Memorandum of Understanding between the Department of Citizenship and Immigration of Canada and the Canada Border Services Agency and the Department of Immigration and Border Protection of the Commonwealth of Australia Regarding the Exchange of Information
The Department of Citizenship and Immigration of Canada and the Canada Border Services Agency (CBSA), on the one side, and the Department of Immigration and Border Protection of the commonwealth of Australia (DIBP), on the Other side, each side hereinafter referred to as a “Participant” and collectively referred to as the “Participants”,
Having Regard for the longstanding cooperative relationship between the immigration authorities in Canada and Australia;
Considering global patterns in regular and irregular migration and that the compelling need to welcome migrants and confer protection on those who need it, while tackling identity-related fraud and abuse of immigration and citizenship laws, including those governing Refugee Resettlement and Asylum Systems, is important to maintain the prosperity and security of their respective countries;
Confirming that this Memorandum of Understanding (MOU) is intended to facilitate the exchange of Information between the Participants to support the administration and enforcement of their respective immigration and citizenship laws, including those governing Refugee Resettlement and Asylum Systems, with due regard to their national and international human rights obligations; and,
Recognising the need to establish a mechanism for the exchange of Information in a manner that respects privacy and civil liberties;
Acknowledging that the identification of individuals who are inadmissible under their respective laws enhances their ability to facilitate the travel of bona fide visitors;
Have come to the following understanding:
1. Scope and Purpose
- This MOU regarding the exchange of Information establishes the framework to facilitate the exchange of information between the Participants, pursuant to their respective domestic laws, common law powers, regulations and policies.
- The purpose of the exchange of Information under this MOU is to assist in the administration and enforcement of the Participants’ respective immigration and citizenship laws, including those governing their Refugee Resettlement and Asylum Systems.
- This MOU is not intended to affect the exchange of Information between the Participants under other established Information exchange arrangements or agreements.
For the purpose of this MOU:
- “Information” means data collected or used for the purpose of administering or enforcing the Participants’ respective domestic immigration and citizenship laws, including those governing their Refugee Resettlement and Asylum Systems, and includes, but is not limited to, Personal Information, policy documents and best practices, procedures, trend analysis, and statistical data. For Canada, “Information” also means data collected under Canada’s Customs Act that relate to the movement of people or establishing identity.
- “In Writing” refers to communications using text, including those in electronic or automated format;
- “Personal Information” means Information that relates to an individual who can be identified (i) from that Information or (ii) from that Information and other Information that is in the possession of, or is likely to come into the possession of, the Participant, including personal identifiers such as biographic details or biometrics, any immigration or citizenship decisions made in relation to the individual, and any indication of intent on the part of the Participant or any other person that would have the effect of identifying the individual; and,
- “Refugee Resettlement and Asylum System” means the sum of laws, policies and administrative and judicial practices employed by each of the Participants’ domestic governments for the purpose of assessing asylum claims and refugee resettlement applications.
3. General - Exchange of Information
- Pursuant to this MOU, the Participants intend to securely exchange Information, including Personal Information, for the purpose set out in paragraph 1(b).
- The Participants will carry out exchanges pursuant to relevant Annexes developed by mutual consent under this MOU. The Participants understand that:
- the Annexes will set out any additional details about the Information that may be exchanged, methods of exchange, storage and retention, any operational procedures or additional security mechanisms, or other safeguards to be followed; and,
- the Annexes will remain subject to this MOU and are intended to be consistent with the terms of this MOU and the Participants’ respective domestic laws, regulations and policies.
- A Participant may initiate an exchange of Information by requesting Information from the other Participant or by providing the other Participant with Information because it is relevant to the purpose set out in paragraph 1(b).
- The Participants intend to initiate all exchanges of Information In Writing. If it is not reasonably practicable to initiate the exchange of Information In Writing prior to the exchange of said Information, the initiating Participant will confirm the exchange In Writing as soon as possible after the request is made or the Information is provided.
- The Annexes to this MOU may, where specified, constitute a prior arrangement In Writing for the exchange of the Information specified therein that satisfies the need to request Information or initiate exchanges In Writing as detailed in paragraph 3(d).
- If a Participant determines that the exchange of Information under this MOU may be inconsistent with its domestic laws or international obligations, or may prejudice or cause harm to its national sovereignty, national security, public policy, or other important national interest, or could compromise an ongoing investigation, the Participant may decline to provide all or part of the Information or offer to provide all or part of the Information subject to such terms and conditions as it may specify.
- When a Participant declines or postpones the exchange of Information, that Participant intends to communicate In Writing to the other Participant as soon as possible the reasons for declining or postponing the exchange of Information, where practicable.
