Canada (Citizenship and Immigration) v. Jayamaha Mudalige Don

Canada (Citizenship and Immigration) v. Jayamaha Mudalige Don
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-01-10
Neutral citation
2014 FCA 4
File numbers
A-45-13
Notes
Reported Decision
Decision Content
Date: 20140110
Docket:
A-45-13
Citation: 2014 FCA 4
CORAM:
NOËL J.A.
GAUTHIER J.A.
MAINVILLE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellants
and
Nuwan Dilusha JAYAMAHA MUDALIGE DON
Respondent
Heard at Montréal, Quebec, on December 3, 2013.
Judgment delivered at Ottawa, Ontario, on January 10, 2014.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY:
GAUTHIER J.A.
MAINVILLE J.A.
Date: 20140110
Docket:
A-45-13
Citation: 2014 FCA 4
CORAM:
NOËL J.A.
GAUTHIER J.A.
MAINVILLE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Appellants
and
Nuwan Dilusha JAYAMAHA MUDALIGE DON
Respondent
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 avai