'If Canada Willing To Take Him, You Shouldn't Object' : Supreme Court To Union On Plea Of Myanmar National Detained In India Since 2012

The Supreme Court yesterday sought Union government's response in a plea filed by a detained Myanmar national, claiming that Canada is willing to take him in as a refugee, but the process is stuck as he is detained in a Manipur detention centre since 2012.

A bench of Justices BR Gavai and KV Viswanathan asked Additional Solicitor General Aishwarya Bhati (for Ministry of Home Affairs) to obtain instructions, expressing that under the peculiar circumstances of the case, the authorities should not object if Canada is willing to take in the petitioner as a refugee.

The order was dictated by Justice Gavai as follows: "A perusal of the paper book would reveal that the High Commission of Canada has accepted the present petitioner as a refugee for resettlement to Canada. We request the ld. ASG to take instructions as to what is the impediment in sending the petitioner to Canada when the High Commission of Canada has approved the same." 

During the hearing, a counsel appearing on behalf of the Union apprised the court that in May, 2022, the Union got a confirmation of petitioner's identity certificate from Myanmar. But at that time, the petitioner filed a writ petition before the High Court saying that he wanted resettlement in Canada and Government of India should help him. As he did not want to go back to Myanmar, he could not be deported by Indian authorities and the confirmation of the identity certificate expired after a lapse of 1 month. Subsequently, efforts were made by Ministry of External Affairs to get renewed confirmation of identity certificate from Myanmar embassy and response is awaited.

The counsel urged that once communication is received from the embassy, the petitioner would be deported. Hearing him, Justice Gavai expressed surprise at the aspect of expiry of confirmation received regarding identity of the petitioner. The judge remarked, "How can identity change? Justice Viswanathan will be Justice Viswanathan even after 1 month".

AoR Gautam Jha, for petitioner, clarified this aspect, highlighting that identity cannot change but the relevant travel documents expire after one month's time. On facts, he explained that the petitioner is under detention since 2012. He was sentenced to 6 months' imprisonment and has undergone the same, but has not been released. In 2021, Canadian embassy accepted him as a refugee and sent a letter that if his papers can be processed, he can be sent to Canada. But, that could not happen as the petitioner was in Manipur detention centre and was not brought to Delhi. "The medical examination that had to happen could not happen", the counsel said.

The petitioner's counsel further submitted that the situation in Myanmar is not conducive for the petitioner to go back. As such, he may be transferred from the Manipur detention centre to the one in Delhi, so that his biometrics can be taken by the Canadian embassy. 

When the Court enquired from the Union's counsel as to why the communication received from Canada was not pursued, he replied, "Because granting exit to an illegal immigrant to a third-country is not in conformity...once the identity is confirmed, he will have to be deported back to his home country."

"How are your concerned with that? If the receiving country is willing to take him..." commented Justice Gavai. Apparently in a veiled reference to ex-Bangladesh PM Sheikh Hasina, who fled to India amidst anti-government uprisings in Bangladesh, the judge added, "If you have somebody from Bangladesh...and you are in process of finding out some country...will you be sending back that person to Bangladesh? If this policy is to be strictly implemented".

Referring to the petitioner, Justice Viswanathan noted, "He apprehends threat in his country. He has served out his sentence. Now the embassy is here."

In support of the case, the petitioner's counsel further added that deportation will never happen, as the main matter relating to Rohingyas is pending before the court. He distinguished the case of the petitioner from Rohingyas, saying that in Rohingyas' case, the identities were never ascertained. It was claimed that the petitioner's identity was recognized by Myanmar, but he does not wish to go back as his life is under threat.

Subsequently, ASG Bhati appeared for MHA and sought time to factually ascertain the petitioner's claims. "There is a larger issue also here. We have this problem with 100s and 1000s of people. Myanmar is a sovereign country, but we are not having forthcoming response...but we can't have illegal immigrants taking claim on the resources of the country. Also, judicial resources".

The court adjourned the hearing to enable the Union to verify the factual aspects and obtain instructions. Before parting, Justice Gavai again said to the ASG, "if they (Canadians) are willing to take him, there should be no objection on your part".

Case Title: ABDUL RASHID Versus STATE OF MANIPUR AND ORS., W.P.(Crl.) No. 178/2024

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