Removal Orders in Absentia

Meurrens LawImmigration Trends

The Federal Court of Appeal in Canada (Citizenship and Immigration) v. Mudalige Don has answered the following certified question:

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?

Background and Facts

Crew members may enter Canada without temporary resident visas, work permits, or even passports.  They do not need to report individually at ports of entry.  Their status as crew members enables them to disembark and circulate freely so long as they remain crew members and leave on the ship on which they came.  However, pursuant to s. 184(1) of the Immigration and Refugee Protection Regulations (“IRPR”), a foreign national who enters Canada as a member of a crew must leave Canada within 72 hours of ceasing to be a member of a crew.

The refugee claimant in Mudalige Don was a Sri Lankan crew member aboard the foreign registered vessel M/V Lake Ontario.  On November 27, 2011, the ship docked in Oshawa.  On December 2, 2011, the ship’s agent filed a Notice of Desertion with the Canadian Customs and Excise authorities in Hamilton, Ontario.  On December 12, 2011, Citizenship and Immigration Canada prepared an inadmissibility report because the respondent had failed to comply with IRPR r. 184(1).  On December 13, immigration authorities issued both a removal order and a warrant for his arrest.

On December 16, 2011, the foreign national presented himself before Canadian immigration authorities in Montreal and claimed refugee protection.  He was told that because a removal order had already been issued that he could not make the refugee claim, and was arrested.


The FCA determined that:

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.

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.

Applying Agraria and the Manuals


[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]

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]

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.

[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) vMavi, 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.