- The Participants do not intend to exchange Information if the exchange, use or further disclosure of the Information may:
- cause the Information to become known to any government, authority or person of a third country from which the individual is seeking or has been granted protection under the 1951 Convention relating to the Status of Refugees (the “1951 Convention”) or its 1967 Protocol relating to the Status of Refugees (the “1967 Protocol”), the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the “1984 Convention Against Torture”), the 1966 International Covenant on Civil or Political Rights (the ‘1966 ICCPR’) and its Second Optional Protocol aiming at the abolition of the death penalty, or under either Participant’s domestic laws implementing the relevant Conventions or Protocols;
- by virtue of that government, authority or person becoming aware of such Information, cause the individual to become eligible for the protections detailed in paragraph 3(h)(i);
- cause the individual and/or the individual’s family to be placed at risk of serious or significant harm, including refoulement, persecution, torture or any other type of harm contemplated under the 1951 Convention, the 1967 Protocol, the 1984 Convention Against Torture or the 1966 ICCPR and its Second Optional Protocol aiming at the abolition of the death penalty.
- The Participants intend to use their best endeavours to exchange Information in a timely manner recognizing that providing Information within reasonable timeframes is critical in ensuring informed decision making by Participants in the administration and enforcement of domestic immigration and citizenship laws, including those governing Refugee Resettlement and Asylum Systems.
- Each Participant intends to notify the other Participant, either by telephone or In Writing, in the event of a disaster or other situation that disrupts the exchange of Information between the Participants. Notification will occur within 24 hours of becoming aware of the disaster or other situation or, if that is not possible, as soon as practicable.
4. Exchange of Information on Refugee Resettlement Applicants and Asylum Claimants
The Participants understand that:
- subject to paragraph 3, the Participants may exchange Information with each other to support their respective Refugee Resettlement and Asylum Systems, including verification of identity and informed decision-making in these systems, except when the Information relates to an individual who is alleging persecution against one of the Participant countries; and
- in addition to the conditions described in paragraph 6 with respect to the use and disclosure of Information received under this MOU, disclosure by the receiving Participant of any Information received on an asylum claimant or refugee resettlement applicant to other governments or institutions will require the prior consent In Writing of the providing Participant unless otherwise stated in the Annex.
5. Designation of Officials
- The Participants intend to designate officials to administer this MOU and will inform each other In Writing of such designations and related changes.
- The Participants may designate officials authorised to request and exchange Information under an Annex or specify points of contact.
6. Use and Onward Disclosure of Information
- The Participants will not use or further disclose the Information received under this MOU for any purpose except for the purpose specified in paragraph 1(b) or as required by their domestic laws.
- The Participants may, for the purpose identified in paragraph 1(b), disclose Information received under this MOU to other domestic authorities also responsible for pursuing the same purpose in the course of their official duties. The Participants will seek to ensure that their respective domestic authorities apply the same level of protection to the Information and will limit disclosure as would the Participants in accordance with this MOU and the applicable Annexes.
- When a Participant is disclosing Information subject to a requirement pursuant to its domestic laws, that Participant will notify the other Participant in advance of the disclosure and provide details of the relevant court order or other legal requirement for making the disclosure. In the exceptional case where advance notice is not practicable, the Participant disclosing the Information will notify the other Participant as soon as possible.
- Insofar as there is a right of access or rectification as described in paragraph 8 and this is a domestic law requirement, the Participants understand that Information may be disclosed to the individual about whom that Information pertains without advance notice.
- Insofar as it is consistent with paragraph 1(b), the Participants may disclose Information received under this MOU to the government of a third country, for the purposes of verifying identity or establishing the provenance of identity documents, in connection with re-documentation or return of an individual to that country.
- When a Participant is seeking to disclose Information to the government of a third country under paragraph 6(e), the Participant disclosing the Information will obtain prior approval In Writing from the other Participant.
- For disclosure of Information under paragraph 6(c) or (e), the Participant disclosing the Information will seek to ensure that the authorities to whom Information is disclosed apply a similar level of protection to the Information, and limit its use and disclosure, in accordance with this MOU and the relevant Annexes, including the limitations on exchange included in paragraphs 3 and 4.
- The Participants intend to ensure that security classifications and any restrictions, conditions or special handling instructions are appropriately marked on all Information exchanged pursuant to this MOU. In any particular case, the Participant providing the Information may, by way of protective marking or otherwise, apply additional restrictions, conditions or special handling instructions to Information exchanged pursuant to this MOU. The Participant providing the Information may decline to provide all or part of the Information if the Participant requesting the Information is unable to comply with the restrictions, conditions or special handling instructions.
- To prevent unauthorised access, disclosure, copying, use, modification or disposal of Information received by a Participant under this MOU, each Participant intends to restrict access to personnel who need the Information in the course of carrying out their official duties for the purpose set out in paragraph 1(b) and to use recognised security mechanisms, including but not limited to, passwords, encryption, or other reasonable safeguards to prevent unauthorised access. Each Participant will ensure that all persons authorised to have access to Information received under this MOU are appropriately trained on the handling and usage restrictions that apply to this Information and intend to safeguard the Information in a manner consistent with this MOU.
- Each Participant intends to notify the other Participant In Writing of any accidental or unauthorised access, disclosure, copying, use, modification or disposal of Information received under this MOU. The notice will include all necessary details of the accidental or unauthorised access, disclosure, copying, use, modification or disposal of that Information and be provided within 24 hours of becoming aware of the privacy or security breach.
