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Aug 17, 2023

A Window into the Humanitarian and Compassionate Grounds Judicial Review Outcomes 2018 – 2022

As we posted about in this blog below, we have received a recent data set from IRCC that appears to be first of its kind in tracking litigation at the Federal Court.

An Early “Lens” Into Predicting JR Outcomes by Country of Citizenship

Today I am going to look at Humantiarian and Compassionate Grounds applications specifically and how the outcomes for judicial review have shifted over time since 2018.

In 2018, there were pretty much two major outcomes – Dismissed at Leave and allowed with both of these outcomes making up nearly 75% of all cases. 14.8% of all decisions ended up in a discontinuance or either consent at leave. The leave dismissal rate was the highest of the five year period at 58.82%.

In 2019, we saw similar outcomes with 80% decisions ending up with this outcome and the other 20% ending up in discontinuances. Leave dismissals were still high at 52.45%.

2020’s COVID-19 year saw a major statisical shift. While the rate of leave dismissals went down, so drastically too did the allowed rate. Was this a result of compassion fatigue from COVID itself? or did the discontinuances (including consents) lead to weaker cases being heard by the Court. The motivation to consent or seek discontinuance during COVID-19 could also have been spurred by trying to limit the number of cases requiring hearing. It is a very interesting year to try and study and breakdown especially in light of how a future Global pandemic could impact Court processes.

In 2021, the leave dismissal rate stayed consistent around 45.96% but the Allowed rate went back up to higher than pre-pandemic numbers. Discontinued – withdraw and consent rates also went back to pre-pandemic numbers.

The year 2022 is when it starts getting really interesting. In this year, and for the first year ever, to have a higher percentage of Allowed cases than any other year. If we are looking at pandemic impact, perhaps this year is when many of the Applicants who had stayed in Canada during the 2020-2021 year and made applications finally had their decisions made and challenged at Court.

Dismissal at leave was at a five-year low and the discontinuance rose slightly.

So what happened in 2023. Interestingly enough, another type of outcome – withdrawn at leave – has been number one (up until June 2023 of this year). Are these because folks are no longer interested in pursuing JRs? Are they leaving Canada or are they being removed? These numbers are even higher than in 2020 during the pandemic when travel restrictions were in place. How many of these are from successful reconsideration requests?

This year’s data (to-date) raises several correspondingly interesting issues.

To me, these stats highlight the inconsistencies and ebbs and flows. It further suggests that in terms of automated data-based decision-making, humanitarian and compassionate grounds decisions and judicial reviews probably should not be implemented until greater understanding of why numbers have been discrepant year to year.

What are your thoughts? What stands out with respect to the data for you?

Jul 26, 2023

Why the 30-Year Old Florea Presumption Should Be Retired in Face of Automated Decision Making in Canadian Immigration

In the recent Federal Court decision of Hassani v. Canada (Citizenship and Immigration), 2023 FC 734, Justice Gascon writes a paragraph that I thought would be an excellent starting point for a blog. Not only does it capture the state of administrative decision-making in immigration and highlight some of the foundational pieces, but also I want to focus on one part of it that I may respectfully suggest, needs a re-think.

Hassani involved an Iranian international student who was refused a study permit to attend a Professional Photography program at Langara College. She was refused on two factors – [1] that she did not have significant family ties outside Canada and that [2] her purpose of visit was not consistent with a temporary stay given the details she had provided in her application. On the facts, it is definitely questionable that this case even went to hearing given the Applicant had no family ties in Canada and all her family ties were indeed outside Canada and in Iran. Nevertheless, Justice Gascon did a very good job analyzing the flaws within the Officer’s two findings.

There is one paragraph, 26, that is worth breaking down further – and there’s one foundational principle cited that I think needs a major rethink.

Justice Gascon writes:

[26] I do not dispute that a decision maker is generally not required to make an explicit finding on each constituent element of an issue when reaching its final decision. I also accept that a decision maker is presumed to have weighed and considered all the evidence presented to him or her unless the contrary is shown (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) (QL) at para 1). I further agree that failure to mention a particular piece of evidence in a decision does not mean that it was ignored and does not constitute an error (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez] at paras 16–17). Nevertheless, it is also well established that a decision maker should not overlook contradictory evidence. This is particularly true with respect to key elements relied upon by the decision maker to reach its conclusion. When an administrative tribunal is silent on evidence clearly pointing to an opposite conclusion and squarely contradicting its findings of fact, the Court may intervene and infer that the tribunal ignored the contradictory evidence when making its decision (Ozdemir v Canada (Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9–10; Cepeda-Gutierrez at para 17). The failure to consider specific evidence must be viewed in context, and it will lead to a decision being overturned when the non-mentioned evidence is critical, contradicts the tribunal’s conclusion and the reviewing court determines that its omission means that the tribunal disregarded the material before it (Penez at paras 24–25). This is precisely the case here with respect to Ms. Hassani’s family ties in Iran. (emphasis added)

What is the Florea Presumption?

As stated by Justice Gascon, the principle in Florea v Canada (Minister of Employment and Immigration),[1993] FCJ No 598 (FCA) pertains to a Tribunal’s weighing of evidence and the presumption that they have considered all the evidence before them. It puts the onus on the Applicant stating otherwise, to establish the contrary.

As the Immigration and Refugee Board Legal Services chapter on Weighing Evidence states:

Rather, the panel is presumed on judicial review to have weighed and considered all of the evidence before it, unless the contrary is established. (see: https://irb.gc.ca/en/legal-policy/legal-concepts/Documents/Evid%20Full_e-2020-FINAL.pdf)

This case and principle is often cited in refugee, humanitarian and compassionate grounds matters, inadmissibility cases, and IRB matters.

Reviewing case law for the last two years (since 2021), I did find a handful of the thirty-cases I reviewed that did engage this case and principle in a temporary resident context.

See e.g. study permit JR – Marcelin v. Canada (Citizenship and Immigration) 2021 FC 761 – Madam Justice Roussel at para 16 [JR dismissed]; PNP Work Permit – Shang v. Canada (Citizenship and Immigration), 2021 FC 633 at para 65 citing Basanti v Canada (Citizenship and Immigration), 2019 FC 1068 at para 24 – Madam Justice Kane [JR allowed]; Minor Child TRV Refusal – Dardari v. Canada (Citizenship and Immigration) 2021 FC 493 at para 39 – adding the portion – and is not obliged to refer to each piece of evidence submitted by the applicant – Madam Justice St-Louis [JR dismissed];

Related to this is the long-standing and oft-cited decision of Cepeda-Gutierrez v. Canada (Citizenship and Immigration) 1998 FC No 1425 in which Justice Evans re-iterated that an Agency stating they considered all evidence before it (even as a boilerplate statement) would usually be enough to suffice and assure parties and the Court of this. He writes:

[16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

(emphasis added)

Why the Florea Presumption Should Be Reversed For Temporary Resident Applications and Any Decision Utilizing Advanced Analytics/AI/Chinook/Cumulus/Harvester

My argument is that this presumption that all evidence has been considered, as well as the boilerplate template language stating that it was considered, should not apply universally in 2023.

We know enough (again not enough about the system writ large) but enough to know that systems such as Chinook were created to facilitate the processing of temporary resident applications in hundreds of seconds, to extract data into excel tables for bulk processing, and to automate eligibility approvals. These were done specifically allow Officers to spend less time and consider enough, not all, of the evidence before them to render a decision.

I think the fact that applications are being auto-approved for eligibility, simply on a set of rules that are inputted primarily based on biometric information of an applicant should be enough to raise concerns that the systems even require consideration of most of the evidence submitted by an applicant.

All the materials on bulk processing that IRCC has released in the past few years, has been focused on the fact that not all documents need to be reviewed (not wording that states: review Additional Documents, as required).

IRCC Officer Training Guide Obtained Through ATIP

IRCC Visa Office Training Guide Obtained Through ATIP

If you look at the Daponte Affidavit and the original Module 3 Prompt that was created, it does not add confidence to the requirement that all documents needed to necessarily be reviewed:

We learned that in response to concerns, they added to Chinook a prompt reminder for Officers to review all materials, but it is clear Chinook has gone far beyond ‘review and initial assessment’ to bulk processing.

Even with Cumulus, it is clear that if some docs that are not coverted to e-Docs they have to be pulled up separately in GCMS, the very tedious process that tools such as Cumulus seek to avoid.

Cumulus Training Manual Obtained Through ATIP

I would presume that it would be much easier for an Officer to make decision based on these summary extractions then to go into the documents.

Cumulus Training Guide Obtained Through ATIP

The documents are viewed below, much more akin to a ‘preview’ mode.

Harvester, a tool that facilitates the conversion of documents into a reviewable format is similarly based on what documents can be extracted.

Based on the way it is described and how some offices can exclude certain documents, it already suggests not all documents make it to the purview of the Officer.

Most importantly, as a constraint is time. As Andrew Koltun has uncovered, IRCC spends 101 seconds on average, with Chinook processing. https://theijf.org/nearly-40-per-cent-of-student-visa-applications-from-india-rejected-for-vague-reasons#

Respectfully, 101 seconds cannot be enough to consider but one or two documents – max – before rendering a decision. The future use of Large-Language Models and OCR to extract key […]

Jul 11, 2023

Canadian Immigration Law Blog

Could the Federal Court Have Avoided the Chinook Abuse of Court Process Tetralogy?

By Mariana Ruiz LadyofHats – the image i made myself using adobe ilustrator using this images as source: [1], [2] ,[3], [4] , [5],[6] .and a diagram found on the book “Pädiatrie” from Karl Heinz Niessen., Public Domain, https://commons.wikimedia.org/w/index.php?curid=860748

What Happened?

In the recent decision of [1] Ardestani v. Canada (Citizenship and Immigration) 2023 FC 874, part of a tetrology of cases where Federal Court justices were critical over attacks on IRCC’s Chinook system, Justice Aylen did not mince words.

She writes:

II. Preliminary Issue

[8] At the commencement of the hearing, counsel for the Applicant advised that he was relying on his written representations but requested that counsel for the Respondent answer five questions related to this matter. As I advised counsel for the Applicant, a hearing of an application for judicial review is not an examination for discovery. Counsel for the Respondent was under no obligation to answer his questions. Moreover, it was not open to the Applicant to raise new issues at the hearing of the application.

[9] I also raised with counsel for the Applicant the fact that two decision of this Court have recently been issued – Raja v Canada (Minister of Citizenship and Immigration), 2023 FC 719 and Haghshenas v Canada (Minister of Citizenship and Immigration), 2023 FC 464 – in which counsel for the Applicant made a number of the same arguments as raised in this application and which were all dismissed by this Court, twice. I asked counsel for the Applicant if he was continuing to pursue these issues notwithstanding the earlier findings of this Court and he indicated that he was.

