Citizenship and Immigration Committee on April 7th, 2022

[Jenny Kwan, NDP, Vancouver East, BC]

Thank you, Madam Chair.

I just want to say very clearly that the motion we just passed is not only for officials to come before the committee. There's a component within that motion that clearly says they would have to provide undertakings on the public record that the committee members request. Some of the documentation that Mr. Genuis has requested in his motion would be some of the documentation that I would be interested in receiving. I have every intention to actually make those requests of the officials, and for them to provide it to us on the public record for the purpose of transparency.

I reject the notion that if I don't support Mr. Genuis's motion, I'm somehow against transparency. Nothing could be further from the truth. We will have an opportunity to undertake this work. If the officials come forward after our request for the documentation to be received on the public record before we write our report and the documentation is deficient, there is always an opportunity to follow up with respect to that.

I think from this perspective, I'd like to actually give the officials a chance and give the department a chance to do their work. For that reason, I think we can park this motion. That's what I would suggest.

In fact, I move to adjourn debate on Mr. Genuis's motion.

[The Chair, Liberal, Salma Zahid]

Ms. Kwan has moved a motion to adjourn the debate. It's not debatable, so we will have to vote on that.

Mr. Clerk, could you take the vote on Ms. Kwan's motion to adjourn the debate, please?

(Motion agreed to: yeas 7; nays 4 [See Minutes of Proceedings])

[The Chair, Liberal, Salma Zahid]

The motion passes. There's no more debate on that motion. The debate is adjourned.

We will now proceed to the witnesses for today's meeting.

Today's meeting is on differential outcomes in Immigration, Refugees and Citizenship Canada decisions.

We have two panels. Based on the time available, we will have the first panel for 45 minutes and then the second panel for 45 minutes. Because of the budget, the services are not available to us.

I will take this moment, on behalf of all the members, to welcome our witnesses for the first panel.

We are joined by Mario Bellissimo, certified specialist in citizenship and immigration law and refugee protection, representing Bellissimo Law Group Professional Corporation. We are also joined by Jeric Mendoza, immigration consultant, representing J. Mendoza & Associates Canada Immigration Consulting Group. The third witness for the first panel is Vishal Ghai, representing Voices4Families.

I welcome the witnesses. Each witness will have five minutes for their opening remarks, and then we will go into our round of questioning.

We can start with Mr. Bellissimo. You will have five minutes. You can please begin.

[Mario Bellissimo, Certified Specialist in Citizenship and Immigration Law and Refugee Protection, Bellissimo Law Group Professional Corporation]

Good morning, Madam Chair, and members of Parliament and fellow panellists. Thank you for the invitation to appear.

The study of differential outcomes in IRCC decisions is definitely a complex and expansive topic. I'm happy to take questions on that generally, but for purposes of my opening remarks, I'm going to focus on advanced analytics as part of AI, artificial intelligence, solutions.

My professional career has been dedicated to the practice and study of immigration, citizenship and refugee law, or immigration law for brevity. For the past near 25 years, I have accompanied applicants in the journey from the application stage to the Supreme Court of Canada and back, working to advocate preservation of the foundational legal rights of equality, fairness and individualization in immigration law and policy.

AI engages all of these issues. In fact, for some who, like me, are grappling with the enormity of the implications surrounding the expanded use of AI solutions, we can find ourselves equally in awe and in dread. Simply put, the awe part is the exciting and transformative possibilities, such as expedited processing, minimizing officer error or bias, enhanced user access and better information gathering, among other potential gains. However, part of the dread arises from concerns AI will only perpetuate existing racial, socio-economic and political divides and discrimination that are so entrenched in our society.

AI, as we all know, is already being used to triage applications, but the potential is so much more and the plans are far greater than triaging.

The hope is that if AI is applied properly, we can avoid the missteps we've seen and witnessed domestically and internationally when AI has reproduced bias, such as in the Supreme Court of Canada case of Ewert. Other examples internationally include the risk classification assessment tool used for detention in the United States or the iBorderCTRL lie detector used by the European Union at borders, or even the New Zealand technology to identify potential overstayers. These are just a small number of examples of AI use gone wrong. At its core, until we are all required by law to be on a relatable informational plane, applicants, the public and many stakeholders remain at a disadvantage in understanding how parts of their lives may be reordered by AI.

