It goes without saying that Canada has been a consistent global leader in offering a home to refugees over the years. This has only become more apparent recently as the displacement crisis worsens across the world’s most unstable areas.
But it’s not enough for Canada to rest on its laurels as the country’s resettlement program is full of flaws that must be addressed if it’s to maintain its reputation. This is particularly obvious where Canada’s hardline approach to national security intersects with resettlement.
Though committed to international law, Canada increasingly takes a draconian approach to national security that has severely affected its immigration and refugee laws.
For years, Canada dealt with immigration-related national security issues through the controversial tool of “security certificates” until the Supreme Court declared the law to be unconstitutional in a landmark decision (known as Charkaoui) for violating the Charter. Though still technically more restricted due to amendments, Canada has not issued any certificates since 2016.
Instead, Canada’s national security apparatus has replaced the operation of one repressive regime with another: inadmissibility proceedings.
Immigration officials can now easily raise national security concerns against those trying to enter Canada, often by slapping the terrorist label on asylum seekers and other foreign nationals. The festering of this problem or trend has gone on for too long without notice.
It’s the same old, flawed, post-9/11 presumption: that national security threats come from “others,” or immigrants and people of colour. The same racist mindset has migrated into the immigration sphere and Muslim immigrants are disproportionately targeted with surveillance and legal scrutiny. The result? Asylum seekers are deported without due process and in breach of international law against the practice of “non-refoulment“: the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.
Research shows that Canada is under serious threat from extremist far-right terrorism. But the overall system is still mostly designed to detect, dismantle, and combat foreign threats.
The Minister of Public Safety’s latest report on national security, for example, focuses extensively on foreign groups. The CRA’s Review and Analysis Division also disproportionately audits Muslim charities in hopes of finding connections to international terrorism or crime. These absurd priorities don’t reflect the updated threats of the 21st century.
The sad truth is that prejudice based on race and religion has been a prominent element in Canada’s terrorism legal cases, public policy, and law enforcement for over a decade.
As an immigration lawyer, I’ve witnessed Canada’s legal and immigration system antagonize numerous asylum seekers or vulnerable immigrants with baseless terrorism accusations while completely disregarding their rights.
Under section 34(1)(f) of the Immigration and Refugee Protection Act, foreign nationals can be denied immigration status and be deported if they’re found to be a member of an organization that has engaged in acts that are considered terrorism.
Although the definition of “terrorism” in Canada’s Criminal Code is very specific, our immigration system interprets and applies it extremely broadly and simply requires that the accusers establish “reasonable grounds” that a foreign national is a member of an organization that engaged in the alleged acts. The definition of “reasonable grounds” is so broad that a Federal Court in the famous Najafi v. Canada case frustratingly declared that even Nelson Mandela would not receive a favorable decision if he was accused of terrorism and subversion under this law.
“Membership in an organization” is also defined very broadly and requires no concrete evidence of alleged membership or material contribution; circumstantial evidence is often sufficient.
There is no temporal component to the membership or acts. A person can be found inadmissible even after he leaves and denounces an organization. The same organization may then be accused of certain activities years later, which are then brought up by the Canada Border Services Agency to attack the individual trying to enter Canada.
Similarly, there are no time limitations for allegations. An organization can even be deemed responsible for acts that happened decades ago, when it was run by completely different people with a completely different outlook. Recently, in one case, Muslim Brotherhood was alleged to have engaged in terrorism for crimes dating all the way back to 1945. The actions were actually committed by a separate organization that the Muslim Brotherhood had long denounced.
Now, it’s the CBSA that primarily evaluates whether a foreign applicant poses a security threat. To prove that an applicant is connected to terrorism, the CBSA simply needs to show that there are “reasonable grounds” for concern—the lowest standard in our legal system. They can use just about anything as “proof” and, in my experience, too much “evidence” comes from dubious Internet sources like biased op-eds or excerpts taken out of context.
For example, from my experience, the CBSA routinely links the main opposition party in Bangladesh, the Bangladesh Nationalist Party (BNP), which held government until 2006, with terrorism, through news reports showing the existence of political violence during an election. In no other realm would such information amount to “proof” of terrorism, but it works just fine for the CBSA, which arbitrarily links the BNP to said violence, betraying a complete ignorance of the facts and of Bangladesh’s political situation. Such ignorance is replete in our immigration system.
