Procedural Fairness

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Responding to IRCC Procedural Fairness Letters – A Few Practical Tips


For many individuals making Canadian immigration applications, the receipt of a letter from Immigration, Refugees and Citizenship Canada (“IRCC”) highlighting the insufficiency of the evidence provided or the potential allegation or misrepresentation is a very stressful moment.

For those that have received these letters, particularly applicants that are self-represented or sought the advice from a representative that “kept them in the dark” on their applications, this is often where hiring an immigration lawyer starts becoming a major consideration.

Especially in cases of misrepresentation, where the consequences of a five-year bar are so serious and the definition of misrepresentation so broad, this is where the response has to be timed very carefully, and I dare say it, near perfectly.

Before reading my piece, I would highly recommend pre-reading a few pieces from my senior colleague Steven Meurrens (here – on responding to procedural fairness) and (here – on extrinsic evidence). Steven does a very good job of highlighting the key principles taken from Federal Court jurisprudence.He is indeed a master of administrative law.

Some of Steven’s highlighted principles include:

  • the requirement that the Applicant knows the “case to be met” and that the Applicant has the opportunity to respond to extrinsic (i.e. third party) evidence;
  • that there are exceptions to the classification of extrinsic evidence, especially where the Applicant ought to have know that material would be consulted (i.e. company website); and
  • the idea that a procedural fairness letter cannot “bait and switch” – allege a set of allegations and concerns and then refuse on allegations that were not put forth to you; and
  • that if you would like to provide further information (that is pending) you will need to indicate this in your procedural fairness response.

I wanted to add to (supplement) Steven’s work a practical step-by-step analysis of how I breakdown a procedural fairness letter. DISCLAIMER: As with any example, it is not to be treated as overall legal advice. It is not also to suggest that I recommend going at it alone based on my experiences. What I want to do is to encourage a deeper level of thought before the immediate impulse to send back a response the next day stating “it wasn’t my fault for the mistake, it was the consultants” or writing a letter to immigration pleading them to give you leniency. I see these responses too often and often cringe when it is far too late for us to do anything about it (word of truth: there is often a point of no return).

In this piece, I will focus on a situation where an applicant is refused in the context of an economic immigration application (i.e. CEC) but I would suggest these principles are broadly applicable. I also note that much of the case law and jurisprudence, predated Express Entry which has very sped up the process of adjudicating applications. I will not get into the whole discussion of incomplete applications (subject of another post) in favour of discussing solely concerns over the merits and credibility of an Applicant’s application.

My Usual Process

1.Setting out Perimeters Prior to Submission of Application

My recommendations do not start with just the letter itself. Before submitting any application, it is wise to be aware that a procedural fairness letter or a request for further information is very common and more common in complex cases where the facts are messy.

For self-reps, this involves keeping a very good record of all documentation submitted. Scanning copies of all files prior to submission and keeping a running tally of issues you are concerned of can help prepare for the response.

If you are represented by a legal advisor, I stress this time and time again in my posts that you not should have but must demand access to all the materials submitted. I would set guidelines with my advisor to make sure anything submitted in final form is reviewed before it is submitted. You can also tell this advisor that you are aware of the procedural fairness letter process, that you are aware of the process of utilizing Access to Information to obtain a full copy of your file, and that you would appreciate timely passing on of all correspondence in original form. If you do not speak English, find a translator or interpreter to work on your side.  You can even use this opportunity to gauge the understanding of your representative of this process and their experiences. A lack of knowledge of these should be an immediate red flag. Make sure to retain your own copy of your immigration file and keep it in an accessible place. I recommend physical scanned copies too as forms often will revalidate or adjust and eventually serve as proof of anything other than an editable form.

I have heard too many horror stories of unlicensed consultants withholding misrepresentation refusal letters or putting in additional documents not at the request of the Applicant. These practices could have a devastating impact on your future application.

