Date: 20190917

Docket: T-1094-18

Citation: 2019 FC 1177

Ottawa, Ontario, September 17, 2019

PRESENT: The Honourable Mr. Justice O'Reilly

BETWEEN:

GOVERNMENT OF THE PEOPLE'S

REPUBLIC OF BANGLADESH

Applicant

and

THE ATTORNEY GENERAL OF CANADA

AND NUR CHOWDHURY

Respondents

JUDGMENT AND REASONS

I. Overview

[1] In 1996, Mr Nur Chowdhury and his wife, citizens of Bangladesh, were granted visitor

status in Canada. Soon thereafter, they applied for refugee protection.

[2] Meanwhile, in Bangladesh, Mr Chowdhury was tried and convicted in 1998 in absentia

as a co-conspirator in the 1975 coup that resulted in the death of President Sheikh Mujibur
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Rahman and his family. President Rahman is considered by many to be the Father of the

Bangladeshi nation.

[3] In 2002, Mr Chowdhury and his wife were found to be excluded from refugee protection

for having committed a serious non-political crime. Then, in 2006, they were found to be

inadmissible to Canada for serious criminality.

[4] In 2009, Mr Chowdhury requested a pre-removal risk assessment (PRRA).

[5] Since 2010, Bangladesh has been in discussions with Canadian officials about Mr

Chowdhury’s status in Canada and has expressed concern about the delay relating to Mr

Chowdhury’s PRRA application. In 2018, the High Commissioner of Bangladesh wrote to the

Minister of Immigration, Refugees and Citizenship requesting that he invoke his powers under s

8(2)(m)(i) of the Privacy Act, RSC 1985, P-21, to disclose, in the public interest, information

about the status of Mr Chowdhury’s PRRA application and his immigration status in Canada.

[6] The Minister refused the High Commissioner’s request on the basis that the requirements

of s 8(2)(m)(i) had not been met, and that there was no information-sharing agreement between

Bangladesh and Canada. The High Commissioner sought to achieve a limited information-

sharing agreement with Canada, but the Minister refused.

[7] Bangladesh now seeks judicial review of the Minister’s decision to refuse to disclose the

status of Mr Chowdhury’s PRRA application. Bangladesh argues that the Minister applied the
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wrong test. In particular, Bangladesh maintains that the Minister failed to consider the public

interest in disclosure. In addition, Bangladesh submits that the Minister’s reasons for refusing its

request were inadequate.

[8] In response, the Minister, along with Mr Chowdhury, submits that Bangladesh’s request

is premature and non-justiciable. Further, the Minister says that the decision and reasons were

clear, and adequately accounted for the public interests at stake.

[9] In my view, Bangladesh’s application for judicial review should be allowed because the

Minister failed to give serious consideration to the public interest that would be served if the

information sought were disclosed.

[10] There are four issues:

1. Is the application for judicial review premature?

2. Should portions of the affidavits filed by Bangladesh be struck?

3. Is this matter justiciable?

4. Was the Minister’s decision unreasonable?

II. Issue One – Is the application for judicial review premature?

[11] The Minister and Mr Chowdhury argue that Bangladesh’s failure to file a complaint with

the Privacy Commissioner bars its application for judicial review in this Court. They say that it

would be open to Bangladesh to seek a judicial remedy later in the process if its complaint to the

Commissioner were unsuccessful.

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[12] I disagree. There is no requirement that the Privacy Commissioner conduct an

investigation before judicial review can be sought. The situation is different where information is

sought under s 12 of the Privacy Act; there, judicial review is available only after an

investigation by the Commissioner. But here, the request was made under s 8(2)(m)(i) and there

is no similar requirement for an investigation prior to making an application for judicial review.

[13] Further, the availability of a non-binding investigation by the Commissioner is not an

effective alternative remedy to judicial review (Canada (Syndicat des agents correctionnels) c

Canada (Procureur Général), 2019 CAF 212 at para 37).

III. Issue Two – Should portions of the affidavits filed by Bangladesh be struck?

[14] The Minister submits that much of the affidavit evidence filed by Bangladesh is of little

relevance and was not before the Minister when he rendered his decision. Therefore, that

evidence should be struck.

[15] I agree that evidence not before the Minister is not relevant to this application for judicial

review. Therefore, I have not considered it.

IV. Issue Three – Is this matter justiciable?

[16] The Minister submits that Canada’s communications with foreign states are conducted

pursuant to the Crown’s prerogative relating to foreign relations and not subject to judicial

review unless they affect individual rights (Black v Canada, (2001) 54 OR (3d) 215 at paras 47-

51 (ONCA)).
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[17] Mr Chowdhury maintains that Bangladesh has no standing to make the request because it

is not an individual under s 12 of the Privacy Act and is not a signatory to an information-sharing

agreement with Canada as recognized under s 8(2)(f) of the Act.

