Date: 20030923
Docket: IMM-3197-02
Citation: 2003 FC 1088
BETWEEN:
GUI LAN SHI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The substantive issue raised in this application for judicial review is whether the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") committed a reviewable error by permitting two redacted Personal Information Forms ("PIFs") filed in other cases to be received as evidence at the hearing to determine whether Ms. Shi is a Convention refugee. Ms. Shi argues that by so proceeding, the CRDD violated the privacy rights of the persons whose PIFs were referred to, and that the effect of this violation of the Privacy Act, R.S.C. 1985, c. P-21 is to taint or vitiate the hearing held into Ms. Shi's claim. The issue arose in the following context.
[2] Ms. Shi is a citizen of the People's Republic of China who claims status as a Convention refugee on the basis of being an adherent and follower of the Tian Dao religion. Ms. Shi initially came to Canada on a business trip accompanied by two colleagues from the same employer in China. During the course of processing her refugee claim a Refugee Case Officer ("RCO") learned that both of Ms. Shi's colleagues had also claimed refugee status in Canada. A review of their files and PIFs disclosed that their claims were also based on their adherance to Tian Dao, and that all three claimants retained the same immigration service and made their claims at the same Citizenship and Immigration center within a few days of each other. Further, there was a striking similarity between the PIFs of the three individuals.
[3] Having learned this, the RCO moved at a pre-hearing conference to place the PIFs of the two other claimants before the panel of the CRDD which would consider Ms. Shi's claim. Ms. Shi's lawyer objected to this. In response, the panel member directed that the other two claimants be subpoenaed as Board witnesses to attend Ms. Shi's hearing, at which time they would be entitled to raise any objection to their PIFs being used.
[4] In the result, one of the claimants was served with a subpoena and attended with counsel at the hearing into Ms. Shi's claim before the CRDD ("first claimant"). The other claimant ("second claimant") did not appear, and there is doubt as to whether he was properly served with a subpoena. Prior to the commencement of Ms. Shi's hearing the first claimant consented to his PIF being filed, on the basis that it be sanitized so as to remove any identifying information about the first claimant and on the understanding that the first claimant need not testify. Ms. Shi's lawyer made no objection to this. I note that Ms. Shi is represented by different counsel before this Court.
[5] With respect to the PIF of the second claimant who did not appear, the CRDD noted that neither his PIF nor the PIF of the first claimant included the normal covering page which warns claimants that their PIF could be used in other hearings. Therefore, the panel did not know if the second claimant had been warned of this. Notwithstanding, the panel accepted the second PIF into evidence, again redacting it so as to delete the same identifying information that had been removed from the PIF of the first claimant.
[6] Ms. Shi testified in support of her claim and was examined by the RCO. At the conclusion of the hearing the panel rendered a negative oral decision. The CRDD did not find Ms. Shi's testimony to be credible, and determined that Ms. Shi had concocted her story in order to claim refugee status in Canada. Key to this conclusion was what the CRDD described to be the "incredible coincidence" of the three similar claims, and Ms. Shi's lack of concern at that coincidence. The panel found it implausible that Ms. Shi would not be more surprised at learning that two persons she had worked with for a number of years were Tian Daoists and had made refugee claims within a few days of her own claim.
[7] Subsequent to rendering its oral decision and to signing confirmatory written reasons, the CRDD became aware of the decision of Mr. Justice O'Keefe in A.B. v. Canada (Minister of Citizenship and Immigration), [2003] 1 F.C. 3 (T.D.). The panel then rendered supplementary reasons in which the CRDD observed that "[w]hile the panel is of the view that it is, now, functus, in this matter, [the A.B.] decision indicates that further information should be made available". The CRDD went on to say that even if it had been aware of the decision in A.B. when rendering its original decision it would have received the PIFs into evidence. Alternatively, the CRDD said that it would have come to the same conclusion on the basis of reliance upon only the first claimant's PIF which was received in evidence with its maker's consent.
[8] I place no reliance on those supplementary reasons. I agree that the CRDD was functus when it purported to deliver supplementary reasons. No weight can or should be given to its subsequent observations.
[9] Ms. Shi now argues that the CRDD erred in admitting into evidence information from the PIFs of the two other claimants and erred in finding Ms. Shi not to be credible. While other grounds of error, including bias, were asserted in the written submissions filed on Ms. Shi's behalf, those grounds were not pursued in oral argument.
(i) The Receipt of the two PIFs
[10] Ms. Shi relies upon the decision of Mr. Justice O'Keefe in A.B. to the effect that the record of a claimant's refugee claim qualifies as personal information under the control of a government institution, within the contemplation of the Privacy Act. She argues that, as such, unless a claimant consents to its use this information can only be disclosed as permitted by subsection 8(2) of the Privacy Act. While paragraph 8(2)(a) of the Privacy Act authorizes disclosure for a purpose for which the information was obtained or for a use consistent with that purpose, Mr. Justice O'Keefe found that the determination of another person's refugee claim was not a use consistent with the purpose of determining a claimant's refugee claim. It followed that absent a claimant's consent, the CRDD could not release a claimant's personal information to another refugee claimant.