2. Studying and Breaking Down the Procedural Fairness Letter

The format of these letters usually follows a set pattern

  • The first paragraph or two paragraphs will be rather template language, alleging that you do not meet certain requirements of the Act on the basis of what you have submitted;

Procedural Fairness letter

  • The next few lines will (ideally) set out the specific nature of the allegation. Note that IRCC is not under the obligation to disclose entire transcripts of telephone verification calls or active investigations. The amount of negative evidence disclosed and the source of that evidence should be documented at this stage. IRCC has the duty of procedural fairness with respect to procedural fairness letters and content. Rather than try and explain it, I want to highlight a good summary found in Federal Court jurisprudence. In introducing the law of procedural fairness, Justice de Montigny writes in Chawla v. Canada (Minister of Citizenship and Immigration) 2014 FC 434:

14 It is well established that procedural fairness requires that applicants for permanent residence be provided a meaningful opportunity to respond to perceived material inconsistencies or credibility concerns with respect to their files: Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 38, Abdi v. Canada (Attorney General), 2012 FC 642 at para 21; Zaib v. Canada (Minister of Citizenship and Immigration), 2010 FC 769 at para 17; Baybazarov v. Canada (Minister of Citizenship and Immigration), 2010 FC 665 at para 17; Hussaini v. Canada (Minsiter of Citizenship and Immigration), 2013 FC 289 at para 5 [Hussaini]). This entails that an officer’s reliance on extrinsic evidence without allowing an applicant the opportunity to know and reply to that evidence amounts to procedural unfairness: Amin v. Canada (Minister of Citizenship and Immigration) 2013 FC 206.

  1. Indeed, the Respondent’s own guidelines provide as follows concerning extrinsic evidence:

The applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made. For example, if an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence

Overseas Processing Manual, Chapter OP-1: Procedures, s.8 “Procedural Fairness”

  • If misrepresentation is a possibility this likely will be drawn into the language of the procedural fairness letter.

Procedural Fairness letter 2

The importance for IRCC of introducing this potential allegation, is that it can cover off potential credibility concerns. If no misrepresentation is alleged at this stage (in content), then it is likely an issue with sufficiency of evidence. However, my experience is that they will do both in most cases.

3. Performing a Background Review

One of the first things to do is order an Access to Information request for the full physical and electronic notes on file. My colleague out in Alberta, Immigration Lawyer Mark Holthe, has put together a good guide on this.

Generally, clients will retain us to go through their previous submission and as well the Electronics notes of the Officer to better understand the discrepancies. The Access to Information process can take 30 days or longer so at this stage you also want to determine when and how you can ask for an extension of time to file a response.

Generally, IRCC is pretty good about giving decent extensions (as this is an important part of procedural fairness). Do not be afraid to ask and certainly do not think that you responding on day 1 vs. day 30 will impact the success rate. While, it may speed up the processing to respond quickly, it could also very well speed up the refusal process.

At this stage, the material and notes you saved from your earlier work will be also very useful.

4. Determining the scope of allegations – insufficiency of evidence, credibility, or both

Start by determining what the alleged concerns are with respect to. In some cases, it may be that the application is insufficient due to documentary evidence. In this case, your goal is to supplement the material. In some cases, there will be credibility concerns over whether you indeed performed the tasks you have stated in an employer reference letter. In those cases, you will need to provide proof by way of additional positive support. In many cases, it is actually your mistake (administrative error, forgetfulness) that has triggered a procedural fairness letter. I like to start by laying out all of the Officer’s concerns and coding them accordingly. Many times they will be lumped into a longer paragraph in a refusal letter so it is important to read over the middle sections of these letters a few times.

5. Corroborating positive evidence and explaining deficiencies

The final step is determining who will be providing support and in what means. In the case of a negative employer verification call, you may need to go to the source for clarification and to seek a rescinded letter of support. You may contact work colleagues or other individuals (customers, partners) […]

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Tracking What it Updates – One Simple Step IRCC Can Take to Enhance Procedural Fairness

When new changes occur to IRCC’s Guidelines and programs it can take several forms and be communicated to applicants in several ways.

Of those communication methods, we see most often Program Delivery Updates, Notices, and new Operational Bulletins. Legislative changes are often announced through Ministerial Instruction and the GOC’s Canada Gazette.

Most of these changes are relatively well-documented and updated quite quickly after the change is announced. On a side note, I would suggest the Program Delivery Updates could be a little more clearer, as even for myself, who read them religiously. Some of the changes IRCC introduced are hard to track in the text.

The one major gap that IRCC has is in updating it’s new instruction guides, new visa-office specific guides, and new forms. Recently, we’ve seen several of these changes occur without corresponding changes to the website indicating that the document has been updated. In the case of some of the forms, they have even been backdated to reflect when the document was originally created rather than when it was made public. All of this creates confusion, and for IRCC likely more litigation.

Below are just a few examples.

