Canadian Immigration Law Blog

Award-Winning Canadian Immigration and Refugee Law and Commentary Blog

Blog Posts

The Problem with Khaleel: Extrinsic Evidence Versus Applying Local Knowledge

In this post, I am going to do a gentle critique of a Federal Court decision from last year Khaleel v. Canada (MCI) 2022 FC 1385 and highlight the case as an example of the Court showing too much deference to an Officer’s application of local knowledge, without scrutinizing the reasonableness of the evidentary foundation.

Khaleel

In Khaleel, a Pakistan citizen and Kingdom of Saudi Arabia (KSA) temporary resident was refused a temporary resident visa (TRV). Khaleel had a long (and largely negative) immigration history in Canada prior to this TRV refusal, but had applied for a business visa to visit Quesnel, B.C. as part of a required exploratory visit.

The key in this decision is Madam Justice Elliot’s upholding of the refusal, on the Officer’s analysis of Saudization. Madam Justice Elliot upheld the reasonableness of IRCC’s analysis that the Applicant’s future employment prospects were negatively impacted by Saudization. The Applicant served as a sales manager for a bakery in KSA and disclosed this as part of his TRV application.

The Officer writes in the GCMS notes for the refusal (reproduced at para 22 of the decision):

Considering the current economic reforms in KSA (Saudization), PA’s occupation (sales manager) is subject to plans for Saudization reforms. I am not satisfied that PA has strong future employment prospects in KSA. The saudization reforms are ongoing and due to the COVID-19 pandemic, reduction in the foreign workforce and layoffs are fast-tracking.

Khaleel argued that the Officer ignored his evidence, including a letter from their employer in Saudi Arabia speaking to the fact that the position was not impacted by COVID and indeed the business remained opened and demand increased.

Madam Justice Elliot writes:

[27] While the employer spoke to the increase in business they have experienced, the Officer is concerned with the national push to reduce foreign workers in KSA.

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

[29] Regardless of the bakery’s success and reliance on the Applicant’s employment, the business like all others in KSA, is equally subject to the government’s policies to prioritize the employment of Saudi nationals. While the Applicant is correct in stating that the employer’s letter was not explicitly cited in the GCMS notes, I find that was reasonable as the letter does not address the Officer’s concerns about the nation-wide Saudization policies targeting foreign workers with temporary status in KSA

….

[32] As before, the Officer’s concern was the Saudization policies targeting foreign workers with temporary status in KSA. The Applicant’s responsibility for operations, in addition to sales, did not need to be discussed specifically in the reasons as it did not alter the fact that he was at risk as a foreign worker in KSA.

(emphasis added)

The Applicant also challenged, as a matter of procedural fairness reviewable on the correctness standard, the use of extrinsic evidence. Madam Justice Elliot reviewed case law for TRVs emphasizing the Officer’s use of general experience and knowledge of local conditions to draw inferences and reach conclusions without necessarily putting any concerns that may arise to the applicant (at para 57, citing Mohammed v Canada (Citizenship and Immigration), 2017 FC 992,). Again, and like many decisions involving visitors, students, and workers (temporary residents), Madam Justice Elliot emphasized the lack of a qualified right to enter Canada and therefore the low procedural fairness owed.

Madam Justice Elliot writes:

[59] The Officer considered the Applicant only had temporary status in KSA. It is entirely reasonable to expect an applicant for a TRV to anticipate concerns of this sort in relation to their likelihood of return at the end of an authorized visit to Canada.

[60] The Officer was not required to notify the Applicant that he would be relying on public sources regarding general country conditions in KSA and conducting his own research: Chandidas v Canada (Minister of Citizenship and Immigration), 2013 FC 257 at paras 25, 29-30.

[61] I do not find that the Officer’s reliance on their general experience and knowledge of local conditions in KSA gave rise to a duty of procedural fairness.

Finding Separation Between Reasonable Analysis Based on Local Knowledge and Speculations and Erred-Analysis Based on Undisclosed Extrinsic Evidence

Accepting again the premise that an applicant should be aware that country conditions may be applied (a premise I find problematic – as open-source searches and unpublished/vetted reports and pull up a whole slew of different findings and can often be subject to either partisan politics or propaganda), I think an Applicant should be able to challenge in judicial review the reasonableness of the local knowledge without necessarily having to predict its application. For example, a temporary resident like Khaleel who has been working and travelling between his country of citizenship and residence for many years, working many jobs may not view it as a future concern (on the ground), but global news articles/studies may highlight it a major problem/characteristic/push factor (on a macro-level).

