Case Citation: Barre v. Canada (Citizenship and Immigration), 2022 FC 1078

Facts:

The case concerned an application for judicial review made by two refugee claimants, Ms. Asha Ali Barre and Ms. Alia Musa Hosh, against the Refugee Protection Division’s (RPD) decision that vacated their refugee status. The applicants asserted that they were from Somalia and had fled their homeland due to fears of religious and gender-based violence. Initially, upon arrival in Canada, the two applicants’ origin claims were accepted, and they were granted refugee status.

In 2020, the Minister of Public Safety and Emergency Preparedness (the Minister) applied to vacate the two women’s status on the basis that they had misrepresented and withheld material facts relating to their refugee applications. The Minister’s evidence included photo comparisons between the applicants and two Kenyan citizens who had entered Canada on study permits. The Minister did not provide any explanation for how Ms. Barre’s and Ms. Hosh’s photographs came to be compared with the two Kenyan students. Relying on this evidence, the RDP found that the applicants shared “great similarities” between the Kenyan students and concluded that they had withheld their Kenyan citizenship from immigration officials, thereby falsifying their refugee applications.

Issues:

The two applicants maintained that they had been misidentified as Kenyan citizens, that the RPD’s decision was unreasonable, and was in breach of procedural fairness. Further, they argued that the Minister had matched their photographs to images of the Kenyan students using unreliable facial recognition technology. They submitted evidence detailing that when the searches were conducted, the Canadian Border Services was known to have been using Clearview AI to generate photo comparisons. In a separate investigation, the Office of the Privacy Commissioner of Canada found that Clearview’s technology had broken numerous Canadian privacy laws.

Outcome:

Ms. Barre’s and Ms. Hosh’s application was successful, and the court remitted the decision back to the RPD. In her decision, Justice Go found that the RPD erred in allowing the photo comparisons as evidence without requiring the Minister to disclose how the photographs were obtained. She rejected the RPD’s arguments that the Minister was exempt from such disclosure under the Privacy Act because the RPD did not review the information provided by the Minister and blindly accepted the photo comparisons. Moreover, Justice Go also found that the RDP’s decision was unreasonable because it ignored evidence that supported the applicants’ identity claims and did not provide adequate reasons to conclude that the applicants misrepresented their identity.

Significance:

In this case, the court accepted evidence that facial recognition technology significantly underperforms in identifying Black women and women of colour – one of the first instances where the Federal Court has acknowledged the disproportionate effects FRT can have on members of equity-deserving communities.