Friday July 19, 2024
Authorities must meet a higher bar of disclosure in the case of a man who Ottawa claims is a different person, based on photo matching.
Abdiqani Ibrahim Ali made a claim in 2017 as a Somali national. However, in 2020, the Canada Border Services Agency initiated a process to revoke his refugee status, claiming he is actually a Kenyan citizen, two years older. Supplied
When Canadian authorities are trying to strip a former refugee’s status as a protected person and permanent residence, they must meet a higher bar of evidence disclosure, says the Federal Court.
In a case that involved the use of photo matching in identification, it’s not enough for the Canada Border Services Agency to just provide assurance that facial recognition technology was not employed, given the severe consequences of deporting a protected person to a place of danger, the court ruled.
Proceedings meant to take away the protection of someone who fled persecution require “a high level of procedural fairness,” Judge Michael Battista wrote in a decision released earlier this month.
“This includes a full opportunity for refugees to challenge the evidence supporting the request to vacate status, which in turn entails the provision of information to refugees regarding the source and methodology used to obtain the evidence being used against them.”
In 2017, Abdiqani Ibrahim Ali made a refugee claim as a Somalia national fleeing Al Shabab, which is a designated terrorist group in Canada. He was granted protection and ultimately became a permanent resident.
However, in 2020, the border agency initiated a process to revoke his refugee status, claiming the now 26-year-old Toronto man is actually a Kenyan citizen, two years older, who allegedly entered Canada on a student visa in 2016 and failed to show up at his classes in Manitoba.
How the authorities had come to that conclusion was at the centre of a hearing at the Refugee Protection Division tribunal tasked with determining if Ali obtained his asylum status by misrepresentation.
Concerned that some form of facial recognition technology — a practice fraught with implications of racial bias and privacy concerns — was used in assessing refugees, the man’s lawyer repeatedly seek disclosure of the method used to obtain and analyze the comparison photographs.
In response, the border agency provided an investigator’s affidavit, indicating that a confidential manual investigative technique was used and the photographs were taken from the immigration department’s case management system, London Regional Medical Office, and/or primary inspection kiosks at airports. There was no further information on how officials came to comparing and matching the photos of the two men.
Yet the adjudicator was satisfied with the border agency’s assurance that the photos were matched “manually” and in the end, revoked Ali’s status. It was appealed to the Federal Court.
Ruling in favour of the former refugee, the court chided the tribunal for failing to examine the evidence submitted by his lawyer that pointed to the physical differences between the two individuals: the scar above the right eyebrow of the Kenyan student that Ali does not have, as well as the different placements and shapes of their ears and eyes.
The Refugee Protection Division “relied on little more than its visual acuity to override the decision of another RPD panel granting refugee status,” wrote Battista. “In the process, it breached the Applicant’s right to procedural fairness by truncating his ability to test the evidence against him.”
Disclosure has to be “meaningful,” he noted, because it benefits the justice system as a whole and facilitates the search for truth, allowing access to information and the testing of assertions.
The judge was also troubled by the tribunal’s dismissal of evidence submitted by Ali, who travelled to Kenya in 2022 and obtained a letter from the Ministry of Foreign Affairs and International Trade confirming, based on his biometrics, that he’s not a Kenyan citizen by birth or any other way.
The tribunal refused to accept the letter as evidence because it was signed by someone other than the assistant director of the ministry, and Ali had not kept documentary proof of his approach to those Kenyan authorities, such as kiosk tickets.
“In stark contrast to its treatment of the Minister’s photographic evidence, the RPD adopted an overly stringent and therefore unreasonable analysis of the letter to impugn its origins and reliability,” said Battista in sending the case back to the tribunal for a new assessment.
Recognizing the tribunal is a quasi-judicial body that generally has more relaxed evidentiary rules, Battista said proceedings to revoke refugee status require higher standards, given the “adversarial” context, the highly contested nature of the evidence and potential for severe consequences.
The border agency told the Star it cannot disclose personal information or details on specific cases, citing privacy concerns.
“The CBSA is aware of the decision and is currently reviewing its implications and next steps,” said a spokesperson for the agency.
Tina Hlimi, lawyer for Ali, said she has found it unconvincing that officials actually combed through their databases manually to look for a photo match, and said any use of facial recognition technology should be subject to scrutiny.
“If that is the technology that they’re using and they’re withholding it, the respondent has the right to know so that they can challenge that,” Hlimi told the Star.
“Many of my clients have darker skin tones and we know there’s higher false positive matches, especially for women, because this technology has been tested mainly on Caucasian men. So it’s problematic.”
Hlimi is also pleased that the court recognizes the seriousness of revoking a refugee’s status as a protected person by raising the bar required for disclosure. She said it’s also significant that border officials are now compelled to provide meaningful disclosure in such proceedings.
“This is huge because disclosure requests kept on being denied for these cases,” said Hlimi. “There needs to be a better system in place so that if you do request disclosure, you get the disclosure for a situation where it’s like life and death.”
Ali said the court has only offered temporary relief as he is not allowed to work while his status is being sorted out.
He said he’s worried Canadian officials will either deport him to Kenya, where he doesn’t know anyone, or to Somalia, where he said his life would still be at risk. “It’s been very stressful time,” he told the Star. “I am still worried what would happen next.”