Mengesha v. Canada ( Minister of Citizenship and Immigration )
IMM-3272-98
Nadon J.
31/8/99
22 pp.
Judicial review of visa officer's refusal of Convention refugee status-Applicant, citizen of Ethiopia, alleging persecution on basis of membership in Eritrean ethnic group-Applicant interviewed four times by visa officer-No transcript of interviews-Evidence before visa officer totally insufficient to make out claim-Applicant submitting visa officer misapplied Convention refugee definition by basing decision on erroneous fact applicant could have resided in either Eritrea or Ethiopia-Evidence applicant attending school in Eritrea, where mother lived, upon which visa officer basing decision, provided to her by applicant-From this visa officer concluding no reasons to prevent him from residing in either Eritrea or Ethiopia-Conclusion neither made capriciously nor constituting error-Applicant further submitting visa officer ignoring statement claim based on membership in particular social group, namely family-Again, based on evidence before her, visa officer not making reviewable error-Applicant not adducing any evidence to support claim-Applicant submitting conduct of, statements by, visa officer during interviews demonstrating reasonable apprehension of bias-Applicants' sisters, who attended interviews with applicant, alleging incidences of bias during interviews with visa officer-Visa officer completely denying allegations-In Jiang v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 230 (F.C.T.D.), Lutfy J. setting aside visa officer's refusal of application for permanent residence on basis visa officer's actions creating reasonable apprehension of bias where visa officer admitted telling applicant's wife to "shut up" so that visa officer could check his English-Lutfy J. stating visa officer must maintain level of decorum conducive to open, fair exchange during time in which applicant attempting to meet selection criteria-Jiang distinguishable in that visa officer therein denying neither accusations about her demeanour during interview nor language attributed to her-Visa officer herein denying most of accusations made against her-Additionally, nothing visa officer alleged to have said created type of environment not conducive to open, fair exchange-In Varaich v. Canada (Minister of Employment and Immigration) (1994), 75 F.T.R. 143 (F.C.T.D.), Tremblay-Lamer J. determining adjudicator's behaviour, although at some points hostile, abrupt, not giving rise to reasonable apprehension of bias-Holding sarcastic, harsh language not in themselves sufficient to find denial of natural justice-Only remarks not expressly denied by visa officer herein: "You are only here because the Canadian High Commission accepted your sisters"; "Do you think that the Canadian High Commission in Jamaica is a train station?" (asked scornfully); "If we accept him [applicant] you will bring another brother"-Visa officer's strong opposition to false claims cannot, in itself be taken as indication of bias or as giving rise to reasonable apprehension of bias-Allegations simply showing visa officer frustrated, impatient-Visa officer appears to have used harsh tone, made intemperate remarks-Decision should only be set aside if applicant establishing visa officer's conduct, words such that would lead "informed person" to conclude visa officer would reach conclusion on basis other than evidence-Informed person, viewing matter realistically, practically, having thought matter through, would not on evidence herein, reach that conclusion-No explanation for applicant not filing affidavit-Applicant ought to have filed affidavit in so far as issue of reasonable apprehension of bias concerned-Since burden of proof on issue resting with applicant, and since not filing affidavit, applicant not meeting burden of proving visa officer's conduct, statements raising reasonable apprehension of bias-Application dismissed.