I remain optimistic that improvement is possible. Recommendations this committee has already heard with respect to an ombudsperson and enhanced IRCC training, as set out in the Pollara report, are potential important steps, but even more will be required in the presence of disruptive technology to avoid potential discriminatory consequences.

As set out in the 10 recommendations in our brief, efforts to transform immigration delivery must include legislative measures to be put in place for transparent, explainable and equitable AI governance, recognizing the technology is not neutral and that historical data values and norms propel AI. Training AI programmers, analysts and thought leaders, as one example, must not only be reflective and responsive to vulnerable persons and groups, but must also be required by law to ensure diversity and inclusion balances are maintained for those who train and drive the technology. An algorithm charter like that in New Zealand, external audits with enforcement powers, and mandatory external consultations are steps that have been recognized internationally as effective and essential for proper AI governance.

We cannot look only at where the use of the technology is today. The need to work with and leverage all stakeholders is acute, given the rapidly evolving challenges ahead. IRCC is staffed by many hard-working, well-intentioned individuals who want to make a positive change. Our council and the academic and AI community in Canada are also well positioned to make a meaningful contribution to IRCC's use of AI.

If we put in the collective work now, pressing for a strong and modern legislative framework predicated on collaboration, oversight, transparency, and responsible implementation, we have the potential to be a world leader. There is much work to do, but this is the time to reimagine, revolutionize and reorder Canadian immigration decision-making, built on a strong legal and technological foundation that is grounded in legislation, a foundation undisturbed no matter the international and technological pressure that may be on the horizon.

Thank you.

[The Chair, Liberal, Salma Zahid]

Thank you.

We will now proceed to Mr. Mendoza, the immigration consultant. Mr. Mendoza, you will have five minutes for your opening remarks. You can please begin.

[Jeric Mendoza, Immigration Consultant, J. Mendoza & Associates Canada Immigration Consulting Group]

Thank you, Madam Chair and the members of the committee, for giving me the opportunity to provide input on today’s meeting.

My name is Jeric Mendoza of J. Mendoza & Associates, which is based here in Saskatoon, Saskatchewan.

The recent Pollara report on the systemic racism within the IRCC is a sad reminder that racism has not left the Canadian immigration system. More troubling is the fact that it's happening behind the scenes. Today I would like to expose more discriminatory policies or issues that, to me, are hidden from us in plain sight.

The first issue I would like to raise is the Canadian education equivalency requirement in most immigration applications. What can be more racist than to require an assessment to see if the education of a foreign national obtained overseas is equivalent to a Canadian education? How do we define “Canadian education”? Is there a special sauce that we need to find? Why is it that in most cases, a two-year post-secondary diploma in the Philippines, for example, is reduced to secondary education? Does it mean if someone takes, say, a two-year automotive course in the Philippines, they have already forgotten what they've learned? Even among schools in Canada, there are various factors in play that make it difficult to say whether one bachelor's degree is the same as or different from another. If we cannot reliably measure, then why require this assessment? Further, why measure it in the first place? What issue, backed by data, are we trying to address?

It is therefore my recommendation to eliminate education equivalency assessment requirements in all immigration programs at both the provincial and federal levels, because it's a racist policy.

The second issue that I would like to raise is the biased language skill requirements of different immigration programs. I fully understand the need for one to communicate effectively to become successful anywhere in the world. However, requiring a language exam in English or French is obviously discriminatory to non-native English or French speakers like me.

How do we reconcile this? Here are my recommendations.

First, eliminate the graduated points system whereby a native English or French speaker can possibly score higher points because of their language ability, despite a non-native English or French speaker having more skills or work experience.

For example, right now if someone applies under the federal skilled worker program, the person can obtain a maximum of 28 points in language skills, compared to just a 15-point maximum for work experience. Where has “experience is the best teacher” gone? Should it be “language is the best teacher”? Is a cook with a CLB level of 8 a better cook than a cook with a CLB level of 4? Do we ask Canadian citizens or residents for a IELTS or CELPIP exam result when hiring a mechanic or welder? If not, then it's racism.

As a compromise, I suggest using instead a pass/fail system against a minimum language level, below which it is difficult for someone to survive in Canada. I believe it's at the very least a CLB 3 or at most a CLB 4.

