A-45-13
2014 FCA 4
The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (Appellants)
v.
Nuwan Dilusha Jayamaha Mudalige Don (Respondent)
Indexed as: Mudalige Don v. Canada (Citizenship and Immigration)
Federal Court of Appeal, Noël, Gauthier and Mainville JJ.A.—Montréal, December 3, 2013; Ottawa, January 10, 2014.
Citizenship and Immigration — Exclusion and Removal — Removal order — Appeal from Federal Court decision allowing application for judicial review of decision of Minister’s delegate to issue removal order under Immigration and Refugee Protection Act, s. 44(2), against respondent — Removal order issued against respondent, citizen of Sri Lanka carried to Canada by M/V Lake Ontario (the ship), for failure to abide by Immigration and Refugee Protection Regulations, s. 184(1) ― Regulations requiring respondent to leave Canada within 72 hours after ceasing to be member of crew — Minister’s delegate preparing inadmissibility report under Act, s. 44(1), then issuing removal order against respondent pursuant to s. 44(2) ― Respondent claiming refugee protection several days later ― Claim denied because s. 99(3) stating claim for refugee protection may not be made by person subject to removal order ― Federal Court holding delegate breached duty of procedural fairness in issuing removal order before respondent had any contact with Canadian immigration authorities, sections of certain Citizenship and Immigration Canada (CIC) guideline providing for participatory rights for respondent ― Whether appellants breached duty of procedural fairness by issuing removal order without giving respondent opportunity to be heard or attempting to contact respondent ― Respondent had right to claim refugee protection within 72 hours after deserting ship or at any time before removal order issued ― Respondent did not avail himself of opportunity, so inadmissibility report could be signed, removal order issued ― Respondent had no known address in Canada ― Person challenging decision on basis decision rendered without prior notification must show capable of being notified ― In present case, respondent intent on remaining undetected by immigration officials until ship respondent deserted had left Canada ― This was incompatible with exercise of right to be heard ― CIC guidelines at issue in present case not giving rise to legitimate expectation respondent would be heard ― Guidelines not “clear, unambiguous and unqualified”, contrary to principle laid down in Agraira v. Canada (Public Safety and Emergency Preparedness) ― Guidelines also not providing for process to be followed when authorities do not have person’s contact information ― CIC guidelines governing removal orders issued to persons in absentia, relied on by Federal Court, not dealing with persons lacking contact information ― Promise to make reasonable efforts, provided for in guidelines on writing s. 44(1) reports, not giving rise to legitimate expectation efforts would be made in present case ― Respondent had obligation to provide contact information, not other way around ― Given respondent’s failure to report and decision to remain underground during 12 days leading to issuance of removal order, Minister’s delegate could proceed in absentia ― No breach of procedural fairness ― In allowing for timely issuance of removal order, legislator must be taken to have acted coherently, in full knowledge of impact such order has on right to claim refugee protection ― Persons deserting ship in Canada to claim refugee protection should report to immigration authorities and make claim promptly, not at time of persons’ choice ― Appeal allowed.
This was an appeal from a decision of the Federal Court wherein the Court granted an application for judicial review of a decision by a delegate of the Minister to issue a removal order under subsection 44(2) of the Immigration and Refugee Protection Act (the Act) against the respondent for his failure to abide by subsection 184(1) of the Immigration and Refugee Protection Regulations (the Regulations), which required him to leave Canada within 72 hours after ceasing to be a member of a crew.
The respondent, a citizen of Sri Lanka, was a crew member aboard the foreign registered vessel M/V Lake Ontario (the ship). The ship docked at the port of Oshawa on November 27, 2011. On December 2, 2011, the ship’s agent filed a Notice of Desertion with the authorities indicating that the respondent had deserted the ship on December 1, 2011.
On December 12, 2011, an inadmissibility report under subsection 44(1) of the Act was prepared because the respondent had failed to comply with subsection 184(1) of the Regulations, which required him to leave Canada within 72 hours after he ceased to be a member of a crew. The Minister’s delegate then issued a removal order against the respondent pursuant to subsection 44(2) of the Act and subparagraph 228(1)(c)(v) of the Regulations. A few days later, the respondent presented himself before Canadian immigration authorities and claimed refugee protection. This claim was denied, as subsection 99(3) of the Act states that a claim for refugee protection may not be made by a person who is subject to a removal order.
The Federal Court held that the Minister’s delegate had breached his duty of procedural fairness in issuing an exclusion order against the respondent before he had any contact with Canadian immigration authorities, and that sections of a certain Citizenship and Immigration Canada (CIC) guideline explicitly provide for participatory rights for individuals who are subject to subsection 44(2) proceedings. In the present case, not only had the respondent not been notified, but there was no indication that any effort was made to contact him. Consequently, according to the Federal Court, the delegate had breached the duty of fairness by rendering an exclusion order against the respondent in absentia before the respondent had contact with the immigration authorities.
The issue was whether the appellants breached their duty of procedural fairness by issuing a removal order against the respondent without giving him an opportunity to be heard or attempting to contact him.
Held, the appeal should be allowed.
Upon deserting the ship, the respondent ceased to have any status in Canada and had the obligation to leave within 72 hours. Failing this, he had the obligation to report for examination before an immigration officer in order to regularize his status. Beyond remaining outside the reach of immigration officials for 15 days, the respondent had no known address in Canada. A person in the position of the respondent who challenges a decision on the basis that it was rendered without prior notification must be able to show that he was capable of being notified. At minimum, this requires that the person provides immigration authorities with some means of being reached in Canada. In the present case, not only were no such means provided, but the respondent was intent on remaining undetected by the immigration authorities until he was satisfied that the ship which he deserted had left Canada. This was incompatible with the exercise of the right to be heard. The Minister’s delegate could not be held to have issued the removal order in breach of the respondent’s right to be heard.
The CIC guidelines at issue in this case did not create a legitimate expectation that the respondent would be heard. These guidelines are not “clear, unambiguous and unqualified” and do not provide for a process to be followed in circumstances where a person’s contact information is lacking, contrary to the principles laid down in Agraira v. Canada (Public Safety and Emergency Preparedness). The CIC guidelines governing removal orders issued to persons in absentia, which the Federal Court relied on, do not meet this test either, as they do not deal with persons whose contact information is lacking. The Minister’s delegate therefore had no information of any sort as to where or how the respondent could be notified when the removal order was issued. The promise to make reasonable efforts, provided for in the guidelines on writing subsection 44(1) reports, did not give rise to a legitimate expectation that efforts would be made in this case. To sum up, the respondent is the one who had the obligation to provide contact information, not the other way around. Given his failure to report and his decision to remain underground during the 12 days leading to the issuance of the removal order, it was open to the Minister’s delegate to proceed in absentia. There was no breach of procedural fairness.