[10] I find that counsel for the Applicant’s attempt to re-litigate such issues and to transform the hearing of this application into an examination for discovery constitutes an abuse of this Court’s processes. (emphasis added)

In the decision, Justie Aylen comments about the arguments made by applicant against Chinook:

[26] The Applicant asserts that his work permit application was processed using Chinook, which in and of itself is a breach of procedural fairness. Moreover, he asserts that the use of Chinook was improper given the importance of the decision at issue and the degree of complexity of the decision at issue (which involved business immigration). There is also no merit to these assertions. I am not satisfied that the use of Chinook, on its own, constitutes a breach of procedural fairness or that the nature of the application itself has any bearing on the use of Chinook. The evidence before the Court is that the decision was made by an Officer, with the assistance of Chinook. Whether or not there has been a breach of procedural fairness will turn on the particular facts of the case, with reference to the procedure that was followed and the reasons for decision [see Haghshenas, supra].

….

[34] The Applicant further asserts that the use of Chinook is “concerning”, suggesting essentially that any decision rendered in which Chinook was used cannot be reasonable. I see no merit to this suggestion. The burden rests on the Applicant to demonstrate that the decision itself lacks transparency, intelligibility and/or justification, and baseless musings about how Chinook was developed and operates does not, on its own, meet that threshold. (emphasis added)

While Justice Aylen discusses two other cases Raja and Hagshenas, there was also a third that was released just before Ardestani, in Zargar. All of these cases involve essentially an identical fact pattern of Iranian C11 applicants being refused work permits.

For the interests of summarizing the discuss of Chinook on each, and notwithstanding that I have only seen the full file record in Hagshenas (and have also written a past post, see: here), I will extract block quotes of what judges have said in each of the remaining three decisions about Chinook.

[2] Zargar v. Canada (Citizenship and Immigration), 2023 FC 905 (CanLII), <https://canlii.ca/t/jxxpc> – Justice McDonald, Dismissed

[12] Firstly, the allegations regarding: (a) the use of Chinook, (b) reasons only being provided after the judicial review Application was filed, and (c) the length of the processing time were fully canvassed in both Haghshenas v Canada (Citizenship and Immigration), 2023 FC 464 [Haghshenas] and Raja v Canada (Citizenship and Immigration), 2023 FC 719 [Raja]. In the absence of any specific evidence to support these allegations in this case, I adopt the analysis from those cases (Haghshenas paras 22-25, 28; Raja at paras 28-38) and can likewise conclude that the Applicant has not established any breach of procedural fairness on these grounds. (emphasis added)

Note that there was an apparent lack of evidence filed in Zargar.

[3] Raja v. Canada (Citizenship and Immigration), 2023 FC 719 (CanLII), <https://canlii.ca/t/jxfdq> – Justice Ahmed, Dismissed

[24] The Applicant submits that the Officer assessed his work permit application on the basis of irrelevant and extraneous criteria, but does not specify which criteria. The Applicant also submits that the IRCC’s reliance on Chinook, an efficiency-enhancing tool used to organize information related to applicants for temporary residence, undermines the reasonableness of the Officer’s decision.

….

B. Procedural Fairness

(1) Use of Chinook Processing Tool

[28] The Applicant submits that the Officer’s use of the Chinook processing tool to assist in the assessment of the application is procedurally unfair. The Applicant contends that the tool, which he claims is able to extract information from the GCMS for many applications at a time and generate notes about these applications in “a fraction of the time” it would take to review an application otherwise, results in a lack of adequate assessment of the Applicant’s work permit application.

[29] The Respondent submits that IRCC’s use of the Chinook tool to improve efficiency in addressing a voluminous number of temporary residence applications does not amount to a specific failure of procedural fairness in the Applicant’s case. The Respondent notes that the Applicant has failed to point to any evidence to support that the Officer’s use of the Chinook tool resulted in the omission of a key consideration in the assessment of his application or deprived him of the right to have his case heard. The Respondent contends that the Applicant’s submissions appear to be little more than an objection to IRCC’s use of this tool.

[30] I agree with the Respondent. While it was open to the Applicant to raise the ways that the Chinook processing tool specifically resulted in a breach of procedural fairness in the Officer’s assessment of his case, he has not provided any evidence of such a connection. I would also note that the Chinook tool is not intended to process, assess evidence, or make decisions on applications, and the Applicant has failed to raise any evidence countering this or demonstrating that the tool impacts the fairness of the decision-making process. (emphasis added)

Note – again there appears to be a lack of evidence filed. However I do take issues with the “Chinook tool is not intended to process, assess evidence’ portion. I think there is not enough on the record or in what IRCC has publicly shared to make that statement. It is a processing tool at the end of the day, so a processing tool does process and based on what we know about the modules work (especially Module 5’s risk indicators and local word flags) that it definitely assesses and ‘flags’ the evidence at the very least.

[4]Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464 (CanLII), <https://canlii.ca/t/jwhkd> – Justice Brown, Dismissed

[24] As to artificial intelligence, the Applicant submits the Decision is based on artificial intelligence generated by Microsoft in the form of “Chinook” software. However, the evidence is that the Decision was made by a Visa Officer and not by software. I agree the Decision had input assembled by artificial intelligence, but it seems to me the Court on judicial review is to look at the record and the Decision and determine its reasonableness in accordance with Vavilov. Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether or not artificial intelligence was used. To hold otherwise would elevate process over substance. (emphasis added)

….

[28] Regarding the use of the “Chinook” software, the Applicant suggests that there are questions about its reliability and efficacy. In this way, the Applicant suggests that a decision rendered using Chinook cannot be termed reasonable until it is elaborated to all stakeholders how machine learning has replaced human input and how it affects application outcomes. I have already dealt with this argument under procedural fairness, and found the use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov. (emphasis added)

What arises from the above is precious court resources were spent on four identical cases from the same counsel, making identical arguments, rendering nearly identical judgments all on summating ‘we do not have enough in front of us.’

One wonders if the Department of Justice should have just heeded Justice Little’s comments in Ocran v. Canada (Citizenship and Immigration), 2022 FC 175 (CanLII), <https://canlii.ca/t/jmk0l> to ask for a reference but as these tools are constantly evolving, I do understand the trepidation and costs:

V. Matters Raised by the Respondent

[57] The respondent raised additional matters for resolution by this Court about the preparation of GCMS notes generally by visa officers using spreadsheets made with a software-based tool known as the “Chinook Tool”. The respondent sought to resolve an issue about whether contents of Certified Tribunal Record (“CTRs”) were deficient because the spreadsheets are not retained and therefore do not appear in the CTRs prepared for matters such as this application. The respondent also purported to file an affidavit in an effort to provide a factual foundation; the applicant objected to its admissibility and relevance to the proceeding.

[58] In my view, the Court should not resolve the additional matters raised by the respondent on this application. There is no dispute or controversy between these parties […]

Jun 10, 2023

Canadian Immigration Law Blog

The Problem with Khaleel: Extrinsic Evidence Versus Applying Local Knowledge

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.

[28] The Applicant is part of the foreign workforce in KSA. The Officer’s notes indicate the Applicant’s employment is not a strong tie given the instability of foreign workers and the push to replace them with citizens of KSA which push is accelerating due to COVID-19.

[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. […]

May 11, 2023

Canadian Immigration Law Blog

Guide de politique sur le soutien automatisé à la prise de décision version de 2021/Policy Playbook on Automated Support for Decision-making 2021 edition (Bilingual)

Hi Folks:

I wanted to share a copy of IRCC’s Policy Playbook on Automated Support for Decision-making. We learned from ATIP that even though there is language around the need to frequently update this document to adopt to the changing times and applications of automation and AI, it has not been updated since February 2021.

1A-2023-05333 – Policy Playbook on Automated Decision-Making February 2021 – bilingual

I think this is also the first time I have seen a bilingual version, but this is very crucial as one of the big critiques of IRCC’s Chinook 101 training materials was the apparent lack (or lack of access) to a French version.

This document is foundational to our understanding of where IRCC believes they were going, at least as of two-years ago. Is this document still good? Have the plan migrated to a new document?

Lots of questions raised and so far view answers.

Still on the beat…..

Apr 25, 2023

Canadian Immigration Law Blog

The Time the Korean Church Congregation Came Out to Our Immigration Appeal

Having not blogged on here for awhile (admittedly struggling with writer’s block/half-written blogs – the usual) I wanted to take a short trip down memory lane through one of my more memorable cases.

I was representing an older Korean Appellant. He had gone through some traumatic injuries and as a result spent too much time with a family member in the United States (as a Green Card holder) and thereby breaching the residency obligation. It was not an insignificant breach.

The case started off with strong documentary evidence. This was pre-amendments to the IAD Rules, which now make it even more crucial to ensure front-end evidence is provide and letters. We made a very strong paper-based case which supported what occurred at the hearing.

Remember, this was back when there were in-person hearings. It seems like a lifetime ago, but up on the 16th floor of 300 West Georgia there are several hearing rooms. Ironically, we were assigned the smallest one, I believe just a handful of no more than eight seats in the witness booth.

The case already had several witnesses. The Appellant had several children, his spouse, and even a best friend were willing to testify.

One of my strategies, which I think is not only effective but also very necessary is to ensure the Appellant has enough to present their case. Back then, in many residency appeals they would schedule cases only for 2 hours. This was in large part due to backlogs, but also an assumption that removal order (residency obligation cases) were easier – required less witnesses, were less complex. This matter, contrary to that presumption, was quite complex with many layers, a long history, a vulnerable person, and a narrative that needed time to tell through multiple witnesses.

However, at this hearing, we also had another advantage – the entire Korean church congregation that the Appellant belonged to. The family had put the word out and even unexpected to me, twenty ajumas and ajusshi’s showed up at the hearing.

As the Member was about to set preliminary matters, he looked up and saw them all from a semi-circle form around my client like a choir around a conductor. He saw that there were members of the congregation would could not even fit in the room and the door was half propped open.

He respectfully gave everyone a chance to state their name, addressed everyone and thanked them for coming out. He ultimately suggested that they could go home as there was simply not enough space. After the room cleared out, he took at the voluminous disclosure, turned to the Minister, and in essence suggested that this appeared to be a very strong case on paper and whether the Minister still wanted to proceed.

The Minister was not ready to consent yet. We proceeded through direct examination and a cross-examination of the Appellant before we were able to reach a consent. Following this, I shared a lovely lunch with the family in Chinatown, nearby.

It was – to date – probably my most memorable IAD experience. It also goes to show, something I often mentor young lawyers and practitioners on – is the importance of the factual, and beyond that the visceral argument. There is a role in compassion and humanity, even amidst the growing boilerplate application of laws and principles.

I wanted to share this story. Perhaps more to re-inspire myself more than anything else.

Apr 4, 2023

Canadian Immigration Law Blog

Cautious Concern But Missing Crucial Context – Justice Brown’s Decision in Haghshenas

After the Federal Court’s decision in Ocran v. MCI (Canada) 2022 FC 175. it was almost inevitable that we would be talking again about Chinook. Counsel (including ourselves) have been raising the use of Chinook and the concerns of Artificial Intelligence in memorandums of argument and accompanying affidavits, arguing – for example – that many of the standard template language used fall short of the Vavilov standard and in many cases are non-responsive or reflective to the Applicant’s submissions.

