Tuesday, 21 January 2014

The Weak Procedural Rights of the Disappeared

The applicant in Canada (Citizenship and Immigration) v. Mudalige Don, 2014 FCA 4 jumped ship in Oshawa. Twelve days elapsed before he reported himself to the authorities and claimed refugee status. In the interim, a removal order had been made against him. Did he have any procedural protections prior to the making of the removal order?

The applicant won at first instance -- 2013 FC 1 -- on the basis that he was entitled to notice and an interview before a removal order was issued. This was important. Ship deserters have a grace period of 72 hours in which to turn themselves in to the authorities but after that time a removal order can be issued. And once the removal order was issued, he was no longer eligible to claim refugee status. But the Federal Court of Appeal allowed the Minister's appeal.

Noël J.A. held that the applicant's failure to turn himself in made it impossible for the authorities to notify him of their intention to issue a removal order. Moreover, the authorities had no means of notifying him:
[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...

[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.
The applicant was rather like an old favourite of administrative law: the applicant who well knew the grounds for a decision and could not therefore complain of the absence of notice. A legitimate expectations argument based on administrative guidelines foundered for much the same reason:
[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.
As against all this, the applicant argued that issuing the removal order before he was in the hands of the authorities served no purpose. The authorities could simply have issued a warrant for his arrest. Once arrested, he could have been provided with an opportunity to make his case. Noël J.A. held that this would be inconsistent with the legislative intent underpinning the 72-hour period. It would give the individual the right to extend it indefinitely:
[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.
Moreover, any removal orders issued in error (if, for example, the applicant was injured and unable to report) could be corrected on judicial review (at para. 85).

The real key to this difficult case must lie in s. 99(3). Notifying the applicant in advance of the removal order proceeding seems impractical for the reasons given by Noël J.A. But perhaps the applicant's claim should be understood more broadly: that no removal order should be issued until the applicant has had a chance to read the material presented by the authorities and explain himself (which is also the most cost-effective means of ensuring no erroneous decisions are made). It is difficult to see how this would be impractical, even if it would be impractical to contact a deserter who has dropped off the map. The authorities could still search for the deserter by means of issuing an arrest warrant and provide him or her with notice and an opportunity to respond once in their custody.

Reframed, the applicant's claim is that in the absence of clear legislative intent to the contrary, the removal order proceeding should be subject to these basic procedural protections. Interestingly, the legislation does not expressly impose any time limit. The time limit is imposed by the regulations. Moreover, while s. 99(3.1) refers to time limits for claiming refugee status, the 72-hour period referenced in the decision is a different time limit. It describes the point at which a ship deserter becomes subject to a removal order. It does not purport to set a time limit for a refugee claim. Noël J.A. is right to note the difficulties which arise from the implications of the applicant's argument, but it is not obvious that the statutory language is sufficiently clear to oust common law procedural protections.

Lurking in all of this are difficult questions about vires and substantive/procedural review of regulations which might well tempt the Supreme Court of Canada to take a look at the case.

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