Shifting Fairness in Canadian Immigration Law (Case Law Supplementing Panel Discussion)

I have prepared this brief blog, with the able research assistance of my colleagues Jessye Kilburn and Laura Schemitsch, as a roadmap to my panel discussion points for the ‘Shifting Fairness in Canadian Immigration Law’ panel for the 2023 Canadian Bar Association (CBA) Administrative and Labour and Employment Law Conference for which I am a panelist.

Given the brief time I have, I want to focus more on some of the principles and takeaways, rather than go into the weeds of the cases I am discussing. However, for those who want more context, I have shared the links to the case law I reference in my presentation with some brief notes, where applicable.

Following (and inspired by) this presentation, we plan on doing a series of blogs discussing the developments of procedural fairness in the immigration, expanding on some of the ideas presented below. This overview is purposely high-level (a summary of my speaking notes), and mostly for the purposes of allowing me to state case names without having to go into full citations. Those interested in my talk, can go, and explore the cases I cite below.

Each topic corresponds to a question that I have been asked to speak on. It is possible that due to time or another factor, I may not get into the content during the actual panel.

Topic 1: Procedural Fairness in the Immigration Law Context

After Dr. Gerard Kennedy’s presentation on the historical roots of procedural fairness, I take a more specific dive into the immigration context. I link immigration law as foundation to the development of procedural fairness in admin law. I trace through Baker, Vavilov, before separating into what I think are two groups of foundational cases – larger framework procedural fairness cases from the SCC (Singh, Chiarelli, Suresh, Charkaoui, Khosa), and more granular ones, that impact procedural fairness rights such as the opportunity to respond to extrinsic evidence concerns (Begum), the use of extrinsic evidence (Ngo), disclosure of documents to provide for meaningful opportunity to respond (Singh), oral interviews before decisions rendered (Algibrior), excessive delays (Malhi), and notice of refugee internal flight alternative concerns (Figueroa).

The Court has shown a recent preference to adopting the legal test in Canadian Pacific Railway, namely “whether the applicant knew the case to be met and have a full and fair chance to respond.” However, in doing so they seem to have abandoned the fullness of the Baker analysis, and in turn have nuanced many of the above granular rights:

In our hand coding of cases from the past six months show three major observations emerge:

[1] the Federal Court seems to be more comfortable pursuing reasonableness analysis over procedural fairness analysis and will often choose to overturn on reasonableness and not address procedural fairness arguments, or otherwise find that issues that are raised as procedural fairness (veiled credibility, not having an opportunity to respond) are more appropriately analyzed under reasonableness. This is likely due to Valivov providing recent and clearer guidance on the starting point of reasonableness analysis for administrative decisions. Reading decisions that have arisen from the past six months, it appears as though parties (especially Applicant’s counsel) are still struggling with how to classify issues as either reasonableness or procedural fairness;

[2] the Refugee Appeal Division (“RAD”) continues to produce a large quantity of procedural fairness case law over the question of whether a novel issue is being raised by the RAD that needs to be put in front of the appellant for their opportunity to respond. These cases highlight the precedents set in the FC cases of Alazar and Kwakwa, highlighting the difficulty of analyzing whether an issue was already in the underlying Refugee Protection Division (“RPD”) decision or not.

[3] the shifting nature of access to information, newer legal tests (incompetence of counsel allegations and delays as abuse of process), and technology/technical issues that raise procedural fairness concerns continue to make up a large portion of cases in front of the Federal Court.

Case Law Referenced:

• Abdi v. Canada (Citizenship and Immigration), 2023 FC 1322 (CanLII), <https://canlii.ca/t/k0gnw> – Norris J – dismissed – independent issue of credibility can be raised by RAD if before RPD. There was no obligation for RAD to assist Applicant with obtaining RPD hearing transcript.
• Aboudlal v. Canada (Citizenship and Immigration), 2023 FC 689 (CanLII), <https://canlii.ca/t/jx97f> – Regibald J. – allowed – Nine-year delayed citizenship, remedy allow applicant to submit new application;
• Aigbirior v. Canada (Minister of Citizenship and Immigration), 2002 FCT 854 (CanLII), <https://canlii.ca/t/jz1>
• Ali v. Canada (Citizenship and Immigration), 2023 FC 757 (CanLII), <https://canlii.ca/t/jxkld> – Grammond J. – dismissed – no obligation to record pre-removal risk assessment hearings;
• Andarawes v. Canada (Citizenship and Immigration), 2023 FC 1086 (CanLII), <https://canlii.ca/t/jzkth> – Southcott J – allowed – cessation. See paras 22-24.
• Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, <https://canlii.ca/t/1fqlk> – L’Heureux‑Dubé J. – appeal allowed.
• Begum v. Canada (Minister of Citizenship and Immigration), 2004 FC 165 (CanLII), <https://canlii.ca/t/1gcfh> – Lemieux J. – allowed – did not advise applicant of concerns of document authenticity.
• Bhujel v. Canada (Citizenship and Immigration), 2023 FC 828 (CanLII), <https://canlii.ca/t/jxn86> – Strickland J. – dismissed – World Bank is considered open-source data, should have been known.
• Canada (Citizenship and Immigration) v. Alazar, 2021 FC 637 (CanLII), [2021] 3 FCR 539, <https://canlii.ca/t/jgr79> – Norris J. – allowed – Minister should have been made aware of new issue. See especially paras 74-88.
• Canada (Citizenship and Immigration) Khosa, 2009 SCC 12 (CanLII), [2009] 1 SCR 339, <https://canlii.ca/t/22mvz>
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653, <https://canlii.ca/t/j46kb> at paras 23, 77-78, 81, 133, 151, 161, 165.
• Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 (CanLII), [2021] 1 FCR 271, <https://canlii.ca/t/jblsl> De Montigny J.A. – appeal dismissed, cross-appeal allowed – challenge of jurisprudential guidelines of IRB – See para 35 discussing standard of review for procedural fairness
• Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 (CanLII), [2019] 1 FCR 121, <https://canlii.ca/t/hrgf2> at para 56 – legal test for procedural fairness.
• Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (CanLII), [2007] 1 SCR 350, <https://canlii.ca/t/1qljj> – McLachlan CJ – appeal allowed.
• Canada (Minister of Employment and Immigration) v. Chiarelli, 1992 CanLII 87 (SCC), [1992] 1 SCR 711, <https://canlii.ca/t/1fsf6> – constitutionality of deportation scheme for PR convicted of serious criminal offense; discusses relationship between procedural fairness and principles of fundamental justice. Respondent did not need to be given details of criminal intelligence investigation techniques or police sources used to acquire this information.
• Figueroa v. Canada (Citizenship and Immigration), 2016 FC 521 (CanLII), <https://canlii.ca/t/gr86r> –  IFA must be raised by the Board Member of the Minister before or during the hearing as long as it is clear and the Applicants have an opportunity to respond.
• Geng v. Canada (Citizenship and Immigration), 2023 FC 773 (CanLII), <https://canlii.ca/t/jxjl6> – Mosley J. – dismissed. See para 42-43, 70 – Applicant not provided with sufficient evidence to understand allegations [espionage] against him.
• Hassani v. Canada (Citizenship and Immigration), 2023 FC 734 (CanLII), <https://canlii.ca/t/jxjlb> – Gascon J – allowed – limited PF submission made by Applicant so treated as reasonableness.
• Javeed v. Canada (Citizenship and Immigration), 2023 FC 1377 (CanLII), <https://canlii.ca/t/k0nsd>, – Ahmed J. dismissed – incompetence against RAD counsel not made out.