We have largely been successful in getting cases consented on using this approach, yet I cannot say our overall success in resolving judicial reviews have followed suite. Indeed, recently we have been stuck at the visa office more on re-opening than we have been in the past.

Today, the Federal Court rendered a decision that again engaged in Chinook and in this case also touched on Artificial Intelligence. Many took to Twitter and Linkedin to express concern about bad precedent. Scholars such as Paul Daly also weighed in on Justice Brown’s decision, highlighting that there is simply a lot we do not know about how Chinook is deployed.

I might take a different view than many on this case. While I think it might be read (and could be pointed to as precedent by the Department of Justice) as a decision upholding the reasonableness and fairness of utilizing Chinook and AI, I also think there was no record that tied in how the process affects the outcome, clearly the link that Justice Brown was concerned about.

Haghshenas v. Canada (MCI) 2023 FC 464

Mr. Haghshenas had his C-11 (LMIA exempt) work permit refused on the basis that he would not leave Canada at the end of his authorized stay pursuant to subsection 200(1) of the IRPR. It is interesting that in the Certified Tribunal Record and specifically the GCMS notes, there is no mention of Chinook 3+ as is commonly disclosed now. However, there is the wording of Indicators (meaning risk indicators) as N/A and Processing Word Flag as N/A. These are Module 5 flags, that make up one of the columns in the Chinook spreadsheet, so it is presumable that Chinook could have been used. However, we do note the screenshots that were part of the CTR do not appear to include the Chinook tab or any screenshot of what Chinook looked at. From the record, this lack of transparency on what tool was actually used did not appear to be challenged.

Ultimately, the refusal decision itself is actually quite personalized – not carrying the usual pure template characteristics of Module 4 Refusal Notes generator. There is personalized assessment of the actual business plan, the profits considered (and labelled speculative by the Officer), and concerns about whether registration under the licensed contractor process has been done. From my own experiences, this decision seems quite removed from the usual Module 3 and perhaps suggests that either Chinook was not fully engaged OR that the functionality of Chinook has gotten much better to the point where it’s use becomes blurred. It could reasonably be both.

In upholding the procedural fairness and reasonableness of the decision, Justice Brown does engage in two areas about a discussion of Chinook and AI.

In dismissing the Applicant’s argument on procedural fairness, Justice Brown writes:

[24] As to artificial intelligence, the Applicant submits the Decision is based on artificial intelligence generated by Microsoft in the form of “Chinook” software. However, the evidence is that the Decision was made by a Visa Officer and not by software. I agree the Decision had input assembled by artificial intelligence, but it seems to me the Court on judicial review is to look at the record and the Decision and determine its reasonableness in accordance with Vavilov. Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether or not artificial intelligence was used. To hold otherwise would elevate process over substance.

He writes later, under the reasonableness of decision, heading:

[28] Regarding the use of the “Chinook” software, the Applicant suggests that there are questions about its reliability and efficacy. In this way, the Applicant suggests that a decision rendered using Chinook cannot be termed reasonable until it is elaborated to all stakeholders how machine learning has replaced human input and how it affects application outcomes. I have already dealt with this argument under procedural fairness, and found the use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov.

Justice Brown appeared to be concerned with the lack of the Applicant’s tying of the process of utilizing artificial intelligence or Chinook to how it actually impacted the reasonableness or fairness of the decision. Justice Brown is looking at the final decision and correctly suggests – an Officer made it, the Record justifies it – how it got from A to C is not the reviewable decision it is the A of the input provided to the Officer and the C of the Officer’s decision.

I want to question about the missing B – the context.

It is interesting to note also, in looking at the Record, that the Respondent (Minister) did not engage in any discussion of Chinook or AI. The argument was solely raised by the Applicant – in two paragraphs in the written memorandum of argument and one paragraph in the reply. The Applicant’s argument, one rejected by Justice Brown, was that the uncertainty of the reliability, efficacy, and lack of communication created an uncertainty of how these tools were used, which ultimately impacted the fairness/reasonableness.

The Applicant captures these arguments in paragraphs 9, 10 , and 32 of their memorandum, writing:

The nature of the decision and the process followed in making it

9. While the reason originally given to the Applicant was that the visa officer (the
decision maker) believed that the Applicant would not leave Canada based on the
purpose of visit, the reasons now given during these proceedings reveal that the
background rationale of the decision maker does not support refusal based on
purpose of visit. In fact, the application was delayed for nearly five months and in
the end the decision was arrived at with the help of Artificial Intelligence
technology of Chinook 3+. It is not certain as to what information was analysed
by the aforesaid software and what was presented to the decision maker to
make up a decision. It can be presumed that not enough of human input has
gone into it, which is not appropriate for a complicated case involving business
immigration. It is also not apt in view of the importance of the decision to the
individual, who has committed a great deal of funds for this purpose. (emphasis added)

10. Chinook is a processing tool that it developed to deal with the higher volume of
applications. This tool allows DMs to review applications more quickly.
Specifically, the DM is able to pull information from the GCMS system for many
applications at the same time, review the information and make decisions and
generate notes in using a built-in note generator, in a fraction of the time it
previously took to review the same number of applications. It can be presumed
that not enough human input has gone into it, which is not appropriate for a
complicated case involving business immigration. In the case at hand, Chinook
Module 5- indicator management tool was used, which consists of risk indicators
and local word flags. A local word flag is used to assist in prioritizing applications.
It is left up to Chinook to search for these indicators and flags and create a
report, which is then copy and pasted into GCMS by the DM. The present case is
one that deserved priority processing being covered by GATS. Since the
appropriate inputs may not have been fed into the mechanised processes of
Chinook, which would flag priority in suchlike GATS cases, the DM¶s GCMS
notes read 3processing priority word flag: N/A . This is clearly wrong and betrays
the fallout in using technology to supplant human input. The use of Chinook has
caused there to be a lack of effective oversight on the decisions being generated.
It is also not apt in view of the importance of the decision to the individual, who
has committed a great deal of funds for this purpose (Baker supra). (emphasis added)

32. On the issue of Chinook, while it can be believed that faced with a large volume of
cases, IRCC has been working to develop efficiency-enhancing tools to assist
visa officers in the decision-making process. Chinook is one such tool. IRCC has
been placing heavy reliance on it for more than a year now. However, as always
with use of any technology, there are questions about its reliability and efficacy for
the purpose it sets out to achieve. There are concerns about the manner in which
information is processed and analysed. The working of the system is still unclear
to the general public. A decision rendered using it cannot be termed reasonable until it is elaborated to all stakeholders to what extent has machine replaced human input and how it impacts the final outcome. The test set by the Supreme Court in Vavilov has not been met.

The Applicant appeared to be almost making an argument that the complexity of the Applicant’s case suggested Chinook should not have been used and therefore a human should have reviewed it. However – there seemed to have been a gap in engaging both the fact that IRCC did not indicate it had used Chinook and that the reasons actually were more than normally responsive to the facts. I think also, the argument that a positive world flag should have been implemented but was not, ultimately did not get picked up the Court – but lacked a record of affidavit evidence or a challenge to the CTR […]

Feb 17, 2023

Canadian Immigration Law Blog

OPINION: IRCC Should Prioritize Work-Permit Holding Self-Employed/Contractors Seeking PR via Express Entry

As the debate goes on over whether the changes to Express Entry allowing for the Minister of Immigration, Refugees and Citizenship to tweak invitations and draws to target specific occupations or groups, I have a suggestion in the case it does go that way.

The current system of Canadian Experience Class (“CEC”) and Federal Skilled Worker (“FSW”) (and how the points are divided up) is at odds with the way the economy and workforce is going – around the issue of self-employment/contract work. Anecdotally (I do not yet have stats on this), individuals are now more interested in the gig economy, the ability to pursue multiple opportunities, of working virtually. Many of these types of opportunities are provided a contractor/self-employed basis.

Canada’s much-maligned self-employed program is both limited in scope (with a focus on athletics, arts, music requiring a certain level of cultural activity/world class performance and farmers) and in the excessive processing delays and lack of regulation to ensure carry-through of successful applicants. Spots are few and those clients of mine who have gone through the program recently have taken many years of precarious status to get to the finish line.

What I have seen a trend in at my offices over the pandemic and into this post-pandemic, are individuals who are self-employed/contractors in Canada – many either doing work that does not meet the requirements of the self-employed program but in other areas of research (on grants) or contractual work (as entrepreneurs and small businesses owners) who are excluded from the CEC. While their work counts towards the FSW, because their work does not count towards the Canadian Work Experience points, they often fall short of the draws.

If IRCC does choose this model of micro-managing and selecting occupations and subgroups, perhaps one group that could get early attention would be these individuals. They would not be hard to find in the system. Ask that applicants update their profile to also include self-employed/contractual history in Express Entry, and to put it in the work history section (rather than just in personal history). Based on these submissions, scoop a portion of them through an FSW draw specifically aimed at those who have Canadian contractual/self-employment experience in the past three years.

I really hope we shed light on this group. Among a recent consultation I had was with a PhD researcher who as been in Canada since high school, but because they are performing their work (equivalent to full-time hours) on a grant rather than as an employee they cannot get the extra points to be selected as current Comprehensive Ranking Score (“CRS”) thresholds. Because they are older (having chosen to go the PhD route), they lose points for language. An individual like this is forced by our Economic immigration options to abandon the research they are doing – which significantly benefits Canada – in order to likely hold a survival skilled employment position for a year, only to return back after becoming a PR. This defies logic and does not support our overall goal. Employers, I can even draw an example of my own legal industry, increasing are relying on contractual arrangements to keep doors open and indeed, the flexibility of choosing hours and balancing hybridity (not to mention the potential tax benefits for contractors/self-employed individuals) make these models also attractive for those we contract with.

I hope we shed light on how we are falling short and find solutions to help this important subset of migrants seeking permanency and support in Canada.

Jan 18, 2023

Canadian Immigration Law Blog

Harvester: Why IRCC is Harvesting Your Submitted Application Documents With Their Latest Automation Tool

We have re-produced IRCC’s Harvester user guide from 2021 below (with additional redactions added to preserve passwords that were likely erroneously disclosed).

Harvester Program Guide_Redacted 2_Redacted FINAL

What is Harvester?

Per page 5 of the PDF, it is an automation tool that downloads eDOCs from GCMS and organizes (read: reorganizes) the file using clear detailed names. The use of Harvester has improved productivity in pre-assessment by over 25% with minimal training.

