Mudalige Don v. Canada (Citizenship and Immigration)
The Minister of
Citizenship and Immigration and the Minister
of Public Safety and Emergency Preparedness (Appellants)
v.
Nuwan Dilusha Jayamaha Mudalige Don (Respondent)
of Public Safety and Emergency Preparedness (Appellants)
v.
Nuwan Dilusha Jayamaha Mudalige Don (Respondent)
[2015] 2 F.C.R. 217
[2015] 2 R.C.F. 217
[2014] F.C.J. No. 19
[2014] A.C.F. no 19
2014 FCA 4
No. A-45-13
No. A-45-13
Federal Court
of Appeal
Noel, Gauthier and Mainville JJ.A.
Heard: Montréal, December 3, 2013;
Judgment: Ottawa, January 10, 2014.
Noel, Gauthier and Mainville JJ.A.
Heard: Montréal, December 3, 2013;
Judgment: Ottawa, January 10, 2014.
(86 paras.)
Catchwords:
Citizenship and Immigration -- Exclusion and Removal -- Removal order -- Appeal from Federal Court decision allowing application for judicial review of decision of Minister's delegate to issue removal order under Immigration and Refugee Protection Act, s. 44(2), against respondent -- Removal order issued against respondent, citizen of Sri Lanka carried to Canada by M/V Lake Ontario (the ship), for failure to abide by Immigration and Refugee Protection Regulations, s. 184(1) -- Regulations requiring respondent to leave Canada within 72 hours after ceasing to be member of crew -- Minister's delegate preparing inadmissibility report under Act, s. 44(1), then issuing removal order against respondent pursuant to s. 44(2) -- Respondent claiming refugee protection several days later -- Claim denied because s. 99(3) stating claim for refugee protection may not be made by person subject to removal order -- Federal Court holding delegate breached duty of procedural fairness in issuing removal order before respondent had any contact with Canadian immigration authorities, sections of certain Citizenship and Immigration Canada (CIC) guideline providing for participatory rights for respondent -- Whether appellants breached duty of procedural fairness by issuing removal order without giving respondent opportunity to be heard or attempting to contact respondent -- Respondent had right to claim refugee protection within 72 hours after deserting ship or at any time before removal order issued -- Respondent did not avail himself of opportunity, so inadmissibility report could be signed, removal order issued -- Respondent had no known address in Canada -- Person challenging decision on basis decision rendered without prior notification must show capable of being notified -- In present case, respondent intent on remaining undetected by immigration officials until ship respondent deserted had left Canada -- This was incompatible with exercise of right to be heard -- CIC guidelines at issue in present case not giving rise [page218] to legitimate expectation respondent would be heard -- Guidelines not "clear, unambiguous and unqualified", contrary to principle laid down in Agraira v. Canada (Public Safety and Emergency Preparedness) -- Guidelines also not providing for process to be followed when authorities do not have person's contact information -- CIC guidelines governing removal orders issued to persons in absentia, relied on by Federal Court, not dealing with persons lacking contact information -- Promise to make reasonable efforts, provided for in guidelines on writing s. 44(1) reports, not giving rise to legitimate expectation efforts would be made in present case -- Respondent had obligation to provide contact information, not other way around -- Given respondent's failure to report and decision to remain underground during 12 days leading to issuance of removal order, Minister's delegate could proceed in absentia -- No breach of procedural fairness -- In allowing for timely issuance of removal order, legislator must be taken to have acted coherently, in full knowledge of impact such order has on right to claim refugee protection -- Persons deserting ship in Canada to claim refugee protection should report to immigration authorities and make claim promptly, not at time of persons' choice -- Appeal allowed.
Citizenship and Immigration -- Exclusion and Removal -- Removal order -- Appeal from Federal Court decision allowing application for judicial review of decision of Minister's delegate to issue removal order under Immigration and Refugee Protection Act, s. 44(2), against respondent -- Removal order issued against respondent, citizen of Sri Lanka carried to Canada by M/V Lake Ontario (the ship), for failure to abide by Immigration and Refugee Protection Regulations, s. 184(1) -- Regulations requiring respondent to leave Canada within 72 hours after ceasing to be member of crew -- Minister's delegate preparing inadmissibility report under Act, s. 44(1), then issuing removal order against respondent pursuant to s. 44(2) -- Respondent claiming refugee protection several days later -- Claim denied because s. 99(3) stating claim for refugee protection may not be made by person subject to removal order -- Federal Court holding delegate breached duty of procedural fairness in issuing removal order before respondent had any contact with Canadian immigration authorities, sections of certain Citizenship and Immigration Canada (CIC) guideline providing for participatory rights for respondent -- Whether appellants breached duty of procedural fairness by issuing removal order without giving respondent opportunity to be heard or attempting to contact respondent -- Respondent had right to claim refugee protection within 72 hours after deserting ship or at any time before removal order issued -- Respondent did not avail himself of opportunity, so inadmissibility report could be signed, removal order issued -- Respondent had no known address in Canada -- Person challenging decision on basis decision rendered without prior notification must show capable of being notified -- In present case, respondent intent on remaining undetected by immigration officials until ship respondent deserted had left Canada -- This was incompatible with exercise of right to be heard -- CIC guidelines at issue in present case not giving rise [page218] to legitimate expectation respondent would be heard -- Guidelines not "clear, unambiguous and unqualified", contrary to principle laid down in Agraira v. Canada (Public Safety and Emergency Preparedness) -- Guidelines also not providing for process to be followed when authorities do not have person's contact information -- CIC guidelines governing removal orders issued to persons in absentia, relied on by Federal Court, not dealing with persons lacking contact information -- Promise to make reasonable efforts, provided for in guidelines on writing s. 44(1) reports, not giving rise to legitimate expectation efforts would be made in present case -- Respondent had obligation to provide contact information, not other way around -- Given respondent's failure to report and decision to remain underground during 12 days leading to issuance of removal order, Minister's delegate could proceed in absentia -- No breach of procedural fairness -- In allowing for timely issuance of removal order, legislator must be taken to have acted coherently, in full knowledge of impact such order has on right to claim refugee protection -- Persons deserting ship in Canada to claim refugee protection should report to immigration authorities and make claim promptly, not at time of persons' choice -- Appeal allowed.
Summary:
This was an appeal from a decision of the Federal
Court wherein the Court granted an application for judicial review of a
decision by a delegate of the Minister to issue a removal order under
subsection 44(2) of the Immigration and Refugee
Protection Act (the Act) against the respondent for his
failure to abide by subsection 184(1) of the Immigration
and Refugee Protection Regulations (the Regulations),
which required him to leave Canada within 72 hours after ceasing to be a member
of a crew.
The respondent, a citizen of Sri Lanka, was a crew
member aboard the foreign registered vessel M/V Lake
Ontario (the ship). The ship docked at the port of
Oshawa on November 27, 2011. On December 2, 2011, the ship's agent filed a Notice
of Desertion with the authorities indicating that the respondent had deserted
the ship on December 1, 2011.
On December 12, 2011, an inadmissibility report
under subsection 44(1) of the Act was prepared because the respondent had
failed to comply with subsection 184(1) of the [page219] Regulations, which
required him to leave Canada within 72 hours after he ceased to be a member of
a crew. The Minister's delegate then issued a removal order against the
respondent pursuant to subsection 44(2) of the Act and subparagraph 228(1)(c)(v) of the Regulations. A few days later,
the respondent presented himself before Canadian immigration authorities and
claimed refugee protection. This claim was denied, as subsection 99(3) of the
Act states that a claim for refugee protection may not be made by a person who
is subject to a removal order.
