In most Canadian cities, you can appeal a parking ticket and seek an in-person review to challenge it. If you apply to visit, work, or study in Canada, and you are denied, you do not have the same rights. While a parking ticket can cost you money, a denied temporary resident visa (TRV) to Canada can change the course of a life. For those in Canada and those applying, the missed Canadian family funeral, the Canadian education not completed, or the worker which a Canadian company must forgo, can have a high emotional and monetary cost. Even more troubling, an applicant may not even be able to know the full reasons for why they were denied. 

Should a temporary visa applicant be given meaningful reasons for why they were denied? To me, it seems only fair.

While Covid in a fourth wave in Canada, the Minister of Citizenship and Immigration is arguing via an affidavit filed in a case before the Federal Court of Canada (Ocran v. MCI, IMM-6571-20) (decision pending) that due to high application levels, it should be permitted to use a souped-up Microsoft Excel spread sheet (named “Chinook”) to speed up the decisions which may affect over one million applicants in 2021 alone (in 2019, the number was over two million). This spread sheet gathers data from a Global Case Management System and other sources. The Minister is responsible for Immigration, Refugees, and Citizenship Canada (IRCC) and over the 2011 to 2019 period, the affidavit reveals that IRCC has had an increase of 109% in visitor visa requests, and 147% and 222% increases, respectively, for work and student permits.

All of this sounds boringly efficient until the affidavit explains that “risk indicators” and “local word flags” can be attached to each application. What are these risks and flags? Are applicants being profiled in a manner that breaches their right to a fair decision? The way the system is designed, “Chinook administrators” decide who and what gets profiled. Who oversees the “Chinook administrators”? It appears it is all internal to the decision-making system.

A system designed for administrative convenience and designed so that input assessment information is erased (referred to as “transitory working notes”) leaves itself open to abuse. The affidavit works hard to present an exercise in bureaucrats being bureaucratic (“move on, nothing to see here”) but upon review of the affidavit, this case appears to be IRCC’s attempt to establish a precedent that limited, form letter reasons are sufficient to deny temporary resident visas.

Deny many and tell them little as to why they were denied. Make it hard to appeal. The latter two reasons seem to be the operating principles, though IRCC goes to great lengths to mask them. Applicants deserve more and better.

If a denied applicant is not happy, they can seek the permission of a Federal Court judge in Canada for judicial review. There is no direct right of appeal. Like most Canadians, few applicants can afford the costs and uncertainty associated with the judicial process. IRCC knows this as well. It is a part of the “Chinook” plan.

If an applicant gets their day in court, they will find that the pre-assessment data may be missing, as might the “risks” and “flags”. All that will often remain is a form letter with bland language which would provide an applicant with little recourse to identify unreasonable decision making. Without a full record of what the decision maker reviewed to reach the decision, how is an applicant or a Federal Court judge to know what factors were considered in reaching the decision?

Canadians exercise democratic rights to vote out legislators at municipal, provincial and federal levels of government if they find them to be unfair. Pity that the Minister of Citizenship and Immigration can ignore the views of overseas applicants. IRCC and its plans with the “Chinook” decision making system is taking us down the slippery slope of diminishing government accountability. I wonder how the Canadian voting public, many of them recent immigrants themselves, feels about this.

 

Zool Suleman is a Canadian Immigration Lawyer.