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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]

 

 

 

 

 

 

 

 

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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

 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.

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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.

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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-racismIRCC’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.

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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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Chinook is AI – IRCC’s Own Policy Playbook Tells Us Why

One of the big debates around Chinook is whether or not it is Artificial Intelligence (“AI”). IRCC’s position has been that Chinook is not AI because there is a human ultimately making decisions.

In this piece, I will show how the engagement of a human in the loop is a red herring, but also how the debate skews the real issue that automation, whether for business function only or to help administer administrative decision, can have adverse impacts – if unchecked by independent review.

The main source of my argument that Chinook is AI is from IRCC itself – the Policy Playbook on Automated Support on Decision-Making 2021. This an internal document, which has been updated yearly, but likely captures the most accurate ‘behind the scenes’ snapshot of where IRCC is heading. More on that in future pieces.

AI’s Definition per IRCC

The first, and most important thing is to start with the definition of Artificial intelligence within the Playbook.

The first thing you will notice is that the Artificial Intelligence is defined so broadly by IRCC, which seems to go against the narrow definition it seems to paint with respect to defining Chinook.

Per IRCC, AI is:

If you think of Chinook dealing with the cognitive problem of attempting to issue bulk refusals – and utilizing computer science (technology) – to apply to learning, problem solving and pattern recognition – it is hard to imagine that a system would even be needed if it weren’t AI.

Emails among IRCC, actively discuss the use of Chinook to monitor approval and refusal rates utilizing “Module 6”

Looking at the Chinook Module’s themselves, Quality Assurance (“QA”) is built in as a module. It is hard to imagine a QA system that looks at refusal and approval rates, and automates processes and is not AI.

As this article points out:

Software QA is typically seen as an expensive necessity for any development team; testing is costly in terms of time, manpower, and money, while still being an imperfect process subject to human error. By introducing artificial intelligence and machine learning into the testing process, we not only expand the scope of what is testable, but also automate much of the testing process itself.

Given the volume of files that IRCC is dealing with, it is unlikely that the QA process relies only on humans and not technology (else why would Chinook be implemented). And if it involves technology and automation (a word that shows up multiple times in the Chinook Manual) to aid the monitoring of a subjective administrative decision – guess what – it is AI.

We also know also that Chinook is underpinned with ways to process data, look at historical approval and refusal rates, and flag risks. It also integrates with Watchtower to review the risk of applicants.

It is important to note that even in the Daponte Affidavit in Ocran that alongside ATIPs is the only information we have about Chinook, the focus has always been on the first five modules. Without knowledge of the true nature of something like Module 7 titled ‘ToolBox’ it is certainly premature to be able to label the whole system as not AI.

 

Difficult to Argue Chinook is Purely Process Automation Given Degree of Judgment Exercised by System in Setting Up Findecs (Final Decisions)

Where IRCC might be trying to carve a distinction is between process automation/digital transformation and automated decision support systems.

One could argue, for example, that most of Chinook is process automation.

For example, the very underpinning of Chinook is it allows for the entire application to be made available to the Officer in one centralized location, without opening the many windows that GCMS required. Data-points and fields auto populate from an application and GCMS into a Chinook Software, allowing the Officer to render decisions easier. We get this. It is not debatable.

But does it cross into automated decision support system? Is there some degree of judgment that needs to be applied when applying Chinook that is passed on to technology that would traditionally be done by humans.

As IRCC defines:

The Chinook directly assists an Officer in approving or refusing a case. Indeed, Officers have to apply discretion in refusing, but Chinook presents and automates the process. Furthermore, it has fundamentally reversed the decision-making processing, making it a decide first, justify later approach with the refusal notes generator. Chinook without AI generating the framework, setting up the bulk categories, automating an Officer’s logical reasoning process, simply does not exist.

These systems replace the process of Officer’s  needing to manually review documents and render a final decision, taking notes to file, to justify their decision. It is to be noted that this is still the process at low volume/Global North visa offices where decisions do this and are reflected in the extensive GCMS notes.

In Chinook, any notes taken are hidden and deleted by the system, and a template of bulk refusal reasons auto-populate, replace, and shield the actual factual context of the matter from scrutiny.

Hard to see how this is not AI. Indeed, if you look at the comparables provided – the eTA, Visitor Record and Study Permit Extension automation in GCMS, similar automations with GCMS underpin Chinook. There may be a little more human interaction, but as discussed below – a human monitoring or implementing an AI/advanced analytics/triage system doesn’t remove the AI elements.

 

Human in the Loop is Not the Defining Feature of AI

The defense we have been hearing from IRCC is that there is a human ultimately making a decision, therefore it cannot be AI.

This is obscuring a different concept called human-in-the-loop, which the Policy Playbook suggests actually needs to be part of all automated decision-making processes. If you are following, what this means is the defense of a human is involved (therefore not AI), is actually a key defining requirement IRCC has placed on AI-systems.

It is important to note that there is certainly is a spectrum of application of AI at IRCC that appears to be leaning away from human-in-the-loop. For example, IRCC has disclosed in their Algorithmic Impact Assessment (“AIA”) for the Advanced Analytics Triage of Overseas Temporary Resident Visa (“TRV”) Applications that there is no human in the loop with the automation of Tier 1 approvals. The same system without a human-in-the-loop is done for automating eligibility approvals in the Spouse-in-Canada program, which I will write about shortly.

 

Why the Blurred Line Between Process Automation and Automated Decision-Making Process Should Not Matter – Both Need Oversight and Review

Internally, this is an important distinguishing characteristic for IRCC because it appears that at least internal/behind-the-scenes strategizing and oversight (if that is what the Playbook represents) applies only to automated decision-support systems and not business automations. Presumably such a classification may allow for less need for review and more autonomy by the end user (Visa Officer).

From my perspective, we should focus on the last part of what IRCC states in their playbook – namely that ‘staff should consider whether automation that seems removed from final decisions may inadvertently contribute to an approval or a refusal.’

To recap and conclude, the whole purpose of Chinook is to be able to render the approval and refusal in a quicker and bulk fashion to save Officer’s time. Automation of all functions within Chinook, therefore, contribute to a final decision – and not inadvertently but directly. The very manner in which decisions are made in immigration shifts as a result of the use of Chinook.

Business automation cannot and should not be used as a cover for the ways that what appear routine automations actually affect processing that would have had to be done by humans, providing them the type of data, displaying it on the screen, in a manner that can fetter their discretion and alter the business of old.

That use of computer technology – the creation of Chinook – is 100% definable as the implementation of AI.

 

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The Play is Under Review: A Closer Look at IRCC’s Policy Playbook on Automated Decision Making (Pending Feature)

Over the next several weeks, I’ll be doing a series of shorter blog posts on IRCC’s Policy Playbook on Automated Support for Decision-making (2021 edition).

The first one (hopefully released this week or by the weekend) will be about IRCC’s concerns that applicants are “gaming by claiming” and their preference for “objective evidence” for the inputs of IRCC’s Chinook system.

We will focus our attention of the manual we find could drastically change the landscape for applicants, practitioners, and the courts reviewing decision. We will get critical on ways we expect transparency in the use of AI as we move forward.

I am also doing two parallel judicial review of AI decisions as part of my practice right now, and will keep everyone informed as to how those cases are going and things we are learning.

Should be exciting. Welcome to this space, and looking forward to the conversation.

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New Year, New Me – Gratitude + the Canadian Immigration Issue I’m Tackling in 2022

I have a tradition every year of listening to the same Death Cab for Cutie song, The New Year.

“So this is the new year
And I have no resolutions
For self assigned penance
For problems with easy solutions”

The pursuit of ‘easy’ seems to be the antithesis of my current path. In 2021 (after a late 2020 move), I started a new Firm and had a new baby, each of which has taken it’s relative toll. I’m ready for a reset, a change of focus, and a quieter year. I look forward to announcing those details in early February.

 

Gratitude for another Clawbies Win

I was definitely pleasantly surprised that I received another Clawbies (my third!) for Best Law and Commentary Blog in Canada. This year’s award is dedicated to my readers. Without the engagement, I’ve received on topics such as Chinook and our broader policy discussions, I would not have had the motivation to write. This year, my writing was split largely between this blog and my Firm’s blog.

I suspect 2022 to bring similar things, but I definitely realize how much I miss regular writing after my brief hiatus. I am going to try my best to spend my mornings writing – as regularly as I can amid my year focused on system-building, conference organizing, and too much creative day-dreaming (more on that to come too).

 

Question of 2022: Question of Inequity, Technology, and If (or How) the Courts Will Respond

If I were to crystal ball the central and most pressing issue in 2022, I would suggest it is that of the inequity, particularly technology facilitated inequity, that the current Canadian immigration systems have created. The follow-up question will be how (if at all) the Courts will choose to respond to these arguments, which should be brought forward more.

The Supreme Court of Canada in Vavilov has emphasized the importance of individual’s affected by a decision to be able to present their case fully and fairly. What does that mean within a system that appears to be molding what that means.

[127]                      The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.

Let me give just a few examples of where I think there is clear system-built inequity. Study plans – for many of my clients in the Global South are not required documents for all applicants.  Indeed, my colleague Patrick Bissonnette and I are preparing for a webinar in March where we will explore how there appears to quite a discrepancy between the instructions directed at applicants depending on visa office. Even more troubling, some applicants from high refusal visa offices are not given clear and complete instructions on what such letter should even include, or ultimately recommended to keep their plans to 1 or 2 pages. On the back end, cases (both where IRCC was successful and unsuccessful) are increasingly going after the ‘vague’ nature of the study plans submitted. This vagueness is entirely created by the system, but with ultimate consequences being borne by the Applicant.

I would suggest the same concern is raised about IRCC’s temporary resident portals, limiting uploads to 2MB for applicants. The reality is that 2MB isn’t fair where each visa office has vastly different requirements. In addition to study plans, many applicants from high refusal countries also need to add additional documents about their parents, sources of income, and ties. As we uncovered in our discussion of VESPA for TRV-exempt countries, cases are prima facie approved at a rate of 95+%. For those clients from high refusal countries, they struggle to be able to legibly combine documents and even properly categorize them under the new portal. I have spent much of the later part of 2021 having to re-apply and pursue legal remedies for folks who used the temporary resident portals, where their submissions were reduced and attachments had to be randomly submitted in a way a visa officer would likely have missed.