The Federal Court held that the Minister's
delegate had breached his duty of procedural fairness in issuing an exclusion
order against the respondent before he had any contact with Canadian
immigration authorities, and that sections of a certain Citizenship and
Immigration Canada (CIC) guideline explicitly provide for participatory rights
for individuals who are subject to subsection 44(2) proceedings. In the present
case, not only had the respondent not been notified, but there was no
indication that any effort was made to contact him. Consequently, according to
the Federal Court, the delegate had breached the duty of fairness by rendering
an exclusion order against the respondent in absentia before the respondent had contact with the immigration authorities.
The issue was whether the appellants breached
their duty of procedural fairness by issuing a removal order against the
respondent without giving him an opportunity to be heard or attempting to
contact him.
Held, the appeal should be
allowed.
Upon deserting the ship, the respondent ceased to
have any status in Canada and had the obligation to leave within 72 hours.
Failing this, he had the obligation to report for examination before an
immigration officer in order to regularize his status. Beyond remaining outside
the reach of immigration officials for 15 days, the respondent had no known
address in Canada. A person in the position of the respondent who challenges a
decision on the basis that it was rendered without prior notification must be
able to show that he was capable of being notified. At minimum, this requires
that the person provides immigration authorities with some means of being
reached in Canada. In the present case, not only were no such means provided,
but the respondent was intent on remaining undetected by the immigration
authorities until he was satisfied that the ship which he deserted had left
Canada. This was incompatible with the exercise of the right to be heard. The
Minister's delegate could not be held to have issued the removal order in
breach of the respondent's right to be heard.
[page220]
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The CIC guidelines at issue in this case did not
create a legitimate expectation that the respondent would be heard. These
guidelines are not "clear, unambiguous and unqualified" and do not
provide for a process to be followed in circumstances where a person's contact
information is lacking, contrary to the principles laid down in Agraira v. Canada (Public Safety and Emergency Preparedness). The CIC guidelines governing removal orders issued to persons in absentia, which the Federal Court relied
on, do not meet this test either, as they do not deal with persons whose
contact information is lacking. The Minister's delegate therefore had no
information of any sort as to where or how the respondent could be notified
when the removal order was issued. The promise to make reasonable efforts,
provided for in the guidelines on writing subsection 44(1) reports, did not
give rise to a legitimate expectation that efforts would be made in this case.
To sum up, the respondent is the one who had the obligation to provide contact
information, not the other way around. Given his failure to report and his
decision to remain underground during the 12 days leading to the issuance of
the removal order, it was open to the Minister's delegate to proceed in absentia. There was no breach of
procedural fairness.
The Federal Court held that the fact that the
respondent provided no contact information and was intent on remaining
undetected by immigration officials during the period leading to the issuance
of the removal order was not relevant. This reasoning disregards both the
wording of the relevant legislation and its intent. The 1993 amendments to the
Regulations were intended to allow immigration officials to take timely action
when a person ceased to qualify as a crew member. Prior to that amendment, no
enforcement action could be taken until the ship had left port. Although there
are circumstances where enforcement action, although authorized, should be
delayed, such is not the case where a ship deserter is believed on reasonable grounds
to have gone underground. In the present case, immigration officials waited
nine days beyond the expiration of the 72-hour period before initiating
enforcement actions. As the respondent had still not reported, they had
reasonable grounds to believe that he had gone underground. The immigration
officials did not act precipitously. In allowing for the timely issuance of a
removal order, the legislator must be taken to have acted coherently, in full
knowledge of the impact that such order has on the right to claim refugee
protection. The result is that persons who desert a ship in Canada in order to
claim refugee protection should report to the immigration authorities and make
their claim promptly. The 72-hour limitation makes it clear that they cannot
expect to claim this status at a time of their choice.
[page221]
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Statutes and Regulations Cited
Immigration Act, R.S.C.,
1985, c. I-2, s. 27(2)(j) (as
am. by S.C. 1992, c. 49, s. 16(8)).
Immigration and Refugee Protection Act, S.C. 2001, c. 47, ss. 18(1), 29(2), 44(1),(2), 55(1), 74(d), 99(3), 148(1)(f).
Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 3(1)(b), 52(2)(g), 184(1),
186(s), 190(3.1), 228(1)(c)(v), 268(1), 274, 276, 278.
Immigration Regulations, 1978, SOR/78-172, s. 12.1 (as enacted by SOR/93-44, s. 12).
Cases Cited
Cases Cited
Applied:
Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559.
Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249.
Considered:
Considered:
Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R.
(4th) 193.
Cha v. Canada (Minister of Citizenship and
Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409.
Referred to:
Yu v. Canada (Attorney General), 2011 FCA 42, 414 N.R. 283.
Telfer v. Canada (Revenue Agency), 2009 FCA 23, [2009]
4 C.T.C. 123.
Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23.
Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504.
Authors Cited
Authors Cited
Citizenship and Immigration Canada. Operational Manual: Enforcement (ENF).
Chapter ENF 5 "Writing 44(1) Reports", online: .
Citizenship and Immigration Canada. Operational Manual: Enforcement (ENF).
Chapter ENF 6 "Review of Reports under A44(1)", online: .
[page222]
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Citizenship and Immigration Canada. Operational Manual: Enforcement (ENF).
Chapter ENF 17 "Maritimes Procedures", online: .
Citizenship and Immigration Canada. Operational Manual: Inland Processing (IP).
Chapter 10 "Refusal of National Security Cases/Processing of National
Interest Requests", online: .
History and Disposition:
History and Disposition:
APPEAL from a
decision of the Federal Court (2013 FC 1, [2014] 3 F.C.R. 3) allowing an
application for judicial review of the decision of the Minister's delegate to
issue a removal order against the respondent. Appeal allowed.
The following are the reasons for judgment
rendered in English by
1 NOËL J.A.:-- This is an appeal from a
decision of the Federal Court [2013 FC 1, [2014] 3 F.C.R. 3], wherein
Tremblay-Lamer J. (the Federal Court Judge) granted an application for judicial
review of a decision by a delegate of the Minister of Citizenship and
Immigration (Minister's delegate) to issue a removal order under subsection
44(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against Mr. Nuwan Dilusha Jayamaha
Mudalige Don (the respondent) for his failure to abide by subsection 184(1) of
the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) which required him to leave Canada
within 72 hours after ceasing to be a member of a crew.
[page223]
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2 In
allowing the application, the Federal Court Judge certified the following
question of general importance (reasons, paragraph 43):
·
Does the Minister's issuance of
an exclusion order pursuant to subparagraph 228(1)(c)(v) of the [Regulations] before the member of a crew subject to the
exclusion order has any contact with the immigration authorities constitute a
breach of procedural fairness because it deprives the foreign national of the
opportunity to make a refugee claim?
3 For
the reasons which follow, I am of the view that this question ought to be
answered in the negative and that the appeal should be allowed.
4 The
relevant legislative provisions are reproduced in the annex to these reasons.
FACTUAL BACKGROUND
5 The
respondent, a citizen of Sri Lanka, was a crew member aboard the foreign
registered vessel M/V Lake Ontario (the ship). The respondent had taken up his position as a crew
member at the port city of Annaba, Algeria on or about July 11, 2011 (appeal
book, pages 89 and 123).
6 The
Canadian customs entry form filed by the ship captain (Form A5 (1/51)) upon the
ship's arrival in Canada indicates that the inward journey began at the port of
Dordrecht, Netherlands. From there the ship sailed to three port cities in the
Mediterranean Sea, the last being Nemrut Bay, Turkey and then onto Montréal and
Oshawa (appeal book, page 83).