Like Chinook (and compatible with Chinook), it also uses an Excel interface and Microsoft Access. Documents are harvested in silos, allowing an Officer to secure, control, and monitor access to a file. Reading between the lines, the use of Microsoft Access also allows all documentation to be displayed on one horizontal screen (to be used , alongside GCMS, and Chinook in a streamlined way. 7-zip is used to encrypt the documentation and similar to Chinook there’s a deletion system after use. Importantly, there appears to be added security functions on who can access the documents and also a trail of records for auditing. I suspect that this could come in handy in future litigation with respect to whether documentation was considered or not. Some docs are excluded from Harvester – either purposely by an Officer where the visa officer does not need to review said doc OR if the harvest does not succeed. I was not able to gleam from my reading where harvests are unsuccessful but one must assume there would be some tech explanation.

Much like Chinook, it appears quite innocuous on the face. It speeds up assessment, heck even I could use a Harvester download and saving (automating) the organization of a file before I review – tasks we often leave to legal assistants and case managers.

However, there may me more than meets the eye. We’re getting a clearer picture of what the Officer actually sees in front of them when they render a decision. What the Chinook 3+ Platform looks like, the various tools and prompts that may or may not be providing information to guide a decision being rendered. Harvester is another one.

Takeaways

I would love feedback from our readers to see if they have any ideas but at this stage, I am looking at a couple major ones.

Does the way we name and number our files mean anything any more? We often are creative with the way we try and flag specific names or combine documents, but how does Harvester extract or parse this apart? Is Harvester used (usable) on all apps or just select types that are already streamlined online?
How meaningful is the ability to view the documents on Microsoft Access. From my understanding Harvester replaces the need to utilize other applications such as possibly PDF, Word, or an image reviewer. What does that mean for the way an Officer scrolls through various documents. What other tools does Microsoft Access provide in this regard (I’ve only watched a few online videos so maybe some of the tech-minded can advise);
Why are there silos created for multiple applications? I am concerned again about this ability to string together various applications and harvest all at the same time. Is there a purpose to this? It would make very much sense within a family of applicants to be able to do so, but why would multiple applications un-related be harvested unless its simply to get the files ‘set up’ for review.

Would love for some of you to take a look at Harvester and let us know what you think!

Jan 3, 2023

Delaying Decisions on Post-Graduate Work Permit Refusals Have Cruel Implications + Creates Backlogs

(First of all – Happy New Year! I might not be very happy in this post, so I’ll get it out of the way first).

For the past month, we have been dealing with several inquiries from folks who have been refused Post-Graduate Work Permits (PGWPs).

These have mostly been for small administrative issues such as a failure to send a proper final transcript, pay appropriate fees, or uploading issues. Some other cases are those where there is one semester that was not a final semester and that was part-time, usually do to some school scheduling or academic issue. Many had increasing mental health challenges due to COVID-19 related issues, such as the passing away of family members and the need to travel back for those arrangements.

The crux of the problem is that these applications are being refused more than 180 days after the Applicant completes studies. Why is this significant? Well, even though an Applicant is able to restore their status within 90 days of losing their status, at 180 days after the completion of studies, the restoration to PGWP option ceases to exist. Applicants are required to apply for a PGWP within 180 days of completing studies.

Restoration, becomes therefore meaningless as an option outside of the 180 day window. This leads to two applications flooding the system.

Reconsiderations – many of which (time and time again I find) fail to address the legal test for reconsideration as set out by IRCC and as I have discussed in this past blog.
Temporary Resident Permits – we have been retained for several of these of late and unfortunately it is heading to the 8 month + range for a just graduated student to wait which is simply not feasible for most.
Unnecessary Return to Studies with Unclear Implications of Past Studies – many students go back to school – which makes sense from a Diploma to Bachelors level (perhaps) but for many who graduated from a Bachelors or higher, it really makes little sense to force them to take another program. These decisions are being made rushed, finances are being secured urgently (but with huge impact to families) – all to have to remedy a small admin or one part-time semester issue. It truly is overdoing things.

IRCC needs to urgently render timely decisions on study permit refusals – I would argue 90 days from a student’s completion of studies (i.e. less time if the student applies later) is an absolute maximum time that can be taken (freeing up another 90 for restoration in a feasible time). Given the use of Artificial Intelligence (“AI”) in this space, it should free up Officers to consider some of these cases where there may be admin issue to see if it can be addressed in reconsideration or in applying discretion, rather than having to put students in the loop. Right now, the Courts, are taking a position there is no discretion so litigation is of limited use to force change.

If in fact, the refusal of PGWPs is now a policy directive to try and tackle the backlog or filter the number of PGWP holders perhaps this should be communicated. Students could choose to transition out of classes back home, or return back after graduation, rather than stick around in limbo waiting for a TRP.

Too many mental health issues are being burdened by students who simply are going things that students go through, such as taking part-time classes to better their education outcomes or to save money. Students are making honest mistakes following confusing immigration application instructions. They should not be punished the way they currently are under our Canadian immigration system.

Agree? Disagree? Feel free to engage with me on Twitter or email me at info@heronlaw.ca with your thoughts.

#intled #cdnimm

Nov 21, 2022

Canadian Immigration Law Blog

Five AI-Decision Making Questions We Need Answers To From IRCC

In this short post, I will canvass five relatively urgent questions we need the collective answers to as we represent clients who are now being addressed by artificial-intelligence built decision-making systems. For clarity and to adopt IRCC’s status quo, I will not consider Chinook to be one of those systems, BUT it is clear Chinook interacts with AI and the role of Chinook as it pertains to decisions, especially as advanced analytics skips eligibility assessment become increasingly more important.

1) If IRCC is basing Advanced Analytics decisions of historical data, what historical data is being utilized? Does it represent a reasonable/ideal officer and how can it be re-programmed?

How do we ensure it represents an ideal period (not a stressed officer/overburdened)? IRCC has been overburdened with applications for the last decade having to create systems to shortcut decision-making and has been openly acknowledging their resource crunch. If historical data does not represent what we want for future processing – how can projections be changed. How, in practice, does bias get stripped or de-programmed out of data? We have seen positive impacts (for example Nigerian study permit approval rates) since recent advocacy but is that programmed in manually by a human? and how?

2) How does Advanced Analytics interact with Chinook?

In the past Chinook was utilized for only a portion of cases, we understand to both bulk approve cases and bulk refuse. If Advanced Analytics serves to provide auto-positive eligibility, why is Chinook even needed to sort the Applicant’s information to decide whether to approve or refuse. Is there column in Chinook that allows an Officer to see if Eligibility has already been met (i.e. it was AA’d) and therefore altering their application and use of Chinook? The fear is Chinook becomes just a refusal tool and is no longer needed for approvals.

Furthermore, what does an Officer see when they have to perform eligibility assessment? Are they given any information about data trends/key risk indicators/etc. that Advanced Analytics helped generate presumably during the triage? Is it something the Officer has to dig for in separate module of Chinook or is it displayed right in their face as they render a decision to remind them?

Are Officer’s made aware if a case goes into manual review for example as QA for an Automated Decision? How are those cases tracked?

3) What is the incentive to actually process a non-AA decision if AA decisions can be processed more accurately/quickly?

For those files that are triaged to the non-Green/Human bin, if it becomes a numbers game and the situation is no longer ‘first in, first out’, why even process the complex cases anymore? Why not fill the slots with newer AA/low risk cases that will create less challenges and just let decisions that are complicated or require human intervention to set for one, two years until the Applicant seeks a withdrawal? Other than mandamus, what remedies will Applicants have to resolve their cases. It is simply about complaining hard enough to get pulled out of review and for an eventual refusal? How do we ensure we do not refuse all Tier 2/3 cases as a matter of general practice as we get more Tier 1 applications in the door (likely from visa-exempt, Global North countries).

4) What does counsel for the Department of Justice see in GCMS/Rule 9 Reasons versus what we see?

Usually, the idea of a tribunal record or GCMS is that it a central record of an Applicant’s file but with increasing redactions, it is becoming less and less clear who has access to what information. Client’s are triaged utilizing “bins” but those bins are stripped from the GCMS notes we get. Are they also stripped for DOJ or not? Right now local word flags and risk indicators are stripped for applicants, but are they also stripped for DOJ? What about the audit trail that exists for each applicant that we have not been able to obtain via ATIP?

Taking it a step further – what constitutes a Tribunal Record anymore? Is it only what was submitted by the Applicant and what is in the Officer’s final decision? I know my colleague, Steven Meurrens has started to get even email records between Officers, but there’s a lack of clarity on what that Tribunal Record consists of and whether it necessarily must include the audit trail, risk indicators, and local word flags. Should it include the algorithms?

How does one even try to make fettering arguments if we do not know what the Officer had access to before rendering a decision (how they were possibly fettered)?

The other question becomes how do we let the judiciary know about these systems? Does it go up as a DOJ-led reference (and who can intervene and be on the other side)? The strategic litigation likely will be implemented again in a weak fact case. How do we ensure counsel on the other side is prepared for this so they can not only fight back but provide a counternarrative to the judiciary on these issues?

5) Will the Triaging Rules ever be Made Public?

Currently, the AI is quite basic from our understanding. There are key rules inputted and applications that meet the requirements go through a decision-tree that leads to auto-eligibility approvals. However, as these AA programs adopt more machine learning components, allowing them to spot out and sniff out new flags, new rules, new issues – will there be some transparency around what the rules are? Should there be different treatment between rules that are more on the security/intelligence/system integrity side versus more black and white rules such as only individual applicants can get tier one processing, or applicant’s must not have had a previous refusal to benefit from X, or holding a U.S. visa or previous Canadian visa over past ten years is a Tier 1 factor.

If the ultimate goal is also to use these rules to try and affect processing (lower number of applicants and raise approvals), presumably telling the public these factors so they may be dissuaded from applying when they do not have a strong case could be of benefit.

Just some random Monday morning musings as we dig further. Stay tuned.

Nov 1, 2022

Canadian Immigration Law Blog

How Much More Likely is an SDS Study Permit to Get Approved Than a Non-SDS Study Permit? – A Stats Look

One of the common questions we get asked by applicants (and indeed rumours fly around constantly on) is whether it makes sense to pursue IRCC’s Student Direct Stream or just go the regular route.

I recently obtained data from an IRCC requests that helps contextualize this question a bit. I decided (for interest of trying to make the data easier to understand) to just look at January to August 2022. This sample size necessarily limits our analysis, but I think it gives us a good microcosm to examine. January to August 2022 is not hindered (as much) by the COVID-19 restrictions of 2019-2020 and 2021 was for all intents and purposes a ‘straddle’ year.

This investigation is important because there have been rumours and allegations for example – that India SDS is not worth the effort (and that locally decided non-SDS cases have a higher refusal rate) or that for Philippines applicants, SDS is pretty much a non-effective process.