The other big question comes in the rollout of the use of AI (the China and India TRV model) to other visa officers and lines of work. For IRCC these systems have been working great, but on the other side we’re seeing only the back end of either quick approvals or refusals with very limited justification (as a result of Chinook’s use on the back-end). My hope is that in addition to a bit more transparency (and independent oversight) on the AI system expansion process, that IRCC can do proper outreach on the ongoing use of Chinook or Chinook’s pending replacement.

We have to remember that the Courts too are (and I have to say I am very pleasantly surprised, some what crushing) the recent move to technology. Still, AI and the administrative choices surrounding use of technology will be a whole new conversation to be had. My hope is that this conversation is not simply about deference to the experts. The experts themselves need to ensure their systems do not reproduce yesterday’s inequities.

I will be doing a lot of writing on this in 2022 and cannot wait to share what I uncover!

Ttfn. 2022 let’s go.

 

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Why VESPA’s Internal Only Instructions are Exhibit “A” to Our Two-Tiered Temporary Resident System

Mamelfi, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

Much like we knew very little about #Chinook until recently, we are now learning more about a March 2020 Program Delivery Instruction [PDI] (with a June 2021 update) on a decade-old IRCC initiative called #VESPA.

VESPA has existed for a decade, but much of it’s existence has been behind relative closed doors. It was introduced to streamline processing for those from visa-exempt countries, but with the expansion of that list (via the Electronic Travel Authorization) regime and the movement towards e-APPS system large, it morphed into another ‘secret’ internal tool utilized at certain IRCC visa offices.

Now that an ‘internal only’ PDI has come to the forefront, it is an appropriate time to revisit VESPA and why I think it exemplifies the type of two-tiering of temporary residents that will become the trend moving forward. It also serves as an antithesis to Chinook, and not unlike Chinook, raises questions about why it is being kept under wraps and what the implications are if it entered greater public consciousness.

What We Knew Before – VESPA as a Pilot for Online Applications

IRCC first launched VESPA in 2011 to operate in 14-visa exempt countries. It was announced by Operational Bulletin 304 – May 2, 2011.

The eligibility criteria were established as follows:

It appears that at the the time, the big ‘advantage’ of VESPA was that the applications were streamlined online. This is re-iterated in a September 2012 presentation by then CIC.

A 2015-2016 Evaluation of IRCC’s Internatoinal Student Program similarly lauded VESPA as part of a modernization initiative for workload redistribution:

There are a variety of modernization initiatives that
CIC has implemented over the past several years,
and more initiatives are planned. Many of these
initiatives are designed to have a positive impact on
the processing of study permits and study TRVs,
including e-Application, e-Medical, GCMS, workload
distribution (e.g. VESPA), VACs and other facilitation
measures for international students such as the
Student Partner Program (SPP). It is difficult to
isolate the impact of particular modernization
initiatives and report on these distinctly in relation to
processing times

Seemingly and as stated by CIC in Operational Bulletin – 486 in December 2012,  the introduction of e-Apps effectively ended the VESPA pilot.

Or so we thought.

 

What We Know Now – VESPA Transformed into a Powerful Tool to Approve Applications

From internal only March 2020 program delivery instructions I received from an Access to Information request, we learn that VESPA not only still exists but has transformed into an even more powerful tool.

I am sharing the instructions from the final draft versions, as the final version I received contained redactions that were answered by the draft versions. This shows the contours of what VESPA now does – streamline straight-forward applications to in-Canada processing, and ultimately supporting an approval for these applicants.

Recall, other than Barbados in the Caribbean, these countries are noticeably Global North and noticeably White.

An internal email between IRCC policy folks on the removal of the age requirement, reveals both that the program is an expedited SP processing stream for citizens and residents of visa-exempt country to apply for an SP from outside Canada AND that the PDI is not accessible to the general public.

We learn that VESPA has been in the works since late 2019 and that originally it was a mission (read: visa office) specific process for low-risk SP applications. 

In June 2021, the instructions were further updated to remove the age requirement as a primary change while maintaining the requirement to be both a citizen and resident of a visa-exempt country and applying electronically for a study permit while overseas.

One interesting question is whether the country list has expanded and arguably it has. I am certainly interested in learning whether VESPA is now for all eTA countries and as we move forward whether this creates a proverbial splitting of approval rates. IRCC policy team’s comment that citizenships were added suggests that this list likely is much longer than 14 countries.

Our statistics from 2020, and taking into account an IRCC policy team member’s comment that VESPA is not the same as SDS, of which all the countries are visa-requiring. If we compare only the 14 countries on the original VESPA list and compare it to the SDS list (noting that not all applications from citizens of each of these countries are VESPA or SDS), this type of divide becomes abundantly clear. It also shows how VESPA files likely do not contribute the same type of volume that SDS contributes.

Citizens from VESPA countries had a 96% study permit approval rate in 2020 (Jan – Nov), with only Iceland’s approval rate deviating from the 90%+ norm. Meanwhile SDS countries produced a below 50% approval rate. I do not have the SDS approval stats, but again I would be grateful if anyone could provide those to me.

Implications of VESPA

What VESPA suggests to me, alongside what we are learning more about from Chinook, is that your vital statistics – what citizenship you hold, where you live, and what you are applying for may ultimately become the determinants for whether or not you are approved in Canada.

VESPA raises many questions: namely, why is preferential treatment being given to folks who may not even hold eTAs and never been to Canada, but those who hold TRVs are often being refused study permits? We know programs such as CAN+ exist but these have not factored into study permit refusals, which refuse often on the change in purpose from visiting to studying.

On that point, other than the eTA being more accessible than a TRV and easier to obtain, in what ways does VESPA actually speak to the merits of a study permit applicant?

Study permit applicants must demonstrate per R.216(1) IRPR that they will leave Canada the end of their authorized stay. They are refused, however, largely on their intention to study, their employment and career prospects, their family ties, the availability of their financial support, their travel history, and their immigration status.

There’s very little in VESPA nor in a logical sense, to suggest that a student from a Global North/largely White country is a more genuine/bona fide student able to facilitate their ability to leave Canada at the end of their stay. In essence, VESPA has removed the study permit considerations out of the study permit for those who are on the current, undisclosed, list.

A final question I would raise is – why is this program being held under wraps and internal only? Much like #Chinook which I still view and see as IRCC’s refusal mechanism for Global South applicants in high volume countries, the antithesis #VESPA seems to be the privilege pass.

Why not disclose that certain countries hold privileged status (I mean, we already have an eTA/TRV required list)?

Is there something about these instructions that fundamentally does not accord with what the public might perceive – i.e. – that VESPA undermines the very foundation of the study permit regime by granting approvals for folks who do not need to even demonstrate their ability to meet the requirement of the Act and Regs?

Lots of food for thought. Perhaps I have opened up a lid of something that was brewing deep in IRCC’s fridge. It’s time to check out what’s actually in the pot.

 

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Predictive/Advanced Analytics + Chinook – Oversight = ?

In September 2021’s issue of Lexbase, my mentor Richard Kurland, provides further insight into what happens behind the scenes of Immigration, Refugees, and Citizenship Canada (“IRCC”) processing, specifically providing a section titled: “Overview of the Analytics-Based Triage of Temporary Resident Visa Applications.

At the outset, a big thank you to the “Insider” Richard Kurland for the hard digging that allows for us to provide this further analysis.

 

What the Data Suggests

I encourage all of you to check out the first two pages from the Lexbase issue, as it contains direct disclosure from IRCC’s Assistant Director, Admissibility opening up the process by way Artificial Intelligence is implemented for Temporary Resident Visas (‘TRVs’), specifically in China and India, the two countries that have implemented it so far. By way of this June 2020 disclosure, we confirm that IRCC has been utilizing these systems for online applications since April 2018 for China, August 2018 for India, and for Visa Application Centre (“VAC”) based applications since January 2020.

To summarize (again – go read Lexbase and contact Richard Kurland for all the specific details and helpful tables), we learn that there is a three Tier processing system in play. This filters the simplest applications (Tier 1), medium complexity applications (Tier 2), and higher complexity applications (Tier 3). While human officers are involved in all three Tiers, Tier 1 allows a model to recommend approval based on analytics, where as Tier 2 and Tier 3 are flagged for manual processing. IRCC claims that the process is only partially automated.

The interesting factor, and given we have been as a law firm focusing a lot on India, is how the designated of a Tier 2 file drives the approval rates from the high nineties (%) to 63% for online India apps to 37%  for India VAC applications. Moving to Tier 3, it is only 13% for online India and 5% for India VAC. The deeming of a file Tier 3 appears to make refusal a near surety.

What is fascinating is how this information blends usage of “Officer Rules,” the first stage filter which  actually precedes the computerized Three Tier triages and is targeted at cases with higher likelihood of ineligibility or inadmissibility.

The Officer Rules system would be the system utilized at other global visa offices that do not use the computerized AI decision-making of India and China. Looking specifically at the case of India, the Officer Rules system actually approves cases at a much higher rate (53% for online India, and 38% for India VAC).

These rates are in-fact comparable to Tier 2 moderately complex cases – ones that presumably do not contain the serious ineligibility and inadmissibility concerns of Officer Rules or Tier 3 . It suggests that the addition of technology can sway even a moderately complex case into the same outcomes as a hand-pulled out complex case.

Ultimately, this suggests that complete human discretion or time spent assessing factors can be much more favourable than when machines contribute to overall decision-making.

It Comes Down to Oversight and How These Systems Converge

Recently, we’ve been discussing in Youtube videos (here and here), podcasts, and articles about IRCC’s Chinook system for processing applications. Using an excel-based model (although moving now to an Amazon-based model in their latest version), applicants data are extracted into rows, that contain batch information for several applicants, presumably allowing for all the analytics to be assessed.

Given we know IRCC takes historic approval rates and data as a main driving factor, it is reasonable to think Immigration Officers are given these numbers as internal targets. I am sure, as well, that with major events like COVID and the general dissuasion of travel to Canada, that these goalposts can be moved and expanded at direction.

An excel-based system tracking approvals and refusals likely put these stats front and centre to an officer’s discretion (or a machine’s) on an application. Again to utilize a teaching analogy (clearly I miss teaching), I utilized a similar ‘Speedgrader’ type app which forced me, mid-marking, to often to revisit exams that I had already graded because I had awarded the class average marks that were too high. I have no doubt a parallel system exists with IRCC.