7 The
ship docked at the port of Oshawa on November 27, 2011 (reasons, paragraphs 2
and 3). On December 2, 2011, the ship's agent, the Currie Maritime Corporation
(the transporter), filed a Notice of Desertion with the Canadian Customs and
Excise authorities in Hamilton, Ontario, indicating that two crew members had
deserted the ship on December 1, 2011, one being the respondent (appeal book,
pages 83 and 84).
[page224]
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8 On
December 4, 2011, the ship departed from Oshawa for the Port of Duluth,
Minnesota (appeal book, page 83). According to the pre-arrival notification
filed with Canada customs by the transporter, the ship was scheduled to then
return to the Port of Montreal and trace back its inward journey all the way to
Dordrecht, where it began (appeal book, page 87).
9 By
December 8, 2012, immigration authorities were able to ascertain the
respondent's country of birth, his citizenship, his age, his marital status (single)
and his physical description (appeal book, pages 80, 84 and 89).
10 On
December 12, 2011, an officer of the Minister of Citizenship and Immigration
prepared an inadmissibility report under subsection 44(1) of the Act because
the respondent had failed to comply with subsection 184(1) of the Regulations,
which required him to "leave Canada within 72 hours after they cease to be
a member of a crew" (appeal book, pages 75 and 76).
11 On
December 13, 2011, the Minister's delegate issued a removal order or more
precisely an exclusion order against the respondent pursuant to subsection
44(2) of the Act and subparagraph 228(1)(c)(v) of the Regulations (appeal book, pages 73 and 74). On the same
day, Canadian immigration authorities issued a warrant for the respondent's
arrest pursuant to subsection 55(1) of the Act (appeal book, page 78). The
warrant was issued on the basis that there were reasonable grounds to believe
that the respondent was inadmissible and was unlikely to appear for his
removal.
12 Further
to a notice of seizure issued on December 16, 2011 by the Canada Border
Services Agency (CBSA), the transporter provided the immigration authorities
with the respondent's passport and a Seaman's Identification and Record Book
issued by the Republic of Liberia in the name of the respondent (appeal book,
pages 95 to 110; notice of seizure, appellants' record of motion in writing to
file new evidence, page 6). On December 18, 2011, the immigration authorities
received several other documents from the transporter, namely: a Seafarer's
Book issued by Antigua-and-Barbuda (appeal book, pages 111 to 113); [page225] a
Seaman's Record Book and Certificates of Discharge (appeal book, pages 114 to
121); the respondent's employment contract (appeal book, page 123); and an
Antigua-and-Barbuda Online Application (appeal book, page 131; notice of
seizure, appellants' record of motion in writing to file new evidence, page
12).
13 Amongst
the information provided by the transporter on December 18, 2011, was the
address of the respondent in Sri Lanka at 523/A Wahatiyagoda, Pamunugama
(appeal book, pages 121, 123 and 131). The documentation showed that this was
also the address of his mother whom he had designated as his next-of-kin in the
records kept by the transporter (appeal book, page 121).
14 On
December 16, 2011, the respondent presented himself before Canadian immigration
authorities in Montréal and claimed refugee protection (appeal book, pages 37
and 40). In the affidavit filed before the Federal Court in support of his
judicial review application, the respondent explained the reason for the delay
in submitting his claim for refugee protection as follows (appeal book, page
37):
·
When we arrived in Canada, the
weather was very rainy which forced the vessel to be docked for several days
and I was able to jump ship on December 1st 2011. At that time I had no
knowledge that the vessel was departing on December 3rd 2011 as I did not know
how much time it would take to unload the vessel due to the rain. I therefore
came to Montreal the next day and claimed refugee status on December 16th 2011
since I knew that the vessel would have left by that time and I would not be
forced to return with the vessel.
15 By
letter dated March 6, 2012, the respondent was informed that his refugee claim
had been denied, as "subsection 99(3) of the ... [Act] states that a claim
for refugee protection may not be made by a person who is subject to a removal
order" (appeal book, page 42).
16 On
March 21, 2012, the respondent filed an application for judicial review of the
Minister's delegate's decision to issue a removal order against him. On January
3, 2013, the Federal Court Judge granted the respondent's application for judicial
review, set aside the [page226] removal order and referred the matter for
redetermination by a different delegate. In rendering judgment, the Federal
Court Judge certified a serious question of general importance pursuant to
paragraph 74(d) of the Act,
hence the appeal before this Court.
DECISION OF THE FEDERAL COURT
17 The
Federal Court Judge identified the issue before her in the following terms
(reasons, paragraph 7):
·
The issue in the present
application for judicial review is whether the [Minister's] delegate breached
his duty of procedural fairness by issuing an exclusion order against the
[respondent] before the [respondent] had any contact with the Canadian
immigration authorities.
18 After
setting out the position of the parties, the Federal Court Judge analysed the
five factors identified in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker) to assess the degree of procedural
fairness that was required in the case at hand namely: (1) the nature of the
decision being made and the process followed in making it; (2) the nature of
the statutory scheme and the terms of the statute pursuant to which the body
operates; (3) the importance of the decision to the individual or individuals
affected; (4) the legitimate expectations of the person challenging the
decision; and (5) the choices of procedure made by the agency itself (reasons,
paragraphs 17 to 27).
19 After
weighing these factors, the Federal Court Judge held that "the content of
the duty of fairness in the context of the situation in the case at bar is at
the low end of the spectrum" (reasons, paragraph 27). In order to
establish the content of the duty of fairness in this particular case, the
Federal Court Judge relied on this Court's decision in Cha
v. Canada (Minister of Citizenship and Immigration),
2006 FCA 126, [2007] 1 F.C.R. 409 (Cha), paragraph 52, wherein this Court set forth the basic requirements
of procedural fairness in the context of an inadmissibility report and removal
order issued on the ground of criminality (reasons, paragraph 28).
[page227]
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20 According
to the Federal Court Judge, the factual situation in the instant case is
analogous to that at issue in Cha, except for the following two elements: in Cha, the foreign national was solely rendered inadmissible pursuant to
subsection 44(1) of the Act on the ground of criminality; and contrary to the
case at bar, the foreign national's contact information was available to the
immigration authorities (reasons, paragraph 29). As for the second
distinguishing factor, the Federal Court Judge rejected the appellants'
argument that the procedure suggested in Cha is impracticable in the case of marine deserters who do not have
contact information in Canada (reasons, paragraph 30).
21 The
Federal Court Judge further noted that sections 5.1 and 16 of Citizen and
Immigration Canada's (CIC) Operational Manual:
Enforcement (ENF), chapter ENF 6 "Review of
Reports under A44(1)", explicitly provide for participatory rights for
individuals who are subject to subsection 44(2) proceedings (reasons,
paragraphs 31 and 32). Given these Guidelines and this Court's reasoning in Cha, the Federal Court Judge concluded that
(reasons, paragraph 33):
·
... a marine deserter is
entitled to some participatory rights before a delegate issues a removal order
against them pursuant to subsection 44(2) of the Act and subsection 184(1) of
the Regulations.... at the very minimum, before the removal order is issued,
the individual is entitled to a copy of the immigration officer's report and an
opportunity to present evidence and express his or her point of view to the
delegate.
22 In
the present case, not only was the respondent not notified, but there is no indication
that any effort was made to contact him (reasons, paragraph 34). Consequently,
"the delegate breached the duty of procedural fairness by rendering an
exclusion order against the [respondent] in absentia before the [respondent] had contact
with the immigration authorities" (reasons,
paragraph 34; my emphasis).
