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I have a tradition every year of listening to the same Death Cab for Cutie song, The New Year.
“So this is the new year
And I have no resolutions
For self assigned penance
For problems with easy solutions”
The pursuit of ‘easy’ seems to be the antithesis of my current path. In 2021 (after a late 2020 move), I started a new Firm and had a new baby, each of which has taken it’s relative toll. I’m ready for a reset, a change of focus, and a quieter year. I look forward to announcing those details in early February.
Gratitude for another Clawbies Win
I was definitely pleasantly surprised that I received another Clawbies (my third!) for Best Law and Commentary Blog in Canada. This year’s award is dedicated to my readers. Without the engagement, I’ve received on topics such as Chinook and our broader policy discussions, I would not have had the motivation to write. This year, my writing was split largely between this blog and my Firm’s blog.
I suspect 2022 to bring similar things, but I definitely realize how much I miss regular writing after my brief hiatus. I am going to try my best to spend my mornings writing – as regularly as I can amid my year focused on system-building, conference organizing, and too much creative day-dreaming (more on that to come too).
Question of 2022: Question of Inequity, Technology, and If (or How) the Courts Will Respond
If I were to crystal ball the central and most pressing issue in 2022, I would suggest it is that of the inequity, particularly technology facilitated inequity, that the current Canadian immigration systems have created. The follow-up question will be how (if at all) the Courts will choose to respond to these arguments, which should be brought forward more.
The Supreme Court of Canada in Vavilov has emphasized the importance of individual’s affected by a decision to be able to present their case fully and fairly. What does that mean within a system that appears to be molding what that means.
 The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
Let me give just a few examples of where I think there is clear system-built inequity. Study plans – for many of my clients in the Global South are not required documents for all applicants. Indeed, my colleague Patrick Bissonnette and I are preparing for a webinar in March where we will explore how there appears to quite a discrepancy between the instructions directed at applicants depending on visa office. Even more troubling, some applicants from high refusal visa offices are not given clear and complete instructions on what such letter should even include, or ultimately recommended to keep their plans to 1 or 2 pages. On the back end, cases (both where IRCC was successful and unsuccessful) are increasingly going after the ‘vague’ nature of the study plans submitted. This vagueness is entirely created by the system, but with ultimate consequences being borne by the Applicant.
I would suggest the same concern is raised about IRCC’s temporary resident portals, limiting uploads to 2MB for applicants. The reality is that 2MB isn’t fair where each visa office has vastly different requirements. In addition to study plans, many applicants from high refusal countries also need to add additional documents about their parents, sources of income, and ties. As we uncovered in our discussion of VESPA for TRV-exempt countries, cases are prima facie approved at a rate of 95+%. For those clients from high refusal countries, they struggle to be able to legibly combine documents and even properly categorize them under the new portal. I have spent much of the later part of 2021 having to re-apply and pursue legal remedies for folks who used the temporary resident portals, where their submissions were reduced and attachments had to be randomly submitted in a way a visa officer would likely have missed.
The other big question comes in the rollout of the use of AI (the China and India TRV model) to other visa officers and lines of work. For IRCC these systems have been working great, but on the other side we’re seeing only the back end of either quick approvals or refusals with very limited justification (as a result of Chinook’s use on the back-end). My hope is that in addition to a bit more transparency (and independent oversight) on the AI system expansion process, that IRCC can do proper outreach on the ongoing use of Chinook or Chinook’s pending replacement.
We have to remember that the Courts too are (and I have to say I am very pleasantly surprised, some what crushing) the recent move to technology. Still, AI and the administrative choices surrounding use of technology will be a whole new conversation to be had. My hope is that this conversation is not simply about deference to the experts. The experts themselves need to ensure their systems do not reproduce yesterday’s inequities.
I will be doing a lot of writing on this in 2022 and cannot wait to share what I uncover!
Ttfn. 2022 let’s go.
Much like we knew very little about #Chinook until recently, we are now learning more about a March 2020 Program Delivery Instruction [PDI] (with a June 2021 update) on a decade-old IRCC initiative called #VESPA.
VESPA has existed for a decade, but much of it’s existence has been behind relative closed doors. It was introduced to streamline processing for those from visa-exempt countries, but with the expansion of that list (via the Electronic Travel Authorization) regime and the movement towards e-APPS system large, it morphed into another ‘secret’ internal tool utilized at certain IRCC visa offices.