[11] It follows, Ms. Shi argues, that the release of the other claimants' information was in violation of the Privacy Act. To the extent that the first claimant consented to the use of his redacted PIF, Ms. Shi argues that there is no evidence as to whether such consent was freely given and also that the first claimant's consent was predicated upon not being required to testify or to be cross-examined. This is said to be of concern to Ms. Shi.
[12] In response, counsel for the Minister concedes that the procedure followed in this case "is not a beacon for how to proceed". Having said that, the Minister argues that the determinative issue is whether there is reason to overturn the decision because of an asserted violation of the Privacy Act. While conceding that the entire refugee file of a claimant, including tombstone information, the claimant's narrative and PIF, is personal information under the control of a government institution, the Minister argues that there was no improper disclosure of the information or, alternatively, that Ms. Shi does not have standing to assert the breach of someone else's privacy right. The Minister concedes that the decision to admit the PIFs into evidence is properly reviewable in this application. The contrary position had been asserted in the Minister's written submissions.
[13] In considering the submissions, I observe at the outset that it is too late, in my view, for Ms. Shi to complain that there is no evidence as to whether consent was freely given by the first claimant to the use of the redacted version of his PIF. Similarly, it is too late for any complaint to be made that Ms. Shi's counsel was not permitted to cross-examine that complainant. Ms. Shi's counsel made no objection on either of these grounds to the CRDD, and appeared to go along with the procedure followed by the CRDD. Objections of this nature which are not raised before the CRDD cannot be raised in this Court as grounds for judicial review.
[14] It follows that the PIF tendered with its maker's consent was properly received into evidence as being relevant, and because of the maker's consent to the use no issue of violation of the Privacy Act arises.
[15] With respect to the propriety of the use of the second PIF, assuming without deciding, that the PIF was used in a fashion which violated the privacy rights of the maker of the PIF, I am satisfied that Ms. Shi cannot rely upon such use to argue that the decision of the CRDD should be set aside.
[16] Counsel could not refer the Court to any authority on the point, but I find the decision of the Supreme Court of Canada in R. v. Edwards, [1996] 1 S.C.R. 128 to be of assistance. There, the accused had been suspected of drug dealing and of keeping drugs at his girlfriend's apartment. The police arrested the accused on a charge of driving while suspended. Then, police officers called at the accused's girlfriend's apartment and gained her cooperation through a number of statements which were described to be lies and half-truths. The accused's girlfriend then directed the police to a significant cache of drugs, and named the accused as the person who put the drugs in her apartment. The accused asserted that the search of his girlfriend's apartment was a constructive break-in, which violated his rights protected by section 8 of the Canadian Charter of Rights and Freedoms ("Charter") (which protects against unreasonable search and seizure). At issue before the Supreme Court was whether the accused had the right to challenge the admission of evidence obtained as a result of a search of a third party's premises. The majority of the Supreme Court found that a claim for relief under the Charter could only be made by the person whose Charter rights have been infringed. By finding that section 8 of the Charter is a personal right, the Court held that the right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.
[17] Similarly, I find on a reading of the whole of the Privacy Act that the rights protected by that Act are personal to those whose personal information is under the control of a government institution. As noted in section 2 of the Privacy Act, the purpose of the Act is "to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves" [underlining added]. It follows that only that person may complain if their personal information is used other than with their consent or as permitted by the Privacy Act. It further follows that Ms. Shi cannot rely upon any asserted violation of another claimant's rights protected by the Privacy Act.
[18] In this circumstance it is not necessary for me to consider whether there was any breach of the Privacy Act. The evidence was uncertain with respect to the knowledge of the second complainant about Ms. Shi's proceeding and the potential use of his PIF. This fact, combined with the relatively undeveloped nature of the submissions advanced on the application for judicial review lead me to conclude that it is preferable that I not reach a conclusion on the point.
(ii) The Credibility Finding
[19] The credibility finding made by the CRDD was primarily based upon the similarities in the evidence of the three claimants. Since I have found no error in receiving into evidence the one PIF with its maker's consent, and have found that in the circumstances the receipt of the second PIF into evidence is not a ground for judicial review, I conclude that the credibility finding is supported by the evidence and is not patently unreasonable.
CONCLUSION
[20] It follows that the application for judicial review will be dismissed. Counsel have seven days from the date of receipt of these reasons to serve and file correspondence setting forth any submissions with respect to certification of a question. Thereafter, counsel have a further period of three days from receipt of the opposite party's submissions to serve and file any reply submissions.
[21] Thereafter, following consideration of the submissions on certification, an order will issue dismissing the application for judicial review.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
September 23, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3197-02
STYLE OF CAUSE: Gui Lan Shi v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 4, 2003
REASONS FOR ORDER: Hon. Madam Justice Dawson
DATED: September 23, 2003
APPEARANCES:
Nancy Myles Elliott FOR THE APPLICANT
Catherine Vasilaros FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nancy Myles Elliott
Barrister and Solicitor
Markham, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General FOR THE RESPONDENT
of Canada