Link to Canada’s security needed to bar suspected spies under immigration law: court

2024/04/17 Leave a comment

Of interest, await some commentary from the security researchers:

People can be barred from Canada under espionage-related provisions of the immigration law only when their activities have a clear link to Canadian security, the Federal Court of Appeal has ruled.

The finding came in a pair of decisions involving men from Ethiopia who were deemed inadmissible to Canada for being members of an organization that had engaged in spying.

The Immigration and Refugee Protection Act bars permanent residents and foreign nationals who engage in espionage that is directed against Canada or contrary to Canada’s interests.

The prohibition also applies to members of organizations involved in these activities.

At issue in the two cases was how to define the phrase “contrary to Canada’s interests.”

Medhanie Aregawi Weldemariam and Abel Nahusenay Yihdego are Ethiopian citizens and former employees of the African country’s Information Network Security Agency, a state security and intelligence organization.

Weldemariam says his work at the agency involved developing air defence simulation software for training military members. He left in mid-2014 to pursue graduate studies in Sweden, returning to Ethiopia two years later.

Weldemariam came to Canada in 2017 and made a refugee claim, alleging he was at risk of persecution by Ethiopian security forces that had targeted him after his return from Sweden.

Yihdego worked at the intelligence agency as a protocol analyst and network engineer. He claims he was pressured to join the agency’s decryption unit, facing threats and harassment when he refused to do so.

Yihdego resigned in 2014, enrolling in graduate studies outside of Ethiopia. He claims that on his return to Ethiopia in 2017, he was detained by security services because of his political activities.

He came to Canada on a temporary resident visa, later seeking refugee protection.

The men’s refugee claims were put on hold while the immigration division of the Immigration and Refugee Board weighed their admissibility to Canada.

The division found the Ethiopian intelligence agency gathered information using offensive cybercapabilities and surveillance malware, targeting journalists and political dissidents.

There was no evidence that either Weldemariam or Yihdego were personally involved in the agency’s espionage activities, only that they were members of the organization.

In each case, the immigration division found that the espionage at issue was “contrary to Canada’s interests,” even though it lacked a nexus to Canada’s national security or security interests.

In 2020, the Federal Court concluded the division’s interpretation of the law was unreasonable on the basis a connection to Canada’s security interests was indeed required.

The court quashed the decisions and sent the cases back to the immigration division for reconsideration.

The federal government appealed the court rulings.

In both cases, the Court of Appeal sided with the men, saying there was no suggestion any of the journalists targeted by the Ethiopian intelligence agency lived in Canada.

The court also found no evidence the agency’s acts were directed at Ottawa or Canadian companies, institutions or individuals, including members of the Ethiopian diaspora.

As a result, the court saw no need to send the cases back to the immigration division for redetermination.

Source: Link to Canada’s security needed to bar suspected spies under immigration law: court

Filed under Immigration Tagged with , ,

Appeal court overturns ruling directing Ottawa to repatriate 4 men detained in Syria

2023/06/02 Leave a comment

Of note and, IMO, correct decision:

The Federal Court of Appeal has overturned a high-profile ruling ordering Canada to bring home four Canadian men detained in northeastern Syrian prisons for suspected ISIS members.

In January, Federal Court Justice Henry Brown ruled the four men were entitled to have the federal government make a formal request for their release “as soon as reasonably possible.”

But three appeal court judges disagreed with Brown’s decision and overturned it on Wednesday.

In their ruling, the judges wrote that Brown’s decision interpreted the right to enter Canada too broadly.

“[The previous ruling] took the right of Canadian citizens ‘to enter … Canada’ and transformed it into a right of Canadian citizens, wherever they might be, regardless of their conduct abroad, to return to Canada or to have their government take steps to rescue them and return them to Canada,” Wednesday’s ruling says.

“The right to enter, remain in and leave Canada, is not a golden ticket for Canadian citizens abroad to force their government to take steps — even risky, dangerous steps — so they can escape the consequences of their actions,” the ruling says.

The men travelled to northeastern Syria against the travel advice of the Canadian government and have been held in prisons for those suspected of ISIS affiliations. The camps in northeastern Syria are run by the Kurdish forces that reclaimed the war-torn region from the extremist group.