Next, allow employers to certify language skills as a substitute for a formal language exam if they're providing a job offer. Further, let employers or professional regulatory bodies, not immigration, require a higher language level, as they deem fit, for their occupation.

Finally, remove the expiry of language exams. Right now, language exams have a two-year expiry. If I can effectively speak English or French today, does it mean I lose this ability two or more years from now?

The third and final issue I would like to raise brings me back to the Pollara report. As evidenced by the Pollara report, racism in Canadian immigration happens behind the scenes. In this regard, I have the following suggestions.

First, require supervisor concurrence for all case refusals. By doing so, a racist, biased or incompetent case officer has a solid reminder that their decision will go through further scrutiny, which hopefully will deter them from deciding with bias.

Next, provide applicants or their representative with immediate access to case notes. Who can be a better guardians against racism than the applicants themselves? If applicants or their representatives are provided with immediate access to the case notes, they may possibly identify issues, including racism, early on while their case is in process, not after a decision is made.

Finally, set up a complaint or grievance system whereby applicants or IRCC workers can raise issues of racism, general bias or incompetence of immigration personnel.

Moreover, provide a way whereby case officers can be held accountable for the wrong decisions they make on applications.

Thank you.

[The Chair, Liberal, Salma Zahid]

Thank you, Mr. Mendoza.

We will now proceed to Mr. Ghai. Mr. Ghai, you will have five minutes for your opening remarks. Please begin.

[Vishal Ghai, Voices4Families]

Thank you, Madam Chair and honourable committee members, for affording us the time to speak.

I represent a self-advocacy group with an outreach of over 6,000 victims of IRCC's racist system. I use the word “racist” indeed, especially for families who have been separated forcefully by the Minister of Immigration and IRCC.

This system is inequitable, archaic and systemically biased. We submitted our recommendations in a petition that was signed by over 5,600 people, and it included their comments.

As a group, we have been pushing for immediate family reunification. The Minister of Immigration has proven time and time again that if there is a will, there is a way, just like the MI—the ministerial instruction—that is allowing Ukrainians into Canada within 15 days, sidelining other refugees and waiving all fees just because of white privilege. There are Afghans, Hong Kongers and victims of the Lebanon bomb blast who were not afforded the same treatment by the Minister of Immigration.

We basically deal with spouses from the outland application stream. Today I would like to highlight that systemic racism and racism exist almost at the bottom rung of this system and process.

Through a lot of crowdsourcing, we have now identified ageism in the process of outland applications. If you have an age difference, you're discriminated against. A previous marital status, a divorcee, is automatically flagged by the AI. Social, educational or economic status differences are flagged by the AI. Cultural and religious differences also flagged by the AI.

What is AI? AI is a program, and a program is as good as the person who codes it. If the person coding it is racist or is unconsciously following data over six years, they're going to bring that racism forward all the way to the bottom rung, unfortunately.

Today we are glad that victims of the spousal outland application are finally able to represent themselves today.

I bring forward a message from one of the youngest advocates, Tito. He's 10 years old and has autism. He has been separated from his dad, Carlos, for over four years. They were afforded an interview by a writ of mandamus over service standards. However, there are no panel physicians for them to be able to do their premedicals, so yet again they are stuck. In his own words he says, “Can you please tell the committee and the Minister of Immigration that families are made of love, not black, white, brown, he or she?” That is a 10-year-old saying this. He would like one day for his dad to take him to school so people can believe that he does indeed have a father.

I will gladly take questions. I will give you real-life examples of the racist hurdles that outland applications face, with proof in black and white that locally engaged staff have put in writing in GCMS notes that we can provide to you. This is the bottom rung of the racist organization. Racism is embedded deeply in the immigration system from the top to the bottom, and it is about time we address how we are going to solve these issues.

Unfortunately, the sole discretion and the use of cultural norms given to locally engaged staff are the major barriers for spouses of Canadians trying to get to Canada—

[The Chair, Liberal, Salma Zahid]

I'm sorry for interrupting, Mr. Ghai. Your time is up. You will get an opportunity when we go into our round of questioning.

We will start our first round of questions. We will begin with Mr. Redekopp. Mr. Redekopp, you will have six minutes. You can please begin.

[Brad Redekopp, Conservative, Saskatoon West, SK]

Thank you, Madam Chair.

I want to thank all the witnesses for being here today. I apologize that we started late, but we'll make the best of the time we have.

