This article was authored by Pushkar Prehar, partner at Golden Maple Law LLP, Toronto.
The Immigration, Refugees and Citizenship Canada (“IRCC”) has been using technology to assist Immigration officers in processing applications. The IRCC has termed this technology a “tool”, therefore, this article will be referring to this technology as a tool in line with IRCC’s terminology.
As a background to the larger issue at play, the IRCC is also using tools to triage applications based on risk factors:
The chart above was acquired by a lawyer’s Access to Information Request. This tool categorizes applications in one or more of the following categories (as may be seen above):
- High Complexity
- Medium Complexity
- Low Complexity
The basis of this classification is unknown, presumably based on risk factors. It appears that for low complexity applications, the applicant’s “eligibility” is auto approved by the system, while the medium and high complexity applications are sent to the officer for review. Therefore, this tool passes an order on eligibility for low complexity cases. The fundamental lacunae here is that we do not know how this tool is making these recommendations and/or decisions. This classification is one of the steps to reaching the decision, thereby forming a part of the decision which the officer ultimately makes. The point being made here is that a decision is not merely made at the last stage, but there are interim decisions made by the tool, such as auto-approving eligibility.
Now, let’s look at how the Federal Court of Canada (“the Court”) has dealt with the use of Chinook tool by IRCC.
The Court recently had the opportunity to review and comment on the use of such tools. This article is limited to those few, but vital cases, heard by the Court which examine the specific tool “Chinook.”
- Ocran v. Canada (Citizenship and Immigration), 2022 FC 175 (“Ocran”)
It is critical to bring up the Ocran case early on, where the court was evaluating a challenge to a study permit refusal. The IRCC, being the respondent in this case, by way of an affidavit tried to resolve an issue about whether the contents of Certified Tribunal Record (“CTRs”) were deficient because Chinook “spreadsheets” were neither retained nor appeared in the CTRs. While dismissing the case on other grounds, the court, did not dwell on this issue and left it open for another case.
- Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464 (“Haghshenas”)
In Haghshenas, the Court was hearing a challenge to a Labour Market Impact Assessment (“LMIA”) – exempt work permit under the C11 category.
The Applicant, in Haghshenas, challenged the use of artificial intelligence. It was argued that “Decision is based on artificial intelligence generated by Microsoft in the form of “Chinook” software.”
The Applicant questioned Chinook’s reliability and efficacy, and raised the problem of machine learning replacing human input and the consequences that may result. It is important to note that the Court was not briefed on Chinook’s functioning, nor did the Respondent in its pleadings rebut the claims made by the Applicant.
The Court, albeit agreeing that “the decision had input assembled by artificial intelligence”, nonetheless held that as per Vavilov “the Court on judicial review is to look at the record and the Decision and determine its reasonableness.”
Interestingly, the Court went a step further and held: “Whether a decision is reasonable or unreasonable will determine if it is upheld or set aside, whether or not artificial intelligence was used. To hold otherwise would elevate process over substance.”
The Court also held that the “use of artificial intelligence is irrelevant given that (a) an Officer made the Decision in question, and that (b) judicial review deals with the procedural fairness and or reasonableness of the Decision as required by Vavilov.”.
- Raja v. Canada (Citizenship and Immigration), 2023 FC 719 (“Raja”)
Like Haghshenas, Raja’s work permit application under LMIA – exempt C11 category was refused. In this case, the Applicant argued that the IRCC’s reliance on Chinook, “an efficiency-enhancing tool used to organize information related to applicants for temporary residence, undermines the reasonableness of the Officer’s decision.”
The Applicant also argued that Chinook “extract(s) information from the GCMS for many applications at a time and generate(s) notes about these applications in “a fraction of the time” and results in a lack of adequate assessment of the Applicant’s work permit application.”
Unlike Haghshenas, in the case of Raja, the Respondent advanced arguments, and specifically averred that “IRCC’s use of the Chinook tool to improve efficiency in addressing a voluminous number of temporary residence applications does not amount to a specific failure of procedural fairness.”
