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The federal government fought to keep this case secret — and now we know why


‘It seems to me that there’s no rules preventing sovereign states from lying to each other,’ tribunal says of Ottawa’s deal with diplomats in sensitive deportation case

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The federal government doesn’t want you to know about Majok Thon Mawut. Not about some of his past, nor his current difficulties, and above all not about plans for his future.

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Government officials wanted his case to be secret, tried to “delete evidence,” sought publication bans; government lawyers went to court trying to avoid sharing information, and expected a government request for things to be hush-hush to be treated as a court order.

All of this while Mawut remains in prison, although he wasn’t sent there by a judge and there is no scheduled end to his incarceration.

“I’m running out of time, I need to get out, please,” Mawut called out recently, when he was escorted from a cell at Central East Correctional Centre, a prison in Lindsay, Ont.

I’m running out of time, I need to get out, please

“I’m ready to go home today,” he said in a mournful voice, seemingly not understanding much about what was going on.

He has been there 13 months.

Almost every day, Mawut passes dozens of handwritten notes from his cell to passing prison guards. Each says a variation of the same thing: “Release Mawut.”

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Mawut, 32, is begging for release at a cluttered and cumbersome intersection — a four-way junction of shifting foreign relations and changing case law; of mental health and criminality.

Notes written by Majok Thon Mawut.
Notes written by Majok Thon Mawut. Photo by Court and IRB files

The evidence the Federal Court forced the government to release “reveals scandalous conduct on the part of the Minister of Public Safety and Emergency Preparedness,” Simon Wallace, Mawut’s lawyer told an Immigration and Refugee Board (IRB) hearing.

Mawut, a permanent resident, is in prison on an immigration hold, not for a crime, although he has done a lot of that in the past.

Canada Border Services Agency (CBSA) is trying to deport him because he is a non-Canadian convicted of serious criminal offences. That’s a routine part of immigration law.

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Mawut’s case, however, is not routine.

No one is certain where Mawut was born or whether the man who brought him to Canada at the age of 11, as a refugee fleeing civil war, is really his dad. Toronto police officers — based on an old investigation of Mawut’s purported father — don’t think he is.

Another considerable wrinkle is that CBSA’s theory is that Mawut is a citizen of South Sudan, the world’s newest country. Canada’s relationship with the famine- and war-ravished state is still being built.

On the application for his travel documents, it says Mawut’s mother is dead.
On the application for his travel documents, it says Mawut’s mother is dead. Photo by Court and IRB files

Ottawa recently brokered a secret deal with South Sudan to allow Canada, for the first time, to return South Sudanese nationals ineligible to remain in Canada. The country’s cooperation is needed to issue travel documents to get them on a plane.

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CBSA is holding at least five people in detention pending deportation to South Sudan. Under the diplomatic deal they are designated test cases.

Mawut is one of the first.

Canada is reluctant to interfere with this arrangement, but Mawut’s case, and how it is being handled, isn’t helping.

The sensitivity of the case is shown by Ottawa’s move to “delete” evidence from the case files, including internal CBSA emails, after the Federal Court forced CBSA to be transparent with its records. That court ruling, in October, applied new immigration case law laid out last year in Brown v Canada, a landmark decision requiring Ottawa to disclose all relevant evidence when arguing detention for foreign nationals.

Mawut is listed as one of five people detained in a Canadian prison who Ottawa is trying to deport to South Sudan, the world’s newest country.
Mawut is listed as one of five people detained in a Canadian prison who Ottawa is trying to deport to South Sudan, the world’s newest country. Photo by Court and IRB files

In Mawut’s challenge to the Federal Court, Justice Sébastien Grammond ruled it was a breach of procedural fairness to withhold the government’s information.

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“The possibility of removal is a live issue in Mr. Mawut’s case. The process for issuing travel documents to South Sudanese nationals to be removed from Canada is a new one and Mr. Mawut is one of the first test cases,” Grammond ruled. “There is still considerable uncertainty as to the outcome. This uncertainty is compounded by the doubts with respect to Mr. Mawut’s parentage.”

The government’s subsequent request to “delete evidence” the government already put into the IRB records seems bizarre; CBSA used the evidence to argue against Mawut’s release and the IRB relied on it to detain him, Wallace said. He called it “a claw back” of evidence that no longer supports the government’s case. “That’s not how it works.”

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The IRB is an independent administrative tribunal and functions like a court in immigration and refugee decisions. When IRB adjudicator Britt Gunn asked the government to justify the request, Naima Karimullah, CBSA’s hearings officer, offered little.

“We did not anticipate an opposition to the request,” Karimullah said. “We simply believed that the request would be followed. We had no prior indication that there would be probing questions.”

So, the Department of Justice thought that they could send a letter to the (IRB) and we would treat it like an order?

Gunn seemed taken aback: “So, the Department of Justice thought that they could send a letter to the (IRB) and we would treat it like an order?”