23 Moreover,
the Federal Court Judge dismissed the appellants' submission that quashing the
removal order would serve no purpose in the circumstances. After reviewing the
relevant jurisprudence, the Federal Court [page228] Judge noted that
individuals subject to an inadmissibility report under subsection 44(1) might
qualify for refugee protection insofar as they apply for refugee status before
a removal order is issued against them (reasons, paragraphs 35 to 37).
Therefore, "[q]uashing this exclusion order because it breached the
[respondent's] right to procedural fairness will serve the purpose of giving
him an opportunity to be eligible to claim refugee protection" (reasons, paragraph
35).
POSITION OF THE APPELLANTS
24 The
appellants begin their submissions by recalling the legislative history and
purpose of the 72-hour limit applicable to crew members, stating that
(appellants' memorandum, paragraphs 42 and 43):
·
... subsection 184(1) of the
current Regulations, with its
72-hour limit, was adopted in the same spirit as the above-mentioned amendments
in 1993, i.e. to allow immigration officers to take
immediate enforcement action against ship deserters,
rather than having to wait until the person's vessel leaves Canada. This
provision therefore helps to prevent smuggling operations where illegal
migrants are brought to Canada as crew members and then desert. The 72-hour
limit in subsection 184(1) therefore discourages abuse
of the visitor visa exemption for crew members [and]
.... dissuade[s] deserting crew members from remaining in Canada illegally for
an indefinite period of time."
25 The
appellants argue that the content of procedural fairness should be adapted to
this specific purpose and context, in order to determine "what the duty of
procedural fairness may reasonably require of an authority by way of specific procedural rights in a
particular legislative and administrative context" (appellants'
memorandum, paragraphs 44 and 45). The appellants stress that the context of
deserting crew members, "who, by definition, have no known Canadian
address and are not subject to an additional immigration control until they
choose to appear before Canadian immigration authorities" renders the
notice and interview procedures both impracticable and undesirable (appellants'
memorandum, paragraph 48).
[page229]
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26 According
to the appellants, the Cha and Baker decisions are easily distinguishable
from the instant situation, because in both cases, Canadian immigration
authorities had the foreign national's contact information (appellants'
memorandum, paragraphs 49 and 50). In contrast, it is impossible for
immigration authorities to contact a deserting crew member who does not have an
address or phone number in Canada and who does not wish to be found
(appellants' memorandum, paragraph 52).
27 The
appellants submit that the Federal Court Judge erred in failing to consider
that deserting crew members bear the responsibility of appearing before
Canadian immigration authorities to regularize their status and claim refugee
protection within the prescribed delay (appellants' memorandum, paragraph 56).
The Federal Court Judge also erred in imposing upon the appellants the burden
of communicating with the respondent in the absence of any contact information
to reach him (appellants' memorandum, paragraph 57).
28 The
appellants suggest that the question certified by the Federal Court Judge would
better capture the issue of general importance which arises in this case if it
read (appellants' memorandum, paragraph 22):
·
[C]an [the Minister] issue a
removal order in absentia,
pursuant to [subparagraph 228(1)(c)(v)], against a foreign national who failed to comply with the
condition imposed on crew members set out in subsection 184(1) of the Regulations?
POSITION OF THE RESPONDENT
29 Relying
on the Supreme Court's decision in Agraira v. Canada
(Public Safety and Emergency Preparedness), 2013 SCC
36, [2013] 2 S.C.R. 559 (Agraira), the respondent submits that the CIC Guidelines create a
legitimate expectation that procedures contained therein [page230] "will
be followed, and the failure to adopt such procedures constitutes a violation
of the right to procedural fairness" (respondent's memorandum, paragraph
67). Based on the Guidelines, the respondent could legitimately expect that
(respondent's memorandum, paragraph 70):
in absentia proceedings [would] be avoided wherever possible; that (b) removal
orders [would] not be issued without determining whether or not the person
concerned is seeking refugee protection; and (c) and ... while in absentia proceedings may be justified in
exceptional circumstances, such will not occur before
notice is sent to the last known address of the person concerned, following
reasonable efforts to ascertain said address. [My
emphasis.]
30 The
respondent stresses that the Guidelines make the issuance of a removal order
conditional upon the respect of certain procedural safeguards, such as
exhaustion of reasonable efforts to provide notice to the person concerned
(respondent's memorandum, paragraphs 55 to 60). It is the respondent's position
that (respondent's memorandum, paragraph 64):
·
... pursuant to the general
principles relating to in absentia proceedings, the proceedings undertaken in the case at bar were
unfair and the removal order must therefore be quashed because the Officer and
the Delegate failed to even attempt to notify the Respondent of the proceedings
and proceeded solely on the basis of the Officer's report.
31 It
may have been possible to notify the respondent in the present case since the
Minister's delegate had access to the respondent's address in Sri Lanka
(respondent's memorandum, paragraph 17); and the record reveals that the
respondent had some contacts with family members in his home country. In light
of these elements, "notification by mail may well have been
effective" (respondent's memorandum, paragraph 89).
32 Like
the appellants, the respondent believes that the question of general importance
identified by the Federal Court Judge could be better formulated. The
respondent suggests the following question (respondent's memorandum, paragraph
44):
[page231]
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·
When a foreign national enters
Canada as a member of a crew and is reported to have deserted from his or her
vessel; may the Minister, who does not have the foreign national's contact
information in Canada, commence proceedings and issue a removal order, in absentia, without prior effort to contact
the individual?
ANALYSIS AND DECISION
·
The certified question
33 I
see no reason to tamper with the certified question as stated by the Federal
Court Judge. The certified question must arise from the reasons advanced in
support of the decision. Contrary to what the appellants appear to believe, the
Federal Court Judge's reasons does not purport to deal with ship deserters
generally, but those who like the respondent leave their ship with a view of
claiming refugee protection. Hence, it is entirely appropriate that the
question focuses on the fact that the effect of the removal order is to deprive
the foreign national from claiming refugee protection.
34 The
respondent on the other hand considers that the focus of the question should be
on the fact that the Minister's delegate made no effort to contact him. This is
a fact that the Federal Court Judge took into account (reasons, paragraph 34).
35 However,
her ultimate conclusion is that in the circumstances of the respondent, the
Minister's delegate could not issue the removal order before he made contact
with the immigration authorities. This is the issue which she identified, at
paragraph 7 of her reasons, as being central to her decision and which she disposed
of at paragraph 34 of her reasons. As this is the basis for her decision, it is
appropriate that it be the focus of the certified question.
·
Standard of review
36 The
issue being one of procedural fairness, the Federal Court Judge properly identified
the standard of review in the matter before her as correctness (Cha, paragraph 16).
[page232]
|
37 The
issue before us is therefore whether she properly applied this standard (Yu v. Canada (Attorney General), 2011 FCA
42, 414 N.R. 283, paragraph 19; Telfer v. Canada
(Revenue Agency), 2009 FCA 23, [2009] 4 C.T.C. 123,
paragraph 18; Merck Frosst Canada Ltd. v. Canada
(Health), 2012 SCC 3, [2012] 1 S.C.R. 23, paragraph
247; Agraira, paragraph 46).
·
Was there a breach of
procedural fairness?
·
- Natural justice
38 As
the Federal Court Judge makes clear at paragraph 39 of her reasons, her
decision does not purport to deal with any situation other that the one
confronting the respondent. A review of the context in which the removal order
was issued without prior notice being given to him is therefore essential for a
proper understanding of the issue raised on appeal.