The Respondent also rebutted the Applicant’s arguments for its lacunae in failing “to point to any evidence to support that the Officer’s use of the Chinook tool resulted in the omission of a key consideration in the assessment of his application or deprived him of the right to have his case heard.”
The Court held that “while it was open to the Applicant to raise the ways that the Chinook processing tool specifically resulted in a breach of procedural fairness, in the Officer’s assessment of his case, he has not provided any evidence of such a connection.”
This, in my opinion, was a fascinating Court decision since it hinted at being willing to hear the Chinook issue and invited the Applicant to challenge based on evidence rather than merely allegations of purported understanding of the use of Chinook by IRCC.
- Safarian v. Canada (Citizenship and Immigration), 2023 FC 775 (“Safarian”)
The brief eight paragraph judgment rendered by the Court in Safarian, discussed Chinook and boilerplate reasons generated by it. This was another case where the Applicant challenged the refusal of his study permit application by the IRCC.
Interestingly, the Applicant in this case, instead of merely challenging the use of Chinook, challenged the boilerplate reasons generated by Chinook which made no sense considering the record.
The Court acknowledged that these boilerplate statements are seen “repeatedly” in study permit refusals and held that “the use of boilerplate is not in itself objectionable, but the reviewing court must be satisfied that the decision-maker turned their minds to the facts of the case.”
This was the first time, the court ruled in favour of the Applicant challenging Chinook. It must be noted here that the Counsel’s approach was to forward arguments that were relevant to the facts rather than advocating for procedural fairness without supporting evidence.
- Khosravi v. Canada (Citizenship and Immigration), 2023 FC 805 (“Khosravi”)
The Court in Khosravi was hearing a challenge to a study permit refusal. This judgment was published in the same week as Safarian and was authored by Grammond J, as was Safarian.
The Court citing Safarian held that “The officer’s use of a boilerplate sentence does not show that the officer understood” the Applicant’s study plan. It was also observed that the failure of the officer to consider the submission of the Applicant “leads me to believe that the officer simply did not consider the facts.” Here, the Court made certain observations worth reiterating in full:
[12] “I note that Ms. Khosravi’s application was “processed with the assistance of Chinook 3+”. I do not know if the shortcomings outlined above result from the use of this tool. I will simply say that the use of assisted decision-making tools does not relieve officers from the duty to fully consider an application, most importantly the study plan. If the use of such a tool gives the officer a truncated vision of the application, the resulting decision may well be unreasonable.”
It must be noted that the Court held that the Officer must fully consider the application and its contents, this includes the forms, submissions, and the study plan among others. The observation made regarding “truncated vision” also points to the suspicion of the court that the tool “Chinook” is displaying part information to the officer, who is not perusing the entire file and only referring to the information extrapolated in Chinook Spreadsheets.
After the attempted clarification by the IRCC in the case of Ocran in February 2022, it wasn’t until March 2023 that the Court ruled in a Chinook challenge.
This was partly because many Chinook challenges were being “settled” and did not get the opportunity to be heard. I believe that the Respondent decided to argue the case of Haghshenas as a test case which turned out to be heavily in their favour considering the observation made “To hold otherwise would elevate process over substance.”
However, from March to June 2023 the Court rendered judgments in Raja, Safarian and Khosravi, have since brought about a gradual change in the way the Court is viewing Chinook.
Given the trajectory of the jurisprudence to date, we can anticipate a case where the Federal Court will certify a question on “whether IRCC’s use of artificial intelligence or advanced analytics renders a decision procedurally unfair”? The implications of such a decision would impact immigration processing and the corresponding jurisprudence for decades to come. It would be wise for counsel to consider the big picture and consult fellow colleagues before advancing arguments against these new tools. Litigators taking on such judicial review applications must be mindful of the high stakes at play vis-à-vis the decision-making process under the Immigration and Refugee Protection Act and Regulations.
