Canada is doubling down on its immigration anti-discrimination policy. Immigration, Refugees and Citizenship Canada (IRCC) announced it is implementing more and clearer guidelines in the wake of allegations of systemic discrimination by officials.
IRCC said that
“Together, we are ready to actively listen, rigorously self-examine and decisively act to reduce and ultimately eliminate systemic racism in our workplace practices, policies, program outcomes and service delivery.”
Several Canadian government studies identify the unjust and harmful impacts of systemic racism and discrimination in Canada immigration system. These studies also outline how the Government of Canada will begin to remove discrimination barriers in public services. See Canada’s Anti-Racism Strategy 2019-2022 (Canadian Heritage, July 2019). Also the Clerk’s Call to Action on Anti-Racism, Equity and Inclusion in Federal Public Service (Privy Council Office, January 2021).
The ministerial mandate of the Minister of Immigration, Refugees and Citizenship Canada Mandate Letter squarely addressed immigration discrimination. The Prime Minister of Canada instructed the immigration minister:
“… to continue to address the profound systemic inequities and disparities that remain present in the core fabric of our society, including our core institutions.”
In developing its Anti-Racism Strategy in late 2018 and early 2019, the federal government heard from many Canadians about immigration officers discrimination.
And also, a report that IRCC released in late 2021 showed IRCC employees used racially offensive terms among co-workers.
Minorities to be over 40% of Canada’s working population by 2030
Black, indigenous and other racialized people will reach more than 40 per cent of Canada’s population by end of 2030. IRCC wants to strengthen commitment that Canada is a truly diverse and inclusive country.
IRCC’s new anti-racism strategy will clearly identify:
- measurable goals
- timeframes for results
- key responsible departmental stakeholders
- accountability mechanisms
- change agents, and also
- processes to implement the strategy
“There is no room for complacency. Combatting systemic racism will require all the resources and attention we can collectively muster.” (Acting Deputy Minister of Immigration Caroline Xavier). See also First African Canadian Deputy Minister, Caroline Xavier, speaks of Black History Month.
In response IRCC created the Anti-Racism Task Force in Summer 2020 to kick-starting coordinated Department-wide action. Since then, IRCC has taken three key steps to embed accountability across the organization.
First, IRCC released Anti-Racism Value Statement in May 2021. The statement acknowledges the impacts of colonial legacy and historical racist policies in the Canadian immigration system.
Second, IRCC created the Anti-Racism Sector Commitments. It outlines tangible actions for each business line in the Department over the next three years.
And third, IRCC added anti-racism, equity, and inclusion work objectives to the performance management agreements of all IRCC executives.
By developing accountability, we are setting a direction and establishing mechanisms to address unacceptable behaviours and reinforce positive ones. We also have turned to our evaluation experts to start developing metrics to evaluate the success of our initiatives, so that we keep moving in the right direction. We believe that through leadership and employee accountability, new cultural norms can be institutionalized throughout our department that will bring about positive and long-lasting change.IRCC – Letter on Implementation of the Call to Action on Anti-Racism, Equity and Inclusion
IRCC must make reasonable and fair decisions
IRCC’s staff guidance, Decision Making: Standard of Review and Process for Making a Reasonable Decision will also help immigration officers check and combat racism and other forms of discrimination. IRCC notes the Supreme Court of Canada’s ruling that all decisions by IRCC have to be both:
- based on internally-coherent reasoning, and also;
- justified in accordance with the legal and factual context of the decision.
The immigration anti-discrimination guidelines set out a nine-step process for immigration officers to make their decisions.
First step is to follow applicable legislation and direction in each application category before IRCC official renders a decision.
Second, the IRCC official must identify which facts have to be proven in light of the applicant’s information in front of them. The facts must be material to the decision.
IRCC officials to use ‘Balance Of Probabilities’ standard of proof
The guidelines require IRCC officials to weigh evidence using “balance of probabilities”, rather than the higher “proof beyond doubt” standard.
“The applicant need only satisfy an officer of the facts based upon a balance of probabilities,” note the Canada immigration anti-discrimination guidelines ,,, An officer must not be overly suspicious or doubting of the evidence presented. That approach is not consistent with the presumption of truth that underlies the process.”
To help officials apply the appropriate standard of proof, the guidelines give four levels of proof. These are, from lowest to highest:
- mere possibility or suspicion – could be nothing more than a possibility unsubstantiated by facts;
- reasonable grounds to believe. A bona fide belief in a serious possibility that a fact has been established based on credible evidence;
- balance of probabilities. This refers to circumstances where existence of a fact is more likely than its non-existence. The issue to be determined is not only possible, but probable, rather than improbable, and;
- beyond a reasonable doubt.
The immigration anti-discrimination guidelines note that immigration proceedings and decisions are civil in nature. Therefore, the general standard of proof applicable to civil matters – balance of probabilities – applies.
This means that it is more likely than not to be true or that it is probable.
Third, the IRCC official must identify what evidence, documentary, physical, or verbal, is relevant to the application.
Canada immigration anti-discrimination guidelines – Credibility of Evidence
To ensure fair, objective and anti-discrimination evaluation, the guidelines require IRCC officials to examine the following:
- inconsistencies or spelling mistakes
- incomplete application, especially signature and date
- inconsistencies in information
- contradictions in verbal oral evidence
- the presence of bias
- indications of alterations or forgery;
- indications of document forgery, and also;
- damage documents and its legibility.
“Evidence that is indefinite, vague or improbable should be given less weight than evidence that is direct, detailed and unrefuted,” note the Canada immigration anti-discrimination guidelines. “For example, a person’s statement that they have never left Canada would be given little weight if stamps in their passport show entry into other countries.”
The IRCC officials must then make a decision fairly, without ignoring any evidence. And then record the decision for accountability, transparency, and traceability.
Finally, IRCC officials must:
- use neutral, unbiased and comprehensible language with applicants
- proofread the notes for innocent errors that may affect officials record accuracy and reliability
- record all dates and provide other details, such as new evidence
- document their assessment of the facts and evidence for decision. They must include the applicable legislative provisions, and reasoning, and also
- undertake a final review of their notes to ensure their analysis supports the conclusions