Allegations against CSIS, Immigration, Refugees and Citizenship Canada, the Canada Border Services Agency, and Public Safety Canada in relation to their role in processing immigration applications

NSIRA file: 07-405-1

Background 

Under subsection 45(2) of the Canadian Human Rights Act, the Canadian Human Rights Commission (CHRC) referred 58 individual and group complaints to NSIRA. This matter constituted the first time NSIRA had received a section 45 referral from the CHRC. 

The complainants, Iranian nationals, alleged that the Government of Canada discriminated against them on the basis of national or ethnic origin or race due to the delays in the processing of their temporary or permanent residency visa, or Canadian citizenship. 

Under section 46 of the Canadian Human Rights Act, NSIRA is obliged to conduct an investigation and return a report to the CHRC. It further provides that on NSIRA’s report, the CHRC may dismiss the complaint or proceed to deal with the complaint. 

NSIRA’s role in section 45 referrals is confined to scrutinizing the components of a matter that are based on considerations relating to the security of Canada and report findings of its investigation into classified information to the CHRC in an unclassified manner. NSIRA does not possess the authority to exercise the CHRC’s statutory discretion to refer the matter to the Canadian Human Rights Tribunal. 

Investigation 

During its investigation, NSIRA considered the evidence given by witnesses and submissions of their counsel during an investigative interview, and the documentation and submissions submitted by the government parties, including classified documents disclosed to NSIRA by CSIS, Immigration, Refugees and Citizenship Canada (IRCC), the Canada Border Services Agency (CBSA) and Public Safety Canada. 

Importantly, NSIRA heard evidence from the government parties in relation to a particular mandatory indicator developed by the CBSA and used by IRCC officers in deciding referrals for security screening of Iranian immigration applications. Prior to reforms made by August 2018, one indicator was based entirely on Iranian nationality, coupled only with the age and sex of the applicant. Where an applicant met the criteria, IRCC officers would automatically refer the file to the CBSA and CSIS for security screening. The evidence showed that the government abandoned mandatory indicators in 2018 because of efficacy concerns and because it contributed to delays. 

NSIRA further noted that IRCC did not keep a record of the particular indicator on which the referral was based. This hindered NSIRA’s ability to investigate the other indicators that may have affected the processing of a complainant’s immigration application. That being said, NSIRA acknowledged that an indicator tracking code system was being piloted at the time of the investigative interview. This technical solution would allow for the tracking of the IRCC officers’ decisions to refer immigration applications for security screening through a coding system identifying the reason for the referral. 

Conclusion 

NSIRA found that: 

  • the mandatory age and sex indicator used by IRCC in processing immigration applications until May 2018 relied exclusively on nationality, age and sex, which are listed as prohibited grounds of discrimination in section 5 of the Canadian Human Rights Act; 
  • the mandatory age and sex indicator produced a disadvantage (including in terms of delays) to those Iranians who were subjected to security screening and to those whose own files were linked to these applicants; 
  • at the material times at issue in this matter, the application of that mandatory indicator was not justifiable on national security grounds; and 
  • the security screening process applicable to citizenship applications in this matter did not produce a disadvantage based on grounds enumerated in the Canadian Human Rights Act, as citizenship applications received by IRCC are sent to CSIS for security screening, regardless of the applicant’s country of birth. 

NSIRA submitted its report to the CHRC so that it can assess whether there is a reasonable basis in the evidence for a referral to the Canadian Human Rights Tribunal or whether to dismiss the complaints. 

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