The Federal Court held that the fact that the respondent provided no contact information and was intent on remaining undetected by immigration officials during the period leading to the issuance of the removal order was not relevant. This reasoning disregards both the wording of the relevant legislation and its intent. The 1993 amendments to the Regulations were intended to allow immigration officials to take timely action when a person ceased to qualify as a crew member. Prior to that amendment, no enforcement action could be taken until the ship had left port. Although there are circumstances where enforcement action, although authorized, should be delayed, such is not the case where a ship deserter is believed on reasonable grounds to have gone underground. In the present case, immigration officials waited nine days beyond the expiration of the 72-hour period before initiating enforcement actions. As the respondent had still not reported, they had reasonable grounds to believe that he had gone underground. The immigration officials did not act precipitously. In allowing for the timely issuance of a removal order, the legislator must be taken to have acted coherently, in full knowledge of the impact that such order has on the right to claim refugee protection. The result is that persons who desert a ship in Canada in order to claim refugee protection should report to the immigration authorities and make their claim promptly. The 72-hour limitation makes it clear that they cannot expect to claim this status at a time of their choice.
STATUTES AND REGULATIONS CITED
Immigration Act, R.S.C., 1985, c. I-2, s. 27(2)(j) (as am. by S.C. 1992, c. 49, s. 16(8)).
Immigration and Refugee Protection Act, S.C. 2001, c. 47, ss. 18(1), 29(2), 44(1),(2), 55(1), 74(d), 99(3), 148(1)(f).
Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 3(1)(b), 52(2)(g), 184(1), 186(s), 190(3.1), 228(1)(c)(v), 268(1), 274, 276, 278.
Immigration Regulations, 1978, SOR/78-172, s. 12.1 (as enacted by SOR/93-44, s. 12).
CASES CITED
applied:
Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249.
considered:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R. (4th) 193; Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409.
referred to:
Yu v. Canada (Attorney General), 2011 FCA 42, 414 N.R. 283; Telfer v. Canada (Revenue Agency), 2009 FCA 23, [2009] 4 C.T.C. 123; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504.
AUTHORS CITED
Citizenship and Immigration Canada. Operational Manual: Enforcement (ENF). Chapter ENF 5 “Writing 44(1) Reports”, online:
<http://www.cic.gc.ca/english/resources/manuals/enf/enf05-eng.pdf>.
Citizenship and Immigration Canada. Operational Manual: Enforcement (ENF). Chapter ENF 6 “Review of Reports under A44(1)”, online: <http://www.cic.gc.ca/english/resources/manuals/enf/enf06-eng.pdf>.
Citizenship and Immigration Canada. Operational Manual: Enforcement (ENF). Chapter ENF 17 “Maritimes Procedures”, online: <http://www.cic.gc.ca/english/resources/manuals/enf/enf17-eng.pdf>.
Citizenship and Immigration Canada. Operational Manual: Inland Processing (IP). Chapter 10 “Refusal of National Security Cases/Processing of National Interest Requests”, online: <http://www.cic.gc.ca/english/resources/manuals/ip/ip10-eng.pdf>.
APPEAL from a decision of the Federal Court (2013 FC 1, [2014] 3 F.C.R. 3) allowing an application for judicial review of the decision of the Minister’s delegate to issue a removal order against the respondent. Appeal allowed.
APPEARANCES
Normand Lemyre and Andrea Shahin for appellants.
Peter Shams and Jared Will for respondent.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for appellants.
Peter Shams and Jared Will, Montréal, for respondent.
The following are the reasons for judgment rendered in English by
[1] Noël J.A.: This is an appeal from a decision of the Federal Court [2013 FC 1, [2014] 3 F.C.R. 3], wherein Tremblay-Lamer J. (the Federal Court Judge) granted an application for judicial review of a decision by a delegate of the Minister of Citizenship and Immigration (Minister’s delegate) to issue a removal order under subsection 44(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against Mr. Nuwan Dilusha Jayamaha Mudalige Don (the respondent) for his failure to abide by subsection 184(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) which required him to leave Canada within 72 hours after ceasing to be a member of a crew.
[2] In allowing the application, the Federal Court Judge certified the following question of general importance (reasons, paragraph 43):
Does the Minister’s issuance of an exclusion order pursuant to subparagraph 228(1)(c)(v) of the [Regulations] before the member of a crew subject to the exclusion order has any contact with the immigration authorities constitute a breach of procedural fairness because it deprives the foreign national of the opportunity to make a refugee claim?
[3] For the reasons which follow, I am of the view that this question ought to be answered in the negative and that the appeal should be allowed.
[4] The relevant legislative provisions are reproduced in the annex to these reasons.
FACTUAL BACKGROUND
[5] The respondent, a citizen of Sri Lanka, was a crew member aboard the foreign registered vessel M/V Lake Ontario (the ship). The respondent had taken up his position as a crew member at the port city of Annaba, Algeria on or about July 11, 2011 (appeal book, pages 89 and 123).
[6] The Canadian customs entry form filed by the ship captain (Form A5 (1/51)) upon the ship’s arrival in Canada indicates that the inward journey began at the port of Dordrecht, Netherlands. From there the ship sailed to three port cities in the Mediterranean Sea, the last being Nemrut Bay, Turkey and then onto Montréal and Oshawa (appeal book, page 83).
[7] The ship docked at the port of Oshawa on November 27, 2011 (reasons, paragraphs 2 and 3). On December 2, 2011, the ship’s agent, the Currie Maritime Corporation (the transporter), filed a Notice of Desertion with the Canadian Customs and Excise authorities in Hamilton, Ontario, indicating that two crew members had deserted the ship on December 1, 2011, one being the respondent (appeal book, pages 83 and 84).
[8] On December 4, 2011, the ship departed from Oshawa for the Port of Duluth, Minnesota (appeal book, page 83). According to the pre-arrival notification filed with Canada customs by the transporter, the ship was scheduled to then return to the Port of Montreal and trace back its inward journey all the way to Dordrecht, where it began (appeal book, page 87).