[18] I disagree both with the Minister and Mr Chowdhury. Bangladesh specifically requested

the Minister to act in accordance with s 8(2)(m)(i) of the Privacy Act for which there is no

exemption for the Royal Prerogative. It is only where a question is purely political and lacks a

sufficient legal component that the Court should decline to answer it (Reference re Canada

Assistance Plan (BC), [1991] 2 SCR 525 at 545), which is not the case here.

[19] The Minister’s decision was not purely political, or primarily within the ambit of foreign

affairs. It was simply the product of an interpretation of a federal statute, and is therefore

justiciable.

V. Issue Four – Was the Minister’s decision unreasonable?

[20] The Minister and Mr Chowdhury submit that the Minister’s decision was reasonable

because there was simply no public interest that would justify disclosure of the requested

information. They say that disclosure of the kind of personal information sought by Bangladesh

would be exceptional (Canada (Minister of Public Safety and Emergency Preparedness) v

Kahlon, 2005 FC 1000 at para 36).

[21] Further, the Minister and Mr Chowdhury argue that the request by Bangladesh was

merely an informal inquiry not requiring a formal response. Further, they say that Bangladesh

failed to articulate what public interest would be served by disclosing the information it sought.
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[22] In addition, the Minister and Mr Chowdhury submit that there is an important privacy

interest in information relating to a PRRA application. Only where the expectation of privacy of

the individual involved is minimal or inconsequential should it be disclosed.

[23] Finally, the Minister and Mr Chowdhury maintain that the Minister provided adequate

reasons for refusing to disclose the requested information, and he provided an example of where

the public interest might outweigh privacy concerns (Alberta (Information and Privacy

Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, at paras 51-55).

[24] I cannot agree with the submissions of the Minister and Mr Chowdhury. While the

Minister stated the correct test, he either did not apply that test or failed to explain how he was

applying it.

[25] I would first point out that the request from Bangladesh was actually characterized and

treated as a formal request.

[26] The Minister stated the test as requiring that the public interest clearly outweigh any

invasion of privacy. He went on: “the rationale for disclosure must clearly demonstrate that the

public interest is such that the expectation of privacy on the part of the individual is minimal or

inconsequential.” This test amounts to a weighing of the public interest against privacy concerns.

[27] Bangladesh stated that disclosure would enable it to seek legal advice in respect of Mr

Chowdhury’s case. It also maintained that disclosure would further the relationship between
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Canada and Bangladesh. Finally, Bangladesh observed that the people of Canada and

Bangladesh would be well-served by ensuring that convicted criminals are not allowed to live

freely.

[28] None of those factors was mentioned by the Minister. In the departmental advice the

Minister received and apparently relied on, the sole consideration was the fact that Mr

Chowdhury might be harmed by the disclosure and that the consequences could be severe. That

is obviously a relevant and important factor, but it is not the only one. That factor must be

weighed against the public interest in disclosure.

[29] It appears, therefore, that the Minister failed to balance the applicable considerations.

Alternatively, the Minister’s reasons are deficient for failing to mention the appropriate criteria

(Leahy v Canada (Citizenship and Immigration), 2012 FCA 227 at paras 119-123,141-144).

VI. Conclusion and Disposition

[30] The Minister did not apply the proper test in deciding whether to disclose the information

Bangladesh requested. Alternatively, the Minister’s reasons are inadequate for failing to address

the relevant criteria.

[31] I must, therefore, allow this application for judicial review and remit the decision back to

the Minister for redetermination, with costs.

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JUDGMENT IN T-1094-18

THIS COURT’S JUDGMENT is that the application for judicial review is allowed,

with costs.

"James W. O'Reilly"
Judge
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Annex

Privacy Act, RSC 1985, P-21 Loi sur la protection des

renseignements personnels,
LRC (1985) ch P-21

Where personal information Cas d’autorisation

may be disclosed

8 (2) Subject to any other 8 (2) Sous réserve d’autres

Act of Parliament, personal lois fédérales, la
information under the control communication des
of a government institution renseignements personnels qui
may be disclosed relèvent d’une institution
fédérale est autorisée dans les
cas suivants :

… […]

(f) under an agreement or f) communication aux

arrangement between the termes d’accords ou
Government of Canada or d’ententes conclus d’une
any of its institutions and part entre le gouvernement
the government of a du Canada ou l’un de ses
province, the council of the organismes et, d’autre part,
Westbank First Nation, the le gouvernement d’une
council of a participating province ou d’un État
First Nation as defined in étranger, une organisation
subsection 2(1) of the First internationale d’États ou de
Nations Jurisdiction over gouvernements, le conseil
Education in British de la première nation de
Columbia Act, the council Westbank, le conseil de la
of a participating First première nation
Nation as defined in section participante — au sens du
2 of the Anishinabek paragraphe 2(1) de la Loi
Nation Education sur la compétence des
Agreement Act, the premières nations en
government of a foreign matière d’éducation en
state, an international Colombie-Britannique —,
organization of states or an le conseil de la première
international organization nation participante — au
established by the sens de l’article 2 de la Loi
governments of states, or sur l’accord en matière
any institution of any such d’éducation conclu avec la
government or Nation des Anishinabes —
organization, for the ou l’un de leurs
purpose of administering or organismes, en vue de
 Page: 10

enforcing any law or l’application des lois ou

carrying out a lawful pour la tenue d’enquêtes
investigation; licites;