7. Accuracy of Information
- The Participants intend to provide each other with the most current and accurate Information available. If a Participant becomes aware that the other Participant may be using or relying on inaccurate Information exchanged under this MOU, that Participant intends to notify the other Participant In Writing as soon as practicable and, if available, provide correct Information.
- When a Participant receives correcting Information, that Participant intends to correct, annotate or dispose of inaccurate Information and any Information derived from it, in accordance with its domestic laws. That Participant also intends to notify the other Participant In Writing that it has disposed of or corrected the Information.
8. Access and Rectification
- When Information relating to a particular individual or group of individuals is exchanged, the Participants intend to make a notation on the individual’s client case record that the exchange has occurred. Additionally, the Participant receiving the Information intends to mark any Information retained as a result of the exchange as Information received from the providing Participant under the authority of this MOU.
- Each Participant will confirm, before the execution of a new Annex, that it has in place a framework that allows an individual to request access to Information about himself or herself that was exchanged under this MOU and its Annexes, and, where that Information is releasable to that individual, allows the individual to request a correction to, or annotation of, that Information. Any release of Information received under this MOU to the individual about whom the Information pertains is subject to the terms of paragraph 6.
- Each Participant will confirm, before the execution of a new Annex, that it has a framework in place that allows individuals to seek a review when a Participant refuses a request to release Information to an individual about whom the Information pertains.
9. Retention and Disposal of Information
- Each Participant intends to retain Information exchanged pursuant to this MOU in accordance with the terms of the MOU, the applicable Annex and its domestic law.
- Each Participant intends to assess the continued relevance of Information received under this MOU and to dispose of the Information securely when it is no longer relevant or necessary in accordance with its domestic law.
10. Transactions, Performance and Management Reporting
The Participants intend to maintain records of Information exchanged under the Annexes and develop performance management measures that include, but are not limited to, the number and severity of any security or privacy breaches as well as a summary of the actions taken. The Participants may keep other records in accordance with their respective applicable domestic laws and retention policies and guidance.
11. Compliance and Review
- The Participants intend to conduct regular quality assurance activities to ensure that the exchanges carried out are consistent with the intent of this MOU and its Annexes. These may include determining:
- if Information has been retained instead of being disposed;
- if Information exchanged under this MOU was marked as received from the other Participant;
- if Information was exchanged with another entity without a prior request or notice In Writing to the other Participant; and/or
- any other quality assurance activities that the Participants mutually establish.
- A Participant may request assurance from the other Participant that sufficient policy, legal or technical safeguards are being maintained with regard to the Information exchanged under this MOU and may request a review of the safeguards.
- When a Participant identifies a deficiency with respect to measures identified under paragraph 11(a) or 11(b), the Participants intend to address such deficiency through mutual consultation. However, if a Participant considers it necessary to decline a request or postpone a response to a request for Information pursuant to this MOU pending resolution of an identified deficiency, it intends to provide notice In Writing to the other Participant.
- The Participants intend to jointly review this MOU to determine if it continues to meet their requirements. The first review may take place no earlier than one year and no later than five years from the date this MOU comes into effect, and as mutually decided upon thereafter.
- Subject to their respective domestic laws, regulations and policies, each Participant intends to take the necessary action to report any serious security or privacy breaches to its respective oversight body or bodies. Each Participant will confirm that it has a system in place that outlines the appropriate steps for reporting and rectifying security or privacy breaches.
12. Application and Interpretation
- This MOU is an administrative arrangement to facilitate the exchange of Information between the Participants and does not create any legally binding rights or obligations between the Participants.
- The Participants intend to resolve any differences regarding the interpretation and application of this MOU through mutual consultation.
- The Participants intend to advise each other of any changes to their respective domestic laws, regulations or policies that may affect the application or interpretation of this MOU or its Annexes.
The Participants will pay their own costs and use their own equipment and personnel in performing their activities under this MOU.
14. Final Dispositions
- This MOU will take effect on the date it is signed by all Participants or the date it is signed by the last Participant, where the Participants do not sign the MOU on the same day.
- The Participants may amend this MOU or any of its Annexes by their mutual consent In Writing.
- A Participant may terminate its participation to this MOU or any of its Annexes by giving 90 days’ notice In Writing to the other Participant. It is understood that either the Department of Citizenship and Immigration of Canada or the CBSA may terminate its participation to this MOU or any of its Annexes and such termination will not affect the application of the MOU or any of its Annexes between the remaining Participants. The Participants may also mutually consent In Writing to terminate this MOU or any of its Annexes at any time.
- If the MOU is terminated under paragraph 14(c), the Annexes are also terminated.
- The Participants understand that paragraphs 6 through 10 will continue to apply after such termination to any Information exchanged pursuant to this MOU and its Annexes.
Signed in triplicate, at Washington, DC, this 6th day of September 2016, in the English and French languages, with each version being equally valid.
For the Department of Citizenship and Immigration of Canada
For the Canada Border Services Agency
For the Department of Immigration and Border Protection of the Commonwealth of Australia
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