1) The Document Checklist (IMM 5488) for Work Permit Outside Canada is dated February 2015 as per CIC’s website.

february 2015 actual dat3e

The Actual Document is dated November 2015.

work permit example

In reality, the document was uploaded sometime late December 2015/early January 2016.

2) Below is the most recent Study Permit Visa Specific Instruction Guide for Applicants from India


manual date

The CIC Website displays the most recent document as being September 2015.

update dates indiaJPG



For Applicants, the risk with submitting outdated forms is that the Applicants may be refused and or returned for incompleteness.  This is particularly true when the document checklist or forms contain new fields that are not in the old versions. CIC may offer some sort of “grace period” but this is solely discretionary and as far as I am aware there is no CIC policy on the reasonable transition period for which they will accept old versions in lieu of the updated versions.


Possible IRCC Solution – Updates Database

I understand that IRCC is working on several strategies in support of digitizing their program integrity and integrating their various networks.

With all these changes sure to occur there needs to be some adequate (publicly available) tracking of all these changes. In fact, anytime a webpage or form changes, it should trigger an update.

This page can also serve as an amalgamation of all the changes occurring across all of IRCC’s platforms.

This is important for several reasons. In the post-Dunsmuir reasonableness era, applicants are more hardpressed to try and show an Officer’s decision was made unreasonably on the merits, particularly when they are owed deference and their judgment falls within the reasonable realm of possibilities. Courts are still eager to point out situations where they may have made different decisions had they assessed the case, but maintain their role is not to readjudicate the decision but rather review the Officer’s decision-making process.

Procedural fairness issues, which (in most contexts) do not require that the Court provide any deference to the decision-maker are stronger in the context of litigation.  I believe you will see increasingly applicants attempting to show that the IRCC guidelines created legitimate expectations (i.e. that IRCC;s website showed the latest updated version that the applicant had legitimate reason to rely on). For a good case about the doctrine of legitimate expectations read Lebel J’s unanimous judgment in Agraia v. Canada (Minister of Public Safety and Emergency Preparedness) 2013 FC.

Also, several of recent CIC/IRCC Guidlines, the IP 8 – Spouse or Common Law in Canada Class at 17.4 (pg 62) and OB-265A – January 8, 2016 Email Communication with Clients, seem to contemplate an increase of Reconsideration Requests from Applicants with refused applications. This may be a broader trend that IRCC is taking towards reducing the high-cost of Federal Court litigation.

Furthermore, there is  case law on the procedural duty of fairness owed to applicants to consider new documents where  the change in requirements does not arise directly from legislation or regulations and instead a product of IRCC policy.

In Noor v. Canada (Minister of Citizenship and Immigration) 2011 FC 308, an Indian Permanent Resident applicant was refused for failing to include an item in the Visa-Office specific instructions for permanent residence applications from India. The instruction guide had changed in the middle of application processing and asides from the new document having changed dates, there was no indication provided by IRCC to the Applicant of the change.

In assessing whether a breach of procedural fairness had arisen in the Officer failing to consider additional documentation the Applicant submitted in his Reconsideration Request to try and rectify the error. Scott J writes (emphasis added):

B. Was there a breach of procedural fairness?

30     The Applicant notes that his own failure to submit the correct documents on his original application resulted from the very recent changes to the Visa Office-Specific Instructions posted online. He notes that this was a dramatic and important change, not widely publicized but rather buried in an otherwise unmodified instruction kit. He further points out that the Visa Officer was clearly aware that he was using the old kit, as he attached a copy of its checklist with his application, but that rather than give him the opportunity to correct his application, his application was rejected. The Applicant acknowledges that the Visa Officer may not always be under an obligation to inform an applicant of the deficiencies of his application, but argues that in the unique circumstances of this case, procedural fairness required that he be given some kind of opportunity to provide the missing documents, in view of the recent modification, which was only ascertainable by reading the extra bullet point. The Applicant notes the Officer’s explanation that the refusal to rectify his file came about because of the “reasonable expectation” that he check the new instructions, but argues that this was in fact unreasonable in the circumstances of this case.

31     The Applicant notes that there is no duty of fairness case that is directly on point. However, he cites from Athar v. Canada (MCI), 2007 FC 177, which canvassed jurisprudence on cases involving permanent residence applicants facing credibility concerns at hearings, and whether they should be informed of the deficiencies of their applications. At para. 17 of Athar:

    • [There] may still be a duty on the part of a Visa Officer, in certain situations, to provide an applicant with the opportunity to respond to his or her concerns, in accordance with the rules of procedural fairness.