Karimullah said there was a belief it would “be respected.”

Wallace said Canada was trying to pull a fast one.

“The minister’s conduct in this case is an example of bad faith,” Wallace said at a multi-day IRB hearing this month.

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Meanwhile, the legal arguing seemed lost on Mawut.

“I’ve been patient, waiting to get out of here,” he said at one point when he heard his name mentioned. “Can I get some chocolate?”

Central East Correctional Centre in Lindsay, Ont.
Central East Correctional Centre in Lindsay, Ont. Photo by Adrian Humphreys /National Post

Mawut arrived in Canada in 2000 from a refugee camp in Ethiopia, where he spent his childhood. Some accounts say he was born in the camp to parents from Sudan, in the region that is now South Sudan, the IRB heard.

In 2002, when Mawut was 13, he was interviewed by Toronto police during an investigation of the man professing to be his father — for a criminal case unrelated to immigration — in which Mawut told officers the man wasn’t his real dad. (A publication ban means evidence from the police probe can’t be reported. It ended with the purported father’s conviction.)

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Police investigators believed Mawut and flagged the matter to federal immigrations officials as a potential case of immigration fraud, but nothing seems to have been done.

Meanwhile, Mawut went from troubled childhood to troubled life as an adult. Alongside repeated notations of significant developmental and mental health disorders, he accumulated a string of criminal convictions, including armed robbery, sexual assault, and assault.

After his last conviction he was deemed inadmissible to Canada and when his sentence expired in November 2020 he was kept behind bars pending deportation.

That is where his case stalled.

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Meanwhile, CBSA officials were telling South Sudanese diplomats that Canada is “certain” Mawut is their citizen — based on the nationality of his parents — without revealing questions over who his parents really are.

That abruptly changed recently.

A new message, revealing Canada’s uncertainty over his parentage was sent to South Sudanese diplomats on the day before the CBSA’s case agent was scheduled to testify at Mawut’s detention hearing.

CBSA acknowledged mistakes but defended its actions.

“I characterize this as not intentional malfeasance,” Karimullah said at the hearing.

“All the evidence is fairly consistent, indicating that the person concerned was born in a refugee camp in Ethiopia, to parents who had Sudanese citizenship,” she said.

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Incredibly, CBSA’s logjam might have been avoided.

A month ago, the South Sudanese government accepted Mawut was one of its citizens and issued an emergency travel document for him to be deported — but that reply sat unnoticed on a CBSA’s officer’s desk for weeks.

The government of South Sudan sent an emergency travel document to allow Mawut’s deportation but it sat unnoticed on a CBSA’s officer’s desk for weeks.
The government of South Sudan sent an emergency travel document to allow Mawut’s deportation but it sat unnoticed on a CBSA’s officer’s desk for weeks. Photo by Court and IRB files

It is now uncertain whether questions over his parentage that CBSA revealed to South Sudan will impact the validity of that document.

Wallace argued CBSA’s mishandling of the case justifies Mawut’s release from prison while his case is sorted out.

“If a detainee doesn’t cooperate with the process, if a detainee supplies improper information, if a detainee misleads, if a detainee commits a fraud the minister says they’re not cooperating with the process and that’s a relevant factor in the analysis that should count against them,” Wallace told Gunn at the IRB hearing.

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“This case is the flip side of that. In this case, even though every single indicator shows that Mr. Mawut’s citizenship is uncertain, throughout the process, the minister has buried its head in the sand to blind itself to that evidence.”

Karimullah told Gunn that Mawut’s detention remains justified because he continues to be a danger and is unlikely to appear for a future removal.

Notes written by Majok Thon Mawut.
Notes written by Majok Thon Mawut. Photo by Court and IRB files

On Dec. 10, Gunn released her decision on Mawut’s unusually complicated detention review.

She ruled that Mawut’s citizenship was “not a certainty,” saying the case contains “wildly differing” information. She also said his conditions in detention, much of it alone, were poor.

“Detaining a vulnerable, mentally unwell person at a provincial jail in the midst of the pandemic,” weigh in favour of releasing him, Gunn said.

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She chastised CBSA for not being forthright with South Sudan from the start but was uncertain how that impacts his detention status.

“It seems to me that there’s no rules preventing sovereign states from lying to each other,” Gunn said, in reference to CBSA saying Canada was “certain” of Mawut’s citizenship.

“I can see, like, ethically, morally there are likely good reasons for the CBSA to be honest and forthright when they are seeking a travel document, especially for a vulnerable person like Mr. Mawut.

“I just don’t, right now, have an actual legal basis or a source for this principle so I’m a little loath to act on it.”

Gunn ruled that, on balance, Mawut should remain in prison for now, because his deportation may be “on the horizon,” but ordered a new detention review as soon as possible.

That review is scheduled to begin Dec. 21.

• Email: ahumphreys@postmedia.com | Twitter:

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