Now that an ‘internal only’ PDI has come to the forefront, it is an appropriate time to revisit VESPA and why I think it exemplifies the type of two-tiering of temporary residents that will become the trend moving forward. It also serves as an antithesis to Chinook, and not unlike Chinook, raises questions about why it is being kept under wraps and what the implications are if it entered greater public consciousness.
What We Knew Before – VESPA as a Pilot for Online Applications
IRCC first launched VESPA in 2011 to operate in 14-visa exempt countries. It was announced by Operational Bulletin 304 – May 2, 2011.
The eligibility criteria were established as follows:
It appears that at the the time, the big ‘advantage’ of VESPA was that the applications were streamlined online. This is re-iterated in a September 2012 presentation by then CIC.
A 2015-2016 Evaluation of IRCC’s Internatoinal Student Program similarly lauded VESPA as part of a modernization initiative for workload redistribution:
There are a variety of modernization initiatives that
CIC has implemented over the past several years,
and more initiatives are planned. Many of these
initiatives are designed to have a positive impact on
the processing of study permits and study TRVs,
including e-Application, e-Medical, GCMS, workload
distribution (e.g. VESPA), VACs and other facilitation
measures for international students such as the
Student Partner Program (SPP). It is difficult to
isolate the impact of particular modernization
initiatives and report on these distinctly in relation to
Seemingly and as stated by CIC in Operational Bulletin – 486 in December 2012, the introduction of e-Apps effectively ended the VESPA pilot.
Or so we thought.
What We Know Now – VESPA Transformed into a Powerful Tool to Approve Applications
From internal only March 2020 program delivery instructions I received from an Access to Information request, we learn that VESPA not only still exists but has transformed into an even more powerful tool.
I am sharing the instructions from the final draft versions, as the final version I received contained redactions that were answered by the draft versions. This shows the contours of what VESPA now does – streamline straight-forward applications to in-Canada processing, and ultimately supporting an approval for these applicants.
Recall, other than Barbados in the Caribbean, these countries are noticeably Global North and noticeably White.
An internal email between IRCC policy folks on the removal of the age requirement, reveals both that the program is an expedited SP processing stream for citizens and residents of visa-exempt country to apply for an SP from outside Canada AND that the PDI is not accessible to the general public.
We learn that VESPA has been in the works since late 2019 and that originally it was a mission (read: visa office) specific process for low-risk SP applications.
In June 2021, the instructions were further updated to remove the age requirement as a primary change while maintaining the requirement to be both a citizen and resident of a visa-exempt country and applying electronically for a study permit while overseas.
One interesting question is whether the country list has expanded and arguably it has. I am certainly interested in learning whether VESPA is now for all eTA countries and as we move forward whether this creates a proverbial splitting of approval rates. IRCC policy team’s comment that citizenships were added suggests that this list likely is much longer than 14 countries.
Our statistics from 2020, and taking into account an IRCC policy team member’s comment that VESPA is not the same as SDS, of which all the countries are visa-requiring. If we compare only the 14 countries on the original VESPA list and compare it to the SDS list (noting that not all applications from citizens of each of these countries are VESPA or SDS), this type of divide becomes abundantly clear. It also shows how VESPA files likely do not contribute the same type of volume that SDS contributes.
Citizens from VESPA countries had a 96% study permit approval rate in 2020 (Jan – Nov), with only Iceland’s approval rate deviating from the 90%+ norm. Meanwhile SDS countries produced a below 50% approval rate. I do not have the SDS approval stats, but again I would be grateful if anyone could provide those to me.
Implications of VESPA
What VESPA suggests to me, alongside what we are learning more about from Chinook, is that your vital statistics – what citizenship you hold, where you live, and what you are applying for may ultimately become the determinants for whether or not you are approved in Canada.
VESPA raises many questions: namely, why is preferential treatment being given to folks who may not even hold eTAs and never been to Canada, but those who hold TRVs are often being refused study permits? We know programs such as CAN+ exist but these have not factored into study permit refusals, which refuse often on the change in purpose from visiting to studying.