What this all means, as my colleague, Zeynab Ziaie has pointed out in our discussions, there are major concerns that Chinook and the AI systems have not been developed and rolled out with adequate lawyer/legal input and oversight, which leads to questions about accountability. Utilizing the Chinook example, what if the working notes that are deleted contain the very information needed to justify or shed light on how an application was processed.

My question, in follow-up, is how are the predictive/advanced analytics systems utilized by India and China for TRVs influencing Chinook? Where is the notation to know whether one’s file was pre-assessed by “Officer’s Rule” or through the Tiers. I quickly reviewed a few GCMS notes prior to this call, and though we know whether a file was pre-accessed, we have no clue which Tier it landed on.

Furthermore, how do we ensure that the visa-office subjective “Officer Rules” or the analytical factors that make up the AI system are not being applied in a discriminatory manner to filter cases into a more complex/complex stream. For example, back in 2016 I pointed how the Visa-Office training guides in China regionally and geographically discriminate against those applying from certain Provinces assigning character traits and misrepresentation risks. We know in India, thanks to the work of my mentor Raj Sharma, that the Indian visa offices have a training guide on genuine relationships and marriage fraud that may not accord with realities.

Assuming that this AI processing system is still being used only for TRVs and not for any other permits, it must be catching (with the assistance of Chinook’s key word indicators no less) words such as marriage, the names of rural communities, marital status, perhaps the addresses of unauthorized agents, and businesses that often have been used as a cover for support letters. Within that list there’s a mix of good local knowledge, but also the very stereotypes that have historically kept families apart and individuals from being able to visit without holding a study permit or work permit.

If we find out, for example, that filtering for complex cases only happens at visa offices with high refusal rates or in the Global South, does that make the system unduly discriminatory?

We acknowledge of course that the very process of having to apply to enter the borders, the division of TRV and electronic Travel Authorization (eTA) requiring countries is discriminatory by nature, but what happens when outcomes on similar facts are so discrepant?

In other areas of national bureaucracy, Governments have moved to blind processing to try and limit discrimination around ethnic names, or base decisions on certain privileges (ability to travel and engage in previous work), and remove identifying features that might lead to bias. For immigration it is the opposite, you see their picture, their age, and where they are from, and why they want to come (purpose of visit). As we have learned from Chinook, that is the baseline information that is being extracted for Officers to base their decisions on.

When – as a society – do we decide to move away (as we have) on what were once harmful norms to new realities? Who is it that makes the call or calls for reviews for things such as consistency or whether a particular discriminatory input in the AI system is no-longer consistent with Charter values?

Right now, it is all in the Officer’s discretion and by extension, the Visa Offices, but I would recommend some unified committee of legal experts and race/equity scholars need to be advising on the strings of the future, inevitable, AI systems. This would also unify things across visa offices so that there is less discrepancy in the way systems render decisions. While it makes sense that heavier volume visa offices have more tools as their disposal, it should not depend on where you live to receive less access to human decision-makers or to an equal standard of decision-making. We do not want to get to a place where immigration applicants are afraid to present their stories or speak their truths for fear of being filtered by artificial intelligence. From my perspective, we are better of being transparent and setting legitimate expectations.

What are your thoughts on the introduction of AI, the interaction with Chinook, and the need for oversight? Feel free to engage in the comments below or on social media!

Thanks again for reading.

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Three Common Mistakes Canadian Immigration Applicants Make When Documenting Employment/Personal History and My New Strategy

Recently, I have had a major increase in misrepresentation consultations and other related issues with one common starting point: incorrect work/personal history that either Canadian immigration has found or will eventually find out about.

There are several forms that canvass work/personal history. This ranges from initial application forms (IMM 1294, IMM 1295, etc.) to the IMM 5257E Application for a Temporary Resident Visa Forms, to the dreaded IMM 5669 – Schedule A.

Excerpt from IMM 1294 form

Each form (and accompanying instructions) often ask for the materials a different way. Some forms ask for only employment history, whereas others as for a full ten-year history. Complexities also arise when certain visa offices want a full personal history starting from the age of 18, but do not make these instructions apparent at the outset, requiring them later in request letters.

What often happens is a hot mess of unclear work dates, forgotten travels, mistaken residences, and IRCC analyzing all of these for possibly material misrepresentations that may impact officer assessment.

To make things even more complicated, misrepresentations can extend to past applications, even if it is attempted to be corrected. Memories are imperfect, what is required to be disclosed is confusing, and unfortunately perfectly innocent applicants can make devastating mistakes.

While there are some positive trends in judicial interpretation, the law around misrepresentation in Canada is harsh: a five-year bar from Canada (and from applying for permanent residence) regardless of the intent of the error or omission, and a thin-exception for innocent misrepresentation.

In this post, I look at three common mistakes I see applicants (and their representatives make) and how to avoid them. I will close with a new approach I am taking to documenting work history for my clients on temporary resident applications.

 

Mistake 1: Omitting Material Personal History/Blurring Dates Together

There are several sub-mistakes under this category:

[1] Applicants often include only their last position held, rather than to breakdown the various positions within a company

This one may seem innocuous now, but on a PR application or when facing an employer’s reference letter that paints a different picture this could be an issue. Often times these dates are also contradicted by public information you may have about yourself online, such as your LinkedIn profile or a biography you hastily submitted to a third-party who has posted it online.

Visa Offices also have many internal tools at their fingertips. For example, for China, they have access to a quite comprehensive ‘legal persons’ registry for businesses. Particularly for entrepreneurs or businesspersons who own multiple businesses, failures to disclose one (even if it is unclear whether it constitutes employment or ownership) could constitute misrepresentation. This was the fact pattern in the Federal Court’s decision in Sun v. Canada (Citizenship and Immigration), 2019 FC 824 (CanLII).

My rule of thumb is to over-disclose rather than under-disclose if there are no inadmissibility risks to the additional details being disclosed and it may set forward a good groundwork to get ahead of a potential issue or pave the way for a future application. If your disclosure of the item could affect your eligibility, consider whether applying on misrepresented information could come back to haunt you in the future.

Yet, many times the information being omitted is not itself going to change the decision of the Officer, but the very omission of the information could impact the Officer’s processing or review of the requirements, which could make it a material misrepresentation.

 

[2] Applicants often don’t include periods of unemployment, self-employment, and educational pursuits

Often times Applicants only provide just the formal work/employment history and forget to include the personal history. Again, the forms make it a bit confusing. In the description of the form, it asks for employment history, but in the fine print it may say to include periods of unemployment or leave no gaps. Another challenging aspect is that certain applications (co-op work permits and post-graduate work permits) do not actually require full disclosure of work history, whereas other applications (temporary resident visas inside Canada) do. We play it safe by including a running 10-year history for all applicants, regardless of it is a requirement.

This often rears its head as an issue when a visa is refused for lack of continuous study or lack of relevant employment history demonstrating there are opportunities in the country of residence. When it is only indicated that one is ‘unemployed’, the literal interpretation  the Officer will take is that you are at home doing nothing. Trying to start up your own business or taking pre-requisite courses for a formal program of study, is not sitting home doing nothing and may be very material. Failure to include this initially could create discrepancies later (see mistake 3 below).

 

[3] Applicants do not disclose sufficient details in the personal histories

In my work often reviewing materials for refused clients, often who applied the first time themselves or less competent counsel, there are common themes.

Rather than put detailed descriptions of position or title – words such as “employee” or “management” or “police officer” are used. Alternatively, when discussing employment rather than put the company or school name, answers such as “restaurant business” or “self-employed” or put down. Immigration Officers may want to conduct an inadmissibility inquiry into your former work place, or verify that you indeed worked for said employer or that such a company/organization exists.

If there is an admissibility concern or clarification to be made, make sure to make it on a letter of explanation or clarify (see attached). Too often I see clarifying explanation missing until after a Procedural Fairness Letter (PFL) is received. This is often times far too late in the game.

 

 

Mistake 2: Not Correcting the Mistake When IRCC Gives You a Chance (Requests vs. PFLs)

When IRCC notices an inconsistency (and depending on what visa office and what type of application), there may be the opportunity provided to fix an inconsistency. Commonly, especially if a misrepresentation is not apparent on the surface, a request letter will be issued offering an opportunity to clarify or seeking further information. `

The tendency with request letters, I find, is to blindly try and answer them as soon as possible. Applicants immediately take a defensive position, without thinking at that stage that the request letter could be the set up for an A16(1) IRPA (failure to truthfully provided requested documents) or worse yet, an A40 IRPA (misrepresentation) refusal. Given the withdrawal of an application is unlikely to be granted after a PFL is issued and the leg work is all but done at that stage, it is as the request letter stage that clarifications need to be sought and legal arguments made.

Repeated errors in providing accurate information or misunderstanding request letters could later lead to further challenges arguing innocent misrepresentation or seeking discretion later on in the process.

 

Mistake 3: Not Keeping Adequate Records and Inconsistencies Between Applications

Visa Offices such as those in India (especially Delhi and Chandigarh) and China (Beijing) now utilize artificial intelligence tools that will be able to spot an inconsistency instantaneously.

Before submitting an application, if possible, compare your forms with previous forms submitted. Better yet, request or obtain (by access to information) a copy of all final forms before a representative submits any application for you.

Another discrepancy I see is with address history, travel history, and work history on forms. Where these do not align, and particularly when it comes to permanent residence applications that look into where work was performed and where the Applicant was located, and whether or not the claimed work matches with past records – this becomes ever so important. Virtual work or work through multiple client sites is becoming more popular, and failure to properly document this in respective applications may complicate things when permanent residence rolls around.

 

My New Approach: Focusing on Forms First, and then Attachments

In the past, a move I did (and one I know many counsel mirror) is to put “please see attached” on the work history sections or personal history sections of some validated temporary resident forms and then add a work document. This option will not be available with the new online temporary resident portal, which like Express Entry do not allow you to move on to the next page until there are no gaps. In the interim, what I am suggesting with the validated forms is still to list as much as possible on the form and then add ‘see attached’ on the final line before continuing.

The reason for this is that IRCC has been focusing on auto-populating systems like Chinook that appear to extract information directly from forms into their internal processing system. I am worried that my attached table found at the back of my rep’s submission letter is missed by a processing agent or in review. We know increasingly that the Officers are only accessing the information extracted for their review and are under a major time crunch. This little tip might help practitioners and self-reps.

 

Some Positive News: Court Critical on IRCC’s Need for a Materiality Analysis of Misrepresentation

While misrepresentation is often a death trap for an immigration application, the Federal Court has recently been pushing back on the tendency of IRCC to equate a mistake as misrepresentation, without an analysis of materiality.