39 Part
of this context is the regulatory scheme pursuant to which the respondent was
allowed to enter Canada. International shipping operations result in a
continuous inflow and outflow to and from Canada of foreign nationals who work
aboard ships. In order to accommodate this reality a special regime has been
put in place governing the treatment of crew members while in transit.
40 The
feature of significance for present purposes is that crew members can enter
Canada without temporary visa, work permit or passport and without the
need to report individually (paragraphs 52(2)(g) and 186(s) and
subsection 190(3.1) of the Regulations). This special status allows crew
members to disembark and circulate freely so long as they remain crew members
and leave on the ship on which they came. If for any reason, the persons
concerned cease to be crew members, a report must be filed by the transporter
and the person is given a period of 72 hours to leave Canada (paragraph 3(1)(b) and subsections 184(1) and 268(1) of the
Regulations). Failing this, the persons concerned can be forced to leave Canada
(subsection 44(2) and paragraph 148(1)(f) of the Act and sections 274, 276 and 278 of the Regulations).
[page233]
|
41 The
respondent therefore had a period of 72 hours or three full days before any
action could be taken against him after he deserted the ship on which he was a
crew member on December 1, 2011. He had the right to claim refugee protection
within this period or at anytime before a removal order was issued against him,
as it turned out, a period of up to December 13, 2011 or 12 days after he
deserted the ship.
42 The
respondent did not avail himself of this opportunity because he was concerned
that he would be forced back on the ship which he had deserted. The Federal
Court Judge accepted the respondent's assertion that he delayed making contact
with immigration officials until December 16, 2011 because he wanted to be
certain that the ship had left Canada (reasons, paragraph 5).
43 As
a result, the respondent was in a situation where a report attesting to his
inadmissibility could be signed pursuant to subsection 44(1) of the Act and a
removal order could be issued pursuant to subsection 44(2) of the same
legislation. Both events materialized on December 12 and 13, 2011 respectively.
This triggered the operation of subsection 99(3) of the Act. As a result, the
respondent could no longer claim refugee status when he presented himself to an
immigration officer in Montréal, on December 16, 2011, and attempted to do so.
44 There
is no question that the Minister's delegate was entitled to issue a removal
order on December 13, 2011 since more than 72 hours had elapsed from the time
when the respondent deserted his ship, and in these circumstances, subparagraph
228(1)(c)(v) of the Regulations
expressly provides for the issuance of a removal order. It is also uncontested
that the respondent thereby lost his eligibility to claim refugee status since
subsection 99(3) of the Act so provides.
45 The
only issue therefore is whether the Minister's delegate could issue the removal
order on December 13, 2011, without having first given the respondent an
opportunity to be heard or attempting to contact him. In [page234] disposing of
the question, I am willing to accept that, as the Federal Court Judge found,
the respondent was entitled to be notified of the subsection 44(1) report and
be given an opportunity to object to the issuance of a removal order (reasons,
paragraph 33). However, in order to benefit from these rights, it was incumbent
upon the respondent to place himself in a position where he could be notified.
46 Upon
deserting the ship, the respondent ceased to have any status in Canada and had
the obligation to leave within 72 hours. Failing this, he had the obligation to
report for examination before an immigration officer in order to regularize his
status (subsection 184(1) of the Regulations and subsections 29(2) and 18(1) of
the Act). As noted, he did not do so until 15 days had passed.
47 Beyond
remaining outside the reach of immigration officials from the time he deserted
until December 16, 2011, the respondent had no known address in Canada. The
evidence reveals that he travelled from Oshawa to Montréal on December 1, 2011,
where he remained until he made contact with the authorities, but there is no
indication as to his whereabouts in Montréal during that period.
48 In
my view, a person in the position of the respondent who challenges a decision
on the basis that it was rendered without prior notification must be able to
show that he was capable of being notified. At minimum, this requires that the
person provides immigration authorities with some means of being reached in
Canada. The decision of this Court in Cha on which the Federal Court Judge placed great reliance must be read
in light of the fact that the coordinates of the person concerned in that case
were known and therefore the person was capable of being notified.
49 In
the present case, not only were no such means provided, but the respondent was
intent on remaining undetected by the immigration authorities until he was
satisfied that the ship which he deserted had left Canada. This is incompatible
with the exercise of the right to be heard. Given the respondent's behaviour, I
do not see [page235] how the Minister's delegate can be held to have issued the
removal order in breach of his right to be heard.
·
- Legitimate expectations
50 Neither
do I believe that the Guidelines on which the respondent relies created a
legitimate expectation that he would be heard. Counsel for the respondent
relied extensively on this doctrine both in their written submissions and oral
arguments before this Court. Since the Federal Court Judge did not explicitly
address this doctrine, it is necessary to address the respondent's submissions
in some detail. It should be mentioned that the Federal Court Judge did not
have the benefit of the recent decision of the Supreme Court in Agraira, which was released after her
decision was issued.
51 In
Agraira, the Supreme Court
analysed the role of another CIC Manual (Chapter 10 of CIC's Operational Manual: Inland Processing (IP),
"Refusal of National Security Cases/Processing of National Interest
Requests") in creating legitimate expectations. It laid out the framework
of analysis as follows (Agraira,
paragraphs 95 and 96):
·
The specific conditions which
must be satisfied in order for the doctrine of legitimate expectations to apply
are summarized succinctly in a leading authority entitled Judicial Review of Administrative Action in Canada:
·
The distinguishing
characteristic of a legitimate expectation is that it arises from some conduct
of the decision-maker, or some other relevant actor. Thus, a legitimate
expectation may result from an official practice or assurance that certain
procedures will be followed as part of the decision-making process, or that a
positive decision can be anticipated. As well, the existence of administrative
rules of procedure, or a procedure on which the agency had voluntarily embarked
in a particular instance, may give rise to a legitimate expectation that such
procedures will be followed. Of course, the practice or
conduct said to give rise to the reasonable expectation must be clear,
unambiguous and unqualified. [Emphasis added by LeBel
J.]
(D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at s.7:1710; see [page236] also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social
Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para.
29; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68.)
·
In Mavi, Binnie J. recently explained what is meant by "clear,
unambiguous and unqualified" representations by drawing an analogy with
the law of contract (at para. 69):
·
Generally speaking, government
representations will be considered sufficiently precise for purposes of the
doctrine of legitimate expectations if, had they been made in the context of a
private law contract, they would be sufficiently certain to be capable of
enforcement.
52 Turning
to the Guidelines in issue in that case, the Court held (Agraira, paragraphs 98 and 99):
·
In the case at bar, the
Guidelines created a clear, unambiguous and unqualified procedural framework
for the handling of relief applications, and thus a legitimate expectation that
that framework would be followed. The Guidelines were
published by CIC, and, although CIC is not the Minister's department, it is
clear that they are "used by employees of [both] CIC and the CBSA for
guidance in the exercise of their functions and in applying the
legislation" (R.F., at para. 108). The Guidelines are and were publicly
available, and, as Appendix 2 to these reasons illustrates, they constitute a
relatively comprehensive procedural code for dealing with applications for
ministerial relief. Thus, the appellant could reasonably expect that his
application would be dealt with in accordance with the process set out in them.
[...]
·
The appellant has not shown
that his application was not dealt with in accordance with this process
outlined in the Guidelines. In May 2002, he was advised
of the ministerial relief process by way of a letter akin to the National
Interest Information Sheet. He responded to this letter by making submissions
through his counsel, and CIC then prepared its report. The CBSA prepared a
briefing note for the Minister, which contained its recommendation, and this
note was disclosed to the appellant. The appellant declined to make additional
submissions or provide additional documents in response to the recommendation.