[9] By December 8, 2012, immigration authorities were able to ascertain the respondent’s country of birth, his citizenship, his age, his marital status (single) and his physical description (appeal book, pages 80, 84 and 89).
[10] On December 12, 2011, an officer of the Minister of Citizenship and Immigration prepared an inadmissibility report under subsection 44(1) of the Act because the respondent had failed to comply with subsection 184(1) of the Regulations, which required him to “leave Canada within 72 hours after they cease to be a member of a crew” (appeal book, pages 75 and 76).
[11] On December 13, 2011, the Minister’s delegate issued a removal order or more precisely an exclusion order against the respondent pursuant to subsection 44(2) of the Act and subparagraph 228(1)(c)(v) of the Regulations (appeal book, pages 73 and 74). On the same day, Canadian immigration authorities issued a warrant for the respondent’s arrest pursuant to subsection 55(1) of the Act (appeal book, page 78). The warrant was issued on the basis that there were reasonable grounds to believe that the respondent was inadmissible and was unlikely to appear for his removal.
[12] Further to a notice of seizure issued on December 16, 2011 by the Canada Border Services Agency (CBSA), the transporter provided the immigration authorities with the respondent’s passport and a Seaman’s Identification and Record Book issued by the Republic of Liberia in the name of the respondent (appeal book, pages 95 to 110; notice of seizure, appellants’ record of motion in writing to file new evidence, page 6). On December 18, 2011, the immigration authorities received several other documents from the transporter, namely: a Seafarer’s Book issued by Antigua-and-Barbuda (appeal book, pages 111 to 113); a Seaman’s Record Book and Certificates of Discharge (appeal book, pages 114 to 121); the respondent’s employment contract (appeal book, page 123); and an Antigua-and-Barbuda Online Application (appeal book, page 131; notice of seizure, appellants’ record of motion in writing to file new evidence, page 12).
[13] Amongst the information provided by the transporter on December 18, 2011, was the address of the respondent in Sri Lanka at 523/A Wahatiyagoda, Pamunugama (appeal book, pages 121, 123 and 131). The documentation showed that this was also the address of his mother whom he had designated as his next-of-kin in the records kept by the transporter (appeal book, page 121).
[14] On December 16, 2011, the respondent presented himself before Canadian immigration authorities in Montréal and claimed refugee protection (appeal book, pages 37 and 40). In the affidavit filed before the Federal Court in support of his judicial review application, the respondent explained the reason for the delay in submitting his claim for refugee protection as follows (appeal book, page 37):
When we arrived in Canada, the weather was very rainy which forced the vessel to be docked for several days and I was able to jump ship on December 1st 2011. At that time I had no knowledge that the vessel was departing on December 3rd 2011 as I did not know how much time it would take to unload the vessel due to the rain. I therefore came to Montreal the next day and claimed refugee status on December 16th 2011 since I knew that the vessel would have left by that time and I would not be forced to return with the vessel.
[15] By letter dated March 6, 2012, the respondent was informed that his refugee claim had been denied, as “subsection 99(3) of the … [Act] states that a claim for refugee protection may not be made by a person who is subject to a removal order” (appeal book, page 42).
[16] On March 21, 2012, the respondent filed an application for judicial review of the Minister’s delegate’s decision to issue a removal order against him. On January 3, 2013, the Federal Court Judge granted the respondent’s application for judicial review, set aside the removal order and referred the matter for redetermination by a different delegate. In rendering judgment, the Federal Court Judge certified a serious question of general importance pursuant to paragraph 74(d) of the Act, hence the appeal before this Court.
DECISION OF THE FEDERAL COURT
[17] The Federal Court Judge identified the issue before her in the following terms (reasons, paragraph 7):
The issue in the present application for judicial review is whether the [Minister’s] delegate breached his duty of procedural fairness by issuing an exclusion order against the [respondent] before the [respondent] had any contact with the Canadian immigration authorities.
[18] After setting out the position of the parties, the Federal Court Judge analysed the five factors identified in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker) to assess the degree of procedural fairness that was required in the case at hand namely: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the agency itself (reasons, paragraphs 17 to 27).
[19] After weighing these factors, the Federal Court Judge held that “the content of the duty of fairness in the context of the situation in the case at bar is at the low end of the spectrum” (reasons, paragraph 27). In order to establish the content of the duty of fairness in this particular case, the Federal Court Judge relied on this Court’s decision in Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R. 409 (Cha), paragraph 52, wherein this Court set forth the basic requirements of procedural fairness in the context of an inadmissibility report and removal order issued on the ground of criminality (reasons, paragraph 28).
[20] According to the Federal Court Judge, the factual situation in the instant case is analogous to that at issue in Cha, except for the following two elements: in Cha, the foreign national was solely rendered inadmissible pursuant to subsection 44(1) of the Act on the ground of criminality; and contrary to the case at bar, the foreign national’s contact information was available to the immigration authorities (reasons, paragraph 29). As for the second distinguishing factor, the Federal Court Judge rejected the appellants’ argument that the procedure suggested in Cha is impracticable in the case of marine deserters who do not have contact information in Canada (reasons, paragraph 30).
[21] The Federal Court Judge further noted that sections 5.1 and 16 of Citizen and Immigration Canada’s (CIC) Operational Manual: Enforcement (ENF), chapter ENF 6 “Review of Reports under A44(1)”, explicitly provide for participatory rights for individuals who are subject to subsection 44(2) proceedings (reasons, paragraphs 31 and 32). Given these Guidelines and this Court’s reasoning in Cha, the Federal Court Judge concluded that (reasons, paragraph 33):
… a marine deserter is entitled to some participatory rights before a delegate issues a removal order against them pursuant to subsection 44(2) of the Act and subsection 184(1) of the Regulations.… at the very minimum, before the removal order is issued, the individual is entitled to a copy of the immigration officer’s report and an opportunity to present evidence and express his or her point of view to the delegate.
[22] In the present case, not only was the respondent not notified, but there is no indication that any effort was made to contact him (reasons, paragraph 34). Consequently, “the delegate breached the duty of procedural fairness by rendering an exclusion order against the [respondent] in absentia before the [respondent] had contact with the immigration authorities” (reasons, paragraph 34; my emphasis).