In Alves v. Canada (Citizenship and Immigration), 2021 FC 716 (CanLII), Justice Manson allowed a judicial review after finding that an Officer’s finding of misrepresentation was unreasonable. The Applicant disclosed one of his previous refusals to the United States, but had omitted an earlier one.

Justice Manson writes:

[19] However, an officer must consider the totality of the evidence before the decision maker (Koo v Canada (Minister of Citizenship and Immigration)2008 FC 931 at para 23). The Officer, in this case, failed to recognize the potential significance of the mitigating evidence, as it relates to the finding of misrepresentation without meaningfully coming to grips with the facts before the Officer. Instead, the Officer broadly found that the Applicant had […]

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Canadian Immigration Self-Employment Woes and Why We Need to Prioritize the Triple A (Athletes, Actors, and Artists)

Like many others, I have spent the last several weeks glued to my TV to the athletic wonders of the Olympic Games.  From perfect dives to strained bike rides, we have witnessed incredible feats from Canadian athletes, but also around the world.

One of the major elements that was showcased, and by Canada too, is the power of (im)migration to new assumed identities and countries of citizenship. Some of my favourite athletes of the games were Somalian Canadians, Brazilian-Poles, and Spanish-Russians. Many of the best athletes representing countries, were not born there, often did not grow up there nor have family there, but found themselves pursuing opportunities for the country and obtaining citizenship through naturalization in the process or as a result of their talent and self-employment as world-class ahtletes.

 

A Difficult Pathway to Permanent Residence and Citizenship for Athletes, Actors, and Artists

In order to become a Canadian citizen on the basis of athletic talent is not simple, especially if you are a rising star rather than an established one. Discretionary grants are rare, and unfortunately, the past few years have seen the self-employment program for permanent residency face major delays and is on the brink of dissolution. I have clients who are close to two-years in to processing, inside Canada, and without access to bridging open work permits that are a lifeline for permanent residence applicants.

Unsurprisingly, self-employed applicants who are in Canada (many of whom have worked for years as actors and artists in Canada or started their own businesses here rather than become employees) are hooped.

Canada cut off invitations to the Federal Skilled Workers invitations under Express Entry, even where applicants were actually in Canada and working – a policy flaw I believe will directly impact our immigrant talent pool. While programs like the start-up visa or provincial programs supporting nominees or work permit processes do exist, they do not begin to capture the type of sole practitioner/small business self-employed individual seeking stability for their immigration status. COVID has inspired more of these businesses. It is a shame and inexplicable that this work is not considered Canadian work experience for the purposes of supporting permanent residence under Express Entry.

On the other hand, one can somewhat understand this. Self employment is difficult to assess – difficult but not impossible. Many self-employed individuals do not incorporate or earn income in the traditional sense. When one is declaring one’s own experiences, it might not allow for the usual objective “validation” or “work experience letter” that IRCC puts heavy weight on. Yet, IRCC provides guidelines for applicants and like the self-employment permanent residence process requires, there can be letters of support and other public proof of one’s accomplishments and work. Self-employed work experience is often heavily scrutinized, especially in the context of foreign work experience.

The reality is, in this day and age contractors and multiple self-employed jobs are becoming the future norm. It is difficult for small businesses and start-ups to engage employees when their own operating budget is not there yet.

In addition to athletes, actors and artists are also struggling. Many film schools that attract applicants to Hollywood North are private institutions, unable to provide post-graduate work permits. IRCC has cut off largely matriculation agreements or those arrangements that allowed applicants to benefit from their time at the private institution when calculating post-graduate work permit duration. At the same time, work permits for film and television workers (that are labour market impact assessment (LMIA) exempt) are difficult to secure when union membership and opportunities require the work permit first as entry for opportunities and the type of indie-films and underground artists that become global talents, are often shutout from the process.

In addition to expanding the post-graduate work permit to these educational sectors and perhaps creating new programs to recruit international talent at a younger age, I would also suggest that openly and transparently supporting an easy process for work permits and a feasible pathway to permanent residence for world class talent who are training, interning, or endorsed by Canadian actor and artists unions, and athletics committees, would be a welcome step.

The current self-employed program falls short for not having specific streams or criteria specific to those areas. They require proof of ability to be self-employed in Canada and bring demonstrated economic benefits, but there is little follow-up or accountability and no role for Canadian supporters to be primary endorsers.

Rather than limit immigration targets to a mere 1000 a year, with a greater emphasis on the start-up visa, such a program could target sports Canadian seek to grow in, art forms that Canada needs practitioners in, and provide permanent residence to aspiring actors, actresses, and entertainment folks working for up and coming Canadian-based production companies.

 

Returning to the Olympics: The Global Recruitment for Talent

There are also a number of athletes I recognized from watching the Olympics who have decided to represent other countries, even while they were either born in Canadian, naturalized  While there are many factors for this that are outside immigration, no doubt other countries are recruiting and many have ways to fast-track immigration and naturalizations in order to allow athletes to compete for them.

The steps being taken by Sheridan College, through the private sponsorship process, to support refugee Olympic athletes to represent Canada is laudable. Yet, think about a greater possibility where athletes who have demonstrated exceptional talent, years of commitment, and meeting certain world standards could come to Canada first as permanent residents, train for several years, and obtain citizenship in time to compete within one Olympic cycle.  Think about global artists bringing their art form and inspiring interaction and the preservation of Indigenous art across cultures. I think about about as well being able to have more productions like Kim Convenience, or even the recent Manifest, forming movies that attract global audiences.

I truly hope Canada works out better self-employment processes and streams for our future athletes, actors, artists reflecting the growing entrepreneurial nature of these times.

 

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The Problem With Education Agents Performing Unauthorized Immigration Services

It has come to my attention recently that the very important section 91 of IRPA is often misinterpreted by education agents so let’s break it down a bit.

Representation or advice for consideration

  •  (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.

  • Marginal note:Persons who may represent or advise

    (2) A person does not contravene subsection (1) if they are

    • (a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

    • (b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

    • (c) a member in good standing of a body designated under subsection (5).

Many educational agents or unauthorized consultants claim that they are able to help for free or a recovery administrative fee basis because they are not being paid immigration service-related fees directly by the client. This unfortunately is an overly narrow reading of s. 91 IRPA.

If the application’s success (i.e. student getting a seat at the school) pays you, you are receiving consideration (albeit on what we often call ‘contingency’). Furthermore, even if you do not actually sign a Use of Representative Form but are contributing (i.e. advising) as it pertains to immigration advice on a study permit application – you are advising with respect to an application.

It is also not simply good enough to have a ghost-signing RCIC on your contact list, or hire one internally for your organization. While the former might squeak by on ethical standards or not get caught, the second clearly does not change the issue of consideration. Furthermore, in most cases if you try and seek remuneration or some benefit back, that too could constitute consideration. For example, if an RCIC promises you to send all of their possible student referrals for schools, while you send it back to them for the immigration work, that could constitute consideration in relation to an application for both of you.

I have heard from a colleague that often times educational consultants or former RCICs will contact newer consultants, hoping they can utilize them to help sign-off on immigration applications. In exchange, work is promised and fees are split. Be very cautious of these arrangements with respect to your own level competency but most importantly your obligation to the clients to disclose where their fees are going and who they are being split with. As lawyers, we have strict ethical obligations not to split fees with third-parties other than lawyers. While the wording is much looser currently for consultants, expect the new regulatory/ethic codes for the College to step up significantly on this front.

When representing your client’s best interest (which in some cases may be withdrawing or deferring one’s admission or choice of educational institution), reaping benefits from an institution paying you to recruit for them is indelibly a conflict.

Whenever I advise a student from any institution where I might even have the slightest advisory relationship, I always disclose in writing what that relationship is and ensure they know that my advice will be confidential. Another common book in the shady educational agent playbook is to have the agent act as a ‘family friend’ or ‘relative’ or in the worst cases I have seen even attempt to stand in for the client. Remember, as a practitioner, your regulatory obligation to confirm your client identity – which includes asking the individual to turn their camera on to confirm they match the ID they provided.

 

I wish IRCC made Section 91 Clearer and Provided Examples

IRCC has been touting for quite awhile recently a very pro-self representative angle. While it is laudable that IRCC is making their platforms much more self-representative friendly, one of the consequences has also been the use of this language to support further ghost consulting and undisclosed consulting. I have seen agents, in the guise of being family friends or interested parties, assist on immigration applications and even appoint themselves as counsel, full well-knowing they will benefit from the student if the application is approved.

The way it currently works (in almost all cases other than rare exceptions in one Province in Canada) is there is no requirement for institutions to disclose to the student, what percentage of their tuition goes to the agent, no requirement for the agent to disclose to their student client, what percentage they are making, and ultimately the immigration process becomes this barrier or vehicle. I cannot think of any other industry where there are no checks and balances.

 

What Should the Role of Education Consultants Be in Canada? Should They Be Provincially/Nationally Regulated? I Argue Yes.

Overall, Canada needs to have a honest assessment of the role we would like education agents to play in our immigration system. They are inevitably a gatekeeper of institutional opportunity. They are able to expand a school’s reach into countries and communities and give them business leads. Taking a free market approach, shouldn’t schools be unrestrained in their ability to fill seats (i.e. if one is willing to pay, then why not)?

The problem at the heart of international student recruitment though is you are dealing with vulnerable populations of younger individuals, unaccustomed and unfamiliar with the laws of Canada or standard business practices. Many students come from countries where one cannot get an elite opportunity without paying up for it – relationally or financially. When someone offers an opportunity, sugarcoats it, does not disclose their full interest, this can create harm and perpetuate serious misunderstandings with the rules-based, due process laws and regulations we try to promote here and a broad. A student who is unaware of what they are getting themselves into in Canada, the true cost of tuition, and the realities of the city they are moving to – this can create further harm from a mental health aspect.

On the other hand, Canada is losing tons of money (we’re talking 10% – 25%) of a student’s first year tuition. I have also heard of arrangements that go beyond just the first year and are continuous upon enrollment. These entries are also the launching point often for other labour-based exploitation practices. A quite common practice abroad is for an educational agent to secure a seat for a client in Canada and then work with other recruiters to then find the student employment via an LMIA to transition them off studies they never wanted to attend in the first place.

