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Migrant detainees have right to plead for freedom before judges, Supreme Court

Last Updated May 10, 2019 at 7:37 am PDT

The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. The Supreme Court will rule today on whether immigration detainees should be given the right to challenge their detention in person before a judge. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA — The Supreme Court says a Pakistani man being held in immigration detention had the right to challenge his imprisonment in person before a judge.

Although Tusif Ur Rehman Chhina was deported to Pakistan in 2017, the high court agreed to hear his case because it rarely gets to rule on the ancient legal remedy known as habeas corpus — the right to have the validity of one’s detention to be reviewed for whether it’s lawful.

The high court ruled 6-1 in favour of Chhina, opening new avenues of appeal for migrants facing lengthy detentions.

Migrants who do not hold Canadian citizenship have only been able to fight their cases before immigration tribunals, whose decisions are subject to only limited judicial review.

Friday’s ruling centres on Chhina, who was granted refugee protection in Canada in 2006 but was later detained after authorities learned he had a criminal record and after he had fled custody.

He failed in 12 attempts to the Immigration and Review Board to be released and was eventually deported.

The federal government argued that extending the right to direct hearings before judges to migrant detainees would create uncertainty in the legal processes involving these decisions.

The Justice Department has argued that the current system offers a comprehensive and expert process by an independent, quasi-judicial board that provides a meaningful review.

Chhina applied for habeas corpus while in an Alberta maximum-security facility in May 2016.

His refugee status had been revoked in April 2013, and he was placed in immigration detention as danger to the public and because he was considered unlikely to appear for his removal.

He was released from custody six months later because of delays related to his removal, and went missing again before he was re-arrested in November 2015.

The Canadian Press