InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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AB v. Minister of Citizenship and Immigration
Indexed as: AB v. Canada (Minister of Citizenship and Immigration)

File No.:	IMM-1683-01
References:	2002 FCT 471; [2002] F.C.J. No. 610 (QL) (F.C.T.D.)
Date of decision:	April 26, 2002
Before:	O'Keefe J.
Section(s) of ATIA / PA:	S. 8(2)(a), (b) Privacy Act (PA)

Abstract

• Disclosure, consistent use and statutory/regulatory authorization
• Paras. 8(2)(a) and (b) not blanket endorsements for personal information of refugees to be shared at all refugee hearings
• Disclosure of personal information concerning one refugee claimant for purposes of using that information at another refugee's hearing not a "consistent use"
• Subs. 69(3) Immigration Act and Rule 28 Convention Refugee Determination Division Rules not constituting para. 8(2)(b) authority

Issue

Is the decision of the Immigration and Refugee Board, Convention Refugee Division, (the "Board") to disclose the applicant's personal information unlawful, in that the disclosure was for a purpose and to an extent not permitted under the Privacy Act?

Facts

This was an application for judicial review made under s. 18.1 of the Federal Court Act.

The applicant, AB, is a Peruvian citizen and a high-profile international athlete. The applicant came to Canada in 1999 to compete in the Pan-American Games in Winnipeg as a member of Peru's wrestling team. The applicant made a refugee claim, based on his fear of persecution by the government of Peru. The applicant was determined by the Board to be a Convention refugee on January 28, 2001.

At the same Pan-American Games, another member of the Peruvian wrestling team ("Luis Bazan"), also made a refugee claim. At the time of the s. 18.1 application, Bazan's claim had not been determined.

The applicant was informed that the Board intended to disclose his Personal Information Form, as well as the transcript, reasons and exhibits from his refugee hearing, and submit them into evidence at the hearing of Bazan. The applicant was invited to submit to the Board any objections in writing, which he did.

Despite the applicant's stated objections, the Board submitted the information at issue into evidence at the hearing of refugee claimant Bazan. This decision was communicated to the applicant by telephone on March 22, 2001. This s. 18.1 application is made against that decision.

The applicant submits that para. 8(2)(a) of the PA must be interpreted so as to protect the confidentiality of an individual's personal information to the greatest extent possible. The respondent argues, on the other hand, that the caselaw supports a broad and inclusive interpretation of "consistent use". The Board submits that it is appropriate for it, under para. 8(2)(a) PA, to consider evidence from other refugee claims where two or more claims are closely linked.

Decision

The application for judicial review was allowed and the decision of the Board to release the applicant's confidential information was set aside¹. It was declared that the Board's decision to release the applicant's confidential information was unlawful and the Board was prohibited from further releasing the applicant's confidential information without the applicant's consent.

Reasons

The record of the applicant's refugee claim qualified as personal information under the control of a government institution. As such, unless the consent of the individual concerned is granted (as required under subs. 8(1) of the PA) one of the paragraphs in subs. 8(2) must be invoked to justify the disclosure.

Paragraphs 8(2)(a) and (b) were definitely not intended as a blanket endorsement for personal information of refugees to be shared at all refugee hearings. Moreover, each case must be dealt with on its own merits.

An example of a "consistent use" under para. 8(2)(a) of the Privacy Act included the situation where an individual provided contradictory evidence as a witness in a second refugee hearing than he had provided during his own refugee hearing. In that situation, which the Privacy Commissioner considered as falling within para. 8(2)(a), the individual concerned brought his own personal information into question at the second refugee hearing by testifying about the same information provided at his hearing (although in a contradictory manner). According to the Court, that situation was clearly distinguishable from the present case where the applicant claimed to hardly know the other refugee claimant and had no intention of participating in that claimant's hearing.

In this case, the purpose for which the information was obtained was the determination of the applicant's claim for Convention refugee status. In order for the disclosure of the applicant's personal information to be justified under this section, the use of that information must be a use consistent with the purpose for which the information was collected. The Court did not find that the determination of the refugee claim of the other applicant was consistent with the purpose of determining the applicant's claim for Convention refugee status.

Counsel did not direct the Court to any Act of Parliament or any regulation made thereunder that authorized the disclosure of the applicant's personal information contained in his refugee record. Therefore para. 8(2)(b) did not apply. Although subs. 69(3) of the Immigration Act and Rule 28 of the Convention Refugee Determination Division Rules were considered, the Court was of the view that they did not provide satisfactory authority for the disclosure of the personal information. Subsection 69(3) provides a mechanism to ensure confidentiality of proceedings where the Board's proceedings are being held in public. In the instant case, what was at issue was the confidentiality of the record of a refugee claimant after the Board had concluded proceedings and made a final determination with respect to that refugee claimant. The Court thus found that subs. 69(3) was not directly applicable to the situation at hand. As for Rule 28², it confers on the Board a broad discretion to make decisions relating to the determination of Convention refugees. However, in the Court's view, it was not clear that this broad discretion was intended to authorize the disclosure of personal information that would otherwise be protected under the Privacy Act.

Paragraphs 8(2)(c) through (m) were found not to be applicable to the situation at hand. Rule 28(1) provides that "Every application that is not provided for in these Rules shall be made by a party to the Refugee Division by motion, unless, where the application is made during a hearing, the members decide that, in the interests of justice, the application should be dealt with in some other manner." Rule 28(9) states that "The Refugee Division, on being satisfied that no injustice is likely to be caused, may dispose of a motion without a hearing.".

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