It is indisputable that educational agents contribute directly to the high cost of international tuition, one that has had a major impact on student well-being, but also of their families around the world. Imagine if the 10% to 25% per student went to actually providing international students with resources – proper school counselling services, academic advisors, wellness and cultural staff to help them adapt and deal with the culture shock and emotional letdown that a new environment can bring along.

In my mind, the very least that needs to be done is professional regulation. As it is in Manitoba (although I have questions about the follow-through), all DLIs should be required to share their list of recruiters/agents publicly.

There also should be clear regulation that every agent who also performs immigration services, must also be s.91 IRPA compliant, vetted somewhere during the study permit process.

If I had it my way, similar to what is occurring with foreign workers in representative spaces, I don’t believe any one who has a contingency interest in the student obtaining a seat (i.e. student recruitment) should also be providing immigration services on that file.

Finally, I would also set a mandatorily-disclosed max cap or range for student recruitment to ensure educational agent fees do not extend to an ongoing yearly exploitation or result in the offshoring of tens of thousands of dollars per student.

There are certainly barriers to this. I understand there also may be Provincial/Federal jurisdictional issues, as most labour recruitment issues are Provincial. Many Provinces were also pressured by institutions not to require tracking or registry of student recruitment agencies.

I know such an opinion might make me extremely unpopular in student recruitment circles, but I have to think first and foremost for my clients, the students, who are often given poor advice, a pipe dream, and a major tax on their admission to Canada – with nobody watching or caring for their well-being.

My two cents on this important issue and a topic that is sure to rise to prominence in the years to come. In a future post, we will look at what other countries do to regulate this and as well explore how Manitoba is doing with their model. More to come for sure!

 

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Three Things You Likely Don’t But Should Know About How IRCC Assesses Your Study Permit Application

#1 – Your Application is Decided Using a Microsoft Excel Spreadsheet

It might come as a surprise to you that IRCC utilizes the classic, but with some tech additions, software of Microsoft Excel to decide temporary resident applications.

The Officer essentially provides all the information about a client in a row with several columns (including working notes – more on this later). This allows them to process multiple applications utilizing one screen. There are also multiple clients that make up the constituent rows.

Each column within a row contains information regarding the Applicant’s name, age, purpose of visit, date of receipt of the application, citizenship of the client, and previous travel. It appears that some of this information is pre-assessed by a processing Officer, but much of it comes directly from the IMM forms.

You can see here how the pre-assessment notes show up with respect to the ‘verbose client information.’ Verbose client information appears to be information directly from the forms. This suggests that the pre-assessment plans a significant and important role in an application. While it is seemingly ‘blind’ one can see from the below that if you break it down to age, gender, marital status, and citizenship that many of the personal identifying features that can make a young, single, and mobile woman applicant from Zimbabwe difficult to make to record. The Pre-assessment also shows (based on categories selected) that previous travel and proof of funds continue to be important factors. As such, it is difficult to say if travel history is as ‘neutral’ as the Federal Courts have attempted to establish it is.

Why do they do it this way via excel? Well IRCC claims that officers can increase their processing volume (depending on visa office) anywhere from 5% to 35% using this system.

I would also not be surprised (I am speculating) if the excel-based system allowed also for real-time tracking of statistics. This way a visa office with a refusal target could likely keep track while at the same time processing applications.

 

#2 – Reasons are Templated and Generated After Refusal. They Don’t Have to Refer to Your Original Evidence (their position, not mine)

If one were to think of it logically, or perhaps engage in the exercise themselves, it would make sense to do some sort of a yay/nay list on a chart or table and ultimately decide, based on the facts gathered, whether or not to approve a client. Indeed, while not required, much of immigration (think Ribic factors or the assessment of humanitarian and compassionate grounds) often work on this weighing system.

Such is not necessarily the case with temporary resident refusals. With IRCC’s systems, a decision to refuse or approve is made first, and then a notes generator (read: template generator) is utilized to choose the applicable reasons. The Officer then copies and pastes this into Global Case Management System (GCMS).

While Officers continue to have access to the original documents submitted by applicants, much of the guidance suggests the anchoring point is the excel document – one populated by the aforementioned pre-assessed notes and verbose client information. Officers are very much deciding to approve or refuse simply on an individual’s basic profile. This suggests that whatever is chosen to be extracted from an application, rather than what is actually in the application is most important. Such guidance should serve as a reminder to keep support letters and evidence not only strong, but visible and searchable rather than tucked away on page 12 of a 15 page submission letter.

There are also ‘risk indicators’ and ‘local word flags.’ Risk indicators can capture where there is a trend, for example, of an Office submitting fraudulent information and local word flags, capture words such as ‘wedding.’ I am still researching what the other words are, but we know they depend on what visa office runs them. It would not be a surprise to see more risk indicators and local  I would not be surprised if IRCC is also running OCRs (optical character recognition) or utilizing machine-based decision-makers to flag key words. Yet, looking at the GCMS notes of several recent files, it appears risk indicators and local word flags don’t often appear. What this may suggest, is that the Officers rely more on the pre-assessment, verbose info, and their working notes to render a decision.

Which brings us to the issue of working notes below.

 

#3 Working Notes of Officers (i.e. Where the Factual Analysis Takes Place) are Not Ordinarily Retained

Templated reasons themselves do not (at this stage) need to contain reference to facts in the Application. While IRCC maintains that Officers do have the right to choose not to use them, the reality is any officer facing instructions to process fast and maintain consistency, likely won’t diverge too far from them.

When clients come and find me after a referral, I often hear from them that they believe the Officer ignored evidence or turned a blind eye to something they submitted. Turns out there is likely much more to it.

Officers do have space to maintain working notes in their system, but – and importantly, these notes are not transferred to GCMS for privacy and administrative convenience purposes. IRCC claims that if they were required to manually input Officer’s working notes it would create too much of an admin burden.

Strategically though, this is a brilliant play. If decisions were to include working notes and commentary it would open up the possibility of all sorts of litigation. Thinking back in history, it was the working notes of several Officers that led to such a departmental disaster such as Baker. 

The Supreme Court of Canada’s decision in Vavilov also supports short, pithy reasons that maintain consistency – essentially what IRCC is trying to do with this system.

The Majority writes at paragraph 77:

[77]                          It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.

(emphasis added)

IRCC is in the process (the part I am not yet at the liberty to discuss as I am assisting in the litigation) of getting judicial endorsement for their choice of process. I can say that if they are successful, and given it is well-established that the impact to foreign nationals (such as students is on the low end), this could serve as a rubber stamp. Such a process would make future judicial reviews much more difficult if the Courts find that templated reasons do not need factual reference. Furthermore, refusal letters could simply that the Applicant’s evidence was insufficient and leave it to their counsel, Department of Justice, to build up a justification after the fact.

 

Caution: Expect GCMS Notes to Thin at the Detriment to Your Client’s Knowledge of the Case to Be Met

What does this all practically mean for your run of the mill temporary resident applicant. Well – expect GCMS notes to say less and less and for the bulk of the information to be retained on IRCC’s ‘internal’ system. It is also likely moving forward (and that we’ve already seen in some cases) nothing in the notes for when procedural fairness letters are sent. This will make it very difficult to respond, especially where procedural fairness letters are so broadly worded. This could make the process much less transparent and lead to many more misrepresentation finding (as just one example).

 

Bonus: A Little Gratitude

I want to thank again, my incredible colleague Zeynab Ziaie for her advocacy and supporting our efforts to learn more about the way IRCC operates. I have purposely not included anything in this piece that may be subject of our litigation and is not already publicly accessible. We may be writing more about this shortly.

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Now Offering Canadian Immigration Second Opinion Services (“#CDNIMMSOS”)

In this post, I announce that I am providing Canadian Immigration Second Opinion Services (#CDNIMMSOS). I would like you to tag this hashtag on Twitter, Facebook, or in an email to us, whenever someone in your network needs a second opinion on their immigration matter. I pledge to do provide this opinion affordably and with your (the client’s) best interests at stake, with the support of my competent legal team at Heron Law Offices.

 

First, A Bit About the Why

Over six years now in this industry, and as a Canadian immigration lawyer – and I have to admit things have changed.

When I entered practice, we were in the midst of an enforcement-minded Conservative Federal Government. I remember doing many detention reviews, Immigration Appeal Division matters, and judicial reviews. Post-Graduate Work Permit refusals were frequent and the lapse time between refusal and removals was much shorter.

Back then too, there appeared to be less chefs in the Kitchen – or at least everyone knew who the good chefs were and went to them. Nowadays, and a credit to our industry and incredible Continuing Professional Development (CPD) programs, very good young lawyers and extremely competent immigration consultants have received top notch training. The overall quality of Canadian immigration work has increased. We have also seen the entry of accounting firms, and other service providers that are able to do volume work.

Government too has carved out a much more Do-It Yourself (“DIY”) approach to immigration processing. Their new portals, centred on the user experience, will drastically change the role of immigration representatives from primary applicant shoe-filler to support (and possibly tech support worker).

I remember when Express Entry was in its infancy and applications were being rejected as incomplete, front, left, and centre. Now there are some incredible video tutorials and courses (my mentor/colleague, Mark Holthe’s just to name one).

There is also a major change coming with the new College of Immigration and Citizenship Consultants.  These changes will put more scrutiny on the flow through of recruitment fees. The Code of Conduct will hopefully ensure that representatives for employers are not utilizing the client as a vehicle for generating additional revenue – a process that has been at the heart of labour market exploitation.

 

There is a Risk to All This – A Less Than Competent and Non-Partial First Opinion

We have seen the explosion of online and social media driven immigration advice giving. Whether it is from an individual who navigated it successfully themselves and seeking to help others, to a growing trend now of YouTube ‘Study Permit, Statement of Purpose’ advisors, one can see both the good and the bad.

As I have said on numerous occasions, even I on occasion check in online forums (especially those that have crowd-sourced application timelines) to get a sense of what is occurring on the ground. The Pandemic has brought together incredible online advocacy efforts – for separated spouses caught in backlogs, to migrant workers seeking permanent residence, to students pushing against tuition fees and exploitation.

Everyone has an opinion it seems on immigration. Everyone who has read a few government websites or gone through it themselves – thinks of themselves as being able to help. Every lawyer/consultant who has submitted an application or two – considers themselves specialized.

The reality on the ground is it is much more complicated. The representative’s (authorized or not’s) own positionality – goals, aims, interests, financial benefit – meets up with the client’s and is ultimately in the hands of a third party, non-rational actor who constantly changes up policy.