• Kaur v. Canada (Citizenship and Immigration), 2023 FC 1064 (CanLII), <https://canlii.ca/t/jznck> – Pallotta J. – dismissed- failure to follow protocol for raising incompetence of counsel.
• Kaur v. Canada (Citizenship and Immigration), 2023 FC 1261 (CanLII), <https://canlii.ca/t/k08ph> – McHaffie J. – non-credibility issue that goes to heart of requirement of act – dismissed.
• Kaur v. Canada (Citizenship and Immigration), 2023 FC 1494 (CanLII), <https://canlii.ca/t/k128n> – Pallotta J- dismissed – paralegal-affidavit translation inaccurate. Did not raise at RAD, no evidence as to how it is material.
• Kwakwa v. Canada (Citizenship and Immigration), 2016 FC 600 (CanLII), <https://canlii.ca/t/gs3mt> – Gascon J. – allowed – RAD appeal. See para 30 – fine line between new question and reference to existing record.
• Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 (CanLII), <https://canlii.ca/t/jqbs7>
• Malhi v. Canada (Minister of Citizenship and Immigration), 2004 FC 802 (CanLII), <https://canlii.ca/t/1hfp5> at para 10 citing Blencoe v British Columbia (Human Rights Commission), 2000 SC 44 [2000] 2 SCR 307 at para 121.
• Masouleh v. Canada (Citizenship and Immigration), 2023 FC 1159 (CanLII), <https://canlii.ca/t/jzwtn> – Ahmed J – allowed – study permit application refusal. See paras 24-25.
• Mission Institution v. Khela, 2014 SCC 24 (CanLII), [2014] 1 SCR 502, <https://canlii.ca/t/g69pq> at para 79.
• Nagra v. Canada (Citizenship and Immigration), 2023 FC 1098 (CanLII), <https://canlii.ca/t/jzncb> – Pallotta J. denied – visa officer not required to provide notice and opportunity to respond. See para 20;
• Ngo v Canada (Minister of Citizenship and Immigration), 2002 FCT 1150 at paras 55-56 – officer should provide applicant with opportunity to comment on extrinsic evidence (conversation between visa officer and interpreter).
• Samaraweera v. Canada (Citizenship and Immigration), 2023 FC 1109 (CanLII), <https://canlii.ca/t/jzpxm>, – Southcott J – allowed – RAD refusal. See para 28.
• Singh v Canada (Minister of Citizenship and Immigration), 2004 FC 187 at para 35 – procedural fairness duty to share relevant document (risk analysis report) as failure to do so denies meaningful opportunity to respond.
• Singh v. Canada (Public Safety and Emergency Preparedness), 2023 FC 743 (CanLII), <https://canlii.ca/t/jxd8z> – Gascon J. – allowed – former counsel did not help appellant prepare for appeals, requested extension, never showed appellant submissions, and update him on arguments.
• Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 SCR 177, <https://canlii.ca/t/1fv22> – proceedings under the IRPA that might result in deprivation of life, liberty or security of the person concerned under section 7 of the Canadian Charter of Rights and Freedoms must be conducted in accordance with the principles of fundamental justice – resulted in establishing refugee hearing process.
• Solomon v. Canada (Citizenship and Immigration), 2023 FC 1092 (CanLII), <https://canlii.ca/t/k0l55> – Furlanetto J. – dismissed – police website in footnote to decision not cited as new evidence; other evidence was from National Documentation Package (“NDP”) made available and not extrinsic.
• Sopeyin v. Canada (Citizenship and Immigration), 2023 FC 1435 (CanLII), <https://canlii.ca/t/k0ws0> – Southcott J. – allowed – study permit application of PA’s husband extrinsic evidence to open work permit application.
• Brice v. Canada (Citizenship and Immigration), 2023 FC 1139 (CanLII), <https://canlii.ca/t/jztrn>
• Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 SCR 3, <https://canlii.ca/t/51wf>
• Tacoa Veljovic v. Canada (Citizenship and Immigration), 2023 FC 1069 (CanLII), <https://canlii.ca/t/jzgzr> – Gascon J. – dismissed. See para 26-27 for setting out of standard of review.
• Verma v. Canada (Citizenship and Immigration), 2023 FC 669 (CanLII), <https://canlii.ca/t/jx6vn>- McHaffie J. dismissed.

