November 2, 2022

BLG PC submits twenty comprehensive and transformative recommendations to the Immigration Division Rules’ Review

Posted by Mario Bellissimo - Bellissimo Law Group PC

On October 29th, 2022, we were pleased to offer comment on the proposed changes to the Immigration  Division (ID) Rules (“Rules”). Bellissimo Law Group PC has participated in the consultative process regarding other rule initiatives at the Immigration and Refugee Board (IRB) for years. We commended the IRB for continuing the process of modernizing and refining the Rules to plain language to enhance program delivery, integrity, and compliance. I lead our team in making twenty recommendations highlighting a plain language approach to the Rules enhanced the potential to minimize the disproportionate impact on vulnerable persons and those marginalized. We underscored the new techno-realities post-COVID-19 will mean these Rules must also speak to emerging issues inclusive of the digitization of delivery, information collection, data storage and protection, and document management. We maintained the adoption of our recommendations would contribute to ensuring the Rules advanced and promoted the equality and integrity of the proceedings before the ID on a solid, fair, and predictable legal foundation. One where ID decision-making is a shining example of fairness and inclusion.

Some of the recommendations related to immigration detention advanced that the Federal Court of Appeal decision in Brown[1] spoke to issues of procedural fairness and provided a roadmap for revisiting the ID Rules.  At its core, the decision held that “at minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond.”[2]  The timeliness and quality of pre-hearing disclosure were determined to be grave concerns. “To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee”[3]. Thus, more robust disclosure requirements was one of the recommendations. That ID Rules on disclosure should be expanded to direct the Minister to disclose all information in its possession relevant to the matter, even evidence the Minister does not intend to rely on if it is relevant to the proceeding including evidence that potentially benefits the person concerned.

Other recommendations included a comprehensive expansion and addition of many terms to be consistently defined at Rule 1. As well the Rules we proffered, should delineate the methods of communication permitted with electronic means being the primary method of communication and disclosure as above. We further recommended the creation of an ID Conference Facilitator to effectively manage administrative and procedural matters outside of the hearing room. Also, we focused on artificial intelligence solutions moving forward. The process of modernizing and refining measures to enhance program delivery, integrity, and compliance is heavily dependent upon innovative technologies. This includes through the digitization of delivery, information collection, data storage, document management, and the expanding use of “artificial intelligence solutions” (AI). Apprehension remains though over the move to techno-solutionism, in particular as it relates to perpetuating historical bias and e-marginalisation through automation. The new Rules will have to contemplate and allow for the expansive use of technology like AI. The Rules can function as an important safety measure as an extension of wider national initiatives by the IRB.

One final recommendation to highlight is the need to create a new mechanism for the vulnerable in particular the mentally disordered and children. A diversion of said individuals from the traditional removal order process. The reasoning behind this decisive step is to better oversee sensitive cases and to allow them a just process. Namely, individuals in this category would be merged into a stream with cases that guarantees special procedures and renders the system more just.  There were several other recommendations, but this gives you a sense of the scope and depth of our recommendations. We look forward to further opportunities to engage in meaningful stakeholder participation with the ID.