Canada not responsible for men’s detention: judges

In his January decision, Brown cited the conditions of the prison and the fact that the men haven’t been charged and brought to trial.

“The conditions of the … men are even more dire than those of the women and children who Canada has just agreed to repatriate,” Brown’s decision reads.

“There is no evidence any of them have been tried or convicted, let alone tried in a manner recognized or sanctioned by international law.”

But Wednesday’s appeal court ruling said the Canadian government is not responsible for the men’s detention in Syria.

“Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible,” the ruling reads.

Public Safety Minister Marco Mendicino said the government will take time to “absorb” the court’s ruling.

“Our priority first and foremost is that we safeguard the country and our borders from any potential terrorist activity,” he told reporters Wednesday.

Jack Letts, who has been imprisoned in Syria for more than four years after allegedly joining ISIS, is among the four men.

Sally Lane, Letts’ mother, said the appeal court decided to “to perpetuate the arbitrary detention and torture” of her son.

“The decision is nothing but victim-blaming and narrow legalese that stands in utter contempt of human rights law and fails to rise to the challenge of the moment,” Lane said in a statement provided by the family’s lawyer, Barbara Jackman.

Letts admitted in a 2019 interview to joining ISIS in Syria. His family says he made that admission under duress and there is no evidence that he ever fought for the group.

Jackman told CBC that they are considering taking the case to the Supreme Court, but a final decision hasn’t been made yet.

Lawrence Greenspon, a lawyer for the other applicants, also told CBC that his clients are considering an appeal.

In the past, Greenspon has argued that if there is any evidence the Canadians took part in terrorist activities, Canada should put them on trial here.

But former CSIS analyst Phil Gurski said he fears that any trial likely would end in an acquittal because the witnesses and evidence are located in Syria.

“I’m just not confident that the Canadian court system would have the resources to locate the witnesses … and the evidence to bring forward a successful trial,” he said.

Family members of Canadians detained in Syria — including the four men — have been asking the federal government to arrange for their return to Canada.

Prior to the January ruling, the government agreed to repatriate six women and 13 children from northeastern Syria.

At least three of those women have returned and were taken into police custody upon arrival. They have all been released pending terrorism peace bond applications.

A terrorism peace bond allows a judge to order a defendant to maintain good behaviour — sometimes with conditions such as a curfew — or face a prison sentence.

Source: Appeal court overturns ruling directing Ottawa to repatriate 4 men detained in Syria

Filed under Citizenship Tagged with , , ,

Canada has right to turn back asylum-seekers at U.S. land border points, appeals court rules

2021/04/17 Leave a comment

Looks like a defeat for the more “anecdotal” approach of focussing on individual cases rather than the broader administrative oversight issue:

In a setback for refugee advocates, the Federal Court of Appeal has rejected the argument that it is unconstitutional for Canada to turn back refugees at the U.S. land border and prevent them from seeking asylum in this country.

The court sided with the federal government Thursday in overturning a lower court decision that had called into question the future of the Safe Third Country Agreement (STCA), amid arguments that the United States cannot be considered a safe country for asylum seekers.

The decision will have devastating effects on would-be refugee claimants, their advocates say.

“The real consequences of this decision rest with those refugee claimants who are being returned to U.S. detention facilities after being turned back and facing harm both in jail and in the U.S. asylum process,” said Amanda Aziz of the Canadian Association of Refugee Lawyers.

“What is lost in this decision are the people who will continue to face real and severe harm because of the ongoing operation of the STCA.”

Under the bilateral pact, Canada and the U.S. each recognize the other country as a safe place to seek protection.

That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U. S. border on the basis they should pursue their claims in the States, the country where they first arrived.

The agreement, which took effect in 2004, was originally touted by officials in both countries as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane — critiques that grew louder during the Trump administration.

In July, the Federal Court found it unconstitutional to ban would-be claimants from attempting to enter either country at official border crossings, saying the impacts of the policy “shock the conscience.”