Without further ado, here is the raw data. Remember I did not (for purposes of visualization) break down the actual numbers of applications and did not do an ‘averaging’ because it depends on actual total numbers, which will take a bit more time to calculate with the way data was presented.

via IRCC CDO	Approval % SDS/NSE by Country of Residence/Citizenship
	Jan-22	Feb-22	Mar-22	Apr-22	May-22	Jun-22	Jul-22	Aug-22
India	72%	67%	69%	64%	60%	55%	57%	62%

Nigeria	61%	60%	68%	76%	91%	92%	63%	91%

China	86%	61%	58%	77%	83%	83%	76%	88%

Philippines	40%	40%	38%	50%	53%	40%	46%	48%

Vietnam	79%	82%	82%	66%	62%	74%	71%	82%

Pakistan	25%	40%	43%	40%	59%	56%	77%	67%



	Approval % of Non-SDS/NSE by Country of Residence/Citizenship
via IRCC CDO	Jan-22	Feb-22	Mar-22	Apr-22	May-22	Jun-22	Jul-22	Aug-22
India	12%	25%	24%	20%	36%	38%	35%	42%

Nigeria	44%	34%	26%	30%	31%	34%	69%	63%

China	74%	48%	72%	78%	82%	84%	90%	82%

Philippines	57%	58%	55%	82%	75%	84%	77%	76%

Vietnam	58%	51%	59%	79%	72%	61%	81%	55%

Pakistan	24%	17%	44%	17%	36%	48%	37%	38%

I have a few big takeaways:

Philippines SDS is the only SDS that has an approval rate that is significantly and consistently below Non-SDS. LJ Dangzalan has been talking about this a ton, but numbers back this up;
The India Non-SDS rumour appears just that. It may be select cases or ‘overselling’ local services but numbers don’t back that up;
Pakistan SDS makes a big difference (and the last four months) show it; and
The Nigerian student advocacy (and Nigerian Student Express) is trending well.

Anything else interesting you can gather from the data that catches your eye?

Aug 11, 2022

[Legal Rant] Addressing “Gaming the System” Concerns – Indian Study Permit Applicants and the SDS Example

Perhaps this post is inevitable. The reach of s.91 IRPA might be difficult to both control or manage from here inside Canada. Other than bulk refusing the applicants of certain unauthorized practitioners/agents that are found (and it appears only in egregious cases), it is highly unlikely we will see any enforcement. We will try and cut off the Canadian links, but too often they go under the surface – a quick Use of Rep signed here, a quick portal creation there, and the situation goes unnoticed by the applicant and our system-defending officers.

What is increasingly troublesome, however, is that there appear to be ways the system is being effectively gamed – or at least it is being marketed this way. As part of my work I am quite public on Twitter and Social media, and invite those with tips and leads to tell what is going on – ground level. This is one of those tips I received.

Here is one case that I think should trouble some folks.

Canada’s Student Direct Stream (SDS) has been lauded by many in the policy space for creating a subcategory of ‘ready-to-study’ students with good language scores, funds to pay for first year tuition, and a GIC. While I do not have recent stats and need to obtain them, the benefits of these programs have historically been faster processing and higher (10-12%) approval rates to reward students who did the leg work. One of the unique features of the SDS Application is that the approval (and refusal) is issued at Case Processing Centre (“CPC”) Edmonton in Canada, taking a large weight off the local visa offices and triaging cases more effectively.

I also want to give a bit of a context for writing this piece. A study permit was refused and the individual decided to go to an unauthorized representative for the subsequent follow-up application. That agent told the individual that previous counsel had provided too many explanations and letters and that the key to approval was to ensure the Visa Application Centre (“VAC”), and by extension the local visa office, could flag the file after submission. They recommended against submitting another SDS application.

Based on my credible source, who has canvassed other immigration agents from India, who confirmed same – the on the ground knowledge now is that SDS Applications will now take significant longer than regular applications and that to get approvals, the best thing to do is to get the office processed at the local level, at Delhi.

The way to do this is two fold:

Make sure the language test done is the PTE – so that the file has to be processed locally in Delhi; and
Make sure that only first semester and not first year tuition is paid to avoid SDS processing and keep the file local.

This is not the first time we have heard of a perceived preferential processing for non-SDS applications. Similarly for applicants from Philippines and Pakistan we have heard similar things in the past – along with Applicants that have taken various tips to try and get their cases triaged differently. These seem to be amplified concern of Applicants by the fact September school deadlines are starting and applicants need quicker decisions rendered than the SDS ones that have been taking several months. Agents are telling students (and apparently results are showing) approvals at the local office level.

RANT: I think we have to get to a point now, where we ask ourselves why we would create a stream like SDS only to have it take longer to process and perhaps offer less competitive processing.

Without the stats at this stage, I can only pass over the anecdotes I am hearing, but there is enough of a concern on the ground (I am not going to use the word qualitative this week – it doesn’t work) that applicants are being guided by unauthorized practitioners into ‘gaming the system.’ I believe it is enough of a concern that someone should step in to ensure transparency and proper communication.

Either there should be no discrepancy in processing times (thus removing the incentive of speed) or there should be a clear policy aim to have significantly higher approval rates for SDS than non-SDS streams, as should be the case on the basis of the required documentation to be submitted and obtained prior to application.

As IRCC moves to implement technological changes and institute these rules that will triage applications, it must be very aware of those who may have unauthorized access to or are learning how these rules work so as to want to circumvent them. If the data also comes out (beyond anecdotal) to support certain actions, applicants will adjust their behaviours and will be led to do so by unauthorized reps.

If SDS is the superstar program, worthy of global expansion, it is marketed as – there’s no reason it should take longer and make one’s applicant less likely to succeed. The doors of exploitation open up if there’s not consistency in this.

[End of Rant]

Jul 27, 2022

Ocran v. Thavaratnam and Hoku: How a Chinook Decision is Bootstrapped in Judicial Review and Strategies to Counter

I am writing this post after noticing a troubling trend and pattern. Unfortunately, counsel who are unprepared for how the Department of Justice and IRCC work in tandem on these cases (and to be honest, some Judges have also fallen into the trap of this strategy) can lead to JRs being dismissed at leave.

Here’s the pattern:

Temporary Resident Refusal – template refusal letter, further templated GCMS notes – these refusals are done on template refusal language. The refusal letter contains template grounds, and then the GCMS notes indicates further broad refusal grounds using such grounds as concerns about the applicant being ‘young, single, and mobile’, concerns about the ‘applicant’s family ties in Canada,’ the studies not being a ‘reasonable expense’, or the applicant’s ‘past mark sheets’ being of concern – among many others.
Judicial Review – Applicant’s Record – Filed By Applicant – Usually on grounds that only conclusion statements are made, limited reference to material facts, speculative – therefore not intelligible, transparent or justifiable (Vavilov);
Respondent’s Memorandum – Applicant is trying to relitigate facts – onus is on Applicant to prove they meet requirements, Officer’s not required to consider every fact, decision is reasonable. The DOJ then goes out of their way to usually add some detail or justification (I call this portion bootstrapping or counsel’s speculation) to tie together the pieces of the decision.
Judge renders leave decision (refused) or grants hearing but renders decision that may actually be seeking to question the Applicant’s efforts to provide evidence or question why not more was not provided – Judge often times stepping into the role of bootstrapping or speculating). Counsel tries to argue back that strong evidence was provided, and case becomes about relitigating and justification based on evidence before decision-maker (Applicant loses, often).

Assertions of Facts/Consideration of Evidence Leading to Conclusion or Just Conclusions With No Facts

If I wanted to refuse a study permit application reasonably, I could reasonably do it. Highlight some sort of shortcoming/mis-step/inadequacy of evidence, tie it somehow to a refusal ground, and lead to a conclusion that the Officer was not convinced.

However in this new Chinook world, the conclusions often come first and in fact (unintentional), there are little to no actual facts in decisions. This is because, as we know, decisions are being bulk refused and in other times Officers do not have enough time to properly suss out the facts short of stopping at the first grey area they see.

Very commonly decisions read like this:

The Applicant has a girlfriend in Canada. Therefore the applicant’s family ties and economic ties do not satisfy me they will leave Canada at the end of their authorized stay.

Unfortunately there is no logical leap step between Fact or Finding, or even if there is, there’s some obligation to consider evidence that might lead to an opposite finding, which rarely happens.

Reverse Engineering Decision – DOJ’s Position Supported by Ocran v. Canada (Citizenship of Immigration) 2022 FC 175

I generally love his decisions – and his interpretation and application of Vavilov is top notch, but I would say Justice Little’s decision in Ocran is one where it went beyond a judicial review of the decision (para 24 onwards) to almost a stepping in the shoes of the Officer to re-evaluate the factual record in light of the sparse GCMS notes. In no part of the decision, does Justice Little actually address the flawed nature of analysis based on a ‘reading in’ of justifying evidence. In short, I think Ocran opens up (and maybe I read Vavilov the wrong way) to reverse engineering a refusal decision based on stated conclusions with limited factual reliance by the decision-maker.

The approach taken in Ocran has inspired the same process by Department of Justice in cases, and unsurprisingly the decision is being cited for that preposition now that the Record can be read into the sparse GCMS notes. The harm of this is that template language that never meant to analyze or apply the facts to a reached decision are now retroactively used to justify that decision-made.

While I celebrated (sort of) the decision of Justice Little not to break down/opine on the Chinook system, perhaps having sought to contextualize how Officers render their decision template decision using Chinook would have kept him from stepping in to provide as detailed of a factual analysis as he did.

As a side note, even more worrisome is that I have seen after judicial review (consent), a case go back to IRCC where the Officer refused again and did so by adding one line of fact (citing the Record) between each of their previously templated decisions. In short, it is not difficult to rewrite a Chinook decision to make it reasonable even if it was found unreasonable at first.

How to Counter – Thavaratnam v. Canada (MCI) 2022 FC 967

On the more hopeful side of things, a recent decision by Madam Justice Furlanetto in Thavartnam gives applicant’s more hope.

In this decision, the Officer refused a temporary resident visa for an applicant from Sri Lanka, utilizing what Madam Justice Furlanetto refers to in para 19 as blanket or boilerplate statements and a series of conclusions (para 20).

She notes the gaps in reasoning from the Officer and the attempts of the DOJ to try and explain them, but concludes that this does not cure in inadequacy of the reasons for decision.

She writes:

[24] The Respondent proposes various explanations for the Officer’s conclusions. It asserts that the Applicant’s ties to Sri Lanka are weak when weighed against his family residing in Canada because only his wife is in Sri Lanka and they have no children. The Respondent asserts that the Applicant’s savings equate to $18,000 CAD and his pay for the year $5,000 CAD, which is extremely low by Canadian standards. It suggests that the business activities cannot be verified because they are training activities at a private organization owned by a relative. These explanations, however, were not those given in the GCMS notes. Counsel’s speculation of a plausible explanation cannot cure the inadequacy of the reasons for decision (Asong Alem v Canada (Citizenship and Immigration), 2010 FC 148 [Asong Alem] at para 19).

This is a paragraph that needs to be commonplace in responses where the DOJ seeks to try and take the reasons beyond what is written to piece together, what are gaps on the page. (Recall: Komolafe v Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para 11.)