[23] Moreover, the Federal Court Judge dismissed the appellants’ submission that quashing the removal order would serve no purpose in the circumstances. After reviewing the relevant jurisprudence, the Federal Court Judge noted that individuals subject to an inadmissibility report under subsection 44(1) might qualify for refugee protection insofar as they apply for refugee status before a removal order is issued against them (reasons, paragraphs 35 to 37). Therefore, “[q]uashing this exclusion order because it breached the [respondent’s] right to procedural fairness will serve the purpose of giving him an opportunity to be eligible to claim refugee protection” (reasons, paragraph 35).
POSITION OF THE APPELLANTS
[24] The appellants begin their submissions by recalling the legislative history and purpose of the 72-hour limit applicable to crew members, stating that (appellants’ memorandum, paragraphs 42 and 43):
… subsection 184(1) of the current Regulations, with its 72-hour limit, was adopted in the same spirit as the above-mentioned amendments in 1993, i.e. to allow immigration officers to take immediate enforcement action against ship deserters, rather than having to wait until the person’s vessel leaves Canada. This provision therefore helps to prevent smuggling operations where illegal migrants are brought to Canada as crew members and then desert. The 72-hour limit in subsection 184(1) therefore discourages abuse of the visitor visa exemption for crew members [and] …. dissuade[s] deserting crew members from remaining in Canada illegally for an indefinite period of time.”
[25] The appellants argue that the content of procedural fairness should be adapted to this specific purpose and context, in order to determine “what the duty of procedural fairness may reasonably require of an authority by way of specific procedural rights in a particular legislative and administrative context” (appellants’ memorandum, paragraphs 44 and 45). The appellants stress that the context of deserting crew members, “who, by definition, have no known Canadian address and are not subject to an additional immigration control until they choose to appear before Canadian immigration authorities” renders the notice and interview procedures both impracticable and undesirable (appellants’ memorandum, paragraph 48).
[26] According to the appellants, the Cha and Baker decisions are easily distinguishable from the instant situation, because in both cases, Canadian immigration authorities had the foreign national’s contact information (appellants’ memorandum, paragraphs 49 and 50). In contrast, it is impossible for immigration authorities to contact a deserting crew member who does not have an address or phone number in Canada and who does not wish to be found (appellants’ memorandum, paragraph 52).
[27] The appellants submit that the Federal Court Judge erred in failing to consider that deserting crew members bear the responsibility of appearing before Canadian immigration authorities to regularize their status and claim refugee protection within the prescribed delay (appellants’ memorandum, paragraph 56). The Federal Court Judge also erred in imposing upon the appellants the burden of communicating with the respondent in the absence of any contact information to reach him (appellants’ memorandum, paragraph 57).
[28] The appellants suggest that the question certified by the Federal Court Judge would better capture the issue of general importance which arises in this case if it read (appellants’ memorandum, paragraph 22):
[C]an [the Minister] issue a removal order in absentia, pursuant to [subparagraph 228(1)(c)(v)], against a foreign national who failed to comply with the condition imposed on crew members set out in subsection 184(1) of the Regulations?
POSITION OF THE RESPONDENT
[29] Relying on the Supreme Court’s decision in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 (Agraira), the respondent submits that the CIC Guidelines create a legitimate expectation that procedures contained therein “will be followed, and the failure to adopt such procedures constitutes a violation of the right to procedural fairness” (respondent’s memorandum, paragraph 67). Based on the Guidelines, the respondent could legitimately expect that (respondent’s memorandum, paragraph 70):
(a) in absentia proceedings [would] be avoided wherever possible; that (b) removal orders [would] not be issued without determining whether or not the person concerned is seeking refugee protection; and (c) and … while in absentia proceedings may be justified in exceptional circumstances, such will not occur before notice is sent to the last known address of the person concerned, following reasonable efforts to ascertain said address. [My emphasis.]
[30] The respondent stresses that the Guidelines make the issuance of a removal order conditional upon the respect of certain procedural safeguards, such as exhaustion of reasonable efforts to provide notice to the person concerned (respondent’s memorandum, paragraphs 55 to 60). It is the respondent’s position that (respondent’s memorandum, paragraph 64):
… pursuant to the general principles relating to in absentia proceedings, the proceedings undertaken in the case at bar were unfair and the removal order must therefore be quashed because the Officer and the Delegate failed to even attempt to notify the Respondent of the proceedings and proceeded solely on the basis of the Officer’s report.
[31] It may have been possible to notify the respondent in the present case since the Minister’s delegate had access to the respondent’s address in Sri Lanka (respondent’s memorandum, paragraph 17); and the record reveals that the respondent had some contacts with family members in his home country. In light of these elements, “notification by mail may well have been effective” (respondent’s memorandum, paragraph 89).
[32] Like the appellants, the respondent believes that the question of general importance identified by the Federal Court Judge could be better formulated. The respondent suggests the following question (respondent’s memorandum, paragraph 44):
When a foreign national enters Canada as a member of a crew and is reported to have deserted from his or her vessel; may the Minister, who does not have the foreign national’s contact information in Canada, commence proceedings and issue a removal order, in absentia, without prior effort to contact the individual?
ANALYSIS AND DECISION
The certified question
[33] I see no reason to tamper with the certified question as stated by the Federal Court Judge. The certified question must arise from the reasons advanced in support of the decision. Contrary to what the appellants appear to believe, the Federal Court Judge’s reasons does not purport to deal with ship deserters generally, but those who like the respondent leave their ship with a view of claiming refugee protection. Hence, it is entirely appropriate that the question focuses on the fact that the effect of the removal order is to deprive the foreign national from claiming refugee protection.
[34] The respondent on the other hand considers that the focus of the question should be on the fact that the Minister’s delegate made no effort to contact him. This is a fact that the Federal Court Judge took into account (reasons, paragraph 34).
[35] However, her ultimate conclusion is that in the circumstances of the respondent, the Minister’s delegate could not issue the removal order before he made contact with the immigration authorities. This is the issue which she identified, at paragraph 7 of her reasons, as being central to her decision and which she disposed of at paragraph 34 of her reasons. As this is the basis for her decision, it is appropriate that it be the focus of the certified question.
Standard of review
[36] The issue being one of procedural fairness, the Federal Court Judge properly identified the standard of review in the matter before her as correctness (Cha, paragraph 16).