The appellant's submission and its supporting documentation, the CIC officer's
report, and the CBSA's recommendation were all forwarded to the Minister, and
the Minister rendered a decision on the application. As counsel for the
appellant rightly acknowledges, "[i]n the Appellant's case, the
Ministerial relief process followed the process set out in the IP 10
guidelines" (A.F., at [page237] para. 53). His
legitimate expectation in this regard was therefore fulfilled. [My emphasis.]
53 As
in Agraira, the CIC Guidelines
at issue in this case were presumably both publicly available and relied upon
by CIC and CBSA employees. The only issue is whether they provide for a
"clear, unambiguous and unqualified" process to be followed in
circumstances where a person's contact information is lacking as is the case
here. In my view, they do not.
54 The
Guidelines governing removal orders issued to persons in
absentia (Operational Manual:
Enforcement (ENF), Chapter ENF 6), which the Federal
Court Judge relies on (reasons, paragraph 24), do not meet this test as they do
not deal with persons whose contact information is lacking. The only passage in
Operational Manual ENF 6 which can arguably support the contention that the
Guidelines apply when immigration officials have no contact information are the
following two paragraphs at section 16, under the heading "Procedure:
Issuing removal orders to persons in absentia":
·
It should be noted that, in the
context of an in absentia
proceeding, the Minister's delegate should not issue a removal order against
someone who has had no contact with CIC or the CBSA.
Where there are reasonable grounds to believe that a person is unlikely to
appear for a determination proceeding by the Minister's delegate, it is
suggested that a notice be provided immediately to the person concerned,
indicating that failure to appear for their determination proceeding may result
in the issuance of a removal order in their absence.
·
In addressing the issue of
procedural fairness, the following in absentia procedures meet the principles of procedural fairness so long as
reasonable efforts have been made to give the person concerned an opportunity
to be cooperative. Procedural fairness requires that the person concerned be
given an opportunity to be heard. Where a person is not cooperative and
reasonable efforts have been made to give them the opportunity to be heard, it
is not contrary to the principles of procedural fairness to proceed in absentia. [My emphasis.]
55 Read
in isolation the phrase "who has had no contact with CIC or CBSA" in
the first sentence of the [page238] first paragraph could refer to one of two
distinct situations: (1) immigration authorities have been provided with no
contact information; or (2) they have this information, but the person
concerned has had no contact with them, or is uncooperative.
56 In
my view, the second situation is the one contemplated. When read in context,
the phrase in question necessarily refers to persons whose coordinates are
known, but who have refused to contact immigration authorities despite being
invited to do so, as is made clear by the sentence which follows and the rest of
the Guidelines. The second paragraph develops the same theme by spelling out
that in these circumstances-i.e. where the person concerned is not
cooperative-efforts should nevertheless be made to give the person the
opportunity to be cooperative and to be heard. Obviously, such efforts cannot
be made unless immigration officials can communicate with the person, which
necessarily presupposes that they have the required contact information.
57 Consistent
with this, the remaining parts of Operational Manual ENF 6 dealing with in absentia proceedings are drafted on the
assumption that immigration authorities have contact information and provide
guidance as to when and how often notification should be effected (Operational
Manual ENF 6, section 16.1 under the heading "Handling in absentia proceedings", "Stage
one", "Stage two", "Final Stage").
58 When
read in context, the above two paragraphs apply to situations where immigration
officials have contact information in hand and set out the procedure for dealing
with persons who are unlikely to participate in proceedings affecting them
despite being invited to do so. While the Guidelines correctly emphasize that in absentia proceedings will be rare, one
obvious situation where the need to proceed in absentia may arise is when immigration authorities do not have information
which allows them to reach the person concerned. No such information was in the
possession of the [page239] immigration authorities at the time when the
removal order was issued.
59 Seemingly
aware of this problem, the respondent argued for the first time before us that
the Minister's delegate had his home address in Sri Lanka "at the time of
adjudication" (respondent's memorandum, paragraph 17). However, as it
turns out this information was not before the Minister's delegate when the
removal order was issued.
60 Because
no evidence had been led before the Federal Court Judge as to precisely what
was before the Minister's delegate when the removal order was issued, the
appellants were granted leave to file fresh evidence on this point. The new
evidence establishes that the address in Sri Lanka was not before the
Minister's delegate. This information was turned over to the CBSA by the
transporter on December 18, 2011 in response to the notice of seizure issued to
assist in the execution of the removal order (appeal book, pages 121, 123 and
131).
61 The
Minister's delegate therefore had no information of any sort as to where or how
the respondent could be notified when the removal order was issued.
62 The
crux of the respondent's case insofar as it is based on legitimate expectations
appears to rest on the Guidelines dealing with reports written pursuant to
subsection 44(1) (Operational Manual: Enforcement (ENF), Chapter 5 "Writing 44(1) Reports"). The following
passage at section 11.3 under the heading "After the report is
written" is particularly relevant:
·
Wherever possible, an officer who writes a report must also provide a copy of that
report to the person concerned. The officer must make all reasonable efforts to
locate this person, and all steps and actions taken to do so should be clearly
indicated on the person's file.
·
In port-of-entry cases, where
the person concerned is immediately available, this should pose little
difficulty. In other cases, [page240] however, such as
where the person's whereabouts are unknown or the person is otherwise
unavailable, this policy proves difficult to implement.
[My emphasis]
63 The
respondent's contention is that this reflects a promise that efforts to locate
him would be made in order to notify him of the subsection 44(1) report, and
that no such efforts were made (respondent's memorandum, paragraph 70). Had
immigration officials made efforts, they would have been able to obtain his
home address in Sri Lanka without delay as it was in the possession of the
transporter (respondent's written submissions in response to the appellants'
motion in writing dated November 26, 2013, paragraph 48). Relying on the above
Guidelines, counsel submits that the respondent could legitimately expect that
immigration officials would obtain his home address and attempt to notify him
there.
64 I
would first observe that the promise to make reasonable efforts is not
"clear, unambiguous and unqualified" as the words "whenever
possible" demonstrate. The closing statement that "this policy proves
difficult to implement" where the person's whereabouts are unknown, as is
the case here, gives rise to further equivocation. In my view, these words
would preclude the respondent from obtaining relief in a private law context
for CIC's or CBSA's alleged failure to attempt to contact him (Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504,
paragraph 69). This is particularly so when regard is had to the fact that, in
contrast, the respondent had the obligation to report and did not abide by it.
65 Moreover,
the efforts contemplated by the Guidelines are "reasonable efforts",
which means that they must be reasonably capable of allowing the person
concerned to be reached. Attempting to notify him at his home address in Sri
Lanka is not amongst the efforts which the respondent could reasonably expect
would be made in order to notify him as he was in Canada at the relevant time.
[page241]
|
66 The
respondent's further contention that notification by mail at his home address
in Sri Lanka should nevertheless have been attempted because the evidence shows
that he communicated with his family from time to time (respondent's
memorandum, paragraph 89), is of no assistance as that evidence is contained in
the affidavit sworn by the respondent five months later, in support of his
application for judicial review (respondent's affidavit, paragraph 5; appeal
book, page 37). Immigration officials had no reason to believe that
notification at his home address could be effective at the relevant time.
67 Pursuing
the same line of argument, counsel for the respondent submitted at the close of
the hearing that immigration officials had yet another mode of communication
available to them. Counsel pointed to the list of belongings produced by the
transporter which showed that the respondent had a cell phone in his
possession. However, the cell phone number was not revealed by this document.
