Extrinsic Evidence

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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.


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 researchChandidas 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 […]

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“Bad” Google Searches as Extrinsic Immigration Evidence + A Possible Solution


The recent Federal Court case of Chen v. Canada (Minister of Citizenship and Immigration) 2015 FC 771highlights a growing problem in the assessment of immigration applications, Immigrant Officer relying on poorly researched extrinsic evidence to reject applications.

In Chen, the Applicant, Zhaohui Chen had been convicted of manslaughter and found inadmissible to Canada for serious criminality under section 36(1)(a) of the Immigration and Refugee Protection Act. Mr. Chen exercised his statutory right to file a Pre-Removal Risk Assessment claiming a fear of persecution in China by being Baptist and possible retribution by the manslaughter victim’s family. Mr. Chen cited the risk of Double Jeopardy under Chinese Criminal Law.

The immigration officer (“officer”) in this case conducted his own internet, “Google” search of the term “Zhaohui Chen” and upon finding no results indicating his conviction, concluded that Double Jeopardy was unlikely. Justice Zinn found that failure to put the name search results to the Applicant for comment prior to rendering a decision breached natural justice and allowed the Judicial Review.

When is CIC Required to “Put Their Concerns to Applicants?”

Procedural fairness requires that Applicants have the opportunity to respond to an immigration officers’ concerns under specific circumstances. Two of those particular circumstances include where there are credibility concerns about the Applicant or where the officer relies on extrinsic evidence. Often these two areas are correlated, as a credibility concern can trigger the officers’ extrinsic evidence search or the extrinsic evidence search can reveal information which creates a credibility concern.

In these circumstances, the officer is generally required to contact the applicant laying out the area of concern . The burden of proof is on the applicant to put all necessary information in front of the visa officer and there is no requirement to inform the applicant of all application deficiencies. See particularly: Olorunshola v. Canada (Minister of Citizenship and Immigration), 2007 FC 1056. 

Responding to extrinsic concerns is particularly challenging in the context of Port of Entry examinations. Whereas, with procedural fairness letters one can be given 30-60 days, which upon application can be extended, similar luxuries do not exist at the Port of Entry. Officers in the process of gathering evidence to issue removal orders, can (and do) look through phone evidence, computer evidence, and Google search evidence. This evidence is asked and put to the applicant on the spot to disabuse them of their concerns.

This can be particularly difficult for the already panicking traveller, who is now shown a screenshot of their perceived wrongdoings or a third-party document they have never seen before. With new information sharing regimes coming in, I foresee the use of extrinsic evidence (particularly by CBSA officers) to increase in the near future.

Personally, I also think the amount of time and level of access to extrinsic materials that an applicant has to CBSA officer evidence should have some bearing on the procedural fairness analysis. Unfortunately, in the administrative law context, procedural fairness has become an all-or-nothing proposition. either it was provided or denied by the officer – with nothing in between. In very few Federal Court case law that I have read has procedural fairness been established on the totality of several small administrative breaches that have disadvantaged the Applicant, something that I believe is increasingly happening within the Canadian immigration context.

The Real Problem is the Google Search

Back to the root of the matter, I have a huge concern with Google searches as extrinsic evidence. In fact, in most Canadian legal contexts (notwithstanding the fact the ‘evidence’ rules are laxed in administrative matters and in particular immigration law administrative matters), Google searches are inadmissible.

In fact, as discussed in this great Canadian Lawyer Magazine article by Ontario-based lawyer Ben Hanuka. One particular judicial comment I quite like from the article, is a quote from then Ontario Supreme Court Justice George Strathy:

“[t]here is no evidence that one can extrapolate factual conclusions from the number of occurrences of a particular search phrase on Google.”

But outside of  a legal realm, it is worth assessing the utility of relying on mere Google searches factually and practically as well.

Why don’t we begin with the context of the Chen case, from a completely factual perspective. The Immigration Officer attempted to use Google, a North American search platform currently banned/unavailable in China, and insert the Applicant’s Alphabetized pinyin name, one that legally does not exist in China, to conduct investigative research.

Second, there is no evidence that Immigration Officers are even trained in searches. Having gone through multiple seminars of legal research training on Boolean searches and the proper use of connectors, etc, I still am clueless on how to properly conduct a Google search to give me optimum, specific results.

I have seen even worse than the Chen case. I have personally been involved in files where Google searches pull up outdated or incorrect results that have been used against applicants. Again, within the North American context we consider Google the central hub of our internet activities but in many countries and languages different search engines are used. Google results can be both outdated and limited when compared to these other engines. In fact, Google results can simply “not exist” for various individuals.

Solution – Technological Interaction

The number one way to limit the use of extrinsic evidence is quite logically for an Applicant to submit more, and better evidence. One of the major challenges I have seen with evidence submitted by the Applicants is that the quality and content can often be poor. Photocopies are often unclear. References (i.e. where the evidence was obtained) is often not cited. And often times, particularly if not included in the proper place within an application package or submission, can be difficult to tie to the underlying fact its trying to prove.

I foresee in the not so very future,  procedural fairness letters shifting to virtual form, an upload-able table where the Officer’s concerns are listed alongside the evidence considered – consider like an interactive/virtual foss note system.

I think one of the main solutions that CIC can employ is to implement such a system so that Appicants can also respond, or arguably even submit in advance relevant evidence in a logical way. My one concern, with the way the online portal is currently set up for such things as visa applications and express entry applications, is that it predefines your categories. Documents that do not fit certain categories have to be pdf’d into the “Explanation Letter” or put under an unrelated category where it may be possibly missed.

I like the idea of a using a virtual platform to interact with applicants on their applications and their office concerns.

For example, if an officer were to make a comment challenging the bona fide’s of an individual’s job title by relating to extrinsic evidence from a google search, the applicant would be able to “reply” back virtually through use of his own submissions and evidence. This back and forth could continue as much as would be required to give the Applicant a “necessary opportunity to respond” at which time both officer and applicant would be required to lock-in their inquiries on the matter.

Only time will tell whether this level of interactivity can be implemented or is even desirable from a cost-recovery perspective. Nevertheless, I do hope that Counsel in their judicial reviews take a stronger stance against extrinsic evidence so we may get better jurisprudence on this increasingly important issue.

Disclaimer: I am a chronic Googler who, outside of the legal evidence realm, believe it is the best search platform in the World, bar none.

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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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