On that point, other than the eTA being more accessible than a TRV and easier to obtain, in what ways does VESPA actually speak to the merits of a study permit applicant?
Study permit applicants must demonstrate per R.216(1) IRPR that they will leave Canada the end of their authorized stay. They are refused, however, largely on their intention to study, their employment and career prospects, their family ties, the availability of their financial support, their travel history, and their immigration status.
There’s very little in VESPA nor in a logical sense, to suggest that a student from a Global North/largely White country is a more genuine/bona fide student able to facilitate their ability to leave Canada at the end of their stay. In essence, VESPA has removed the study permit considerations out of the study permit for those who are on the current, undisclosed, list.
A final question I would raise is – why is this program being held under wraps and internal only? Much like #Chinook which I still view and see as IRCC’s refusal mechanism for Global South applicants in high volume countries, the antithesis #VESPA seems to be the privilege pass.
Why not disclose that certain countries hold privileged status (I mean, we already have an eTA/TRV required list)?
Is there something about these instructions that fundamentally does not accord with what the public might perceive – i.e. – that VESPA undermines the very foundation of the study permit regime by granting approvals for folks who do not need to even demonstrate their ability to meet the requirement of the Act and Regs?
Lots of food for thought. Perhaps I have opened up a lid of something that was brewing deep in IRCC’s fridge. It’s time to check out what’s actually in the pot.
In September 2021’s issue of Lexbase, my mentor Richard Kurland, provides further insight into what happens behind the scenes of Immigration, Refugees, and Citizenship Canada (“IRCC”) processing, specifically providing a section titled: “Overview of the Analytics-Based Triage of Temporary Resident Visa Applications.”
At the outset, a big thank you to the “Insider” Richard Kurland for the hard digging that allows for us to provide this further analysis.
What the Data Suggests
I encourage all of you to check out the first two pages from the Lexbase issue, as it contains direct disclosure from IRCC’s Assistant Director, Admissibility opening up the process by way Artificial Intelligence is implemented for Temporary Resident Visas (‘TRVs’), specifically in China and India, the two countries that have implemented it so far. By way of this June 2020 disclosure, we confirm that IRCC has been utilizing these systems for online applications since April 2018 for China, August 2018 for India, and for Visa Application Centre (“VAC”) based applications since January 2020.
To summarize (again – go read Lexbase and contact Richard Kurland for all the specific details and helpful tables), we learn that there is a three Tier processing system in play. This filters the simplest applications (Tier 1), medium complexity applications (Tier 2), and higher complexity applications (Tier 3). While human officers are involved in all three Tiers, Tier 1 allows a model to recommend approval based on analytics, where as Tier 2 and Tier 3 are flagged for manual processing. IRCC claims that the process is only partially automated.
The interesting factor, and given we have been as a law firm focusing a lot on India, is how the designated of a Tier 2 file drives the approval rates from the high nineties (%) to 63% for online India apps to 37% for India VAC applications. Moving to Tier 3, it is only 13% for online India and 5% for India VAC. The deeming of a file Tier 3 appears to make refusal a near surety.
What is fascinating is how this information blends usage of “Officer Rules,” the first stage filter which actually precedes the computerized Three Tier triages and is targeted at cases with higher likelihood of ineligibility or inadmissibility.
The Officer Rules system would be the system utilized at other global visa offices that do not use the computerized AI decision-making of India and China. Looking specifically at the case of India, the Officer Rules system actually approves cases at a much higher rate (53% for online India, and 38% for India VAC).
These rates are in-fact comparable to Tier 2 moderately complex cases – ones that presumably do not contain the serious ineligibility and inadmissibility concerns of Officer Rules or Tier 3 . It suggests that the addition of technology can sway even a moderately complex case into the same outcomes as a hand-pulled out complex case.
Ultimately, this suggests that complete human discretion or time spent assessing factors can be much more favourable than when machines contribute to overall decision-making.
It Comes Down to Oversight and How These Systems Converge
Recently, we’ve been discussing in Youtube videos (here and here), podcasts, and articles about IRCC’s Chinook system for processing applications. Using an excel-based model (although moving now to an Amazon-based model in their latest version), applicants data are extracted into rows, that contain batch information for several applicants, presumably allowing for all the analytics to be assessed.
