In this post, I am going to do a gentle critique of a Federal Court decision from last year Khaleel v. Canada (MCI) 2022 FC 1385 and highlight the case as an example of the Court showing too much deference to an Officer’s application of local knowledge, without scrutinizing the reasonableness of the evidentary foundation.
Khaleel
In Khaleel, a Pakistan citizen and Kingdom of Saudi Arabia (KSA) temporary resident was refused a temporary resident visa (TRV). Khaleel had a long (and largely negative) immigration history in Canada prior to this TRV refusal, but had applied for a business visa to visit Quesnel, B.C. as part of a required exploratory visit.
The key in this decision is Madam Justice Elliot’s upholding of the refusal, on the Officer’s analysis of Saudization. Madam Justice Elliot upheld the reasonableness of IRCC’s analysis that the Applicant’s future employment prospects were negatively impacted by Saudization. The Applicant served as a sales manager for a bakery in KSA and disclosed this as part of his TRV application.
The Officer writes in the GCMS notes for the refusal (reproduced at para 22 of the decision):
Considering the current economic reforms in KSA (Saudization), PA’s occupation (sales manager) is subject to plans for Saudization reforms. I am not satisfied that PA has strong future employment prospects in KSA. The saudization reforms are ongoing and due to the COVID-19 pandemic, reduction in the foreign workforce and layoffs are fast-tracking.
Khaleel argued that the Officer ignored his evidence, including a letter from their employer in Saudi Arabia speaking to the fact that the position was not impacted by COVID and indeed the business remained opened and demand increased.
Madam Justice Elliot writes:
[27] While the employer spoke to the increase in business they have experienced, the Officer is concerned with the national push to reduce foreign workers in KSA.
[29] Regardless of the bakery’s success and reliance on the Applicant’s employment, the business like all others in KSA, is equally subject to the government’s policies to prioritize the employment of Saudi nationals. While the Applicant is correct in stating that the employer’s letter was not explicitly cited in the GCMS notes, I find that was reasonable as the letter does not address the Officer’s concerns about the nation-wide Saudization policies targeting foreign workers with temporary status in KSA
….
[32] As before, the Officer’s concern was the Saudization policies targeting foreign workers with temporary status in KSA. The Applicant’s responsibility for operations, in addition to sales, did not need to be discussed specifically in the reasons as it did not alter the fact that he was at risk as a foreign worker in KSA.
(emphasis added)
The Applicant also challenged, as a matter of procedural fairness reviewable on the correctness standard, the use of extrinsic evidence. Madam Justice Elliot reviewed case law for TRVs emphasizing the Officer’s use of general experience and knowledge of local conditions to draw inferences and reach conclusions without necessarily putting any concerns that may arise to the applicant (at para 57, citing Mohammed v Canada (Citizenship and Immigration), 2017 FC 992,). Again, and like many decisions involving visitors, students, and workers (temporary residents), Madam Justice Elliot emphasized the lack of a qualified right to enter Canada and therefore the low procedural fairness owed.
Madam Justice Elliot writes:
[59] The Officer considered the Applicant only had temporary status in KSA. It is entirely reasonable to expect an applicant for a TRV to anticipate concerns of this sort in relation to their likelihood of return at the end of an authorized visit to Canada.
[60] The Officer was not required to notify the Applicant that he would be relying on public sources regarding general country conditions in KSA and conducting his own research: Chandidas v Canada (Minister of Citizenship and Immigration), 2013 FC 257 at paras 25, 29-30.
[61] I do not find that the Officer’s reliance on their general experience and knowledge of local conditions in KSA gave rise to a duty of procedural fairness.
Finding Separation Between Reasonable Analysis Based on Local Knowledge and Speculations and Erred-Analysis Based on Undisclosed Extrinsic Evidence
Accepting again the premise that an applicant should be aware that country conditions may be applied (a premise I find problematic – as open-source searches and unpublished/vetted reports and pull up a whole slew of different findings and can often be subject to either partisan politics or propaganda), I think an Applicant should be able to challenge in judicial review the reasonableness of the local knowledge without necessarily having to predict its application. For example, a temporary resident like Khaleel who has been working and travelling between his country of citizenship and residence for many years, working many jobs may not view it as a future concern (on the ground), but global news articles/studies may highlight it a major problem/characteristic/push factor (on a macro-level).
In this case, there are two findings by Madam Justice Elliot that are worth re-examining.
First, Saudization does not apply equally to all individuals (para 29). Open source information makes it clear that it very industry dependent, position dependent, and timing dependent. See e.g. Saudi Arabia: Saudization Requirements Announced for Several Activities and Professions | Fragomen, Del Rey, Bernsen & Loewy LLP
For example, if the Applicant was seeking a short trip to Canada for several weeks but changes would not kick in for another year or two, this could be relevant factor that appears to be missed in the Officer’s analysis.
Second, whether someone is in sales or operations ( para 32) could be relevant as there are different levels for different industries as discussed and there is no discussion in the decision about his Iqama (permit holding) industry. It is also common practice in KSA for permits to be issued for one profession, but applicants to take on jobs in others with the future possibility of switching.
There is a third issue, that I could think of – involving whether or not percentages even mean too much (for example if an industry is going from 10 percent to 25 percent), if ultimately the expansion of hiring writ large of workers would lead to increases in hireability for both foreign and domestic workers. Khaleel was time during the pandemic, but I could see in another context the Applicant providing evidence that the percentage of Saudization itself is not determinative of the number of opportunities.