Contexualizing Bootstrapping for the Federal Court – Hoku v. Canada (Citizenship and Immigration), 2019 FC 362

I often start my contexualizing my reply’s with the DOJ’s practice. Again, Ilike to use the language of bootstrapping borrowing from wording of Justice Ahmed.

Respondent’s Position re: Family Ties Bootstraps the Officer’s Decision and Commits the Same Error as the Officer of Failing to Analyze Family Ties

3. With respect, the Respondent’s submissions regarding family ties bootstraps the decision of the Officer in this matter. Justice Ahmed writes in Hoku v. Canada (Citizenship and Immigration), 2019 FC 362 [“Hoku”] at para 13 about the practice of bootstrapping.

[13] The Applicant also submits that her detailed submissions and supporting documents were not considered. The Applicant explains that this evidence included her immigration history, personal background, bona fides about her spiritual healing, the nature of her criminal conviction, and indicia of rehabilitation. The Applicant points out that the Minister’s Policy Manual states that all of these factors must be considered, and argued that the Respondent’s submissions bootstrap the actual decision and the reasons discernable from the GCMS notes.

[14] The Respondent submits that the Applicant simply failed to establish that her circumstances justify issuing an ARC, which is not intended to routinely allow persons to overcome a deportation order (Andujo at para 26). The Respondent also submits that it is unclear if the Applicant explained to the Decision-Maker that she exited Canada to comply with her probation order and objects to any inclusion of information not before the Decision-Maker.

[15] First, I agree with the Applicant that the Respondent’s submissions bootstrap the actual Decision-Maker’s reasoning. For example, there is nothing to support the Respondent’s Memorandum at paragraph 16 which states that the Decision-Maker found that the Applicant’s reasons for requesting an ARC were not compelling.
(emphasis added)

Hoku at para 13.

I often then apply and highlight what the DOJ says and respond as follows:

The reality is that the Officer does not offer any justification for the templated reasons they have provided. The Officer merely states that the Applicant “is single, mobile, is not well established and has no dependents.” The Respondent is attempting to fill in the gaps on the page with their own analysis, which is not the purpose of judicial review and represents the very process of bootstrapping.

I hope this piece was helpful. Again, I love the judicial review practice and am excited to make an announcement in September (so soon!) about our further shift towards this direction and this work. I hope young counsel interested in the work slow down and do their research, before engaging DOJ on a Chinook refusal JR.

Jul 20, 2022

The High Refusal Rate for C42 Spousal Applicants at the Abu Dhabi VO: A Closer Look

I recently received some very interesting data from IRCC for a conference I am presenting at in October.

While I will be assembling a team to break down this data (with the help of a trained data scientist), I wanted to write a short piece following a long blog hiatus on probably the data statistic that on the face stands out the most from my first glance.

This stat is the high refusal rate of C42 (spouse of FT study permit holder) applicants who apply at the Abu Dhabi Visa Office in the UAE.

I have extracted the data below.

he benefit of doing both Country of Citizenship and Country of Residence disaggregations is it not only shows the major discrepancies on the face (that only 17%/18% of Abu Dhabi VO applicants are getting approved versus 64%/62% as a global rate* – excluding in Canada + Extension apps) but also to see who makes up the large majority of applicants and where do they live. While in my practice I have been quite attuned to the challenges of Indian and Pakistan applicants living in the UAE, I am definitely surprised by the number of Philippines applicants being decided in Abu Dhabi UAE.

The broader implications of this of course means that either initial applications are being refused alongside but possibly that also several families are being separated with a Principal Applicant being approved and the spouse refused. These cases have appeared on my desk quite often recently.

If I were to chalk the C42 refusals to a central reason (and again, even our refusal grounds data – isn’t disaggregated properly right now), I think the lack of citizenship and instability of residency in the UAE is a contributing factor. Many residency permits are tied to work or study in UAE by the Principal Applicant, and there are many non-Emirates in the UAE who go whole lives and generations without ever getting full citizenship. Another factor could be also the deciding of cases of non-citizens of a country at that country’s visa office. We’re increasingly learning of triaging that involves visa offices in Europe handling backlogs from Asia/Africa, and this may be a very similar case particularly for the study permits from the Philippines.

This data set was not easy to get. I had to push to get the data disaggregated and after it was received it had several mistakes. It took two months of back and forths just to get to this point.

This is probably just 0.01% of the work will need to be done. Again, I am not even a data analyst which is why I have put out the call to others in the field and am really impressed by all the responses of offers to help.

I look forward to presenting this data in October. Thanks for tuning in (as always)!

Apr 19, 2022

Coach Will: New Vocabulary Words Tomorrow’s Immigration Practitioners Will Need To Know

As a resource, and to buy time as I am writing more substantive blogs, I wanted to share a #CoachWill blog on new vocabulary, terminology that tomorrow’s immigration practitioners will need to know, learn, advise their clients on, and spend time with. I am still very much learning these terms and their impact, but it gives us a mutual starting point to grow our knowledge of how Canadian immigration law will be impacted moving forward:

Advanced Analytics: which is composed of both Predictive and Prescriptive components, consists of using computer technology to analyze past behaviours, with the goal of discovering patterns that enable predictions of future behaviours. With the aid of a team of computer science, data, IT, and program specialists, AA may result in the creation of a model that can perform risk triage and enable automated approvals on a portion of cases, thereby achieving significant productivity gains and reducing processing times. [As defined in IRCC’s China-Advanced Analytics TRV Privacy Impact Assessment]

Artificial Intelligence: Encompassing a broad range of technologies and approaches, Al is essentially the field of computer science dedicated to solving cognitive problems commonly associated with human intelligence, such as learning, problem solving, and pattern recognition. [As defined in IRCC’s Policy Playbook on Automation]

Automated decision support system: Includes any information technology designed to directly support a human decision-maker on an administrative decision (for example, by providing a recommendation), and/or designed to make an administrative decision in lieu of a human decision-maker. This includes systems like eTA or Visitor Record and Study Permit Extension automation in GCMS. [As defined in IRCC’s Policy Playbook on Automation]

Black Box: Opaque software tools working outside the scope of meaningful scrutiny and accountability. Usually deep learning systems. Their behaviour can be difficult to interpret and explain, raising concerns over explainability, transparency, and human control. [As defined in IRCC’s Policy Playbook on Automation]

Deep learning/neural network is a subset of machine learning, which is essentially a neural network with three or more layers. These neural networks attempt to simulate the behavior of the human brain—albeit far from matching its ability—allowing it to “learn” from large amounts of data. While a neural network with a single layer can still make approximate predictions, additional hidden layers can help to optimize and refine for accuracy. [As defined by IBM: https://www.ibm.com/cloud/learn/deep-learning#:~:text=Deep%20learning%20is%20a%20subset,from%20large%20amounts%20of%20data]

Exploration zone: The exploration zone – also referred to as a “sandbox” – is the environment used for
research, experimentation and testing related to advanced analytics and Al. Data, codes and software
are isolated from those in production so that they can be tested securely.
“Fettering” of a decision-maker’s discretion: Fettering occurs when a decision-maker does not
genuinely exercise independent judgment in a matter. This can occur when a decision-maker binds
him/herself to a fixed rule of policy, another person’s opinion, or the outputs of a decision support
system. Although an administrative decision-maker may properly be influenced by policy considerations
and other factors, he or she must put his or her mind to the specific circumstances of the case and not
focus blindly on one input (e.g. a risk score provided by an algorithmic system) to the exclusion of other
relevant factors. [As defined in IRCC’s Policy Playbook on Automation]

“Fettering” of a decision-maker’s discretion: Fettering occurs when a decision-maker does not
genuinely exercise independent judgment in a matter. This can occur when a decision-maker binds
him/herself to a fixed rule of policy, another person’s opinion, or the outputs of a decision support
system. Although an administrative decision-maker may properly be influenced by policy considerations
and other factors, he or she must put his or her mind to the specific circumstances of the case and not
focus blindly on one input (e.g. a risk score provided by an algorithmic system) to the exclusion of other
relevant factors. [As defined in IRCC’s Policy Playbook on Automation]

Machine learning: A sub-category of artificial intelligence, machine learning refers to algorithms and statistical models that learn and improve from examples, data, and experience, rather than following pre-programmed rules. Machine learning systems effectively perform a specific task without using explicit instructions, relying on models and inference instead. [As defined in IRCC’s Policy Playbook on Automation]

A minimum viable product (MVP) is a development technique in which a new product or website is developed with sufficient features to satisfy early adopters. The final, complete set of features is only designed and developed after considering feedback from the product’s initial users. [As defined by Techopedia – https://www.techopedia.com/definition/27809/minimum-viable-product-mvp]

Predictive Analytics: brings together advanced analytics capabilities spanning ad-hoc statistical analysis, predictive modeling, data mining, text analysis, optimization, real-time scoring and machine learning. These tools help organizations discover patterns in data and go beyond knowing what has happened to anticipating what is likely to happen next. [As defined in IRCC’s China-Advanced Analytics TRV Privacy Impact Assessment]

Prescriptive Analytics: Prescriptive Analytics is an advanced analytics technology that can provide recommendations to decision-makers and help them achieve business goals by solving complicated optimization problems. [As defined in IRCC’s China-Advanced Analytics TRV Privacy Impact Assessment]

Process automation: Also called “business automation” (and sometimes even “digital transformation”), process automation is the use of digital technology to perform routine business processes in a workflow. Process automation can streamline a business for simplicity and improve productivity by taking mundane repetitive tasks from humans and giving them to machines that can do them faster. A wide variety of activities can be automated, or more often, partially automated, with human intervention maintained at strategic points within workflows. In the domain of administrative decision-making at IRCC, “process automation” is used in contrast with “automated decision support,” the former referring to straightforward administrative tasks and the latter reserved for activities involving some degree of judgment. [As defined in IRCC’s Policy Playbook on Automation]

[Last Updated: 19 April 2022 – we will continue to update as new terms get updated]

Apr 4, 2022

Why the Need for Permissive Conditions Adds Unnecessary Burden for Canadian International Students

Context of the Problem – Unclear Instructions

In March 2022, IRCC amended the study permit instructions for Study Permits: Working on Campus to add clarity to ability to work without a work permit while as a student.

Unfortunately, because of the nature of the oversimplification of how R.186(f) IRPR is presented in the instructions and as well as the obligation to obtain permissive conditions one one’s study permits allowing for the ability to work, this creates a major problem for international students.

For reference, R.186(f) is quoted below:

No permit required

186 A foreign national may work in Canada without a work permit

(f) if they are a full-time student, on the campus of the university or college at which they are a full-time student, for the period for which they hold a study permit to study at that university or college;

Rather than the need for permissive conditions, conditions which as of right now are not uniformly understood or applied by decision-makers in granting study permits (let alone CBSA border officers when printing them) I believe we should ideally be operating where only the absence of restrictive conditions is needed.

This is of course the old way things have been done, where students who are not able to work while studying (perhaps those who have been approved to study only part-time or in ESL programs) are restricted and need to apply to amend their study permits by way of a new extension applicatoin.