[37] The issue before us is therefore whether she properly applied this standard (Yu v. Canada (Attorney General), 2011 FCA 42, 414 N.R. 283, paragraph 19; Telfer v. Canada (Revenue Agency), 2009 FCA 23, [2009] 4 C.T.C. 123, paragraph 18; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, paragraph 247; Agraira, paragraph 46).
Was there a breach of procedural fairness?
- Natural justice
[38] As the Federal Court Judge makes clear at paragraph 39 of her reasons, her decision does not purport to deal with any situation other that the one confronting the respondent. A review of the context in which the removal order was issued without prior notice being given to him is therefore essential for a proper understanding of the issue raised on appeal.
[39] Part of this context is the regulatory scheme pursuant to which the respondent was allowed to enter Canada. International shipping operations result in a continuous inflow and outflow to and from Canada of foreign nationals who work aboard ships. In order to accommodate this reality a special regime has been put in place governing the treatment of crew members while in transit.
[40] The feature of significance for present purposes is that crew members can enter Canada without temporary visa, work permit or passport and without the need to report individually (paragraphs 52(2)(g) and 186(s) and subsection 190(3.1) of the Regulations). This special status allows crew members to disembark and circulate freely so long as they remain crew members and leave on the ship on which they came. If for any reason, the persons concerned cease to be crew members, a report must be filed by the transporter and the person is given a period of 72 hours to leave Canada (paragraph 3(1)(b) and subsections 184(1) and 268(1) of the Regulations). Failing this, the persons concerned can be forced to leave Canada (subsection 44(2) and paragraph 148(1)(f) of the Act and sections 274, 276 and 278 of the Regulations).
[41] The respondent therefore had a period of 72 hours or three full days before any action could be taken against him after he deserted the ship on which he was a crew member on December 1, 2011. He had the right to claim refugee protection within this period or at anytime before a removal order was issued against him, as it turned out, a period of up to December 13, 2011 or 12 days after he deserted the ship.
[42] The respondent did not avail himself of this opportunity because he was concerned that he would be forced back on the ship which he had deserted. The Federal Court Judge accepted the respondent’s assertion that he delayed making contact with immigration officials until December 16, 2011 because he wanted to be certain that the ship had left Canada (reasons, paragraph 5).
[43] As a result, the respondent was in a situation where a report attesting to his inadmissibility could be signed pursuant to subsection 44(1) of the Act and a removal order could be issued pursuant to subsection 44(2) of the same legislation. Both events materialized on December 12 and 13, 2011 respectively. This triggered the operation of subsection 99(3) of the Act. As a result, the respondent could no longer claim refugee status when he presented himself to an immigration officer in Montréal, on December 16, 2011, and attempted to do so.
[44] There is no question that the Minister’s delegate was entitled to issue a removal order on December 13, 2011 since more than 72 hours had elapsed from the time when the respondent deserted his ship, and in these circumstances, subparagraph 228(1)(c)(v) of the Regulations expressly provides for the issuance of a removal order. It is also uncontested that the respondent thereby lost his eligibility to claim refugee status since subsection 99(3) of the Act so provides.
[45] The only issue therefore is whether the Minister’s delegate could issue the removal order on December 13, 2011, without having first given the respondent an opportunity to be heard or attempting to contact him. In disposing of the question, I am willing to accept that, as the Federal Court Judge found, the respondent was entitled to be notified of the subsection 44(1) report and be given an opportunity to object to the issuance of a removal order (reasons, paragraph 33). However, in order to benefit from these rights, it was incumbent upon the respondent to place himself in a position where he could be notified.
[46] Upon deserting the ship, the respondent ceased to have any status in Canada and had the obligation to leave within 72 hours. Failing this, he had the obligation to report for examination before an immigration officer in order to regularize his status (subsection 184(1) of the Regulations and subsections 29(2) and 18(1) of the Act). As noted, he did not do so until 15 days had passed.
[47] Beyond remaining outside the reach of immigration officials from the time he deserted until December 16, 2011, the respondent had no known address in Canada. The evidence reveals that he travelled from Oshawa to Montréal on December 1, 2011, where he remained until he made contact with the authorities, but there is no indication as to his whereabouts in Montréal during that period.
[48] In my view, a person in the position of the respondent who challenges a decision on the basis that it was rendered without prior notification must be able to show that he was capable of being notified. At minimum, this requires that the person provides immigration authorities with some means of being reached in Canada. The decision of this Court in Cha on which the Federal Court Judge placed great reliance must be read in light of the fact that the coordinates of the person concerned in that case were known and therefore the person was capable of being notified.
[49] In the present case, not only were no such means provided, but the respondent was intent on remaining undetected by the immigration authorities until he was satisfied that the ship which he deserted had left Canada. This is incompatible with the exercise of the right to be heard. Given the respondent’s behaviour, I do not see how the Minister’s delegate can be held to have issued the removal order in breach of his right to be heard.
- Legitimate expectations
[50] Neither do I believe that the Guidelines on which the respondent relies created a legitimate expectation that he would be heard. Counsel for the respondent relied extensively on this doctrine both in their written submissions and oral arguments before this Court. Since the Federal Court Judge did not explicitly address this doctrine, it is necessary to address the respondent’s submissions in some detail. It should be mentioned that the Federal Court Judge did not have the benefit of the recent decision of the Supreme Court in Agraira, which was released after her decision was issued.
[51] In Agraira, the Supreme Court analysed the role of another CIC Manual (Chapter 10 of CIC’s Operational Manual: Inland Processing (IP), “Refusal of National Security Cases/Processing of National Interest Requests”) in creating legitimate expectations. It laid out the framework of analysis as follows (Agraira, paragraphs 95 and 96):
The specific conditions which must be satisfied in order for the doctrine of legitimate expectations to apply are summarized succinctly in a leading authority entitled Judicial Review of Administrative Action in Canada:
The distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor. Thus, a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or that a positive decision can be anticipated. As well, the existence of administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a particular instance, may give rise to a legitimate expectation that such procedures will be followed. Of course, the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified. [Emphasis added by LeBel J.]
(D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §7:1710; see also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 29; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68.)
In Mavi, Binnie J. recently explained what is meant by “clear, unambiguous and unqualified” representations by drawing an analogy with the law of contract (at para. 69):
Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.
