Docket:
A-45-13
Citation: 2014 FCA 4
CORAM:
NOËL J.A.
GAUTHIER J.A.
MAINVILLE J.A.
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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AND
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Appellants
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and
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Nuwan Dilusha JAYAMAHA MUDALIGE DON
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Respondent
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REASONS
FOR JUDGMENT
NOËL J.A.
[1]
This is an appeal from a decision of the Federal Court,
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.
[2]
In allowing the application, the Federal Court judge
certified the following question of general importance (reasons, para. 22):
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, pp. 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 Montreal and Oshawa (appeal book, p. 83).
[7]
The ship docked at the port of Oshawa on November 27,
2011 (reasons, paras. 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, pp. 83 and 84).
[8]
On December 4, 2011, the ship departed from Oshawa for the Port of Duluth, Minnesota (appeal book, p. 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, p. 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, pp. 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, pp. 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, pp. 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, p. 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 Canadian 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, pp. 95 to 110; notice of seizure, appellants’
record of motion in writing to file new evidence, p. 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, pp. 111
to 113); a Seaman’s Record Book and Certificates of Discharge (appeal book, pp.
114 to 121); the respondent’s employment contract (appeal book, p. 123); and an
Antigua-and-Barbuda Online Application (appeal book, p. 131; notice of seizure,
appellants’ record of motion in writing to file new evidence, p. 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, pp. 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, p. 121).
[14]
On December 16, 2011, the respondent presented himself
before Canadian immigration authorities in Montreal and claimed refugee
protection (appeal book, pp. 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,
p. 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, p. 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 removal order and referred the
matter for re-determination 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,
para. 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 analyzed 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, paras. 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, para. 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 Canada
(Minister of Citizenship and Immigration) v. Cha, 2006 FCA 126, para. 52 (Cha),
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, para. 28).
[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,
para. 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, para. 30).
[21]
The Federal Court judge further noted that sections 5.1
and 16 of Citizen and Immigration Canada’s (CIC) Manual ENF 6 explicitly
provide for participatory rights for individuals who are subject to subsection
44(2) proceedings (reasons, paras. 31 and 32). Given these Guidelines and this
Court’s reasoning in Cha, the Federal Court judge concluded that:
… 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. … [A]t
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 (reasons,
para. 33)
[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, para. 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" [My emphasis] (reasons, para. 34).
[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 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, paras.
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, para.
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:
…
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."
(appellants’ memorandum, paras. 42 and 43).
[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, paras. 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, para. 48).
[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, paras. 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, para. 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, para. 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,
para. 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:
[C]an
[the Minister] issue a removal order in abstentia, 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? (appellants’ memorandum, para. 22)
POSITION OF THE
RESPONDENT
[29]
Relying on the Supreme Court’s decision in Agraira
v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (Agraira),
the respondent submits that the CIC Guidelines create a legitimate expectation
that procedures contained therein “will be followed, and the failure to adopt
such procedures constitutes a violation of the right to procedural fairness”
(respondent’s memorandum, para. 67). Based on the Guidelines, the respondent
could legitimately expect that:
(a)
in abstentia 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
abstentia 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. (respondent’s memorandum, para. 70).
[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, paras. 55 to 60). It is the
respondent’s position that:
[…]
pursuant to the general principles relating to in abstentia 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 (respondent’s
memorandum, para. 64).
[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, para. 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, para. 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:
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 abstentia, without prior effort to contact the
individual? (respondent’s memorandum, para. 44).
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, para. 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, para. 16).
[37]
The issue before us is therefore whether she properly
applied this standard (Yu v. Canada (Attorney General), 2011 FCA 42,
para. 19; Canada Revenue Agency v. Telfer, 2009 FCA 23 para. 18; Merck Frosst Canada Ltd. v. Canada
(Health), 2012 SCC 3, para. 247; Agraira, para. 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).
[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 twelve 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, para. 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 Montreal, 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 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, para. 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 fifteen 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 Montreal on December 1, 2011, where he remained until he made contact with the
authorities, but there is no indication as to his whereabouts in Montreal 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 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 Inland Processing Manual: “Refusal
of National Security Cases / Processing of National Interest Requests”) in
creating legitimate expectations. It laid out the framework of analysis as
follows (Agraira, paras. 95 and 96):
[95] 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. [My
emphasis]
(D. J. M. Brown and J. M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at §7:1710; see also Mount
Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), 2001 SCC 41 (CanLII), 2001 SCC 41, [2001] 2
S.C.R. 281, at para. 29; Canada (Attorney General) v. Mavi, 2011 SCC 30 (CanLII), 2011 SCC 30, [2011] 2
S.C.R. 504, at para. 68.)
[96] 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, paras. 98 and 99):
[98] 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.
[99] 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 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 (Manual ENF 6), which the Federal Court judge relies
on (reasons, paras. 24), do not meet this test as they do not deal with persons
whose contact information is lacking. The only passage in 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 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 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 (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
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, para. 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, pp. 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) (Manual ENF 5). 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, 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, para. 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, para. 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, para. 69 (Mavi)). 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.
[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, para. 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, para. 5, appeal book,
p. 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 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 the application of the doctrine of legitimate
expectation in order to get a second chance (para. 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 twelve 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, paras. 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 excluding deserters from the definition
of “member 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, R.S.
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 Manual ENF 17 under heading 8.5 “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;
- the
seizure of a vessel by court order or other autority; 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.
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 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.
“Marc Noël”
“I agree.
Johanne Gauthier J.A.”
“I agree.
Robert M.
Mainville J.A.”
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