Consequentially, as a result of these policy changes, a student without this language (perhaps in a final semester where they are exempt from the need to be in full-time studies to work part-time) has to apply to IRCC to change conditions of their study permit. This process at least takes a few months if not more, if other issues were to arise or concerns flagged, not related to the change request. All of this additional labour is needed, because of the lack of permissive conditions. Given IRCC has just changed this (with apparently no reference to the way things used to be done), this will create unnecessary further backlogs and apply retrospectively to confuse both potential employers and students affected.

Importantly, risk adverse educational institutions are already considering restricting students from being able to work without this language on their study permits. This jeopardizes many students who rely on the ability to work 20 hours to perform tasks as a teaching assistant/research assistant or who wish to levy their experiences in their final semester – by taking a part time job, pending graduation/PGWP application.

Not to mention not all students in Canada are working under the authority of R.186(f) IRPR. On strict interpretation, this is what IRCC is making it appear as – but many will be working on the basis of R. 186(u) – on implied status, or even R. 186(p), (v) or (w) IRPR.

For reference below:

(p) as a student in a health field, including as a medical elective or clinical clerk at a medical teaching institution in Canada, for the primary purpose of acquiring training, if they have written approval from the body that regulates that field;

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

(v) if they are the holder of a study permit and

(i) they are a full-time student enrolled at a designated learning institution as defined in section 211.1,

(ii) the program in which they are enrolled is a post-secondary academic, vocational or professional training program, or a vocational training program at the secondary level offered in Quebec, in each case, of a duration of six months or more that leads to a degree, diploma or certificate, and

(iii) although they are permitted to engage in full-time work during a regularly scheduled break between academic sessions, they work no more than 20 hours per week during a regular academic session;

Indeed, and more specifically, R.186(v) (iii) for final semester exemption seems to tie directly to the implied nature of R.186(f), but arguably now requires that language because of – again – the change to a required permissive condition.

If this seems confusing to us as practitioners, imagine an on-campus employer who is concerned about hiring an international student without authorization. This has the further impact of stigmatizing international students in the hiring process. From my perspective, the Regs should override the lack of permissive conditions, but for Employers who are looking at websites only for policy guidance, that may not be abundantly clear.

Interim Solution : Make it Easier – Issue a Letter via Automated Portal

While I believe this issue can be made easier, by reverting to the negative/not positive Issue an automatic letter via the new Client Application Portal upon request (i.e. ASAP) where a student shows they are either a full-time student or are exempt for final semester.

Interim Solution 2: Clarify that R. 186(v) and (w) work different and don’t need this permissive language

It is clearly an error in law to suggest that all work needs to be permitted by R. 186(f) IRPR. The instructions should reflect this and exempt either the R.186(v) and (w) IRPR work. If all these need to be permitted by permissive language, I think you are turning a border officer into a detail-oriented immigration officer, and more problems will arise where some receive and some do not receive this condition

Ultimate Solution: Standardize Permissions to Be Only Permissive or Only Restrictive and Not a Mix

Between the system changes, I believe IRCC will need to make a choice: either make it permissive and make it standard practice (not subject to error) to have the permissive conditions printed OR (and as I prefer) specifically exclude those who are not eligible on a case-by-case basis and not throw all the responsibility onto study permit holders to do the work correcting errors while being harmed by the waiting period. As great as the Ask or Update Your Application portal is, I am sure the volume of requests will eventually impact it also.

There’s no reasons, in my mind, we need to have permissive and restrictive conditions mixing and blurring the lines of the Regulations. So few students are even being admitted these days for language courses and part-time studies, and those that are – from my perspective – are a much easier group to manage restrictions for then to impact 98% of folks by requiring permissive conditions.

Mar 29, 2022

A Closer Look at How IRCC’s Officer and Model Rules Advanced Analytics Triage Works

As IRCC ramps up to bring in advanced analytics to all their Lines of Business (LOBs), it is important to take a closer look at what the foundational model, the China TRV Application Process, looks like. Indeed, we know that this TRV model will be the TRV model for the rest of the world sometime this year (if not already).

While this chart is from a few years back, reflecting as I have discussed in many recent presentations and podcasts, how behind we are in this area, my understanding that this three Tier system is still the model in place

Over the next few posts, I’ll try and break down the model in more detail.

This first post will serve as an overview to the process.

I have included a helpful chart, explaining how an application goes from intake to decision made and passport request.

While I will have blog posts, that go into more detail about what ‘Officer Rules’ and ‘Model Rules’ are, here is the basic gist of it. A reminder it only represents the process to approval NOT refusal, and such a similar chart was not provided.

Step 1) Officer’s Rules Extract Applications Out Based on Visa Office-Specific Rules

Each Visa Office has it’s own Officer’s Rules. If an application triggers one of those rules, it no longer gets processed via the Advanced Algorithm/AI model. Think about it as a first filter, likely for those complex files that need a closer look at by IRCC.

You will recall in our discussion of Chinook, the presence of “local word flags” and “risk indicators.” There is no evidence I have yet which links these two pieces together, but presumably the Officer Rules must also be triggered by certain words and flags.

Other than this, we are uncertain about what Officer’s Rules are and we should not expect to know. However, we do know that the SOPs (Standard Operating Procedures) at each Visa Office then apply, rather than the AA/AI model. What it suggests is that the SOPs (and access to these documents) may have the trigger for the word flags.

Step 2) Application of Model Rules

This is where the AA/AI kick in. Model Rules (which I will discuss in a future blog post) are created by IRCC data experts to replicate a high confidence ability to separate applications into Tiers. Tier 1 are the applications that to a high level of confidence, should lead the Applicant to obtain positive eligibility findings. Indeed, Tier 1 Applications are decided with no human in the loop but the computer system will approve them. If the Application is likely to fail the eligibility process, and lead to negative outcomes, it goes to Tier 3. Tier 3 requires Officer review, and – unsurprisingly – has the highest refusal rate as we have discussed in this previous piece.

It is those files that are between positive and negative (the ‘maybe files’) and also the ones that do not fit in the Model Rules nor Officer Rules that become Tier 2. Officers also have to review these cases, but the approval rates are better than Tier 3.

3) Quality Assurance

The Quality Assurance portion of this model, has 10% of all files, filtered to Tier 2 to verify the accuracy of the model.

The models themselves become ‘production models’ when a high level of confidence is met, and they are finalize – such as the ones we have seen for China TRV, India TRV, we believe also China and India Study Permits, but also likely cases such as VESPA (yet this part has not been confirmed). Before it becomes a Production Model, it is in the Exploratory model zone.

How do we know there is a high QA? Well this is where we look at the scoring of the file.

I will break down (and frankly need more research) into this particular model later and it will be the subject of a later piece, but applications are scored to ensure the model is working effectively.

It is interesting that Chinook also has a QA function (and a whole QA Chinook module 6), so it appears there’s even more overlap between the two systems, probably akin to a front-end/back-end type relationship.

4) Pre-Assessment

Tier 1 applications go straight to admissibility review, but those in 2 and 3 go to pre-assessment review by a Clerk.

Important to note here and in the module that these clerks and officers appear to be citing in CPC-O, not the local visa offices abroad. This may also explain why so many more decisions are being made by Canadian decision-makers, even though it may be ultimately delivered or associated with a primary visa office abroad.

But here-in lies a bit of our confusion.

Based on a 2018 ATIP we did, we know that they are triaging different of cases based on case types into “Bins” so certain officers or at least certain lettered numbers – would handle like cases. Yet, this appears to have been the India model then, but the China TRV model seems to centralize it more in Ottawa. Where does the local knowledge and expertise come in? Are there alternative models now that send the decisions to the local visa office or is it only Officer’s rules? Is this perhaps why decisions rendered on the TRVs from India and China are lacking the actual local knowledge that we used to see in decisions because they have been taken outside of the hands of those individuals.

Much of the work locally used to be done on verifying employers, confirming certain elements, but is that now just for those files that are taken out of the triage and flagged as being possible admissibility concerns? Much to think about here.

Again, note that Chinook as a pre-assessment module also that seems to be responsible for many of the same things, so perhaps Chinook is also responsible for presenting the results of that analysis in a more Officer friendly way but why is it also directing the pre-assessment, if it is being done by officers?

5) Eligibility Assessment

What is important to note that this stage is Eligibility where there is no automated approval is still being done by Officers. What we do not know is if there is any guidance directed at Officers to approve/refuse a certain number of Tier 2 or Tier 3 applicants. This information would be crucial. We also know IRCC is trying to automate refusals, so we need to track carefully what that might look like down the road as it intersects with negative eligibility assessments.

6) Admissibility Review + Admissibility Hits

While this likely will be the last portion to be automated, given the need to cross-verify many different sources we also know that IRCC has programs in place such as Watchtower, again the Risk Flags, which may or may not trigger admissibility review. Interestingly enough, even cases where it seems admissibility (misrep) may be at play, it seems to also lead to eligibility refusals or concerns. I would be interested in knowing whether the flagging system also occurs as the eligibility level or whether there is a feedback/pushback system so a decision can be re-routed to eligibility (on an A16 IRPA issue for example).

KEY: Refusals Not Reflected in Chart

What does the refusal system look like? This becomes another key question as decisions are often skipping even the biometrics or verifications and going straight to refusal. This chart obviously would look much more complicated, with probably many more steps at which a refusal can be rendered without having to complete the full eligibility assessment.

Is there a similar map? Can we get access to it?

Conclusion – we know nothing yet, but this also changes everything

This model, and this idea of an application being taken out of the assembly line at various places, going through different systems of assessment, really in my mind suggest that we as applicant’s counsel know very little about how our applications will be processed in the future. These systems do not support cookie cutter lawyering, suggest flags may be out of our control and knowledge, and ultimately lead us to question what and who makes up a perfect Tier 1 application.

Models like this also give credence to IRCC’s determination to keep things private and to keep the algorithms and code away from prying investigators and researchers, and ultimately those who may want to take advantage of systems.

Yet, the lack of transparency and concerns that we have about how these systems filter and sort appear very founded. Chinook mirrors much of what is in the AA model. We have our homework cut out for us.

Mar 15, 2022

Three Belated Crystal Ball Predictions for Canadian Immigration in 2022

While March may seem for some a little late to be predicting a year’s events (given Q1 is nearing it’s end), I will take a contrarian position that is not. Right now is perhaps the perfect time to try and make a prediction. All the big picture pieces are out of the way. We know what the levels plan looks like, especially in terms of the reduction of CECs landed in 2022.