Knowing that the respondent had a cell phone without anything more is of no
assistance.
68 I
therefore conclude that the above quoted passages from Operational Manual ENF 5
cannot give rise to a legitimate expectation that efforts would be made in this
case.
69 Finally,
even if the Guidelines gave rise to a legitimate expectation that immigration
authorities would make efforts to locate him, the respondent could have been
heard before any measure was taken against him. The only reason this right was
not exercised is that he was intent on not reporting until December 16, 2011.
The respondent is in effect attempting to recreate through the doctrine of
legitimate expectation a right which was available to him but which he did not
exercise in a timely fashion.
70 The
situation is similar the one before the Supreme Court in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249. In that case, the Supreme Court
held that the failure to exercise the right to be heard when available
precludes [page242] the application of the doctrine of legitimate expectation
in order to get a second chance (paragraph 79):
·
In the circumstances of this
case, I cannot accept that the Council violated Judge Moreau-Bérubé's right to
be heard by not expressly informing her that they might impose a sanction
clearly open to them under the Act. The doctrine of
legitimate expectations can find no application when the claimant is
essentially asserting the right to a second chance to avail him- or herself of
procedural rights that were always available and provided for by statute. [My emphasis.]
71 The
rule so stated is a straightforward form of estoppel. A person who does not
avail him or herself of the right to be heard in a timely fashion cannot expect
this right to remain available under the doctrine of legitimate expectations.
72 To
sum up, the respondent is the one who had the obligation to provide contact
information, not the other way around. Given his failure to report and his
decision to remain underground during the 12 days leading to the issuance of
the removal order, it was open to the Minister's delegate to proceed in absentia. I can detect no breach of
procedural fairness.
·
The reasons of the Federal
Court Judge
73 As
noted, the Federal Court Judge does not deal with the fact that the respondent
provided no contact information and was intent on remaining undetected by
immigration officials during the period leading to the issuance of the removal
order. Based on her reasons, this would have been immaterial as the Minister's
delegate could not issue the removal order before the respondent made contact
(reasons, paragraphs 7 and 34).
74 In
my respectful view, the Federal Court Judge's reasoning disregards both the
wording of the relevant legislation and its intent. The 1993 amendments to the
Regulations [then the Immigration Regulations, 1978, [page243] SOR/78-172] excluding deserters from the definition of
"members of a crew" was intended to allow immigration officials to
take timely action when a person ceased to qualify as a crew member (SOR/93-44,
section 12, enacting section 12.1). Prior to that amendment, no enforcement
action could be taken until the ship had left port (paragraph 27(2)(j) of the Act [then the Immigration Act ], R.S.C., 1985, c. I-2,
repealed by S.C. 1992, c. 49, subsection 16(8)).
75 In
2002, paragraph 184(1)(b) of
the Regulations imposed a 72-hour limitation on any member of a crew who ceases
to be a crew member (subsection 184(1) of the current Regulations
(SOR/2004-167, section 50). As was the case in 1993, this limitation was
intended to allow immigration officials to take timely action. Delaying action
until the deserter chooses to make contact would defeat that intent and read
the 72-hour limitation out of the Regulations.
76 Counsel
for the respondent argued that the Minister's delegate did not have to issue
the removal order on December 13, 2011 and should have exercised his discretion
accordingly. There are circumstances where enforcement action, although
authorized, should be delayed. However, none of these arise where a ship
deserter is believed on reasonable grounds to have gone underground. The
procedure outlined in section 8.5 of Operational
Manual: Enforcement (ENF), Chapter ENF 17,
"Maritimes Procedures" under heading "Crew members other than
deserters who cease to perform their duties" illustrates this point:
·
R184(1)(b) requires crew
members to leave Canada within 72 hours of ceasing to be members of the crew. In such cases officers should follow the same procedures for taking
enforcement action as apply in cases of desertion. The
following circumstances may lead to the loss of crew member status:
a labour dispute aboard
a vessel;
the crew member's
arrest on criminal charges;
[page244]
|
the seizure of a vessel
by court order or other authority; or
suspension of a ship's
operations due to an accident or mechanical problems.
·
In determining whether or not
enforcement action is appropriate, an officer should assess whether or not the
unwillingness or inability to perform duties will continue after the problem
has been resolved. If no resolution is in sight, or if
the officer has reason to believe that the crew member will not resume duties,
enforcement action should be initiated as soon as possible after the 72-hour
period expires. [My emphasis.]
77 In
the present case, immigration officials waited nine days beyond the expiration
of the 72-hour period before initiating enforcement actions. As the respondent
had still not reported, they had reasonable grounds to believe that he had gone
underground. Despite the respondent's argument to the contrary, immigration
officials did not act precipitously.
78 Counsel
for the respondent further argued that immigration officials should only have
completed the subsection 44(1) report and issued the arrest warrant since no
useful purpose was served by issuing the removal order right away. According to
counsel, immigration officials should have exercised their discretion not to
issue the removal order until the respondent contacted them in order to
preserve his right to claim refugee status.
79 Again,
this would put the timing of the issuance of the removal order, together with
the attendant consequences, in the hands of the person concerned. This is not
what was intended. In allowing for the timely issuance of a removal order, the
legislator must be taken to have acted coherently, in full knowledge of the
impact that such order has on the right to claim refugee protection (subsection
99(3) of the Act). The result is that persons who desert a ship in Canada in
order to claim refugee protection should report to the immigration authorities
and make their claim promptly. The 72-hour limitation makes it clear that they
cannot expect to claim this status at a time of their choice.
[page245]
|
·
The spectre of a legal error
80 At
the close of the hearing, counsel for the respondent made the point that in absentia proceedings can give rise to
legal errors.
81 Two
scenarios were mentioned. The first is where the deserter leaves Canada within
the 72-hour limit without having reported and a removal order is issued in absentia in the belief that the deserter
remains in Canada and is evading the authorities. The other scenario is where
the deserter is incapacitated and incapable of reporting as required for
medical reasons and a removal order is issued in
absentia again in the belief that the deserter remains
in Canada and is evading the authorities.
82 I
note with respect to this last scenario that a crew member who leaves ship in
order to be hospitalized maintains his status as a crew member (subparagraph
3(1)(b)(iii) of the
Regulations). The scenario is therefore restricted to persons who are
incapacitated for medical reasons, without being hospitalized.
83 In
my view, judicial review would be available to correct legal errors under
either scenario. As to the first, a demonstration that the person had left
Canada would lead to the removal order being set aside as the condition
precedent for its issuance would not have been in existence at the relevant
time.
84 As
to the second scenario, a demonstration that the person would have reported but
was incapable of doing so could lead to the removal order being set aside on
the ground that the person was unable to make contact within the three-day
period provided for by the Regulations for reasons beyond his or her control
and was, as a result, deprived of the right to be heard.
85 Although
the issuance of a removal order in absentia can result in legal errors, I cannot conceive of [page246] any
error of the type alluded by counsel which could not be cured by invoking the
judicial review jurisdiction of the Federal Court.
DISPOSITION
86 For
these reasons, I would answer the certified question in the negative, allow the
appeal, set aside the decision of the Federal Court judge, and giving the
decision which she ought to have given, I would dismiss the judicial review
application.
GAUTHIER J.A.:-- I agree.
MAINVILLE J.A.:-- I agree.
* * * * *
ANNEX
RELEVANT LEGISLATIVE PROVISIONS
Immigration and Refugee Protection Act, S.C. 2001, c. 27
·
Examination by officer
·
18. (1)
Every person seeking to enter Canada must appear for an examination to
determine whether that person has a right to enter Canada or is or may become
authorized to enter and remain in Canada.