 

Topic 2: Use of AI in Canadian Immigration Law

In this section, I discuss the impact of Artificial Intelligence, both in the form of facial recognition software and automated decision-making (ADM) systems – including the use of ‘risk flags’ as the heart of where litigation in procedural fairness is heading. I see the Federal Court sidestepping procedural fairness in treating potential bias in facial recognition and photo comparisons. This has been done by treating issues based on adequacy of reasons and rather intentionally not getting into speculation about the technology used from a procedural fairness perspective. I see in the ADM space, concerns with risk flags being buried in a lack of disclosure, impacting an applicant’s ability to know the case to be met and creating issues of bias. Considering the move of even more powerful forms of AI, we ask what that might look like for the challenges of establishing a breach of procedural fairness in the future.

Cases Referenced:

• AB v. Canada (Citizenship and Immigration), 2023 FC 29 (CanLII), <https://canlii.ca/t/jts52> – Furlanetto J. -dismissed – Ontario Ministry of Transport facial recognition software match and someone else who entered Canada on SP – Tribunal refused Applicant request to call Ontario official but did not raise PF issues. Reasonable to rely on own photo comparison without expert evidence.
• Abdulle v. Canada (Citizenship and Immigration), 2023 FC 162 (CanLII), <https://canlii.ca/t/jvdcp> – Furlanetto J. – Mosley J. – dismissed – RAD overturned finding that Applicant was Convention refugee. Applicant argued Minister breached PF by failing to require Minister to disclose investigative techniques. Court rejected PF argument because Applicant had not sought direction for disclosure from Tribunal but made arguments based on assumption software used.
• Barre v. Canada (Citizenship and Immigration), 2022 FC 1078 (CanLII), <https://canlii.ca/t/jr6r8> – Go J. – allowed – tribunal vacated refugee status of two young women finding they falsely claimed to be Somalian nationals. Tribunal was convinced by Minister’s argument that they were in fact Kenyan nationals. Applicants argued breach of PF by admitting photos of evidence – as photo source from unknown source and possibly facial recognition tool called Clearview AI. FC did not decide on PF, but on substantive reasonableness analysis found tribunal erred in relying on Privacy Act to allow photo comparisons to be entered into evidence without disclosing source. FC found that if AI generated comparison, reliability could be called into question given evidence facial recognition more likely to misidentify women of colour. Prof. Paul Daly called this case a “positive story about judicial review as an accountability mechanism”. (Artificial Administration: Administrative Law, Administrative Justice and Accountability in the Age of Machines: Forthcoming (2023) Australian Journal of Administrative Law & Practice, online).
• Hirsi v. Canada (Public Safety and Emergency Preparedness), 2023 FC 843 (CanLII), <https://canlii.ca/t/jxpn4> – Little J. – allowed – refugee status vacated on grounds alleged Somali national was in fact Kenyan – the Court quashed the decision because the RPD did not deal meaningfully with the Applicant’s arguments about the differences between the two photos, and the tribunal “did not instruct itself on the inherent risks of such a subjective and impressionistic exercise as comparing photographs”.
• Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464 (CanLII), <https://canlii.ca/t/jwhkd> – Brown J – dismissed – work permit refusal. See discussion of use of Chinook at para 24.
• P.P. v. Canada (Citizenship and Immigration), 2018 FC 123 (CanLII), <https://canlii.ca/t/hrjrg> – Russell J – dismissed – applicant brought academic data stats showing 0% grant rate of RPD member.
• Iyiola v. Canada (Citizenship and Immigration), 2020 FC 324 (CanLII), <https://canlii.ca/t/j5pvc> – Fuhrer J – allowed – the courts have recognized that procedural fairness rights owed to temporary resident applicants are at the lower end of the spectrum – nonetheless, there is still a procedural fairness obligation for the decision maker to notify an applicant about genuineness-related concerns and allow an opportunity to respond.
• Mah v. Canada (Citizenship and Immigration), 2023 FC 1229 (CanLII), <https://canlii.ca/t/k0537> – Strickland J. – dismissed – vacation of refugee status. The Court rejected a procedural fairness argument, as the Applicant had not objected to the admissibility of photo evidence before the tribunal, and because the Applicant did not dispute that he was the person in both photographs.

