Authored by Albertson P. Otchengco, Law Student, LJD Law Professional Corporation.
In a recent decision, the Federal Court engaged vigorous arguments on the use of Chinook Technology in relation to procedural fairness in immigration applications – a breakthrough in the development of case law on this intersection of immigration and technology.
In Mehrara v. Canada, 2024 FC 1554, the Federal Court, presided over by Justice Battista, extensively addressed the applicants’ arguments that the IRCC’s use of Chinook 3+ – an Excel-based software used by the IRCC since 2018 in processing temporary resident applications – in refusing their study permit and associated temporary resident visa applications resulted in a breach of procedural fairness and an improper fettering of the visa officer’s discretion.
While the refusal of the applications were held unreasonable for reasons unrelated to the arguments about Chinook3+, and that these Chinook-related arguments were ultimately found inapplicable to the specific facts of this case, the decision remains highly significant. Mehrara significantly advanced case law on the intersection between IRCC’s use of processing technology and legal principles governing procedural fairness. Additionally, it paves the way for future arguments on the IRCC’s use of Chinook.
A deeper look at Mehrara produce valuable insight for practitioner and applicants alike.
Preliminarily, the Federal Court admitted a 1,105-page affidavit by immigration lawyer William Tao as expert evidence on Chinook technology, ruling that it aids in understanding the technology used by the IRCC, though it did strike down portions deemed argumentative. In addition, the Court provided guidance that a production order under Rule 17 of the Federal Courts’ Citizenship, Immigration, and Refugee Protection Rules remain the proper procedure in assessing the sufficiency of a Certified Tribunal Record (CTR) for purposes of judicial review, in spite of the use of Chinook in processing an application.
Justice Battista likewise ruled that the legal presumption that administrative officers have considered all evidence cannot be waived even in cases processed using Chinook absent contrary evidence. As such, the Court engaged the applicants’ extensive arguments that the CTR in this case was incomplete due to the omission of materials – such as working notes, risk indicators, and spreadsheets – reflecting Chinook’s role in the decision-making process of the IRCC.
The Court found Chinook’s role irrelevant, ruling that Chinook did not in itself provide information external to the application nor influenced the officer’s decision by characterizing available evidence in this particular case.
Regarding working notes – which the IRCC uses to mark particular or special actions required on an application – the Federal Court ruled that they are not relevant to this application, merely reflecting an officer’s thought process which it characterized as marginally relevant compared to the core exercise of assessment of an officer’s provided reasons.
As regards risk indicators – used by the IRCC to mark trends in areas of concerns – the Court ruled that they were not relevant to this application as there was insufficient evidence to show that risk indicators played a part in the Officer’s decision-making. Still, the Court cited that the applicants were able to present evidence raising legitimate concerns on the potential for the Integrity Trends Analysis Tool (ITAT) used by the IRCC to mine applicants’ data.
As regards spreadsheets – which organize working notes, risk indicators, and other information in an application – the Court found that they need not be produced here as there was no evidence to provide that they generated new information, instead organizing application information that appears in the GCMS.
Despite this, the vigorous argumentation made by the applicants in relation to Chinook technology, and Justice Battista’ reception of these arguments, paves the way for future arguments on grounds of the IRCC’s use of Chinook. Justice Battista made clear that while the IRCC’s use of Chinook did not lead to procedural unfairness in this case, “this may not be the case in other judicial reviews of applications processed using processing technology, particularly in applications where risk indicators are present.”
Finally, Mehrara is also significant in the push for the IRCC’s responsible use of processing technology in immigration applications processing. The Court concluded in this case that the IRCC’s “systemic deletion of all materials generated by processing technology may not reflect best practice”, in line with the need of understanding how governmental power is used to accurately assess whether its use is justified in future cases.
When used effectively, processing technology has the potential to enhance the accuracy of the IRCC’s assessment of immigration applications. Mehrara as a call for transparency in government technology highlights the growing need for accountability as digital tools shape immigration processes.