[52] Turning to the Guidelines in issue in that case, the Court held (Agraira, paragraphs 98 and 99):
In the case at bar, the Guidelines created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed. The Guidelines were published by CIC, and, although CIC is not the Minister’s department, it is clear that they are “used by employees of [both] CIC and the CBSA for guidance in the exercise of their functions and in applying the legislation” (R.F., at para. 108). The Guidelines are and were publicly available, and, as Appendix 2 to these reasons illustrates, they constitute a relatively comprehensive procedural code for dealing with applications for ministerial relief. Thus, the appellant could reasonably expect that his application would be dealt with in accordance with the process set out in them.
[…]
The appellant has not shown that his application was not dealt with in accordance with this process outlined in the Guidelines. In May 2002, he was advised of the ministerial relief process by way of a letter akin to the National Interest Information Sheet. He responded to this letter by making submissions through his counsel, and CIC then prepared its report. The CBSA prepared a briefing note for the Minister, which contained its recommendation, and this note was disclosed to the appellant. The appellant declined to make additional submissions or provide additional documents in response to the recommendation. The appellant’s submission and its supporting documentation, the CIC officer’s report, and the CBSA’s recommendation were all forwarded to the Minister, and the Minister rendered a decision on the application. As counsel for the appellant rightly acknowledges, “[i]n the Appellant’s case, the Ministerial relief process followed the process set out in the IP 10 guidelines” (A.F., at para. 53). His legitimate expectation in this regard was therefore fulfilled. [My emphasis.]
[53] As in Agraira, the CIC Guidelines at issue in this case were presumably both publicly available and relied upon by CIC and CBSA employees. The only issue is whether they provide for a “clear, unambiguous and unqualified” process to be followed in circumstances where a person’s contact information is lacking as is the case here. In my view, they do not.
[54] The Guidelines governing removal orders issued to persons in absentia (Operational Manual: Enforcement (ENF), Chapter ENF 6), which the Federal Court Judge relies on (reasons, paragraph 24), do not meet this test as they do not deal with persons whose contact information is lacking. The only passage in Operational Manual ENF 6 which can arguably support the contention that the Guidelines apply when immigration officials have no contact information are the following two paragraphs at section 16, under the heading “Procedure: Issuing removal orders to persons in absentia”:
It should be noted that, in the context of an in absentia proceeding, the Minister’s delegate should not issue a removal order against someone who has had no contact with CIC or the CBSA. Where there are reasonable grounds to believe that a person is unlikely to appear for a determination proceeding by the Minister’s delegate, it is suggested that a notice be provided immediately to the person concerned, indicating that failure to appear for their determination proceeding may result in the issuance of a removal order in their absence.
In addressing the issue of procedural fairness, the following in absentia procedures meet the principles of procedural fairness so long as reasonable efforts have been made to give the person concerned an opportunity to be cooperative. Procedural fairness requires that the person concerned be given an opportunity to be heard. Where a person is not cooperative and reasonable efforts have been made to give them the opportunity to be heard, it is not contrary to the principles of procedural fairness to proceed in absentia. [My emphasis.]
[55] Read in isolation the phrase “who has had no contact with CIC or CBSA” in the first sentence of the first paragraph could refer to one of two distinct situations: (1) immigration authorities have been provided with no contact information; or (2) they have this information, but the person concerned has had no contact with them, or is uncooperative.
[56] In my view, the second situation is the one contemplated. When read in context, the phrase in question necessarily refers to persons whose coordinates are known, but who have refused to contact immigration authorities despite being invited to do so, as is made clear by the sentence which follows and the rest of the Guidelines. The second paragraph develops the same theme by spelling out that in these circumstances—i.e. where the person concerned is not cooperative—efforts should nevertheless be made to give the person the opportunity to be cooperative and to be heard. Obviously, such efforts cannot be made unless immigration officials can communicate with the person, which necessarily presupposes that they have the required contact information.
[57] Consistent with this, the remaining parts of Operational Manual ENF 6 dealing with in absentia proceedings are drafted on the assumption that immigration authorities have contact information and provide guidance as to when and how often notification should be effected (Operational Manual ENF 6, section 16.1 under the heading “Handling in absentia proceedings”, “Stage one”, “Stage two”, “Final Stage”).
[58] When read in context, the above two paragraphs apply to situations where immigration officials have contact information in hand and set out the procedure for dealing with persons who are unlikely to participate in proceedings affecting them despite being invited to do so. While the Guidelines correctly emphasize that in absentia proceedings will be rare, one obvious situation where the need to proceed in absentia may arise is when immigration authorities do not have information which allows them to reach the person concerned. No such information was in the possession of the immigration authorities at the time when the removal order was issued.
[59] Seemingly aware of this problem, the respondent argued for the first time before us that the Minister’s delegate had his home address in Sri Lanka “at the time of adjudication” (respondent’s memorandum, paragraph 17). However, as it turns out this information was not before the Minister’s delegate when the removal order was issued.
[60] Because no evidence had been led before the Federal Court Judge as to precisely what was before the Minister’s delegate when the removal order was issued, the appellants were granted leave to file fresh evidence on this point. The new evidence establishes that the address in Sri Lanka was not before the Minister’s delegate. This information was turned over to the CBSA by the transporter on December 18, 2011 in response to the notice of seizure issued to assist in the execution of the removal order (appeal book, pages 121, 123 and 131).
[61] The Minister’s delegate therefore had no information of any sort as to where or how the respondent could be notified when the removal order was issued.
[62] The crux of the respondent’s case insofar as it is based on legitimate expectations appears to rest on the Guidelines dealing with reports written pursuant to subsection 44(1) (Operational Manual: Enforcement (ENF), Chapter 5 “Writing 44(1) Reports”). The following passage at section 11.3 under the heading “After the report is written” is particularly relevant:
Wherever possible, an officer who writes a report must also provide a copy of that report to the person concerned. The officer must make all reasonable efforts to locate this person, and all steps and actions taken to do so should be clearly indicated on the person’s file.
In port-of-entry cases, where the person concerned is immediately available, this should pose little difficulty. In other cases, however, such as where the person’s whereabouts are unknown or the person is otherwise unavailable, this policy proves difficult to implement. [My emphasis]
[63] The respondent’s contention is that this reflects a promise that efforts to locate him would be made in order to notify him of the subsection 44(1) report, and that no such efforts were made (respondent’s memorandum, paragraph 70). Had immigration officials made efforts, they would have been able to obtain his home address in Sri Lanka without delay as it was in the possession of the transporter (respondent’s written submissions in response to the appellants’ motion in writing dated November 26, 2013, paragraph 48). Relying on the above Guidelines, counsel submits that the respondent could legitimately expect that immigration officials would obtain his home address and attempt to notify him there.
