March 9, 2020

Canadian Immigration Should Take Another Page from Down Under Australian Style!

Immigration, Refugees, and Citizenship Canada, Employment Social Development Canada and Canada Border Services Agency have been criticized that much of the internal policy behind the legislative framework that informs Canadian immigration law and policy are largely unpublished and must be accessed through Access to Information and Privacy (ATIP) requests. This applies to legislation governing visitor visas, family visas, skilled workers, refugees, humanitarian and compassionate grounds, permanent resident applications, citizenship applications, Labour Market Impact Assessments, Admissibility and the list goes on. Without an ATIP to access the policy documents being used by officers in Departments, the general public nor their legal representatives know what factors are informing the officers exercise of discretion, and ultimately their decisions.

Even where ATIPs are completed for the policy, there remain several problems with this method of information sharing. Once an ATIP request is complete, after a minimum 30-day waiting period with common 60-day plus extensions, it is not known whether the information received is complete or even up to date anymore. There is no way of knowing whether an ATIP response provided to one person is the same as an ATIP response provided to another (assuming the same thing was requested). 

This is further exacerbated as the power and discretion of release and redaction rest with the individual processing the ATIP request. Once in receipt of policy obtained through an ATIP request, there is further no source of alert or indication if such a system were to be updated. In short, there is no navigable database, even for ATIP officers, it seems, which they can be referred to for ongoing policy updates.

Specific departments have even been found to have different policies across different office locations. It is not a stretch of the imagination that this might cause frustrations for those submitting and those who are assessing applications; there is insufficient ‘communication’ between the two. Refusals can result in leaving applicants with the hurdle of trying to reapply, in pursuing tribunal appeal rights (if available) or even seek judicial review. It is a significant expenditure of energy on all fronts, including the tribunals and the judiciary.

So, what measures you might ask can be implemented to bring increased transparency, consistency and overall efficiency to Canada’s immigration system – we need to look no further than our common law ally, Australia.

The Australian Department of Home Affairs, previously the Department of Immigration and Border Protection, administers an “electronic database of migration and citizenship legislation and policy documents.” This database, called LEGENDcom, is funded through user’s yearly subscription fees. The database includes all relevant Acts, Regulations, Directions, Gazette Notices, legislative and non-legislative instruments, Forms and importantly, the relevant internal policy. This includes immigration, citizenship and practitioner’s regulatory legislation. Any information, policy, legislative document or forms on the database are updated and kept current by the Department of Home Affairs. All users can keep track of updates on the database homepage.

It is user-friendly with search facilities and hyperlinks throughout the acts and regulations to take users to relevant related provisions, legislative instruments and policy, even historically. While general members of the public are unlikely to have a subscription, it is an indispensable tool for practitioners through whom the knowledge benefits trickle down to applicants. LEGENDcom is a foundation to bridge the gap between the applicant and the officer.

While this would be an extensive undertaking, there are noteworthy concerns about the current state of Canadian immigration law information sharing. Fortunately, we already have an Australian example of a successful venture in increased transparency, consistency and efficiency. It would not be the first time we have gone down under for innovation.