Citation: Ali v. Canada (Citizenship and Immigration), 2023 FC 671

Facts:

The applicant, Mr. Kasim Osman Ali, sought judicial review of the Refugee Protection Division (RPD) to vacate his refugee status. Mr. Ali entered Canada in 2017 using a fraudulent Norwegian passport and claimed to be a citizen of Somalia. He was initially granted refugee protection by the RPD, who accepted his Somalian identity in consideration of the applicant’s testimony and supporting documents.

In 2020, the Minister of Safety and Emergency Preparedness (the Minister) applied to vacate the applicant’s refugee status on the basis that he misrepresented his identity. The Minister asserted that Mr. Ali was a national of Kenya who had been issued a study permit to attend college in Manitoba. In their submissions, the Minister did not disclose their investigative techniques and instead relied upon photographic evidence and visual comparisons between the images of Mr. Ali and a Kenyan national. Mr. Ali denied that the photographs of the Kenyan national were him. The RPD accepted the Minister’s claims.

Issues:

The applicant applied to the Federal Court for judicial review of the RPD’s decision, arguing that the decision was unreasonable because the Minister did not disclose the investigative techniques employed in their photo analysis. Mr. Ali alluded that the Minister likely used Clearview AI’s FRT tools, which have been found to violate Canadian privacy law by the Office of the Privacy Commissioner, or another facial recognition software to compare the photographs.

In response, the Minister submitted that the applicant’s claims were speculative and claimed that, in any case, the Minister’s actions were permissible by relying on subsection 22(1) of the Privacy Act that “allows law enforcement agencies to protect the details of their investigations.” Therefore, the Minister argued, they did not have an obligation to disclose if FRT analysis was used.

Outcome:

The court found that the RPD’s decision was unreasonable because, regardless of whether FRT analysis was used, the RPD did not adequately consider other key evidence submitted by the applicant. Instead, the RPD incorrectly limited its analysis to supposed resemblances between the faces in the photographs – those of Mr. Ali and the images of the alleged Kenyan national. In its investigation, the RPD did engage with additional evidence and submissions made by Mr. Ali, including evidence of his date of arrival into Canada and details concerning a medical assessment. The court granted Mr. Ali’s application and remitted the decision back to the RPD.

The court did not consider whether the RPD should have been compelled to disclose the investigative techniques used to gather the photographic evidence, namely whether the Minister had used FRT analysis, because the applicant abandoned this request when his application was successful.

Significance:

This case is significant because it demonstrates the transparency and disclosure issues surrounding immigration and refugee claims in Canada. Oftentimes, applicants lack access to the investigative techniques used by the RPD and other government agencies that have a significant impact on the outcome of their applications. This issue is particularly problematic when FRT has been used to determine individuals’ identity. Facial recognition technologies often operate with deep biases as their algorithms’ choice architecture reflects the biases and values of their creators, and of the datasets on which they are trained. As facial recognition software is better trained to identify individuals with White and/or White passing features, its use creates increased opportunities for misidentification of members of equity-deserving communities including Indigenous, Black, and racialized individuals, as well as women.

Additionally, this case affirms that the RPD cannot rely solely upon photographic evidence or comparisons rendered from FRT software to determine refugee applications. Instead, even if an FRT analysis is used, for its decision to be reasonable, the RPD must engage with additional evidence, and provide adequate reasons for its acceptance or rejection