Prediction 1: 2022 will be about AI vs. IA

I believe IRCC is full throttle trying to implement AI (Advanced Analytics) across all their Lines of Business (LOBs), from temporary to permanent residence to citizenship. The speed by which artificial intelligence can be implemented with public support to process high volume of applications to Canada will be pitted against the impact of international affairs/crises/refugee producing situation. If Ukraine is the new precedent set by IRCC to tackle refugee/humanitarian wars and crises, which politically appears it will have to be – so that the Government can appear anti-racist (see prediction 3), this will inevitably delay/shift resources. If AI can be quickly implemented to deal with the quick decisions (both approvals/refusals) this might be the best solution for the Government. Meanwhile those who are more critical of AI systems (myself included) might ask for more caution in the process;

Email headings between senior A2SC (Advanced Analytics) folks, received via ATIP

Prediction 2: TEERing Up the Economic Immigration System Will Leave Some Behind

The new TEER system replaces NOC in a year where economic permanent resident applications, largely filled by NOC B positions, are backlogged and paused. How will IRCC adapt and change the rules of the game, with the implementation of TEER. What does this mean for the future of FSW/CEC?

If the math is as it is above, we could see a shrinking of NOC 0AB so that that the 70% of unit groups once eligible (NOC 0, A,B) turns into 59% (Tier 0, 1, 2). While it seems like a lot of what will occur will be ‘mergers’, I am eager to see what happens to tweener jobs such as administrative assistant and retail sales supervisor. I suspect, the first place we will see a major impact will be in the Federal Skilled Worker where we may move to exclusion lists or targeted draws for specific TEER categories.

Prediction 3: IRCC will be forced/asked to clean up the house on anti-racism – IRCC’s Anti-Racism Polaris Report and recent concerns (including the next Parliamentary Study) about discrepant processing rates will lead the Department to try and address this in policy options and offerings.

The emails between IRCC staff looking into preventing bias and anti-racism in systems is good work in the right direction, but growing calls will be for an independent oversight commission or ombudsperson.

Immigration is so deeply entrenched with racist roots from our history of exclusion, now manifested in explicit and implicit biases, two tiered systems, secret programs, and different criteria, that I really do not see how we can build an anti-racist system without first tearing down the first one. Economically (in terms of investment into things such as technology) and politically (given we are still considered globally to have a decent/attractive system), I don’t see us doing that.

What you will likely see is a greater platforming and emphasis of the Gender Based Analysis (GBA+) work as well as projects taken up that give at least a cover or presentation of progress. Yet, myself and other critiques are still hopeful that the Government does not shy away from a hard, introspective, look at the systems that have already been developed and paid for to see where key fixes are needed.

I do see that those on the other side, advocates, lawyers, etc. are shifting away from their own Whiteness and once those litigation skills and experiences are transferred to the new generation of racialized lawyers who have a keen sense of justice and have lived/feel the discrepancy, they will start attacking the foundations. I think right now is the perfect time for IRCC to do some public relations/communication work around anti-racism, to pad the intention piece, and build in justifications/explanations/evidence for when these matters eventually get litigated.

As I have presented and said – immigration is itself state-sponsored discrimination. I don’t think we will ever eliminate it to a point where Applicants are happy and Immigration loses its role as a filtering mechanism based on race + citizenship, as a defining feature. Yet, I definitely see a bigger role for those who advocate for safeguards and 2022 as the year some of those safeguards start being introduced.

Feb 17, 2022

Why If There’s No “N/A” Risk Flag on Your GCMS Notes, You May Have Been Risk Flagged

One of the more fascinating modules in Chinook is Module 5 – Indicator Management.

Many of you who have received ATIPs for Officer’s GCMS notes or received Rule 9 Reasons from the Federal Court probably see this in your GCMS notes:

But what if this is missing? Folks have yet to see any actual risk indicators processing priority word flags actually show up in ATIP, well here is probably why.

Indicators and Word Flags are Deleted If There is any Indicator/Word Flag

This email exchange from October 2020 between IRCC program officers and ATIP Officers (I won’t get into why I find this problematic in this piece) tells you why.

In this email, guidance is being provided to only use the wording “Indicator: N/A Processing Priority Word Flag: N/A” where there is Indicator or Priority Flag. In other words, the entire section is omitted where there is an Indicator or Priority Word Flag.

Hence the title of this piece.

Question then becomes, how does one actually challenge the lack of disclosure of a risk flag or priority word flag in a decision? For example, in Federal Court. In litigation, reverse engineered explanations will be put forward for why the decision was reasonable – but without the actual indicator/word flag – a large chunk of the decision or perhaps the impetus behind a fettered decision will be missing.

Furthermore, is it one way access. A big defense of the transparency of fairness of Chinook is that the same information is available in GCMS as is in Chinook minus the deletions of working notes (that apparently are not substantive). However, as we have discovered otherwise these notes can be substantive and if Officers are recommended to use standard form wording in refusing cases – we might only be able to rely on things such as risk flags/work indicators – but these are being deleted from GCMS notes and Rule 9 reasons. What if the Department of Justice has access to them (from their client) but we do not. Does that create a procedural fairness issue?

Let’s take a step back and look at what we know so far about Module 5.

Below I will write a running commentary of paras 48-53 of the Daponte Affidavit.

Module 5: Indicator Management (Risk Indicators and Local Word Flags)

38. As described above, Module 5 allows a Chinook user to submit requests to a Chinook administrator to add, renew, or modify “risk indicators” and “local word flags”. “Risk indicators” and “local word flags” are intended to assist Decision-Makers in their review of Applications.

It is to be noted, we still do not know how the system flags/indicates these words to the case. Where it shows up (in what module) to trigger action.

Risk Indicators

39. “Risk indicators” are used to notify Decision-Makers of trends that IRCC has detected, such as a trend that a falsified document was submitted by a certain company in a high number of Applications from different clients or otherwise to highlight a particular factor of concern.

40. “Risk indicators” are also utilized to notify Decision-Makers of potentially low risk Applications; for example, if an international medical conference is being held in Canada, a “risk indicator” may be created to identify entry for such purpose to be of low risk to program integrity.

41. “Risk indicators” may apply to all Applications or to a specific migration office. The inclusion of “risk indicators” within Chinook allows Decision-Makers to view applicable indicators in a centralized manner when determining an Application.

While it is presumed that some of the larger “Risk indicators” are big picture anti-fraud pieces, what about the local office ones? What if something – single, older woman going to attend wedding is an indicator at one visa office, but not at the other? Is local knowledge and Officer’s expertise enough of a justification? Does there need to be oversight?

42. An approved “risk indicator” within Chinook is linked to set criteria. For example, a “risk indicator” may be linked to a client’s declared occupation, such as “petroleum geologist”, or intended employer, such as “Acme Oil”, or a specified combination of criteria, such as “petroleum geologist” for “Acme Oil”.

Again, the specific I understand – the broader flag of “petroleum geologist” seems like it has the possibility of discriminating and I would want it subject to independent oversight.

43. Approved “risk indicators” are presented in the Module 3 Report, along with a recommendation that Decision-Makers perform an activity in assessing an Application, such as a review of proof of credentials or an employment offer letter. The recommendation, however, does not direct Decision-Makers to arrive at any specific conclusion in conducting their assessment, but rather suggests steps to be taken to ascertain information.

I would be interested to seeing what the approval and refusal rates are for cases that are flagged. It would seem to be like a lower Tier flag that could create major challenges. Even though it does not direct a decision, it is hard to see how this does not fetter a discretion with a word such as ‘flag.’

Local Word Flags

44. A “local word flag” is used to assist in triaging an Application in order to ensure priority processing of time-sensitive Applications, such as an Application to attend a wedding or a funeral.

45. A “local word flag” is specific to a particular migration office. For example, the Beijing migration office may obtain approval from the Chinook administrator to include words associated to a wedding, such as “wedding”, “marriage”, or “ceremony”. The matched word found in any Application at the Beijing migration office is then presented in the Module 3 Report.

What separates a risk flag versus a word flag? A local word flag seems to support ‘priority processing’ but how many of these decisions are positive per word versus ultimately, negative?

Indicator Management

46. There is a process to create a “risk indicator” or “local word flag” within Chinook. An IRCC Risk Assessment Officer (“RAO”) or other approved user may submit requests to create such an indicator. A Chinook administrator then reviews requests for approval within Module 5. Each submission must be justified through rationale statements and are subject to modification or denial by the administrator.

This is not surprising. We are aware of this process, although I would mention that from an ATIP on the RAO email account I only saw one Mod5 request (perhaps others redacted) but you can see it below. I also share a copy of what type of flags can be raised.

47. Following the above example, a RAO may find that a number of WP applications have included falsified letters of offer under the name of a specific company, such as “Acme Oil”. The RAO may then submit a request that the company name be included as a “risk indicator” due to concerns of falsified documentation.

This is by all accounts a very positive use of risk indicators. Why not let those who have applied know they have been flagged and perhaps these flags can be accumulated (and some even publicly shared) so we do not have repeat applicants falling for the same trap?

48. Chinook searches for “risk indicators” and “local word flags” in all Applications that are contained in a Module 3 Report. However, such indicators appear in the Module 3 Report only when they may be relevant to a particular Application.

Hence the N/A on several applications. That makes sense.

49. “Risk indicators” and “local word flags” are valid for four months from the date of approval, after which a Chinook administrator may renew or modify the indicator.

What oversight is there of this individual? Their role? Their anti-racism training? Is there a committee or only ONE administrator?

50. As noted above, Decision-Makers or other assigned Chinook users are to “copy and paste” any “risk indicators” or “local word flags” presented in the Module 3 Report into GCMS, where they will be retained. If there are no such indicators, Decision-Makers are to note that these are not applicable to an Application by recording “N/A” in GCMS. I expand on this process immediately below.

Again – why the language of N/A shows up in GCMS.

COMPLETION OF APPLICATION PROCESSING WITHIN CHINOOK

51. Once Decision-Makers finalize decisions for all Applications in a given Module 3 Report, they are to ensure that the decision, reasons, and any “risk indicators” or “local word flags” in the Module 3 Report are recorded in GCMS using the steps described in the paragraphs that follow.

Again, the problem is it is recorded in GCMS but it is disappeared for the Applicant trying to access their own GCMS. Is this fair?

52. Decision-Makers are to click a button labelled “Action List” located within Column A of the Module 3 Report, which organizes data for ease of transfer into GCMS. The created “Action List” presents the decision, reasons for refusal if applicable, and any “risk indicators” or “local word flags” for each Application. If there were no “risk indicators” or “local word flags” associated with a given Application, then Decision-Makers must populate the corresponding GCMS “Notes” field with “N/A” to reflect that no such terms were present in the Module 3 Report.

Which is what we saw with the Rule 9 excerpt I took out. Again, we’ve seen this.

53. Decision-Makers are then required to “copy and paste” the final decision from Chinook into the “Final” field contained in GCMS. Decision-Makers, or assigned Chinook users on their behalf, are also required to “copy and paste” any reasons for decision and the field contents for “risk indicators” and “local word flags” from Chinook into the “Notes” field of GCMS.

So, as counsel, we need to really figure out how to get our hands on these risk indicators because often times – we may be trapped against a flag on our clients, without us even knowing and with the bulk nature by which these flags are being triggered – that will limit the transparency of the final decision. Clients may […]

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