Justice Ann Marie McDonald had given Ottawa six months to respond and fix the policy to make sure it complies with the Canadian charter before declaring the accord invalid. That deadline was later extended at the request of the government while the appeal was being heard.

However, in its decision released Thursday, Canada’s appeal court said lawyers for asylum seekers and their supporters focused on the wrong issues in challenging the law’s constitutionality.

It said there are proper checks and balances in the legislative scheme to ensure Canadian laws and the charter are upheld, and it’s within the government’s authority to make regulations designating a country as safe for refugees.

Instead of using individual refugees’ experiences to show the bilateral pact itself violated their Charter rights, said the appeal court, lawyers for the litigants should have made a case of how existing administrative oversight has failed to safeguard their rights.

“The legislative scheme as a whole, assuming it is operated properly, is designed to protect fundamental human rights, including charter rights,” wrote Justice David Stratas in a unanimous decision on behalf of the three-member panel.

“Based on the record before us, to the extent that detrimental effects are being suffered by persons being returned to the United States, the legislative scheme as a whole is not to blame.”

The federal government welcomed the decision.

“Canada remains firmly committed to upholding a fair and compassionate refugee protection system and the STCA remains a comprehensive means for the compassionate, fair, and orderly handling of asylum claims at the Canada-U.S. land border,” said Immigration Minister Marco Mendicino and Public Safety Minister Bill Blair in a joint statement.

In its ruling, the appeal court said Parliament created a mechanism to monitor the designated country’s compliance on an ongoing basis.

Although the law doesn’t specify what continuing review means, who should conduct it and what should be examined in a review, a policy was developed for the assessment based on a wide variety of governmental and non-governmental sources.

The court said immigration officers also have a number of powers and discretions to make exemptions to accept claims by individuals who would otherwise be ineligible to cross into Canada and seek asylum under the Safe Third Country Agreement.

As well, refugee claimants have access to the Federal Court if they believe the circumstances of their removal warrant the court’s intervention.

“In this case, there was no evidence that could support a finding that the treatment of returnees to the United States at the Canada-United States border ‘shocks the conscience,’” said the appeal court.

“There is evidence of individual cases of substandard treatment but nothing that rises to the very high level required by the ‘shocks the conscience’ standard.”

In 2007, three advocacy groups — the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches — took Ottawa to federal court and successfully had the U.S. declared unsafe for refugees.

However, the decision was later overturned on appeal, largely on the grounds that the groups failed to find a lead individual litigant who was directly impacted by the policy.

In 2017, those groups returned to the court with a group of asylum seekers whose access to Canadian asylum was denied under the Safe Third Country Agreement to support their arguments.

This appeal court said some of the evidence, although voluminous, is piecemeal and individualized and, thus, is problematic for drawing system-wide inferences concerning the situation in the U.S.

“The value of evidence is not measured by the pound,” Justice Stratas wrote. “The evidence of the particular treatment of ten individuals — all selected by the claimants — cannot itself provide a basis for making system-wide inferences.”

Citing a previous court case that found psychological suffering inherent in the plight of refugees fleeing persecution, Stratas wrote: “One must ask whether sending refugee claimants back to the United States actually increased psychological suffering above this inherent level.”

Janet Dench of the Canadian Council for Refugees said the court’s findings were disappointing.

“The court heard the evidence of the very horrific experiences of people who were sent back to the U.S. The conditions in detention were found to be completely unacceptable by the federal court judge. Those experiences were not engaged by this court,” said Dench.

“Those experiences, the rights abuses and their suffering don’t seem to be heard in this (appeal) court.”

Source: Canada has right to turn back asylum-seekers at U.S. land border points, appeals court rules

Filed under Immigration, Refugees Tagged with , ,

Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’

2020/10/20 Leave a comment

Expected:

Canada would face “an influx of refugee claimants” and other “ripple effects” in the absence of a bilateral pact that stops would-be asylum seekers from making a claim here via the U.S., the federal government is warning.

This country will suffer “irreparable harm,” especially amid a global pandemic, if the Federal Court of Appeal does not suspend an earlier lower-court order that struck down the Safe Third Country Agreement, Ottawa argues.

