BY RATTAN MALL
WELL-KNOWN immigration lawyer Richard Kurland, who runs Canada’s leading immigration publication, Lexbase, told The VOICE this week that those who have been denied a visa or permit – temporary resident visa (TRV), study permit, work permit – by Immigration, Refugees and Citizenship Canada should challenge it in court.
Kurland was reacting to a ruling by a Federal Court judge in Calgary in the case of Gurtej Singh Sangha and family members who had applied for TRVs to visit their relatives for a wedding anniversary celebration in Canada. The TRVs were denied as the officer was not satisfied that the applicants would leave Canada at the end of their stay, in particular, due to the applicants’ insufficient funds.
According to the ruling: “On the application, the Applicants indicated that they intended to stay in Canada for 11 days. The Applicants also submitted evidence of their movable and immovable assets to support the trip, including: an accountant’s summary report stating the family’s combined net worth of $235,437; an Indian Income tax return verification; and a letter from the Kore Wala Kalan Milk Producers Co-Op Society Ltd confirming the Second Applicant’s annual net income from dairy farming. [They] included a letter of support from their extended family in Canada stating that the extended family was willing to provide all necessary financial support and accommodation during the Applicants’ visit to Canada. The relatives also provided a bank statement with a balance of $28,158. […] According to the Officer, the available funds were However, the judge noted: “It is unclear why the Officer concluded the funds were insufficient after having reviewed the Applicants’ proof of assets and their relative’s bank account statements. In light of the evidence contradictory to the Officer’s findings, the Officer’s assertion of having “reviewed all documentation” rings hollow. Furthermore, contrary to the Officer’s finding that the Applicants were not sufficiently financially established in India, there was evidence of property ownership in India, both residential and agricultural, worth approximately $213,357 CAD. […] Despite the plethora of evidence, the Officer made an unreasonable finding that there were insufficient funds for the Applicants to travel and visit Canada. […][T]he Officer had a duty to state why there were insufficient funds given that the evidence supported otherwise. This renders the […] decision unreasonable.”
THIS came as no surprise to Kurland.
He told The VOICE that the officer’s decision that the judge slammed “may be the result of insufficient time to actually read information and documents.”
He added: “If IRCC is using Data Analytics rather than examining the evidence you are going to see more cases in federal court.”
Kurland pointed out: “How many people are going to actually go to Federal Court? Very small number. How much money could they save by mass volume AI [artificial intelligence] decision-making? Huge dollars.”
He elaborated: “It’s a question of how many negative decisions are insufficiently reviewed by the human? And the key there is exactly how many negative decisions that are the product of AI are being reviewed per hour per officer? And I did just a back-of-the-napkin calculation – if three-quarters of the applications are being done by AI, mostly rendering positive decisions, some rendering negative – and you’ve got about 20-25 per cent of the volume being done by available humans.
“Now the volume of applications being done by humans is very large and the number of humans is very small. So some of this stuff it may well be that a human has 10 minutes, if that, to review a file. So how do you go through 100 pages of information and documents plus reading all of these application material – and the review notes of the junior officer or the AI machine?”
Kurland said that the AI decision-making system was initially tested in China and that lasted about a year to year and a half. It was expanded to Delhi and then to Ankara (Turkey).
He said: “I am trying to track are the federal court volumes that are related to the introduction of AI systems or visa decision-making, and the data is just not out yet.”
KURLAND then said: “The message that I am almost willing to send is if you have been refused, challenge it. I have had decisions where the refusal letter says “we have to balance your family in Canada and your family in home country to make our decision” – and there is no family to Canada! It’s part of their template for refusal. What I am going to suggest to people is you’ve got to sue.”
Kurland noted that the Supreme Court of Canada had recently ruled that decisions now have to be more rational and you have to have a rational analysis behind your decision. He added: “These boilerplate refusal letters are not rational analytical decisions. You cannot do this anymore according to the Supreme Court of Canada.”
He also warned why this was so important: “Unless people challenge these decisions, the AI system in future pings on a previous refusal and you are out again. Worse, the refusals are being shared with other countries – European countries, US, Australia, New Zealand. So their AI systems or decision-making systems will take into account the factor that Canada said no … which is why I have been encouraging people to consider litigating their refusal.”
Interestingly, he added: “And mind you, for these types of refusals, most get settled. Of my 2019 cases, 22 out of 27 were settled and sent back to the visa office for redetermination by a different officer.”