… […]

(m) for any purpose where, m) communication à toute

in the opinion of the head autre fin dans les cas où, de
of the institution, l’avis du responsable de
l’institution :

(i) the public interest in (i) des raisons d’intérêt

disclosure clearly public justifieraient
outweighs any invasion nettement une
of privacy that could éventuelle violation de
result from the la vie privée, …
disclosure …

Right of access Droit d’accès

12 (1) Subject to this Act, 12 (1) Sous réserve des

every individual who is a autres dispositions de la
Canadian citizen or a présente loi, tout citoyen
permanent resident within the canadien et tout résident
meaning of subsection 2(1) of permanent au sens du
the Immigration and Refugee paragraphe 2(1) de la Loi sur
Protection Act has a right to l’immigration et la protection
and shall, on request, be given des réfugiés ont le droit de se
access to: faire communiquer sur
demande :

(a) any personal a) les renseignements

information about the personnels le concernant et
individual contained in a versés dans un fichier de
personal information bank; renseignements personnels;
and

(b) any other personal b) les autres

information about the renseignements personnels
individual under the control le concernant et relevant
of a government institution d’une institution fédérale,
with respect to which the dans la mesure où il peut
individual is able to fournir sur leur localisation
provide sufficiently des indications
specific information on the suffisamment précises pour
location of the information que l’institution fédérale
as to render it reasonably puisse les retrouver sans
 Page: 11

retrievable by the problèmes sérieux

government institution.

Other rights relating to Autres droits

personal information

(2) Every individual who is (2) Tout individu qui reçoit

given access under paragraph communication, en vertu de
(1)(a) to personal information l’alinéa (1)a), de
that has been used, is being renseignements personnels qui
used or is available for use for ont été, sont ou peuvent être
an administrative purpose is utilisés à des fins
entitled to administratives, a le droit :

(a) request correction of the a) de demander la

personal information where correction des
the individual believes renseignements personnels
there is an error or le concernant qui, selon lui,
omission therein; sont erronés ou incomplets;

(b) require that a notation b) d’exiger, s’il y a lieu,

be attached to the qu’il soit fait mention des
information reflecting any corrections qui ont été
correction requested but demandées mais non
not made; and effectuées;

(c) require that any person c) d’exiger :

or body to whom that
information has been
disclosed for use for an
administrative purpose
within two years prior to
the time a correction is
requested or a notation is
required under this
subsection in respect of that
information

(i) be notified of the (i) que toute personne

correction or notation, ou tout organisme à qui
and ces renseignements ont
été communiqués pour
servir à des fins
administratives dans les
deux ans précédant la
demande de correction
ou de mention des
 Page: 12

corrections non
effectuées soient avisés
de la correction ou de la
mention,

(ii) where the (ii) que l’organisme,

disclosure is to a s’il s’agit d’une
government institution, institution fédérale,
the institution make the effectue la correction
correction or notation ou porte la mention sur
on any copy of the toute copie de
information under its document contenant les
control. renseignements qui
relèvent de lui.

Extension of right of access by Extension par décret

order

(3) The Governor in (3) Le gouverneur en

Council may, by order, extend conseil peut, par décret,
the right to be given access to étendre, conditionnellement ou
personal information under non, le droit d’accès visé au
subsection (1) to include paragraphe (1) à des individus
individuals not referred to in autres que ceux qui y sont
that subsection and may set mentionnés.
such conditions as the
Governor in Council deems
appropriate.
 FEDERAL COURT

SOLICITORS OF RECORD

DOCKET: T-1094-18

STYLE OF CAUSE: GOVERNMENT OF THE PEOPLE'S REPUBLIC OF

BANGLADESH v THE ATTORNEY GENERAL OF
CANADA AND NUR CHOWDHURY

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: March 25, 2019

JUDGMENT AND REASONS: O'REILLY J.

DATED: September 17, 2019

APPEARANCES:

John Terry FOR THE APPLICANT

Ryan Lax
Jonathan Silver

James Todd FOR THE RESPONDENT

Veronica Cham THE ATTORNEY GENERAL OF CANADA

Unrepresented FOR THE RESPONDENT NUR CHOWDHURY

SOLICITORS OF RECORD:

Torys LLP FOR THE APPLICANT

Barristers and Solicitors
Toronto, Ontario

Deputy Attorney General of FOR THE RESPONDENT

Canada THE ATTORNEY GENERAL OF CANADA
Toronto, Ontario
Jackman, Nazami and Associates FOR THE RESPONDENT NUR CHOWDHURY
Barristers and Solicitors
Toronto, Ontario