In that light, I just want to make a note to you, Mr. Ghai. You mentioned examples you have, and you may get some questions on that, but I would encourage you to please write some of those down and submit them to the committee in written form, because that would be very helpful for us to look at later, and we may not have enough time to talk about them. I would suggest that for you.

Mr. Mendoza, thank you for being here today.

In the third point you mentioned on racism, you suggested having supervisor concurrence, providing case notes and some sort of a grievance system. Those recommendations obviously came out of some experiences you have had and some cases you have had. Can you give us some examples of what those cases might be to give us some context?

[Jeric Mendoza]

Our situation as immigration consultants and applicants is that when we submit applications, we're basically talking to a wall. We submit an application online, but we don't have a way to even speak to the person on the other side. If we get anything from any application, it would probably be just a notice of a medical issue or some issue about not believing, let's say, that a couple is truly a common-law couple. My situation is that I don't receive too many refusals, but the problem is that once we get those refusals, it ends. It's basically talking to a wall. You don't have anybody to call for an explanation of the decision.

That's basically my point in asking for immediate access to access notes. They're saying the solution right now is basically accessing through the ATIP system, the access to information and privacy system, which would require a different process for us to generate or get whatever case notes the officers have to look into those processes.

The issues I raised here are basically brought about because applicants and even immigration consultants ourselves are basically talking to a wall. Right now—

[Brad Redekopp, Conservative, Saskatoon West, SK]

Thank you.

I noticed on your website that you talk about the caregiver class as one of the categories you work with. According to the department's own figures, it takes sometimes up to two years on average to fill a caregiver class, while some other jobs that are traditionally geared toward Caucasians or others get filled a little bit faster. I asked the associate deputy minister of immigration why these numbers are different, and she didn't have an answer for me.

In your experience, have you seen a difference or lengthy times on caregiver applications, and what are some examples? Do you have any examples of that?

[Jeric Mendoza]

Basically the first application under the new caregiver program that we submitted was in December 2019. We only had an approval, a work permit, this January 2022. That is more than two years for processing.

I have another client for whom we submitted an application before that. We submitted an application as well for a work permit. Basically she is just considered unemployed. Her work permit is already expired, but basically she is working on an implied status because we submitted the application before the expiry, but up to now, more than two years later, we haven't received any decision on the work permit, so we have a client here who might not have access to health care or other government services because she has an expired work permit. Basically, that is the kind of situation we have.

I have never yet seen, since the new caregiver program was launched, a quick processing time. Right now, after two years, I have had only one result. For the rest, we are still waiting.

[Brad Redekopp, Conservative, Saskatoon West, SK]

I want to switch gears a bit and talk about human trafficking.

We've had several people bring this issue up, and the issue of mail-order brides. We had Arlene Ruiz from Saskatoon here at the last meeting. She spoke about this issue with my colleague. I had a case in my constituency of a Filipino woman who was dumped by her husband, basically because she had terminal breast cancer, and then she was deported.

I asked the IRCC officials why our human trafficking laws are not being exercised properly, and I didn't really get an answer. I wonder if you've ever seen anything like that. Are there safeguards in place from Immigration Canada and CBSA to protect vulnerable women ?

[Jeric Mendoza]

With regard to human trafficking, I think there has been some progress. There are programs for vulnerable spouses here in Canada to be able to get out of the system and apply for something else.

I don't have personal experience in terms of couples having human trafficking issues. I have more personal experience in terms of applications being delayed indefinitely because they just don't believe that the couple is a couple, without further explaining the situation. In one case I had a couple, and we received a note that the officer didn't—

[The Chair, Liberal, Salma Zahid]

I'm sorry for interrupting. The time is up for Mr. Redekopp. We will now proceed to the next member.

Ms. Kayabaga, you have six minutes. The floor is yours.

[Arielle Kayabaga, Liberal, London West, ON]

Thank you, Madam Chair.

I would like to start my questions by thanking our witnesses for taking the time to be here and to share their experiences, some of them their personal experiences. I share my heartfelt feelings with you.

Mr. Bellissimo, you talked about AI. I want to ask a question about regulating and legislating AI. I'm curious to know where you think we should legislate AI. Would it be through the companies that are offering the service or would it be through the companies that are using it to collect this data?

[Mario Bellissimo]

Thank you for the question.