 

Topic 3: Procedural Fairness in Context – Levels of PF Owed and Self-Reps

One of the most common elements of Federal Court’s analysis of procedural fairness is assigning level of fairness based on the applicant’s immigration matter. Specifically, applicants for temporary residence are owed low procedural fairness, a common repeated term in many decisions.

In the immigration context, likely because of the heavily convoluted space in which we operate – many incompetent counsel, non-lawyer consultants, ghost consultants, and likely due to pure volume I do not see a general theme of sensitivity to self-represented or poorly represented applicants.

Cases Referenced:

• Abolupe v. Canada (Citizenship and Immigration), 2023 CanLII 97641 (FC), <https://canlii.ca/t/k0rpl> – Southcott J – granted – stay of removal, partially on grounds PRRA applicant had no legal counsel and may have been prevented from making further submissions and request for hearing. See especially para 4.
• Fashina v. Canada (Citizenship and Immigration), 2023 FC 1295 (CanLII), <https://canlii.ca/t/k0dd1> – Justice Regimbald – dismissed – no procedural unfairness from not confronting spousal sponsorship parties together to afford them an opportunity to respond. See paras 17-20.
• Patel v. Canada (Citizenship and Immigration), 2023 FC 1394 (CanLII), <https://canlii.ca/t/k0rpq> – Justice Elliot – allowed – considered severity of matter and consequences. See para 11 – insufficiency of evidence turned into misrepresentation investigation, but interview but did not indicate concerns.

 

Topic 4: Reasonable Apprehension of Bias

After Sania’s academic deep dive into reasonable apprehension of bias, and Critical Race Theory, I share the results of hand-coding 16 FC cases in 2023 where reasonable apprehension of bias was alleged and not even one successfully established the argument. (four allowed for other reasons). I review the test for reasonable apprehension of bias finding a very high threshold, one that is impossible to capture the kind of implicit bias we will likely see. I advocate instead for front-end frameworks that we can mold into decision-making and apply a reasonableness standard to.

Cases Referenced:

• Alvarez v. Canada (Public Safety and Emergency Preparedness), 2022 FC 185 (CanLII), <https://canlii.ca/t/jqzpp> at para 50 – high threshold and attack on integrity of entire administration of justice.
• Lokhande v. Canada (Citizenship and Immigration), 2023 FC 1362 (CanLII), <https://canlii.ca/t/k0s9j>, – Norris J – dismissed – RPD applicant/claimant was not following interpreter instruction. Member made comment: “I think a yardstick might work better, Counsel.” Hearing continued without incident. RAD found that comment was extremely inappropriate and made applicants feel uncomfortable and nervous, but satisfied they were able to testify in detail and without difficulty about narrative. There were also no credibility concerns relating to RPD finding.
• Onukuba v. Canada (Citizenship and Immigration), 2023 FC 877 (CanLII), <https://canlii.ca/t/jxwj2> – Walker J – dismissed – course language, swearing during break, but no evidence that animosity towards applicants or counsel.

 

Topic 5: Tips for Lawyers Appearing Before Administrative Tribunals

Here, I discuss raising the issue of procedural fairness proactively and on record as early as possible. Doing so may require adding new tools to the toolbox, such as CRT or asking the ‘woman’s question’ to challenge usual common law frameworks. This also may make decision-makers uncomfortable or even upset but done in a respectful way doing so is part of the development of moving law forward and broadening our perspectives. In a context like immigration, we may have to also go after costs to prove our procedural fairness point.

• Aniekwe v. Canada (Citizenship and Immigration), 2023 FC 1477 (CanLII), <https://canlii.ca/t/k11k6> – Pallotta J. – allowed – Nigerian study permit sent back twice after re-opening. Offered consent but provided no timeline. Applicant eventually asked for costs, timeline, and were granted $2500. Did not address procedural fairness arguments and whether Applicant should be offered opportunity to update application in this regard.
• Attaran v. Citizenship and Immigration Canada, 2023 CHRT 27 (CanLII), <https://canlii.ca/t/jztwc> – the Member in this decision wrote a section defending his decision-making and responding to bias allegations [para 395-421].