In this case, there are two findings by Madam Justice Elliot that are worth re-examining.

First, Saudization does not apply equally to all individuals (para 29). Open source information makes it clear that it very industry dependent, position dependent, and timing dependent. See e.g. Saudi Arabia: Saudization Requirements Announced for Several Activities and Professions | Fragomen, Del Rey, Bernsen & Loewy LLP

For example, if the Applicant was seeking a short trip to Canada for several weeks but changes would not kick in for another year or two, this could be relevant factor that appears to be missed in the Officer’s analysis.

Second, whether someone is in sales or operations ( para 32) could be relevant as there are different levels for different industries as discussed and there is no discussion in the decision about his Iqama (permit holding) industry. It is also common practice in KSA for permits to be issued for one profession, but applicants to take on jobs in others with the future possibility of switching.

There is a third issue, that I could think of – involving whether or not percentages even mean too much (for example if an industry is going from 10 percent to 25 percent), if ultimately the expansion of hiring writ large of workers would lead to increases in hireability for both foreign and domestic workers. Khaleel was time during the pandemic, but I could see in another context the Applicant providing evidence that the percentage of Saudization itself is not determinative of the number of opportunities.

Of course, Madam Justice Elliot is not tasked in judicial review with stepping in as Officer to re-evaluate the facts or evidence to decide for herself (Valilov at para 83) but I am concerned that blanketly accepting Officer’s ability to do their own research without even citing the source of this research can very easily lead to misinformation – particularly as we head into the age of digital misinformation. Furthermore, as data is increasingly relied upon as the source of data – it could also lead to the shielding of the actual impetus on reasoning (internal statistics) with these boilerplate recitations of an Officer claiming to rely on country conditions. I also feel, at minimum, an Officer should mention – rather than have it implied – where local knowledge and experience has led to a specific finding.

This concern of boilerplate recitations was also expressed by Justice Sadrehashemi in Mundangepfupfu v. Canada (Citizenship and Immigration), 2022 FC 1220 who writes:

[18] The personal circumstances of Ms. Mundangepfupfu were not considered. It is not clear how the country conditions set out by the Officer would affect Ms. Mundangepfupfu, given her living conditions and family support that were described in her applications. The Officer failed to meaningfully account for and respond to key issues and evidence raised by the Applicants, as required (Vavilov at paras 127-128). I agree with the Applicants that this kind of boilerplate recitation of country conditions without an application to the personal circumstances of an applicant could provide the basis for refusing every application for temporary resident status made by a citizen of Zimbabwe. This approach is unreasonable. (emphasis)

Mundangepfupfu at para 18.

Is stating that Saudization applies to all applicants who have temporary resident status in KSA akin to boilerplate recitation? Or is it a reasonable application of an Officer’s local knowledge?

Now let’s assume the Officer actually received facts from the applicant proactively – disputing the application of Saudization, but the Officer still suggest that Saudization will limit the future opportunities of an applicant irregardless of the facts  – just as a broad application of Saudization.

Justice Roy states in Demyati v. Canada (Minister of Citizenship and Immigration) 2018 FC 701:

[16] A visa officer is certainly entitled to rely on common sense and rationality. As I have said before, we do not check common sense at the door when entering a courtroom. What is not allowed is to make a decision based on intuition or a hunch; if a decision is not sufficiently articulated, it will lack transparency and intelligibility required to meet the test of reasonableness. That, I am afraid, is what we are confronted with here.

…..

[20] What appears to have been the most important factor in the refusal was the fact that the applicant is a Syrian national who has been living outside of Syria for most of his life. The decision-maker seems to have concluded that given the situation in his country of origin, he would not be inclined to go back to his country of nationality if his residence status in the United Arab Emirates were to change. […]

Read More »

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

Hi Folks:

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

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

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

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

Lots of questions raised and so far view answers.

Still on the beat…..

Read More »

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

Created via DALL-E

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

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

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

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

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

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

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

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

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

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

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

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

Read More »

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

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

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

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

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

Haghshenas v. Canada (MCI) 2023 FC 464

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read More »
About Us
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.

Let’s Get in Touch

Translate »