...
·
29....
·
Obligation - temporary
resident
·
(2) A temporary resident must
comply with any conditions imposed under the regulations and with any
requirements under this Act, must leave Canada by the end of the period
authorized for their stay and may re-enter Canada only if their authorization
provides for re-entry.
...
·
Non-compliance with Act
·
41. A
person is inadmissible for failing to comply with this Act
[page247]
|
·
(a) in the case of a foreign national, through an act or omission
which contravenes, directly or indirectly, a provision of this Act.
...
·
Preparation of report
·
44. (1)
An officer who is of the opinion that a permanent resident or a foreign
national who is in Canada is inadmissible may prepare a report setting out the
relevant facts, which report shall be transmitted to the Minister.
·
Referral or removal order
·
(2) If the Minister is of the
opinion that the report is well-founded, the Minister may refer the report to
the Immigration Division for an admissibility hearing, except in the case of a
permanent resident who is inadmissible solely on the grounds that they have
failed to comply with the residency obligation under section 28 and except, in
the circumstances prescribed by the regulations, in the case of a foreign
national. In those cases, the Minister may make a removal order.
...
·
No return without prescribed
authorization
·
52. (1)
If a removal order has been enforced, the foreign national shall not return to
Canada, unless authorized by an officer or in other prescribed
circumstances.
...
·
Arrest and detention with
warrant
·
55. (1)
An officer may issue a warrant for the arrest and detention of a permanent
resident or a foreign national who the officer has reasonable grounds to
believe is inadmissible and is a danger to the public or is unlikely to appear
for examination, for an admissibility hearing, for removal from Canada or at a
proceeding that could lead to the making of a removal order by the Minister
under subsection 44(2).
...
·
99....
·
Claim inside Canada
·
(3) A claim for refugee
protection made by a person inside Canada must be made to an officer, may not
be made by a person who is subject to a removal order, and is governed by this
Part.
...
[page248]
|
·
Application for
protection
·
112. (1)
A person in Canada, other than a person referred to in subsection 115(1), may,
in accordance with the regulations, apply to the Minister for protection if
they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
...
·
Obligation of operators of
vehicles and facilities
·
148. (1)
A person who owns or operates a vehicle or a transportation facility, and an
agent for such a person, must, in accordance with the regulations,
...
·
(f) carry from Canada a person whom it has carried to or caused to
enter Canada and who is prescribed or whom an officer directs to be
carried.
Immigration and Refugee Protection Regulations, SOR/2002-227
·
Interpretation - member of a
crew
·
3. (1)
For the purposes of these Regulations,
...
·
(b) a person ceases to be a member of a crew if
they have
deserted;
an officer believes on
reasonable grounds that they have deserted;
they have been
hospitalized and have failed to return to the means of transportation or leave
Canada after leaving the hospital, or
they have been
discharged or are otherwise unable or unwilling to perform their duties as a
member of a crew and failed to leave Canada after the discharge or after they
first became unable or unwilling to perform those duties.
...
[page249]
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·
Documents - temporary
residents
·
52. (1)
In addition to the other requirements of these Regulations, a foreign national
seeking to become a temporary resident must hold one of the following documents
that is valid for the period authorized for their stay:
·
(a) a passport that was issued by the country of which the foreign
national is a citizen or national, that does not prohibit travel to Canada and
that the foreign national may use to enter the country of issue;
...
·
Exceptions
Subsection (1) does not
apply to
...
·
(g) persons seeking to enter Canada as members of a crew who hold a
seafarer's identity document issued under International Labour Organization
conventions and are members of the crew of the vessel that carries them to
Canada.
...
·
Condition imposed on members of
a crew
·
184. (1)
A foreign national who enters Canada as a member of a crew must leave Canada
within 72 hours after they cease to be a member of a crew.
·
Conditions imposed on foreign
nationals who enter to become members of a crew
·
(2) The following conditions
are imposed on a foreign national who enters Canada to become a member of a
crew:
·
(a) [Repealed, SOR/2004-167, s. 50]
·
(b) to join the means of transportation within the period imposed as a
condition of entry or, if no period is imposed, within 48 hours after they
enter Canada; and
·
(c) to leave Canada within 72 hours after they cease to be a member of
a crew.
...
[page250]
|
·
No permit required
·
186. A
foreign national may work in Canada without a work permit
...
·
(s) as a member of a crew who is employed by a foreign company aboard
a means of transportation that
is foreign-owned and
not registered in Canada, and
is engaged primarily
in international transportation.
...
·
190.
...
·
Visa exemption - crew
member
·
(3.1) A foreign national who is
a member of a crew and who is carried to Canada by a vessel is exempt from the
requirement to obtain a temporary resident visa if they are seeking
·
(a) to enter Canada as a member of the crew of the vessel; and
·
(b) to remain in Canada solely as a member of the crew of that vessel
or any other vessel.
...
·
Subsection 44(2) of the Act -
foreign nationals
·
228. (1)
For the purposes of subsection 44(2) of the Act, and subject to subsections (3)
and (4), if a report in respect of a foreign national does not include any
grounds of inadmissibility other than those set out in the following
circumstances, the report shall not be referred to the Immigration Division and
any removal order made shall be
...
·
(c) if the foreign national is inadmissible under section 41 of the
Act on grounds of
...
failing to comply with
subsection 29(2) of the Act to comply with any condition set out in section
184, an exclusion order.
...
[page251]
|
·
Reporting obligation
·
268. (1)
A transporter must, without delay, notify an officer at the nearest port of
entry of any foreign national who ceases to be a member of the crew for a
reason listed in paragraph 3(1)(b). The transporter must record that information and provide it in
writing on the request of the officer.
...
·
Members of a crew
·
274. (1)
If a transporter carries, or causes to be carried, a foreign national to Canada
as a member of its crew or to become a member of its crew, and the foreign
national is subject to an enforceable removal order, the transporter must carry
that foreign national from Canada to the applicable country as determined under
Division 4 of Part 13.
·
Conveyance to vehicle
·
(2) The transporter must
transport the foreign national referred to in subsection (1) from wherever the
foreign national is situated in Canada to the vehicle in which they will be
carried to another country.
...
·
Notifying transporters
·
276. (1)
When a foreign national seeking to enter Canada is made subject to a removal
order and a transporter is or might be required under the Act to carry that
foreign national from Canada, an officer shall
·
(a) notify the transporter that it is or might be required to carry
that foreign national from Canada; and
·
(b) when the removal order is enforceable, notify the transporter that
it must carry the foreign national from Canada and whether the foreign national
must be escorted.
·
Notifying an officer
·
(2) After being notified under
paragraph (1)(b), the
transporter must without delay notify an officer of arrangements made for
carrying the foreign national from Canada.
...
[page252]
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·
Removal costs
·
278. A
transporter that is required under the Act to carry a foreign national from
Canada must pay the following costs of removal and, if applicable, attempted
removal:
·
(a) expenses incurred within or outside Canada with respect to the
foreign national's accommodation and transport, including penalties for changes
of date or routing;
·
(b) accommodation and travel expenses incurred by any escorts provided
to accompany the foreign national;
·
(c) fees paid in obtaining passports, travel documents and visas for
the foreign national and any escorts;
·
(d) the cost of meals, incidentals and other expenses as calculated in
accordance with the rates set out in the Travel
Directive published by the Treasury Board Secretariat,
as amended from time to time;
·
(e) any wages paid to escorts and other personnel; and
·
(f) the costs or expenses incurred with respect to interpreters and
medical and other personnel engaged for the removal.
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