32     Athar also cites Hassani v. Canada (MCI), 2006 FC 1283, where Justice Mosley wrote:

    • [It] is clear that where a concern arises directly from the requirements of the legislation or related regulations, a Visa Office will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise.

33     The Applicant argues that the requirements in this case did not arise from the Act or the regulations, which do not lay out any documentation requirements, but rather from a change in a specific policy. It would have been easy to give the Applicant the opportunity to rectify his application, especially as the Visa Officer was aware that he used the incorrect kit, and this would have satisfied the duty of fairness in the unique circumstances of this case.

34     The Respondent counters that in the Visa Officer decisions, the content of the duty of fairness when determining visa applications has been held to be towards the lower end of the range, as per Patel v. Canada (MCI), 2002 FCA 55, para 10, and Malik, para 29. Given that the Applicant must establish certain criteria to succeed in his application, the Respondent argues that the Applicant should assume that the Visa Officer’s concerns will arise directly from the Act and the regulations, and the onus remains on him to provide the correct documentation. Here, the Applicant was asked to submit a full application, including the documents listed in the Visa Office-Specific Instructions. The Respondent argues that the Applicant was specifically directed to use the 04-2009 Kit, and that this was available five (5) months prior to the submission of his full application.

35     The Applicant is correct in pointing out that the documentation requirements are not set out in the Act or the regulations, but only in the online instruction kit. While this Court did not find that Malik and Nouranidoust could support the Applicant’s first issue, the comments made by the judges in those cases (advising that new documentation ought to be allowed in certain cases) is persuasive in the context of the duty of fairness owed to someone in the Applicant’s distinct situation. It was clear to the Visa Officer that the Applicant was using the older kit, which had recently been changed, yet he was afforded no opportunity to rectify this simple error. Furthermore, the Respondent is incorrect in stating that the Applicant was specifically advised to use the 04-2009 Kit. The letter sent to the Applicant on July 28 (found as Exhibit B to the Applicant’s affidavit, Applicant’s Record p 31) simply directs him to the CIC website for “Visa office-specific forms and a list of supporting documents require by the Visa office”. There is no specific indication at all that these requirements would have changed.

36     The Applicant clearly stated in his […]

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Nuance in Federal Court’s ruling in Guerrero should be explored



My mentor and colleague Steve often tells me when I go on and on about having found the “perfect precedent” for my case that in the realm of the Federal Court such a term is not so easily contrived and applied.

The fact specific nature of immigration inquiries combined with the cautious nature of many judgments written by the Bench that emphasis this, make it often difficult to establish precedent. The standards of review (reasonableness and correctness) themselves open up a certain level of discretion. What may be reasonable in one circumstance can become unreasonable in another. What is procedurally fair in one circumstance can be unfair in another.

More often than not using Federal Court case law (in the context of Federal Court) becomes the task of not arguing whether legal principles are right or wrong but taking your client’s case, case law in support, and case law not in support, and sussing out the factual nuances.

Certifying a question, the only way by which the case can go to the Court of Appeal and eventually to the Supreme Court of Canada is becoming more and more difficult.  You are more frequently seeing Federal Court judges rule this way: (example taken from Steve’s recent win in Federal Court in Gupta v. Canada  (Public Safety and Emergency Preparedness) 2015 FC 1086).

[26]           The respondent takes the position that this matter is too fact-specific to merit certification of a serious question of general importance. At the respondent’s suggestion, I will not certify a question.

That being said, there is a recent case of  cautious judicial writing but one that makes what amounts to quite a strong criticism of some of the elements of the CIC’s current practice if sending admissibility procedural fairness letters.

For those that are new to the term, procedural fairness letters are the letters CIC sends when there is further information they need or further submission they require you to make in order to dispel them of their concerns. In some application contexts, failure to submit an adequate response will lead to applications being thrown out. In other contexts, such as inadmissibility, the consequences will be more sever as an s.44 inadmissibility report may be written up on your client.

For immigration lawyers/practitioners, it represents the first (and possibly last) opportunity we will have to effectively represent the client before any litigation (i.e. Federal Court and Immigration Appeal Division in some cases) where the onus shifts quite drastically to the Applicant to prove his or her case.

Guerrero v. Canada (Citizenship and Immigration) 2015 FC 1086

The Guerrero case is a very interesting one for the situation is not an uncommon one but the consequences are quite severe. In fact, in our office we have done a few consultations on related situations.