Too often what I hear from clients who seek us out the most, are that the representative who advised them previously told them everything would be okay and that approval rates were high, provided them little transparency into what they were doing, and deflected responsibility when the file was refused.

 

Employer-Driven Processes and Left-Out Employees

Another common feedback item we have been receiving is from foreign workers under the Temporary Foreign Worker Program (“TFWP”) and International Mobility Program (“IMP”) seeking their own immigration lawyers.

In traditional employer-driven immigration processes, especially for more established companies, it is the employer that retain the lawyer, drives the offer of employment/Labour Market Impact Assessment (“LMIA”) process, and then facilitates the work permit process.

Other than signing and authorizing the final forms, the employee often has little to do. This model worked when things were much simpler. Now, employee situations are complex and companies often have to push forward their business in ways that may leave the foreign worker on the sidelines. The pandemic – where mass temporary layoffs took place, was a prime example.

From accepting an initial offer (which may pose immigration hurdles) to getting terminated/let go/placed on leave or having to navigate a Provincial Nomination Program (“PNP”) and Bridging Open Work Permits (“BOWP”), employees must begin taking more autonomy over their immigration matters.

Having worked at Firms that acted primarily for employers, seen the way those retainers were crafted, and the type of conversations that were happening between HR and counsel, I decided for myself that I wanted to act on behalf of employees. This work primarily now is often being handled by legal clinics, but this work cannot hit the scope needed. It cannot be just the serious cases with abuse – it needs to be a widespread first step for an employee to ensure their immigration best interests are always being taken care of.

I am of the opinion that all employees on work permits, should seek independent legal advice outside of that being provided by their Employer’s counsel. The earlier this can be done – the better. Many times it may be something in the past as well – employment experience, misrepresentations, criminality, non-compliance that factors into the future. Do not wait until a refusal or employment issues arise, as you may find yourself abandoned.

Similarly it is my opinion that all employers, especially big employers, should seek to understand the foreign worker’s perspective outside of the advice given by their own counsel. That is – they should continually attend trainings and resource themselves to ensure they are compliant with immigration legislation and understand the employees perspective as well. The hard truths and realities are often what are shielded in the name of business efficiencies but are what ultimately what can severely affect a business, when relationships sour and parties threaten to report each other to relevant authorities – a common theme I have seen at my offices of late.

 

Canadian Immigration Second Opinion Services (#CDNIMMSOS)

We’re launching this project because we want to shift our services away from necessarily taking on entire initial files – such as initial study permit applications or work permit applications and instead be your second opinion person. The one who acts as a check and balance in your corner, devoid of any ulterior motives – other than to support you.

Our services won’t be popular. We never entered this work to be. We want to be the one emailing your Employer on your behalf advocating for you, the one that stops you from falling into an exploitative situation. You are likely not going to get referred by your current consultant or company’s lawyer to us. You need to seek us out, but we’ll be here waiting.

 

The Problem With Independent Legal Advice (“ILA”)

When it comes to independent legal advice, the reality is that the very referral of the file to a trusted colleague for ILA can be impartial. When I refer out files for ILA, I tell clients that they should choose their counsel independent of my recommendation.

If, for example, there was incompetence of counsel, an oversight, a misstep – it takes a certain level of true independence to pursue it on behalf of the client you are providing ILA for.

Again, going back to my earlier premise – the network of chefs in a local immigration network is quite small. Most of us respect each other’s work.

When seeking a truly independent legal opinion or a second opinion, always ask if the receiving party knows the initial party who did the application. Ethical second opinion providers will pass on a matter if they may believe their opinion could be compromised.

For example, one time a colleague and I were referred a file for a second opinion. The original counsel was one we both had on Facebook and knew was going through mental health challenges – based on their private postings. It would have been unethical and sharp practice for us to take on such a file, with this private knowledge.

On the other hand, be aware of lawyers and advisors who appear to promote a pure litigious/negligence approach without highlighting actual substantive advice for your file – especially if immigration remedy rather than punitive/financial damages are your primary need.

 

Aren’t I Paying Twice for Advice?

The short answer is: it depends. Most employers, if the process is done ethically, cover the costs of the LMIA or the Employer Compliance fee – and many will also foot the bill on the work permit application.

However, what I am proposing with providing second opinion is simply to seek a consultation at the start of your matter, to double check that your materials are being submitted correctly, and then also when any major challenges arise. The cost of a consultation early, to catch an issue, could save you thousands on the back-end if you require responding to a complex procedural fairness letter or going to Court.

 

#CDNIMMSOS – Contact Information 

We look forward to helping. Email us at info@heronlaw.ca to set up a consultation with one of our (soon-to-be) three lawyers on your Canadian immigration matter.

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‘Young, Single, Mobile, and Without Dependents’ – Why the Courts Need to Step In

Among a few frustrating trends, Immigration, Refugees and Citizenship Canada (“IRCC”) continues to refuse temporary resident applications (namely visitor visas and study permits) by single applicants, who are younger, and do not have spouses/dependent children. More often than not these individuals come from countries where there may be a presumption of a primarily (permanent) immigration intention or that dual intention arguments run up against evidence of a country’s instability. More often than not those that are refused on this ground are also women. This refusal reason is very common, for example from the visa office in the Middle East and Africa.

In this piece I’ll look at what Applicants can argue in response, what the Department of Justice (or “DOJ”)’s  position is when responding on behalf of their clients, IRCC, and ultimately why this is a very worrisome ground of refusal moving forward.

 

A Flawed Finding That Often Lacks Legs

The argument that one can be refused simply for being ‘young, single, mobile, and without dependents‘ is not on solid ground based on numerous Federal Court decisions. In Iyiola v. Canada (Citizenship and Immigration), 2020 FC 324, Justice Fuhrer summarizes the case law on this point – particularly how finding a lack of dependents a negative factor, without further analysis, would preclude many students from eligibility.

[20]  As noted above, the High Commission’s decision indicates concern that Mr. Iyiola may not leave Canada at the end of his authorized period of stay; Mr. Iyiola bore the onus of satisfying the visa officer in this regard: IRPA s 20(1)(b). Regarding Mr. Iyiola’s family ties in Canada and in Nigeria, he has five other family members in Nigeria, including his parents with whom he lives with, none of which was mentioned in the GCMS notes; given this, it would have been unreasonable without further analysis to presume an older brother in Canada would be a more significant pull factor: Obot v Canada (Citizenship and Immigration)2012 FC 208 [Obot] at para 20. Accordingly, I find it unintelligible that there was no explanation whatsoever by the High Commission, nor by the visa officer in the GCMS notes, about the family ties in Nigeria and how these were assessed in the context of Mr. Iyiola’s family ties in Canada. Moreover, I agree with Justices Russell and Mosley that an applicant’s lack of a dependent spouse or children, without any further analysis [as in this case], should not be considered a negative factor on a study permit application; otherwise, this would preclude many students from being eligible: Onyeka, above at para 48Obot, above at para 20.Finally, it is unintelligible in my view to construe a lack documented travel abroad in itself [and without something else, such as a negative travel history] as an indication that an individual will overstay their authorized time in Canada: Onyeka, above at para 48Ogunfowora, above at para 42.

(emphasis added)

Iyiola

It is also worth revisiting both Onyeka v. Canada (Citizenship and Immigration), 2009 FC 336, and Obot v. Canada (Citizenship and Immigration), 2012 FC 208both notably cases that also involved Nigerian study permit applicants refused on similar language.

In Onyeka, Justice Russell finds that the Officer in this matter does not tie together how a lack of dependents leads an individual to not leaving Canada at the end of their authorized stay. He writes:

[48]           I can see some connection between being single and having no dependents and the issue of whether, under Regulation 216(1)(b), the Applicant will leave Canada at the end of the authorized period. These factors, however, merely place the Applicant in the position of most students applying for study permits. The Applicant has no family connections in Canada; his family is in the U.K. or Nigeria, and he has a highly responsible job in Nigeria. The Officer does give reasons – being single and having no dependents – but these reasons are hardly sufficient to amount to a reasonable exercise of discretion when the other factors are taken into account. There is simply nothing on the facts to suggest that the Applicant is not a bona fide student or that he would stay in Canada illegally at the end of the authorized period. See Ogbonnaya at paragraphs 16-17.

(emphasis added)

Onyeka at para 48.

In Obot v. Canada (Citizenship and Immigration), 2012 FC 208., Justice Mosley as finds not transparent, justifiable, or intelligible how family ties are assessed in the context a 25-year-old single applicant. He writes:

[20]           With regards to the applicant’s ties to Nigeria, the officer’s reasons are not transparent, justified and intelligible. The applicant is 25 years old and a student, it is thus normal for him to have “no spouse, children or property” in Nigeria or anywhere else. Furthermore the officer did not consider that all of the applicant’s family lives in Nigeria and did not consider the strength of his ties to his family: Onyeka v Canada (Minister of Citizenship and Immigration)2009 FC 336 at paras 21-22Li v Canada (Minister of Citizenship and Immigration)2008 FC 1284 at para 30; and Zhang v Canada (Minister of Citizenship and Immigration)2003 FC 1493 at paras 21-22.

(emphasis added)

Obot at para 20.

In the recent decision Singh v Canada (Citizenship and Immigration), 2021 FC 691, the Officer refused the Applicant’s work permit application on the basis that her family ties suggest that she will not leave Canada at the end of her authorized stay, despite the Applicant’s evidence that she has no direct family ties in Canada. While is not a study permit case per se, it is very instructive.  Justice Fuhrer (note: same decision maker as in Iyiola) states the following in Singh:

[5] Regarding the first ground of refusal, I find that the absence of any articulated reasons for the Officer’s determination that Mr. Singh would not leave Canada at the end of his stay because of family ties in Canada renders the decision unreasonable for lack of justification: Vavilov, above at para 86. In my view, it is clear on the face of the record, and the Respondent admitted in both written and oral submissions to the Court, that there is no evidence Mr. Singh has any family ties in Canada. To the contrary, Mr. Singh’s evidence is that his spouse, child and parents live in India. I add that it is not evident which country the Officer meant by “your country of residence,” whether the UAE, India, or another country.

[6] Nor is there any discussion at all in the brief Global Case Management System [GCMS] notes, which form part of the Officer’s reasons for refusing Mr. Singh’s work permit application, about his family. To be clear, my concern with the GCMS notes is not their length. Rather, the outcome of Mr. Singh’s application on this basis is at odds with the factual context, and is not supported by any reasons, let alone intelligible and rational reasoning: paraphrasing Vavilov, above at para 86. (Emphasis added)

Singh at paras 5-6.