Given we know IRCC takes historic approval rates and data as a main driving factor, it is reasonable to think Immigration Officers are given these numbers as internal targets. I am sure, as well, that with major events like COVID and the general dissuasion of travel to Canada, that these goalposts can be moved and expanded at direction.
An excel-based system tracking approvals and refusals likely put these stats front and centre to an officer’s discretion (or a machine’s) on an application. Again to utilize a teaching analogy (clearly I miss teaching), I utilized a similar ‘Speedgrader’ type app which forced me, mid-marking, to often to revisit exams that I had already graded because I had awarded the class average marks that were too high. I have no doubt a parallel system exists with IRCC.
What this all means, as my colleague, Zeynab Ziaie has pointed out in our discussions, there are major concerns that Chinook and the AI systems have not been developed and rolled out with adequate lawyer/legal input and oversight, which leads to questions about accountability. Utilizing the Chinook example, what if the working notes that are deleted contain the very information needed to justify or shed light on how an application was processed.
My question, in follow-up, is how are the predictive/advanced analytics systems utilized by India and China for TRVs influencing Chinook? Where is the notation to know whether one’s file was pre-assessed by “Officer’s Rule” or through the Tiers. I quickly reviewed a few GCMS notes prior to this call, and though we know whether a file was pre-accessed, we have no clue which Tier it landed on.
Furthermore, how do we ensure that the visa-office subjective “Officer Rules” or the analytical factors that make up the AI system are not being applied in a discriminatory manner to filter cases into a more complex/complex stream. For example, back in 2016 I pointed how the Visa-Office training guides in China regionally and geographically discriminate against those applying from certain Provinces assigning character traits and misrepresentation risks. We know in India, thanks to the work of my mentor Raj Sharma, that the Indian visa offices have a training guide on genuine relationships and marriage fraud that may not accord with realities.
Assuming that this AI processing system is still being used only for TRVs and not for any other permits, it must be catching (with the assistance of Chinook’s key word indicators no less) words such as marriage, the names of rural communities, marital status, perhaps the addresses of unauthorized agents, and businesses that often have been used as a cover for support letters. Within that list there’s a mix of good local knowledge, but also the very stereotypes that have historically kept families apart and individuals from being able to visit without holding a study permit or work permit.
If we find out, for example, that filtering for complex cases only happens at visa offices with high refusal rates or in the Global South, does that make the system unduly discriminatory?
We acknowledge of course that the very process of having to apply to enter the borders, the division of TRV and electronic Travel Authorization (eTA) requiring countries is discriminatory by nature, but what happens when outcomes on similar facts are so discrepant?
In other areas of national bureaucracy, Governments have moved to blind processing to try and limit discrimination around ethnic names, or base decisions on certain privileges (ability to travel and engage in previous work), and remove identifying features that might lead to bias. For immigration it is the opposite, you see their picture, their age, and where they are from, and why they want to come (purpose of visit). As we have learned from Chinook, that is the baseline information that is being extracted for Officers to base their decisions on.
When – as a society – do we decide to move away (as we have) on what were once harmful norms to new realities? Who is it that makes the call or calls for reviews for things such as consistency or whether a particular discriminatory input in the AI system is no-longer consistent with Charter values?
Right now, it is all in the Officer’s discretion and by extension, the Visa Offices, but I would recommend some unified committee of legal experts and race/equity scholars need to be advising on the strings of the future, inevitable, AI systems. This would also unify things across visa offices so that there is less discrepancy in the way systems render decisions. While it makes sense that heavier volume visa offices have more tools as their disposal, it should not depend on where you live to receive less access to human decision-makers or to an equal standard of decision-making. We do not want to get to a place where immigration applicants are afraid to present their stories or speak their truths for fear of being filtered by artificial intelligence. From my perspective, we are better of being transparent and setting legitimate expectations.
What are your thoughts on the introduction of AI, the interaction with Chinook, and the need for oversight? Feel free to engage in the comments below or on social media!
Thanks again for reading.
I wrote this piece for the Firm blog that I think long-time readers of Vancouver Immigration Blog will enjoy. Please accept this train ticket to my Firm’s page and let me know what you think about the piece.
My Value Proposition
My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.
You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.
I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.
I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.
I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.
I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.
I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.