Of course, Madam Justice Elliot is not tasked in judicial review with stepping in as Officer to re-evaluate the facts or evidence to decide for herself (Valilov at para 83) but I am concerned that blanketly accepting Officer’s ability to do their own research without even citing the source of this research can very easily lead to misinformation – particularly as we head into the age of digital misinformation. Furthermore, as data is increasingly relied upon as the source of data – it could also lead to the shielding of the actual impetus on reasoning (internal statistics) with these boilerplate recitations of an Officer claiming to rely on country conditions. I also feel, at minimum, an Officer should mention – rather than have it implied – where local knowledge and experience has led to a specific finding.
This concern of boilerplate recitations was also expressed by Justice Sadrehashemi in Mundangepfupfu v. Canada (Citizenship and Immigration), 2022 FC 1220 who writes:
[18] The personal circumstances of Ms. Mundangepfupfu were not considered. It is not clear how the country conditions set out by the Officer would affect Ms. Mundangepfupfu, given her living conditions and family support that were described in her applications. The Officer failed to meaningfully account for and respond to key issues and evidence raised by the Applicants, as required (Vavilov at paras 127-128). I agree with the Applicants that this kind of boilerplate recitation of country conditions without an application to the personal circumstances of an applicant could provide the basis for refusing every application for temporary resident status made by a citizen of Zimbabwe. This approach is unreasonable. (emphasis)
Mundangepfupfu at para 18.
Is stating that Saudization applies to all applicants who have temporary resident status in KSA akin to boilerplate recitation? Or is it a reasonable application of an Officer’s local knowledge?
Now let’s assume the Officer actually received facts from the applicant proactively – disputing the application of Saudization, but the Officer still suggest that Saudization will limit the future opportunities of an applicant irregardless of the facts – just as a broad application of Saudization.
Justice Roy states in Demyati v. Canada (Minister of Citizenship and Immigration) 2018 FC 701:
[16] A visa officer is certainly entitled to rely on common sense and rationality. As I have said before, we do not check common sense at the door when entering a courtroom. What is not allowed is to make a decision based on intuition or a hunch; if a decision is not sufficiently articulated, it will lack transparency and intelligibility required to meet the test of reasonableness. That, I am afraid, is what we are confronted with here.
…..
[20] What appears to have been the most important factor in the refusal was the fact that the applicant is a Syrian national who has been living outside of Syria for most of his life. The decision-maker seems to have concluded that given the situation in his country of origin, he would not be inclined to go back to his country of nationality if his residence status in the United Arab Emirates were to change. Given the record as it is before the Court, this looks more like a hunch based on speculation than a justification supported by some evidence. If that could constitute some form of justification, this would lack transparency and intelligibility without a more complete articulation.
Demyati at paras 16, 20
What I think is missing in many of these decisions – and ironically all relating to temporary immigration status – is the very fine line between an Officer analyzing the impact of a country condition or generalized country condition (possible push factor) and taking the leap to speculating on how that factor may impact an Applicant’s ability to return, in light of the evidence submitted.
I think there is also a legitimate procedural fairness argument raised if an applicant provides evidence proactively suggesting a specific country condition does not apply and an Officer utilizes undisclosed evidence that apparently contradicts the evidence that was submitted by the applicant, without providing the applicant with an opportunity to respond to that evidence – particularly if it goes more to veiled credibility rather than sufficiency of evidence. Some might disagree and state this is more of a concern of reasonableness of the Officer’s analysis. Nevertheless, I do not think we can simply rubber stamp extrinsic evidence as being local knowledge or knowable.
Justice Southcott in Babafunmi v. Canada (Citizenship and Immigration), 2022 FC 948 [Babafunmi] appears to set out an applicable legal test (albeit in an H&C context, but I would argue – applicable here too):
[22] The use of publicly available information, even if not specifically disclosed to an applicant, does not necessarily breach procedural fairness, provided it is not novel or significant (see Li at para 35; Wang v Canada (Public Safety and Emergency Preparedness), 2016 FC 705 at para 33).
Babafunmi at para 22.
However, I am not sure if novelty or significance captures the totality of the analysis. I also think that the extrinsic evidence that is not reliable, trustworthy, or readily accessible to the Applicant needs to be disclosed as a matter of procedural fairness.
Three General Takeaways and Strategies
If I were two extract three takeaways and strategies from this blog and this exercise, it would be as follows:
- If case law and general country conditions suggest an issue an Officer may highlight as a push factor, possibly address it proactively by way of an applicant’s personal statement/letter of explanation and possible contradicting evidence to open up a Cepedes-Gutierrez argument;
- In a judicial review, challenge the extrinsic evidence via affidavit evidence. There are possible exceptions – both to establishing background and to raising a procedural fairness argument (had I known this was a novel concern, I could have provided X (see also: Eije v. Canada (Citizenship Immigration), 2021 FC 500 at para 11). At worst, the affidavit is objected to, struck out or given little weight, but at least you can provide a foundation to challenging extrinsic evidence.
- Advance concerns that the extrinsic evidence is part of a veiled credibility finding or unrelated and not tied to the Officer’s ultimate findings. This could be an angle both to procedural fairness, but also to the “in the alternative” argument that if the information is not novel and significant, then it may also lack the rational/logical/transparent connection to how it actually could be considered a push factor such that it would lead an applicant not to return home at the end of their stay (for example),
How are you dealing with extrinsic country conditions evidence? Are you worried about statistics and black box inputs being the source of undisclosed information to applicants?