With these several cases, it seems strong that if family ties are not analyzed beyond just mentioning the presence of a Canadian (or Canadian-based family member) that this will not be accepted by the Court. Yet, we have seen a pushback with the position Department of Justice is taking on several judicial reviews – attempting to justify the finding with their own (largely after the fact) factual analysis.

 

How the Department of Justice (Lawyers for IRCC) Counter

The DOJ, again even if it is not in the actual findings of the Officer, will respond to judicial reviews by arguing two fold (1) that the evidence provided by the applicant was insufficient and therefore the concern was not credibility (requiring further information requests etc.) and that the onus that the applicant would leave Canada was not met; and (2) try to piece together the applicant’s biographical history to muddy the waters of what may appear to be a clear cut case with strong ties to the country of residence to try and accentuate push/pull factors.

A case they often cite is the 2013 decision of Babu v. Canada (Citizenship and Immigration), 2013 FC 690 (CanLII).

[19]           Last, the applicant says that for two reasons the officer unreasonably discounted his family ties to Pakistan in arriving at the conclusion that he had not “demonstrated sufficient level of establishment or ties to Pakistan that would compel him to depart Canada within the period authorized.”  First, as in Zhang v Canada (Minister of Citizenship and Immigration)2003 FC 1493, Mr. Babu presented evidence that he and his family intended that he return to Pakistan upon completion of his studies.  Second, as in Hara v Canada (Minister of Citizenship and Immigration)2009 FC 263, all of Mr. Babu’s immediate family reside in Pakistan and he is expected to assume primary responsibility for his father’s affairs as the only son.

[20]           It is not disputed that there were factors that weighed in favour of the view that he would return to Pakistan and thus ought to be granted the permit.  However, one cannot point to isolated facts or factors which favoured the applicant to argue that the officer’s assessment was unreasonable; rather, the officer’s determination under paragraph 216(1)(b) must be examined in light of the whole record.  In this case, there were factors weighing on both sides of the equation.  On the negative side, Mr. Babu had not shown he was pursuing higher education in his chosen field in Pakistan and did not provide particularly convincing reasons why not; Mr. Babu had been working for more than three years but had low savings and no property; Mr. Babu was not married and did not have children, and was thus probably relatively portable; and the situation in Pakistan was admittedly relatively bleak for Hindus like Mr. Babu.  On the positive side, Mr. Babu’s family expected him to return to Pakistan; Mr. Babu’s immediate family was in Pakistan; and Mr. Babu stated in a letter to his immigration representative and current counsel that he intended to return to Pakistan.

[21]           The task of […]

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Revealing More About Reconsideration: What Our Latest Obtained Unreleased IRCC Training Guides/Manuals Tell Us

One of the most underappreciated and underutilized remedies in Canadian immigration is that of the reconsideration request.

I do not blame advisors or applicants for this one. This is a general veil on what this remedy entails – especially as the existing policy guidance and materials are not presented as general instructions, rather specific to application types (Humanitarian and Compassionate Grounds and Family Class). Finding the right information on IRCC’s website is a bit of a treasure hunt.

 

A. What We Know To-Date

We know that a reconsideration request is a written request to an officer to ask them to reconsider a decision. These are often sent in through case-specific enquiry or to a visa-office supported method of communication.

The main instructions, which *in large part* represent present day instructions, are found below in my breakdown of the H&C and Family Class program delivery instructions (“PDIs”). I have quoted the instructions and will add some commentary as I discuss throughout.

H&C PDIs

These first set of instructions are from the Humanitarian and Compassionate Grounds PDIs.

Guidelines for reconsideration requests after refusal (at stage 1 or 2)

The legal doctrine of functus officio does not automatically bar reconsideration of final H&C decisions (MCI v. Kurukkal, 2010 FCA 230). The decision maker may exercise discretion to reconsider, or refuse to reconsider the applicant’s request for reopening of a previous decision. However, reconsideration should only be done in exceptional cases.

An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

 

Return reconsideration requests to the original decision maker when possible. For reconsideration requests previously determined by a local CIC, the request should be sent to BRO-V for assignment.

(emphasis added)

I want you to pay extra careful attention to the words underlined for emphasis added.

IRCC then goes to set out a two-step process for reviewing a consideration request. As a side note here, I rarely ever see counsel go through the two-part test or highlight the considerations below.

Reviewing a request for reconsideration is a two-step process:

  1. Decide whether to re-open the case and consider the new evidence, even if the case is under litigation at the Federal Court.

  2. If you decide to reconsider, review the new submissions and the original file and decide whether or not to change the original decision.

The factors for reconsideration are set out below:

Factors to consider when deciding whether to reconsider:

You must first determine whether a reconsideration of a previous H&C decision is warranted based on the information submitted. The onus is on the applicant to satisfy the officer that the reconsideration should be done. You should consider all relevant factors and circumstances to determine whether a case merits reconsideration. The following is a non-exhaustive list of factors that may be relevant to consider:

  • Whether the decision-maker failed to comply with the principles of natural justice or procedural fairness when the decision was made.
  • Whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority).
  • If new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application.
  • When additional evidence is presented that was available at the time of the original decision, consider why it was not submitted at the time of the original application. Determine whether that evidence is material and reliable.
  • The passage of time between the date of the original decision and the date of the reconsideration.
  • Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions. 
  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

(emphasis added – note this one particular last bullet point moving forward)

IRCC also provides guidance to Officers in the public facing instructions about what to do after deciding whether to reconsider or not reconsider.

Once you have decided whether or not to reconsider:

If the decision is to reconsider do the following:

  • re-open the first H&C decision
  • request information from the applicant (e.g. medical, procedural fairness letter)
  • make a new decision and send approval/refusal letter Stage 1.

If the decision is not to reconsider notify the applicant. You may refer to the original refusal to explain the refusal because the applicant was already informed of the reasons that their application was refused.

Record the reasons why the reopening request was granted or refused based on the submissions reviewed. For example, a decision might reflect the following reasons:  passage of time, new information not previously submitted, or procedural fairness error. Whether a detailed analysis is necessary should be determined on a case-by-case basis depending on factors such as whether the decision was re-opened, the kind of submissions etc. 

Family Class PDIs

With respect to the Family Class, IRCC has the following instructions.

Much of which replicates what is listed in the H&C section above:

Reconsideration and enquiries after refusal

Applicants or their representatives often submit information after a refusal and request that an officer reconsider the decision. If an office receives a request to reconsider a decision, an officer must consider the request and decide whether or not to exercise their discretion to reconsider the previous decision. The legal doctrine of functus officio does not automatically bar reconsideration of final decisions (MCI v. Kurukkal, 2010 FCA 230).

The decision-maker may exercise discretion to reconsider, or refuse to reconsider the applicant’s request for reopening a previous decision. However, reconsideration should only be done where warranted, in exceptional cases. An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

The onus is on the applicant to satisfy the officer that reconsideration is warranted. The decision-maker should consider all relevant factors and circumstances to determine whether an application merits reconsideration. The decision whether or not to reconsider the application must be recorded in GCMS and communicated to the applicant. The applicant’s correspondence requesting reconsideration and any supporting documents should be kept on file.

(emphasis added)

Noting again, the underlined sections, one wonders why for Family Class, the information is different than that for H&C grounds. Based on these instructions it appears the Officer MUST consider the reconsideration request, but MAY choose to exercise discretion to re-open or not to re-open. Again, the wording is of EXCEPTIONAL CASE.

The factors are then listed below, which largely replicate the one for H&C.

A (non-exhaustive) list of factors that may be relevant to consider:

  • whether the decision-maker failed to comply with the principles of procedural fairness when the decision was made
  • whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority)
  • if new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application
  • when additional evidence is presented that was available at the time of the original decision, why it was not submitted at the time of the original application – determine whether that evidence is material and reliable
  • the passage of time between the date of the original decision and the date of the reconsideration
  • whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions

It is preferable that the initial decision-maker review any request for reconsideration. However, where that is not possible, a request for reconsideration can be reviewed by a different decision maker as long as that person has authority to make decisions of the type under review.

The one noticeable omission is this factor from above:

  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

Finally the instructions provide the Officer to enter information into GCMS.

Officers making a decision on whether or not to reconsider should ensure that the following information is entered in GCMS Notes:

  • the reconsideration decision
  • the reasons for the reconsideration decision

Note: The decision whether or not to reconsider is subject to the possibility of judicial review. Taking the above measures will ensure that, in the event a refused applicant submits a leave to appeal to the Federal Court, there is an official record and supporting information on file to reflect that IRCC received, assessed and rendered a decision on a reconsideration request.

Reconsideration for Paper-Based Applications

IRCC also has some instructions posted in program delivery instructions titled: Emailing clients who have paper-based applications which cross-references the Family Class instructions, suggesting again that these are the main instructions.

 

Missing Emails Cases

There is also specific information regarding missing email cases, which I will not go into detail, you can find more information here on the same PDIs for Paper-Based applications discussed above.

These instructions replace the expired Operation Bulletin 195 and have remained consistent throughout.

 

B. What Do Current Instructions Not Tell Us?

However, what about regular temporary residence applications (student permits, work permits, visitor visas, and eTAs?

Do the same instructions apply?

Are there are also other instructions that are missing? For example for economic applications. Why is the information on reconsideration only for two programs.

I decided to do an ATIP request on reconsiderations to find out. Note – I still do not believe I received all the information I was seeking, specifically how different overseas visa offices create policies and practices around reconsideration. However, I did get some training materials and updated information that will highlight discrepancies. It also highlights the challenges of navigating updated policy from a bureaucratic perspective.

Most of IRCC’s policies (unless they are designated as internal – as this one was) are ultimately converted into the Program Delivery Instructions (PDIs) for […]

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Shifting from Lived Experiences to Heard Experiences

In both advocacy and community, I have been hearing a lot about ‘lived experiences.’ While generally a positive term about showing up with authenticity and reflecting only on what you know and have been through, the term can be over-used, and done so in a harmful way for more powerful voices to speak their lived experiences (or a collective experience) over anothers. Whether you want to call this ‘Oppression Olympics’ or the role the oppressed (in one category – let’s say race) can be very much an oppressor in another (let’s say economic status), conversations often escalate into two separate narratives holding very little space for one another.