[64] I would first observe that the promise to make reasonable efforts is not “clear, unambiguous and unqualified” as the words “whenever possible” demonstrate. The closing statement that “this policy proves difficult to implement” where the person’s whereabouts are unknown, as is the case here, gives rise to further equivocation. In my view, these words would preclude the respondent from obtaining relief in a private law context for CIC’s or CBSA’s alleged failure to attempt to contact him (Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, paragraph 69). This is particularly so when regard is had to the fact that, in contrast, the respondent had the obligation to report and did not abide by it.
[65] Moreover, the efforts contemplated by the Guidelines are “reasonable efforts”, which means that they must be reasonably capable of allowing the person concerned to be reached. Attempting to notify him at his home address in Sri Lanka is not amongst the efforts which the respondent could reasonably expect would be made in order to notify him as he was in Canada at the relevant time.
[66] The respondent’s further contention that notification by mail at his home address in Sri Lanka should nevertheless have been attempted because the evidence shows that he communicated with his family from time to time (respondent’s memorandum, paragraph 89), is of no assistance as that evidence is contained in the affidavit sworn by the respondent five months later, in support of his application for judicial review (respondent’s affidavit, paragraph 5; appeal book, page 37). Immigration officials had no reason to believe that notification at his home address could be effective at the relevant time.
[67] Pursuing the same line of argument, counsel for the respondent submitted at the close of the hearing that immigration officials had yet another mode of communication available to them. Counsel pointed to the list of belongings produced by the transporter which showed that the respondent had a cell phone in his possession. However, the cell phone number was not revealed by this document. Knowing that the respondent had a cell phone without anything more is of no assistance.
[68] I therefore conclude that the above quoted passages from Operational Manual ENF 5 cannot give rise to a legitimate expectation that efforts would be made in this case.
[69] Finally, even if the Guidelines gave rise to a legitimate expectation that immigration authorities would make efforts to locate him, the respondent could have been heard before any measure was taken against him. The only reason this right was not exercised is that he was intent on not reporting until December 16, 2011. The respondent is in effect attempting to recreate through the doctrine of legitimate expectation a right which was available to him but which he did not exercise in a timely fashion.
[70] The situation is similar the one before the Supreme Court in Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249. In that case, the Supreme Court held that the failure to exercise the right to be heard when available precludes the application of the doctrine of legitimate expectation in order to get a second chance (paragraph 79):
In the circumstances of this case, I cannot accept that the Council violated Judge Moreau-Bérubé’s right to be heard by not expressly informing her that they might impose a sanction clearly open to them under the Act. The doctrine of legitimate expectations can find no application when the claimant is essentially asserting the right to a second chance to avail him- or herself of procedural rights that were always available and provided for by statute. [My emphasis.]
[71] The rule so stated is a straightforward form of estoppel. A person who does not avail him or herself of the right to be heard in a timely fashion cannot expect this right to remain available under the doctrine of legitimate expectations.
[72] To sum up, the respondent is the one who had the obligation to provide contact information, not the other way around. Given his failure to report and his decision to remain underground during the 12 days leading to the issuance of the removal order, it was open to the Minister’s delegate to proceed in absentia. I can detect no breach of procedural fairness.
The reasons of the Federal Court Judge
[73] As noted, the Federal Court Judge does not deal with the fact that the respondent provided no contact information and was intent on remaining undetected by immigration officials during the period leading to the issuance of the removal order. Based on her reasons, this would have been immaterial as the Minister’s delegate could not issue the removal order before the respondent made contact (reasons, paragraphs 7 and 34).
[74] In my respectful view, the Federal Court Judge’s reasoning disregards both the wording of the relevant legislation and its intent. The 1993 amendments to the Regulations [then the Immigration Regulations, 1978, SOR/78-172] excluding deserters from the definition of “members of a crew” was intended to allow immigration officials to take timely action when a person ceased to qualify as a crew member (SOR/93-44, section 12, enacting section 12.1). Prior to that amendment, no enforcement action could be taken until the ship had left port (paragraph 27(2)(j) of the Act [then the Immigration Act], R.S.C., 1985, c. I-2, repealed by S.C. 1992, c. 49, subsection 16(8)).
[75] In 2002, paragraph 184(1)(b) of the Regulations imposed a 72-hour limitation on any member of a crew who ceases to be a crew member (subsection 184(1) of the current Regulations (SOR/2004-167, section 50). As was the case in 1993, this limitation was intended to allow immigration officials to take timely action. Delaying action until the deserter chooses to make contact would defeat that intent and read the 72-hour limitation out of the Regulations.
[76] Counsel for the respondent argued that the Minister’s delegate did not have to issue the removal order on December 13, 2011 and should have exercised his discretion accordingly. There are circumstances where enforcement action, although authorized, should be delayed. However, none of these arise where a ship deserter is believed on reasonable grounds to have gone underground. The procedure outlined in section 8.5 of Operational Manual: Enforcement (ENF), Chapter ENF 17, “Maritimes Procedures” under heading “Crew members other than deserters who cease to perform their duties” illustrates this point:
R184(1)(b) requires crew members to leave Canada within 72 hours of ceasing to be members of the crew. In such cases officers should follow the same procedures for taking enforcement action as apply in cases of desertion. The following circumstances may lead to the loss of crew member status:
• a labour dispute aboard a vessel;
• the crew member’s arrest on criminal charges;
• the seizure of a vessel by court order or other authority; or
• suspension of a ship’s operations due to an accident or mechanical problems.
In determining whether or not enforcement action is appropriate, an officer should assess whether or not the unwillingness or inability to perform duties will continue after the problem has been resolved. If no resolution is in sight, or if the officer has reason to believe that the crew member will not resume duties, enforcement action should be initiated as soon as possible after the 72-hour period expires. [My emphasis.]
[77] In the present case, immigration officials waited nine days beyond the expiration of the 72-hour period before initiating enforcement actions. As the respondent had still not reported, they had reasonable grounds to believe that he had gone underground. Despite the respondent’s argument to the contrary, immigration officials did not act precipitously.