To sum it up briefly (as you can read the entire case: here), Mr. Guerrero applied for permanent residency through the Federal Skilled Worker program in 2010 and added his wife, Merambel, after marriage in 2013. During his interview  at the Port of Entry and prior to finalization of the PR application, it came to light that Guerrero had had an affair with a lady named Martinez (a coworker). He made some statements at the Port of Entry during his interview, that formed the basis of Officer’s notes.

Based on CIC’s concern about the relationship, a procedural fairness letter sent referencing misrepresentation and the bona fides of the relationship. In response, Mr. Guerrero sent statutory declarations and provided evidence of his relationship.

Finally a decision was issued, finding that he had misrepresented himself in statements he made at the port of entry as they contradicted with his written statements in response to the procedural fairness letter.

Justice Southcott’s decision in Guerrero turned on an analysis of procedural fairness and whether the failure to provide the Applicant a fair opportunity to contradict or corrective statements amounted to a breach of procedural fairness.

Justice Southcott’s decision, I found, very clearly distinguished between situations where the applicant themselves provides information versus the use of extrinsic information that the applicant is unaware of (para 28 of that decision).

The nuance here is that Justice Southcott found that the officer’s port of entry notes, containing statements purported to have been made by Guerrero and Martinez, was not considered evidence that Mr. Guerrero should have been aware of. Justice Southcott writes (emphasis added):

[31]           The challenge for the Respondent in advancing this position is the fact that, prior to production of the Certified Tribunal Record as part of this judicial review application process, the Applicants had never seen, reviewed or approved these notes. The notes are therefore different from a written statement or other documentary evidence submitted by an applicant and different from someone else’s record of what an applicant has said where the applicant was provided an opportunity to review such record. In my view, in the absence of such an opportunity, depending on the use of the record, the duty of procedural fairness may be engaged so that the impugned individual is not deprived of the opportunity to raise concerns about whether the statements were recorded accurately.

Interestingly, Justice Southcott went into an even more nuanced analysis by looking at the specific language of the procedural fairness letter and whether it provided the Applicant with the required opportunity to respond. He concluded that the letter (emphasis added):

does not set out the detail of the statements, purported to have previously been made by Guerrero and Martinez as reflected in the port of entry notes, on which the Officer’s concerns were based. Guerrero’s affidavit, filed in support of this judicial review application, states that he advised the CBSA officers in November 2013 that his relationship with Martinez came to an end in April 2013 when he married Merambel and that he never stated that he would end the relationship when his wife came to Canada.”

Finally, and again consistent with what I was discussing earlier, Justice Southcott applies judicial caution in explicitly suggesting that this case was fact specific and that he was not suggesting a general requirement for the provision of Officer’s notes (usually obtained by counsel at ATIP but sometimes only received at the CTR stage). He writes (emphasis added):

[40]           I am conscious of the Respondent’s point that it is not common practice to provide port of entry notes in circumstances such as these as part of the duty of procedural fairness. I am not suggesting that there should be a general obligation to do so. Rather, my conclusion is that, in the specific circumstances of this case, given the particular use that was made of such notes by the Officer in making the Decision, the content of the procedural fairness letter did not contain sufficient detail to satisfy the duty of fairness. My finding is that the Officer’s approach to the discharge of that duty was accordingly incorrect and, if I were to afford some degree of deference to the manner in which the Officer approached that duty, I would also conclude such approach to be unreasonable.

Why I Hope This Case Gets Emphasized More By Counsel

Even in light of all of Justice Southcott’s cautious reasoning, I think his analysis does raise a very real challenge to the status quo of broad procedural fairness letters.

For example, in one of the recent cases we worked on in this office relating to criminal inadmissibility, we were quite sure the tactic of CBSA was to pass the ball to us first rather than to have them weigh through the thousand pages of evidence. The procedural fairness letter was very broad and did not even specify what criminal code provision our client was being found to have ‘committed’ an equivalent offense under.

While perhaps most relevant in the inadmissibility context, where the consequences on the applicants are very severe, I could see this principle applied to all types of economic and family immigration cases. Many procedural fairness letters that are sent are standard-form, and certainly much less detailed than the ones the Guerrero’s were afforded.

While the practice of counsel ATIPing to get the ‘cards held by CIC/CBSA’ will continue, it does suggest that our immigration officials need to be more thorough in laying out their claims before sending the letters.


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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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