It would really be in two parts. I think Canada generally needs AI legislation, and then we need legislation specific to immigration. The economic action plan that was passed in 2015 was seven years ago. It's on that very broad legislation, with very little detail, that all of this AI is being actioned, but there was not even a debate on it at the time. Although it was emerging, there were no comments.

When we speak about the companies and who's driving the technology, what's important to understand is third party use of technology like AI. IRCC, to their credit, are developing AI in-house, but other places, like the Canada Border Services Agency and Employment and Social Development Canada, are outsourcing to a third party. It's very easy at that point to begin to lose traction. Who has the business assets? Who has the proprietary control?

On general legislation, we can look at countries that are further ahead of us, such as New Zealand, England and Australia, and the measures they've put in place. In terms of legislation, I think we need to start right away with an algorithmic charter that sets out the types of algorithms. I noticed that during the debate there was a lot of discussion today about models, but the meat of everything is in the algorithms and, in Immigration Canada's case, the undisclosed officer rules. Those rules are not even disclosed to the officers who are deciding the applications, but that's the basis on which they're triaging, so we have a lot of work to do to get up to the ethical standards we've seen and the recommended governance standards we've seen throughout the world.

[Arielle Kayabaga, Liberal, London West, ON]

Thank you.

I want to go back to the algorithm part, which connects back to the person who's giving the service out. I think with IRCC, AI collects information that is then presented to an agent, who then goes through the application. I think it's important to note that.

In terms of the discriminations that we know show up in AI, it's behind the algorithms. Are you saying that then we should look into who is collecting the algorithm, at who's behind it, basically? This goes back to the companies that are offering the services versus the companies that are using the services.

[Mario Bellissimo]

IRCC is being trained by data scientists within IRCC. What's happening here is that we need algorithm impact assessments. IRCC has begun to do that with a few of the categories, but it can't be opaque. It has to be relatable. It has to be in plain language.

I noticed that one of the recommendations was for an expert panel, and that's helpful, but ultimately we—and I mean we laypersons—have to be able to understand what is going into those rules.

I'll give you an example of a study permit. Are individuals over the age of 30 triaged in a different category because there's a deemed assumption that someone over 30 is really not pursuing education at that stage of their lives? Mr. Ghai provided some examples of other ways that themes can get triaged.

This has to be in plain sight. We have to go behind the curtain. There's no need to have a lack of transparency.

[Arielle Kayabaga, Liberal, London West, ON]

Thank you so much.

I want to get back to the Pollara report before my time expires. We did talk about the report, and everybody knows what's in the report, so I'm not going to get into it.

I wonder, Mr. Mendoza, what you think about a system whereby IRCC continues to have regular reports, such as the Pollara report, to make sure that if there are changes being made at IRCC, we can track them.

Also, I don't know who, but someone mentioned the ombudsperson. What other roles would you want to see the ombudsman take at IRCC?

[Jeric Mendoza]

Basically what I'm looking for in terms of the ombudsman is that there's an exchange of grievances. For example, if I'm facing an incompetent case officer, I should have a way to complain to get this message across. Having just a report is really a passive way of doing this. It's not proactive. It would probably happen once a year, and we're talking about hundreds of thousands of cases of people who may be facing racism or incompetent case officers refusing applications left and right. The ombudsman system would basically deter officers—

[Arielle Kayabaga, Liberal, London West, ON]

Thank you so much.

In my last 15 seconds, quickly, I want to understand where Mr. Ghai got the flags he mentioned, which are through AI.

Could you mention where you collected that information? Was it shared by IRCC? Did someone share that information with you, Mr. Ghai, that—

[The Chair, Liberal, Salma Zahid]

I'm sorry for interrupting. Your time is up.

We will now proceed to Mr. Brunelle-Duceppe. Mr. Brunelle-Duceppe, you will have six minutes. Please begin.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

I thank the witnesses for joining us today. Their expertise will improve our study, and it will help us write a better report.

Mr. Ghai, I even think you were upset during your testimony. In any case, I was touched. You talked to us about glaring examples of racism. However, IRCC is saying those are unconscious biases. I think there is a difference between an unconscious bias and racism.

A previous witness told us that a cat should be called a cat, even if it creates discomfort, and that there was racism at IRCC. So I would like to know whether there is indeed racism at IRCC or just unconscious biases, in your opinion.