SUN HASN’T SET ON MV SUN SEA.
Loses bid to overturn deportation
OTTAWA • Nearly eight years after a derelict cargo ship carrying 492 Tamil migrants was intercepted off the coast of British Columbia, Canadian courts and refugee boards are still grappling with the aftermath — and the man who steered the ship is fighting to stay in the country.
In a new decision dated March 8, 2018, but published online only recently, a Federal Court judge rejected an appeal by Lesly Emmanuel to overturn a deportation order that dates back seven years. Emmanuel exceeded the deadline to challenge it, the judge ruled, despite his request for an exception due to the battery of legal proceedings he’s gone through since Sun Sea passengers were detained in 2010.
The Immigration and Refugee Board first determined Emmanuel was inadmissible to Canada in September 2011. But before that progressed, he was criminally charged in June 2012 with facilitating human smuggling for having captained the ship.
Emmanuel protested that he was one of the few passengers with naval training and had taken over the ship’s command only after its Thai crew abandoned it off the coast of Thailand. He said he steered it to Canada for humanitarian reasons, not for any material benefit.
The criminal case against him was then paused while the Supreme Court of Canada dealt with a related case. It ruled in 2015 that Canada’s human smuggling laws were overly broad, and shouldn’t be applied to people acting for humanitarian reasons.
The trial for Emmanuel and three other Sri Lankans finally started in October 2016. The jury found him not guilty, accepting his evidence that he took over the ship to save the lives of those on board.
In February 2017, he then sought judicial review of his deportation order, arguing that the 2015 Supreme Court case meant the immigration board had wrongly decided he was inadmissible. But such applications are supposed to be filed within 15 days of the decision; Emmanuel’s was filed five and a half years later.
In his decision, Chief Justice Paul Crampton ruled that the criminal proceedings did not qualify as a good enough reason for exempting Emmanuel from the deadline, given the application could have been filed in the nine months between the deportation order and the laying of criminal charges, or even immediately after the 2015 Supreme Court decision.
He noted that other Sun Sea passengers who had been ruled inadmissible filed challenges immediately, well before the Supreme Court ruling.
“In my view, to allow Mr. Emmanuel to now do so would be very unfair to those other individuals,” Crampton ruled. “In effect, this would permit Mr. Emmanuel to benefit from his conscious decision to ignore, for a very long period of time, the time limit set forth ... while his co-passengers who abided by that time limit would have no such recourse. In my view, this would not be in the interests of justice.”
Emmanuel still has options, Crampton noted. He could file for a Pre-Removal Risk Assessment, which allows him to stay in Canada if his return to Sri Lankan would endanger his life or subject him to persecution. Or Emmanuel could request an exemption on his deportation from Immigration Minister Ahmed Hussen.
Emmanuel’s lawyer declined to comment.
Robert Blanshay, a Toronto-based immigration lawyer, said he represented nearly 100 Sun Sea passengers after the ship landed (though not Emmanuel), and about a dozen of his cases are still working their way through the courts. He said the refugee system has been inconsistent, with some Sun Sea passengers getting rejected while others are accepted despite very similar cases.
“We’re all over the map here,” he said. “These cases are going to go on for years and years.”
Statistics provided by the Immigration and Refugee Board to the National Post last year showed 22 Sun Sea passengers had been ordered deported after being found inadmissible.
It is not certain that Emmanuel would be granted a Pre-Removal Risk Assessment, despite widespread concern that the Sri Lankan government would treat migrants from the ship as linked to the LTTE (or Tamil Tigers), which Canada considers a terrorist group. Court records show ongoing appeals of some passengers who had their assessments rejected.
(IT) WOULD BE VERY UNFAIR TO THOSE OTHER INDIVIDUALS.