Victor IngHonourable Minister Miller:
I am proud to say that I have been serving immigration clients for over a decade since I was called to the British Columbia bar in 2011. A year earlier in 2010, I had my first opportunity as an articled student to help prepare written legal submissions for a Federal Court matter concerning a family whose application for permanent residence was refused because they had a child with a disability. It was an exhilarating experience to advocate for our client’s rights and to experience firsthand how the Court oversees the immigration decision-making process to ensure that it is transparent and fair. I was instantly hooked on this work. Fast forward to 2024 and I see a rapidly changing landscape where the Court is so bogged down with cases that it can no longer effectively serve this essential role.
As I am writing this letter, there have been over 10,000 new immigration cases filed with the Federal Court just as we hit the halfway mark of 2024. In practical terms, that represents a staggering and unsustainable average of over 60 cases a day – every single day! The pressure is mounting. The Court backlog is growing with no end in sight and hearings are being delayed. The lawyers at the Department of Justice who represent you in the Court are missing filing deadlines due to the sheer volume of work coming across their desks. Meaningful changes must be made immediately to curb these trends before our clients’ access to justice becomes illusory.
There are at least two main culprits in the dramatic, year-on-year rise in new court filings, both of which relate to the ways in which IRCC communicates with clients and can be remedied with common sense solutions:
Lack of Transparency for Refusals
It is well known within the immigration community that refusal letters create a tremendous amount of stress for clients. Refusal letters are simply that – a letter conveying the refusal of an application. They are vague and written using boilerplate language that rarely ever informs the client why the application was refused. This causes frustration for clients and lawyers alike, because we are unable to advise clients about the next steps and best course of action.
To make things worse, when a decision is refused the client has a limited amount of time to challenge the refusal in the Federal Court under a judicial review. For decisions made within Canada the client only has 15 days to challenge the decision and 60 days for decisions made outside Canada. Often, this leads to the default position of challenging the refusal in Federal Court just to meet the filing deadline, even though we don’t have all the data in front of us to make a fully informed decision.
Thankfully, once the Court application is filed, Court rules require the responsible visa office to provide the detailed reasons for refusals (called Global Case Management System or ‘GCMS’ notes) to our clients – this typically happens within four to six weeks after a Court application is filed.
In short, immigration clients are presently incentivized to file Federal Court applications. By filing them clients gain access to the officer’s refusal (GCMS) notes and they preserve their ability to challenge the refusal in Court should the reasons for refusal not withstand scrutiny.
Lack of Justification in Decision-Making
Immigration processing has undergone significant changes since I first began practicing immigration law over a decade ago. Today, immigration processing has been largely digitized, a development which was heavily fast-tracked during the COVID-19 pandemic, and now affects both the ways in which we submit applications and the way that they are processed by IRCC.
One of the more notable changes in immigration processing has been your department’s controversial use of decision-making and triaging software, including ’Chinook’, which has been variously described in the media as artificial intelligence and an advanced analytics tool used to streamline processing.
In a 2023 Federal Court decision called Haghshenas, the Federal Court accepted IRCC’s use of Chinook as a processing tool based on the understanding that a human (a visa officer) remains in the loop and is ultimately responsible for making the decision. While Haghshenas set a favourable precedent for IRCC, what I have observed is that the use of Chinook and similar tools is backfiring and counterproductive to the lofty objectives of making processing more efficient. Specifically, the expediency afforded by these tools is now leading to the generation of refusals that do not meet even the most basic criteria of justification and transparency that is required by law.
The leading case of Vavilov needs no introduction. In that case, the Supreme Court of Canada held that all administrative decision-makers must render decisions that are transparent and justified – refusals may be explained in brief terms, but the reasons must always be responsive to the submissions made by the client, and they should allow the Court to understand how conclusions were reached.
Sadly, never in my years of practice have I seen poorer quality decisions made by immigration officers than I have in the past few years. Since the pandemic, I have seen an increase in cases that are simply indefensible in law because there is no justification given at all for the refusals. I have had clients refused for visitor visas to see critically ill Canadian family members because they were unable to provide ‘sufficient documentation to support the purpose of [their] visit’, even when we have doctor’s notes and similarly clear and compelling evidence documenting the illness. I have had other visa applications refused for lack of financial documentation, even after showing that my client owns eight properties, has more than sufficient liquid funds, and works as a successful professional in their home country.
The use of assistive software to increase processing speed has given rise to a new generation of decisions that are loosely justified by a limited number of canned responses that immigration officers are allowed to choose from when writing decisions. More and more the actual ‘reasons’ of the officer in the GCMS notes are looking like the woefully inadequate refusal letters that are issued to clients.
This is the price of expediency. As a lawyer, I am obligated to ensure that my clients know there are no guarantees that their immigration application will be successful. However, what my clients are never prepared for is receiving decisions that are no more than a few sentences in length, that are written in broken, boilerplate language filled with acronyms and immigration slang that fail to address the key arguments that were made as to why the application should be granted. This, again, leads to frustration and is directly contributing to the rise of immigration cases that are overwhelming the Federal Court with unnecessary litigation files.
IRCC is in the “services” business where communication is paramount. There are simple and fair solutions to address the issues that are plaguing the current system.
Firstly, to tackle the lack of transparency that is currently endemic to immigration refusals, IRCC should provide the GCMS notes to clients with each and every refusal. The current technology in place already allows for the easy transmission of these notes to clients. For instance, it is now commonplace to receive the GCMS notes through a client’s online immigration account that was used to submit the refused application – I have seen this take place several times in response to the filing of a Federal Court application. This straightforward solution will reduce the frustration clients experience in the refusal process. It will allow lawyers to properly advise their clients on how to proceed, and it will undoubtedly and immediately reduce the number of cases that are filed with the Federal Court.
Secondly, IRCC must be transparent as to how its software tools contribute to the decision-making process. Moreover, regardless of what tool is ultimately used by immigration officers, clients are entitled to receive reasons that are responsive and sufficiently clear as to why their applications were refused. IRCC must reject the status quo of providing canned responses to clients in the name of expediency.
Canada has seen a huge influx of applications from immigration hopefuls in the last decade. We have been the victims of our own success in broadcasting to the world that we are welcoming newcomers, and our own ever increasing annual targets for new immigrants reflect that. I fully appreciate that immigration processing is complex and evolving and I hope that Canada will always remain a desirable place for immigration. However, at present we are failing spectacularly at providing clear and consistent communication and, as a result, we are seeing an endless cycle of litigation that is eminently avoidable.