This has affected many of my clients. I was so frustrated by this that I even took the matter to both the Minister of Public Safety (who maintains Canada’s official list of designated terrorist groups) and the Prime Minister’s Office. Both confirmed with me that Canada does not view the BNP as a terrorist organization or as a national security threat. But this hasn’t stopped the CBSA from issuing inadmissibility reports on security grounds against BNP members seeking protection in Canada.
In one particularly egregious case, a refugee client of mine was denied permanent residency for being a member of a British student organization that provides assistance to international students in London to find housing and jobs. Even after being cleared multiple times, including at his admissibility hearing, an immigration officer reraised the issue and labeled the student organization a terrorist entity simply for having a similar sounding name as the youth wing of the BNP. In a judicial review, Justice Heneghan of the Federal Court upheld the decision based on technical grounds without considering the factual issues.
Likewise, the CBSA has even raised terrorism concerns to people with the slightest affiliation with conservative Muslim groups like the Muslim Brotherhood and Bangladesh’s Jamaat-e-Islami, neither of which are connected to violence or terrorism. Yet hundreds of refugee claimants, persecuted in their countries of origin, are now being denied protection on the unfounded assumption that they are terrorist threats.
The CBSA and various government agencies go above and beyond to reject refugee protection for claimants by accusing them of being members of “terrorist” organizations, even if these agencies have next to no evidence.
Abdelrahman Elmady, an Egyptian client of mine, was detained at the Vancouver International Airport by the CBSA after making a refugee claim due to his affiliation with Egypt’s Freedom and Justice Party, which has no ties to terrorism. The CBSA breached Elmady’s legal rights, searched his phone, and accessed private information protected by solicitor-client privilege.
Yet none of these clear breaches of Elmady’s rights were sufficient to stop the Immigration Division from finding Elmady inadmissible. They issued a deportation order against him after concluding that the FJP is a front of the Muslim Brotherhood, which engaged in acts of terrorism in 1945.
The ID’s decisions were based on biased sources mainly coming from organizations and institutions that are affiliated with the Egyptian government, which came to power through a coup against the FJP. The ID justified itself by pointing to the low standard for admissibility of evidence under s.34(1)— the only requirement is that the evidence must be “credible and trustworthy.”
There are hundreds of asylum seekers and refugees who are going through significant hardships and living in precarious conditions in Canada because of the allegations or findings of inadmissibility against them. They are mainly immigrants of colour from Muslim-majority countries such as Bangladesh, Pakistan, Iran, and Egypt. Many were deported without any refugee hearing and only through an administrative process called pre-removal risk assessment (PRRA)—a process that carries less than a 3 per cent chance of success.
For inadmissible claimants under s.34(1), the chances are even lower because their right to risk assessment is also limited to s.97 of the IRPA and they do not enjoy risk assessment like refugees under consolidated grounds.
In so doing, Canada is engaging in international crimes of non-refoulment by deporting refugee claimants to places where they face a risk to their life or torture without ensuring a fair asylum determination process.
It is time for this to stop. We need to rethink who our enemy really is.
The recent attack in London, Ont., that wiped out a Muslim family, plus other hate-motivated attacks against Muslims in Western Canada, have been driving our public policy conversations regarding public safety.
Last month, I had a conversation with the Minister of Public Safety Bill Blair just prior to the Emergency National Summit on Islamophobia. Minister Blair did not hesitate to acknowledge the national security threats posed by white supremacist groups. He also explicitly acknowledged that Muslims have been the victims of terrorism rather than the perpetrators.
But when will we see this enacted within our institutions? Instead of going after far-right, hateful supremacists, our immigration systems are keener to step on the weak, the persecuted, and the tortured.
Canadian Muslims have consistently sounded the alarm on being the victims of terrorism. But we’ve been portrayed as its perpetrators for decades. I welcomed Minister Blair’s words, but words are not enough: meaningful change in public policy and the national security policy is what Canada needs.