I am going to advocate for a new term – ‘heard experiences.’ In my work as a storyteller of immigration stories, I hear a lot of stories. Indeed, part of the role of a lawyer unfortunately is having to translate these stories into the colonial language of immigration laws. Indeed, we often times have to guide our clients into re-framing their stories so they meet very specific tests (be it the Ribic test, or the test for Rehabilitation). Indeed, heard experiences in many legal settings can be classified as ‘hearsay’ and immediately discounted for evidentary and probativ value.

What I am trying to do more of, and encourage others to do as well, is to also de-center our own stories or perhaps rather than use another’s stories as a bridge to one’s one, utilize the act of hearing and holding space to reflect on how to better centre the story that is being told and that you have the privilege of listening to.

Remember, even hearing stories of one’s trauma, hardship, struggles is a privilege. You are given access to someone’s inner secrets, perhaps some that those closest to them do not know. The first step of that should be to reflect and speak your own experiences to try and form an artificial bond. That very mindset of trying to think of how to tie in your own lived experience into someone else’s who may not have given neither the consent to, nor told enough to allow you to do so, can negate or reduce what they seek. We have all been in circles where everyone is asked to share an example of a story, and rather than listening to another’s.

That is why I think the practices of witnessing, which many Indigenous communities practice, is and can be so powerful.  If you attend an event with this format, you recognize that the response from the witness is to demonstrate that they have heard the speaker and what they have learned, rather than to immediately input themselves as the focal point.

Implementing Heard Experiences into My Legal Practice

How do I plan to integrate heard experiences into my legal practice? First – by not rushing into consultations and meetings telling clients what they should do before hearing them out. Giving them time to share their story at the outset and expand on any written materials they provided in advance needs to be a starting point. I can acknowledge that especially where we see cases of the same nature repeated, we tend to start cookie cutting and templating processes. This is effective only to a certain extent but does not create the strong client bonds you need to sway a case.

Second, is to ask for clear consent when sharing stories, even where they stories may be themselves anonymous or seem reduceable and redactable. Not only is this a confidentiality obligation, but it is also good to reflect to the storyteller of the bigger impact their story may hold and ask if they wish to share it with a bigger audience.

Third, is to spend much more time journaling privately these experiences. Rather than to make point form notes and connect it to my own past practice or some legal test, start carving lines between what a client has said, what they have presented, who they are, to form a web. Utilize these stories to compare against dominant narratives, but more importantly to contrast. Document where dominant narratives fall short and question the sources. Again (with consent) seek to inspire storytelling through different mediums to try and counterbalance generalized lived experiences, and to encourage acceptance of these. Acknowledge and hold the conflict (and perhaps even disagreement) these may have to your own perspectives but not to automatically and immediately discount them.

I look forward to hearing from more new clients, giving them spaces to share their lived experiences without the judgment or reduction that I, as a listener, too often apply.

IG.

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Three Challenges I Can Already Foresee: Canada’s Temporary Public Policy for International Graduates

On 14 April 2021, the Minister released a Temporary Public Policy (“TPP”) for international graduates, including the creation of a 40,000 cap for those with a recent Canadian post-secondary credential issued since January 2017 (See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/public-policies/trpr-international-graduates.html).

While this move is rightfully being lauded as part of a larger set of Temporary Public Policies that open the door that Express Entry has lately kept shut and the target shortfalls of COVID-19 have exacerbated, I have my concerns.

In this piece, I will go over three challenges I can already foresee with Canada’s Temporary Public Policy for International Graduates and what I would do to address it if I were the Government. In some cases, it will be too late likely but I’ll provide my hindsight perspective:

 

1.The Speed Based System Will Inevitably Lead to Crashes

Whether it be the system crashing or an Applicant’s application crashing due to the system forcing too much speed, I suspect something will crash on May 6th. While I have heard many numbers thrown around, from 500k vying for 40k spots, we know for a fact that very few former study permit holders ultimately obtain permanent residency in Canada. While this number was at one time in the mid 90’s and early 2000’s at a higher percentage, for the last few years it has been single digits. Even Express Entry, ostensibly made to support international graduates, do not meet the needs of most international graduates. Taking into account the number of international graduates who are working in retail, as servers, and customer services representatives – this is a large group who will be interested in applying on May 6th. While some will have access to the other TPP, not all well (many times due to the lack of one-year of work experience) and perhaps significant self employment experience.

Unlike traditional programs that require perhaps first a registration of intent and then a submission process, this appears to be set to do the entire process of eligibility and application all at once. like a full-day exam, this has the potential to be a few hours of absolute stress and anxiety. The reality is many will be on the outside looking in. Certainly, preparing and predicting for what can go wrong will go along way.

Still, I don’t see a way that demand for this program does not at the least slow down or crash the server, and at the very worst lead to many unable to access the forms, validate, submit, sign, and do all the logistics that permanent residence applications require. It seems almost counter intuitive that a process professionals charge and properly take weeks and in some cases months for is being jammed into several hours. Mistakes will be made. The call centre lines will be jammed up with those stuck, and at the end of it 40,000 names will be in the queue but not necessary become permanent residents.

As someone who co-spearheaded the parent and grandparent litigation in 2019, this has all the markings of that process repeated – perhaps without the Charter breach if a suitable process is created for persons with disabilities. Yet, so many were caught on issues outside of their control on the technology side. All it takes is one bad form for the system to derail or one server issue. I am hoping it does not happen but I am not holding my breath.

I am also not going to be registering anyone, directly or indirectly. Not only has IRCC indicated that this is the way the portal will be made (shutting out authorized reps), but the reality is one cannot do competent accurate work on a speed basis, let alone without access to the actual forms being held by both applicant and representative. Furthermore, representatives will be at a conflict of interest trying to register multiple clients.

When we do permanent resident applications for clients, we specifically (and often advise) for patience. That doing a good job requires time, review, double checking, and perhaps legal submissions to clarify inconsistencies. None of these appear to be either promoted or supported in a ‘typing race’ type process.

 

Possible Solution (although it is likely too late): While everyone hates the random draw, perhaps in a circumstance like this with demand sure to exceed space it is a fairer way to give everyone ample time to be eligible and put in an interest of the program. The other option is to push the start date a bit (to a date that clearly gives applicants (and third parties) at least a little more time to get their materials ready. Another option is to stager the intake so rather than one shot at 40,000, it could be 10,000 spots over four months allowing those who perhaps are not fully complete with their documents a bit of time to participate. My third suggestion is a vaccine approach. Are there certain graduates you want (STEMs? those who hold graduate degrees first before degree-holders and then diplomas?) – it would be entirely justifiable to start with a group first and then expand the pie until the spots are filled and thereby also controlling the flow. Yet, as I write above, it is likely too late to rethink it.

 

 

2. The Requirement for Employment Only at the Time Application Received is Both Bizarre and Ripe for Misuse

One of the requirements of the international graduates TPP is that an eligible applicant must hold employment at the time of the receipt of their application for permanent residency under the policy.

While I have a bone to pick with the self-employment bar as well (frankly an area the Government would be best to better resource with PR program and/or encourage the Provinces to step in), it seems rather arbitrary that an employee has to be working as an employee on the particular day their application is submitted, not any day before, not any day after. Indeed, this type of requirement does open the possibility of abuse: employment for a short-term period just to gain eligibility. As an aside, I had a consultation client ask today if I could hire them as an employee for my Law Firm so they could be eligible for this – to which I answered, no.

Especially during COVID when individuals, many of whom sacrificed and were employed in the past year, but perhaps less than a year or not in categories eligible under the essential occupation TPP, are possibly now on leave – it does not quite make sense that employment occurs in such a small vacuum. How does IRCC later assess it when someone who obtained employment for a two week period in order to submit the application, then quits to resume their self-employment (for example).  It seems very arbitrary to require employment in this nature. One could (and presumably should) sign up for a temporary agency just to meet these requirements, and while good for the economy during these difficult times certainly inexplicable from a rational perspective why one would need to do this to meet an immigration program requirement. These are the same types of decisions that many fraud/arranged employment/inadmissibility cases are built under.

Possible Solution (although it is likely too late): Rather than require employment on that one particular day, require employment (or ongoing efforts to regain employment) until an eligibility decision is made. Perhaps consider extending exceptions to those who are on short-term leave but were otherwise employed. IRCC should clarify (well in advance) what type of employment letter would be needed to meet this requirement.

 

3. Refusals Will Happen in Droves + Possibly Misrepresentation Risk Increases

Applicants will be refused in droves over issues with documentation. Even in the current iteration, it is unclear what words such as ‘attestation‘ mean in terms of proof of completion of studies or whether someone’s proof of completion of studies or unofficial transcript will be good enough appear up in the air. On strict reading, it is very likely that a simple confirmation of employment and pending final transcript will be good enough to get in the door of eligibility.

One might ask why refusal and not return of incomplete application?

Because this program falls under a temporary public policy, Regulation 10 IRPR does not apply and therefore there are two options. The first, is a tightened eligibility screen, where Applicants must enter documentation to show they are indeed eligible. By controlling the content of this screen, it may limit the number of individuals who are able to access the permanent residence portion (for example if they do not have a final language test result). However, given the process is again speed based, Applicants presumably need to have all their materials ready to go/or else

Putting out information early (or even delaying the start date a little bit) doesn’t hurt to make sure everyone has the same ground rules would be advisable. Furthermore, those who may need to make applications due to disability (which presumably will be by paper), should understand what type of medical evidence they will need and to ensure that they have enough time to obtain it.

Also –  what will happen if an individual manages to answer in a way to get them past the proverbial first screen, but then when submitting the actual application, things auto-populate (perhaps even incorrectly) and or things will need to be corrected? The benefits of the Express Entry ITA system is it does allow for both amendments before an invitation, as well as ways to update corrections. Many times, as counsel, these were the types of issues we were engage on.

I do suspect that what Applicant’s rush to submit may itself create problems. Failures to disclose memberships, previous refusals, arrests, or even clarify overlaps and gaps. These were the usual things we would advise clients to hold up and wait for, but now are things that an Applicant may be better off submitting first and explaining later. How does this then play into inadmissibility, misrepresentation, and other complications that can arise?

There are also possibly unique opportunities. I do have a gut sense that automated decision-makers are somewhere involved in the process, but if there are no R.10’s (IRPR) are applicants going to rush to bolster their files after (presumably also when they realized they submitted incomplete information). This information, if […]

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

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