In July, the Federal Court ruled the accord unconstitutional because the United States routinely detained asylum seekers in poor conditions. It gave Ottawa six months — until Jan. 22 — to fix the policy and make sure it complies with the Canadian Charter of Rights and Freedoms before the pact becomes invalid.

On Friday, the appeal court will hear a motion by the federal government to extend the deadline until a full appeal can be heard on a later date.

“An influx of refugee claimants will impair the sustainability of the systems that support refugee claimants while their claims are pending. Provincial and municipal governments are struggling to provide housing and social services,” the government says in its submissions.

“This unpredictability is significantly heightened by the global pandemic. Should the reopening of the border between Canada and the USA coincide with the end of the suspension period, a surge of asylum claims at the border is anticipated.”

Critics have argued the U.S. asylum system is cruel and inhumane, especially since President Donald Trump came into power in 2016 on an anti-immigrant agenda, building a wall to shut out illegal immigrants from the south and separating migrant children from their families. These critics said the Canadian government’s request should be dismissed because infringements of refugees’ rights outweigh any alleged public interest in maintaining the status quo.

“While the court gave Parliament six months to remedy the law, the government has squandered that opportunity in favour of an appeal,” said Justin Mohammed of Amnesty International Canada, one of three litigants who launched and won the constitutional challenge.

“We are hopeful that the Federal Court of Appeal will affirm the deadline, so that no refugee protection claimant will be handed over by Canada to face the horrors of U.S. immigration detention past January 2021.”

Under the bilateral agreement, Canada and the U.S. each recognize the other country as a safe place to seek protection. It lets Canada turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border, on the basis that they should pursue their claims in U.S., the country where they first arrived.

In its submissions, the federal government says the agreement, in place since 2004, is in line with international refugee law to ensure claimants have access to a fair asylum process in an “orderly and efficient manner.” There are exemptions and mechanisms in place to avoid returning would-be asylum seekers to risks and danger.

While the U.S. asylum detention system may be unacceptable, it says the Canadian charter does not apply to foreign laws and processes.

“Failure to grant this stay will result in irreparable harm to the public interest, the functioning of the border, the sustainability of the Canadian asylum system and the services and resources that support claimants in Canada,” the government says.

According to Ottawa, all levels of governments are already struggling to provide services to the 56,515 asylum seekers who skirted the safe third country restrictions by crossing “irregularly” into Canada between official land ports of entry from 2017 to 2019.

“An additional influx would further strain those already stretched systems and resources,” the government cautions, adding that the surge will create further “negative ripple effects and backlogs” in the overall immigration and refugee protection scheme.

“There is a strong public interest in affording Canada control of its borders to regulate the flow of persons and goods and to ensure the orderly processing of claims between Canada and the USA.”

However, the respondents, also including the Canadian Council for Refugees and the Canadian Council of Churches, argued that the lower court’s finding is already “tantamount” to a determination that the Canada-U.S. agreement is not in the public interest.

They said the government’s assertions of irreparable harm to the asylum system and services for claimants in Canada are based not on evidence but on a series of speculative claims by officials at the immigration department and Public Safety Canada.

The pandemic has actually made the conditions worse for asylum seekers, they argue. As of Oct. 6, the U.S. Immigration and Customs Enforcement reported 6,387 confirmed COVID-19 cases in custody, including eight COVID-19-related deaths of detainees.

“The appellants’ suggestion that COVID-19 makes it more difficult to predict ‘asylum intake volumes’ is misleading. While the pandemic is unprecedented, its effect on ‘asylum intake volumes’ is clear: it is dramatically suppressing the number of new refugee claims,” said the respondents in their submissions.

“It is simply harder and more dangerous to travel during the pandemic, and travel to Canada is far more restricted.”

The NDP’s immigration critic Jenny Kwan agrees.

“By appealing the court ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” said Kwan, who is also the MP for Vancouver East.

“Instead of accepting the court’s ruling and terminating the agreement, they have chosen to double down on turning back asylum seekers to a country that has a policy of separating children from their parents without any way of reuniting them,” she added. “It’s a heartless and shameful act. It’s un-Canadian.”

Source: Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’

Filed under Immigration Tagged with , , , ,