Immigration Minister Jason Kenney and his officials at Citizenship and Immigration Canada are making a mockery of Canada’s privacy laws by forcing foreign nationals, and possibly permanent residents, to agree to the release of their personal information to any and all foreign governments.
Last week, immigration lawyers discovered that the form used by foreign nationals for an extension of their stay in Canada (Form IMM1249) contains some new and disturbing language.
The new form readily acknowledges that by virtue of Canada’s Privacy Act “individuals have the right to protection of and access to their personal information.” Nonetheless, the form declares that the applicant’s personal information may be shared not only with the CBSA, the RCMP and CSIS but also with any “foreign governments.”
The applicant is required to agree that they are “not obliged to consent” to the release of the information, but they must acknowledge that “failure to do so will mean that the request will not be processed.”
This seems to be a violation of the Immigration and Refugee Protection Act which states that an officer “shall” extend the status of a foreign national in Canada if the officer feels that the applicant continues to meet the requirements for temporary status here. There is no requirement found in IRPA for the consent that is now being demanded. In any event, since this “consent” cannot be refused, it can hardly be called a “consent” at all.
It appears that the immigration department is attempting to impose a new requirement in the immigration application process that is not sanctioned anywhere in our immigration laws and which may also, in fact, amount to a violation of the letter, if not the spirit, of Canada’s Privacy Act.
According to Douglas Kellam, spokesman for CIC, this “generic message” is currently being implemented in thirty or so immigration application forms.
Given the significant privacy rights at stake by this development I contacted Ann-Marie Hayden, media relations officer for Canada’s Privacy Commissioner, who confirmed that her office was not consulted prior to the development of this dubious initiative.
It seems that this week I have more questions than I have answers.
Why was this change needed? Is it legal? When, if ever, does this “consent” expire? Can it be withdrawn? Will the applicant be told when his information is disclosed to a foreign government? What protection will be afforded to those who may face risk abroad as a result of the release of personal information? For example, if a foreigner enters into a same-sex marriage in Canada, can that information be released to the applicant’s government which views homosexuality as a serious crime? Will CIC return applications that have already been executed on the old forms? If so, when will this start? Or, has it already started?
While we await the answers to these questions, those facing the imminent expiry of their temporary status in Canada should immediately seek legal advice should they be concerned about the consequences of the possible release of their personal information.
Jennifer Stoddart, Canada’s Privacy Commissioner, states that it is her job “to heighten the value of privacy in a global society where security, trade, technology and consumer expectations have created a volatile atmosphere for our personal information.” She concedes that “governments have a seemingly insatiable appetite for personal information” and that privacy rights often receive “short shrift” as new anti-terrorism and law enforcement initiatives are rolled out.
This week, CIC has proven her right.
What remains to be seen is, will CIC get away with it?
Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an
immigration specialist. Reach him confidentially at 416-862-0000 or at