[78] Counsel for the respondent further argued that immigration officials should only have completed the subsection 44(1) report and issued the arrest warrant since no useful purpose was served by issuing the removal order right away. According to counsel, immigration officials should have exercised their discretion not to issue the removal order until the respondent contacted them in order to preserve his right to claim refugee status.
[79] Again, this would put the timing of the issuance of the removal order, together with the attendant consequences, in the hands of the person concerned. This is not what was intended. In allowing for the timely issuance of a removal order, the legislator must be taken to have acted coherently, in full knowledge of the impact that such order has on the right to claim refugee protection (subsection 99(3) of the Act). The result is that persons who desert a ship in Canada in order to claim refugee protection should report to the immigration authorities and make their claim promptly. The 72-hour limitation makes it clear that they cannot expect to claim this status at a time of their choice.
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.
Gauthier J.A.: I agree.
Mainville J.A.: I agree.
ANNEX
RELEVANT LEGISLATIVE PROVISIONS
Immigration and Refugee Protection Act, S.C. 2001, c. 27
| Examination by officer |
18. (1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada. … |
| 29. … |
|
| Obligation — temporary resident |
(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry. … |
| Non-compliance with Act |
41. A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act. … |
| Preparation of report |
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. |
| Referral or removal order |
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. … |
| No return without prescribed authorization |
52. (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances. … |
| Arrest and detention with warrant |
55. (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2). … |
| 99. … |
|
| Claim inside Canada |
(3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part. … |
| Application for protection |
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). … |
| Obligation of operators of vehicles and facilities |
148. (1) A person who owns or operates a vehicle or a transportation facility, and an agent for such a person, must, in accordance with the regulations, … (f) carry from Canada a person whom it has carried to or caused to enter Canada and who is prescribed or whom an officer directs to be carried. |
Immigration and Refugee Protection Regulations, SOR/2002-227
| Interpretation — member of a crew |
3. (1) For the purposes of these Regulations, … (b) a person ceases to be a member of a crew if (i) they have deserted; (ii) an officer believes on reasonable grounds that they have deserted; (iii) they have been hospitalized and have failed to return to the means of transportation or leave Canada after leaving the hospital, or (iv) they have been discharged or are otherwise unable or unwilling to perform their duties as a member of a crew and failed to leave Canada after the discharge or after they first became unable or unwilling to perform those duties. … |
| Documents — temporary residents |
52. (1) In addition to the other requirements of these Regulations, a foreign national seeking to become a temporary resident must hold one of the following documents that is valid for the period authorized for their stay: (a) a passport that was issued by the country of which the foreign national is a citizen or national, that does not prohibit travel to Canada and that the foreign national may use to enter the country of issue; … |
| Exceptions |
(2) Subsection (1) does not apply to … (g) persons seeking to enter Canada as members of a crew who hold a seafarer's identity document issued under International Labour Organization conventions and are members of the crew of the vessel that carries them to Canada. … |
| Condition imposed on members of a crew |
184. (1) A foreign national who enters Canada as a member of a crew must leave Canada within 72 hours after they cease to be a member of a crew. Conditions imposed on foreign nationals who enter to become members of a crew (2) The following conditions are imposed on a foreign national who enters Canada to become a member of a crew: (a) [Repealed, SOR/2004-167, s. 50] (b) to join the means of transportation within the period imposed as a condition of entry or, if no period is imposed, within 48 hours after they enter Canada; and (c) to leave Canada within 72 hours after they cease to be a member of a crew. … |
| No permit required |
186. A foreign national may work in Canada without a work permit … (s) as a member of a crew who is employed by a foreign company aboard a means of transportation that (i) is foreign-owned and not registered in Canada, and (ii) is engaged primarily in international transportation. … |
|
|
190. … |
| Visa exemption — crew member |
(3.1) A foreign national who is a member of a crew and who is carried to Canada by a vessel is exempt from the requirement to obtain a temporary resident visa if they are seeking (a) to enter Canada as a member of the crew of the vessel; and (b) to remain in Canada solely as a member of the crew of that vessel or any other vessel. … |
| Subsection 44(2) of the Act — foreign nationals |
228. (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be … (c) if the foreign national is inadmissible under section 41 of the Act on grounds of … (v) failing to comply with subsection 29(2) of the Act to comply with any condition set out in section 184, an exclusion order. … |
| Reporting obligation |
268. (1) A transporter must, without delay, notify an officer at the nearest port of entry of any foreign national who ceases to be a member of the crew for a reason listed in paragraph 3(1)(b). The transporter must record that information and provide it in writing on the request of the officer. … |
| Members of a crew |
274. (1) If a transporter carries, or causes to be carried, a foreign national to Canada as a member of its crew or to become a member of its crew, and the foreign national is subject to an enforceable removal order, the transporter must carry that foreign national from Canada to the applicable country as determined under Division 4 of Part 13. |
| Conveyance to vehicle |
(2) The transporter must transport the foreign national referred to in subsection (1) from wherever the foreign national is situated in Canada to the vehicle in which they will be carried to another country. … |
| Notifying transporters |
276. (1) When a foreign national seeking to enter Canada is made subject to a removal order and a transporter is or might be required under the Act to carry that foreign national from Canada, an officer shall (a) notify the transporter that it is or might be required to carry that foreign national from Canada; and (b) when the removal order is enforceable, notify the transporter that it must carry the foreign national from Canada and whether the foreign national must be escorted. |
| Notifying an officer |
(2) After being notified under paragraph (1)(b), the transporter must without delay notify an officer of arrangements made for carrying the foreign national from Canada. … |
| Removal costs |
278. A transporter that is required under the Act to carry a foreign national from Canada must pay the following costs of removal and, if applicable, attempted removal: (a) expenses incurred within or outside Canada with respect to the foreign national's accommodation and transport, including penalties for changes of date or routing; (b) accommodation and travel expenses incurred by any escorts provided to accompany the foreign national; (c) fees paid in obtaining passports, travel documents and visas for the foreign national and any escorts; (d) the cost of meals, incidentals and other expenses as calculated in accordance with the rates set out in the Travel Directive published by the Treasury Board Secretariat, as amended from time to time; (e) any wages paid to escorts and other personnel; and (f) the costs or expenses incurred with respect to interpreters and medical and other personnel engaged for the removal. |