Order-in-Council on Avoiding Complicity in Mistreatment by Foreign Entities: 2023 Annual Report

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Introduction

In accordance with subsection 7(1) of the Avoiding Complicity in Mistreatment by Foreign Entities Act (ACMFEA), this report is presented to the Minister of Immigration, Refugees and Citizenship, and describes the activities that Immigration, Refugees and Citizenship Canada (IRCC) has undertaken between January 1, 2023 and December 31, 2023, to ensure compliance with the Order-in-Council on Directions for Avoiding Complicity in Mistreatment by Foreign Entities.

Background

On September 4, 2019, IRCC was issued an Order-in-Council on its information sharing practices pursuant to Section 3(1) of the ACMFEA. The Order-in-Council directs that:

1. No disclosure of information be made to a foreign entity, which would result in a substantial risk of mistreatment of an individual, unless it is determined that the risk can be mitigated.
2. No request for information be made to a foreign entity, which would result in a substantial risk of mistreatment of an individual, unless it is determined that the risk can be mitigated.
3. No information that was likely obtained through the mistreatment of an individual by a foreign entity be used in any way that: a) creates a substantial risk of further mistreatment; b) as evidence in any judicial, administrative or other proceeding; or, c) in any way that deprives someone of their rights or freedoms unless the Deputy Minister or, in exceptional circumstances, a senior Department of Citizenship and Immigration official designated by the Deputy Minister determines that the use of the information is necessary to prevent loss of life or significant personal injury and authorizes the use accordingly.

Since 2019, IRCC has established and maintained policies and procedures to ensure compliance with the ACMFEA, including a risk assessment tool for officers contemplating information exchanges with foreign entities; a consultation process for officers seeking risk assessment and guidance for a specific case; and, an ad hoc Avoiding Complicity Assessment Committee to be called in the event there is a need to reassess risk or risk mitigation strategies.

International Information Sharing Practices at IRCC

IRCC undertakes information exchanges with international partners to aid in the administration of legislation for which the Minister is responsible (the Immigration and Refugee Protection Act, the Citizenship Act, and the Canadian Passport Order) and to fulfill its mandate to facilitate the travel and integration of people to Canada, while maintaining the safety and security of Canadians.

International information sharing is a valuable tool that helps IRCC to, inter alia:

• Verify the identity of IRCC applicants, which supports application processing and simplifies entry for legitimate travellers; and
• Strengthen officers’ decision-making by providing access to records that may be pertinent to determining an individual’s eligibility and/or admissibility to Canada, including whether an individual poses a risk to the safety and security of Canadians.

International Information Sharing Arrangements

IRCC continues to utilize its information sharing arrangements with trusted international partners – Australia, New Zealand, the United Kingdom, and the United States. It is in accordance with these information sharing arrangements that the vast majority of IRCC’s information sharing takes place. These administrative arrangements are available to the public and expressly preclude the sharing of information that may place an individual or their family at risk of serious or significant harm, including refoulement, persecution, torture or any other type of harm. Information is only shared with partner countries in a manner that respects privacy laws, civil liberties and human rights.

• In 2023, IRCC did not establish any new information sharing arrangements with foreign entities.

Other International Information Sharing

In certain circumstances, IRCC may also exchange information with a foreign partner with whom it does not have an agreement or arrangement, as authorized by Section 8 of the Privacy Act.

Depending on the circumstances, exchanges of this nature are only conducted at the discretion of an officer or other delegated official after considering the relevant authorities and the intended use of the information, including the likelihood of it leading to the substantial mistreatment of an individual. Officers are instructed to ensure that all exchanges are recorded for tracking purposes.

Implementing Avoiding Complicity in Mistreatment

IRCC continues to monitor, maintain and support the existing processes and procedures that were initially established in response to the receipt of the Order-in-Council in 2019.

Legal Requirements of the ACMFEA

• The annual report for calendar year 2022 was submitted to the Minister as required, and has been made available to the public. The report can be found online here.

Internal Activities

• In the 2023 calendar year, IRCC launched a review of existing program delivery instructions to provide officers with additional background information about the ACMFEA and the Order-in-Council.
• IRCC continued updating the country-level risk assessment tool that is used in the triage process. When approved, this assessment tool will allow officers to develop in-house country risk profiles.
• Moreover, IRCC continued raising awareness of the ACMFEA policies and procedures through regular training sessions for officers departing for overseas and domestic postings.

Inter-Agency Cooperation

• In the 2023 reporting period, IRCC and the Canadian Border Service Agency have established a joint working group to explore ways to align the assessment of a foreign entity when a case falls under both organization’s mandates.
• IRCC continued to participate in regular inter-departmental discussions, led by Public Safety, along with other subject departments and agencies with the express intent to facilitate greater collaboration and information-sharing between members as they implement the ACMFEA and the corresponding Order in Council on Directions for Avoiding Complicity in Mistreatment by Foreign Entities.
• IRCC also responded to the National Security and Intelligence Review Agency’s (NSIRA) requests for information on the Department’s policies and procedures for implementing the ACMFEA. This request for information served as part of NSIRA’s annual review of the Implementation of the ACMFEA across the Government of Canada.

Activity Report

Within the reporting period, there were twelve (12) cases where officers requested a further risk assessment pursuant to IRCC’s policies and procedures.

There has been an increase in cases in the 2023 reporting period compared to the previous reporting period. This increase is related to the Government of Canada resettlement commitment towards Afghans.

“Disclosure” cases resulting from requests by foreign entities for information, requiring additional risk assessment

• IRCC assessed ten (10) cases of disclosure of information from which eight (8) were completed, and two (2) are still in progress.

“Request” cases requiring additional risk assessment

• IRCC started assessing two (2) cases of request for information. Both cases are still in progress.

“Use” cases requiring additional risk assessment

• IRCC had no cases in the 2023 reporting period.

Cases requiring referral to the Avoiding Complicity Assessment Committee

• IRCC had no cases in the 2023 reporting period.

Cases carried over from the 2022 reporting period.

• In the 2023 reporting period, IRCC completed one case (with a recommendation for limited disclosure) that was carried over from the 2022 reporting period. IRCC also closed a case (with no disclosure taking place) that was listed as “suspended until further notice” in the 2022 reporting period.