (a St Lucian national) was an H&C PR applicant who had a previous refugee claim refused on credibility and also a prior H&C refusal. Her argument was that the Officer’s reason gave rise to bias in the analysis of the birth of her children in Canada (similar type argument to the seminal case of Baker). Justice O’Reilly dismisses the argument and defends the Officer’s assessment, ultimately denying the JR.

[3]  Ms Mathurin argues that the officer’s decision was unreasonable because it overlooked important evidence supporting her application. She also maintains that the officer’s reasons give rise to a 

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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