Work for freedom? You may be inadmissible to Canada

For years, people like Mr. Maqsudi have had to rely on a faint-hope clause in immigration legislation that humanitarian factors would be taken into consideration in ultimately deciding whether the inadmissibility finding could be over-ruled when the individual circumstances of their cases are considered. While the ministers of immigration and public Safety have the discretion to examine those unique features of each case, current interpretation of immigration legislation is so narrow that decisions are essentially based on the very limited and contentious grounds of “national interest” and “national security.”

Such decisions ”“ which fail to take into account whether the individual is well-established in Canada, law-abiding, embraces democratic values, and would suffer hardship if separated from loved ones ”“ are condemning growing numbers to endless deportation procedures or decades of essentially stateless limbo.

Among those most seriously affected are former or current members of groups seeking change everywhere from Palestine and Sri Lanka to South Africa and El Salvador. The interpretation of what it means to be a member is so broad that it can encompass someone who wrote for a party newspaper or provided catering services to a political meeting. Ottawa fails to consider, for example, whether someone joined a group before it took up arms or after it eschewed violence. It also fails to distinguish between membership in groups with a single brutal purpose ”“ the employment of violence without regard to civilian casualties ”“ and multi-faceted organizations that, while possessing a military wing, also act as de-facto governments that provide social services (such as the Palestine Liberation Organization).

Mr. Maqsudi worked as a radio operator from 1981 to 1992 as part of the struggle to rid Afghanistan of a Communist puppet government and Soviet occupation, a cause supported by Canada and the U.S. After working for the government of Afghanistan from 1992 to 1996, he joined anti-Taliban efforts but was forced to flee the country. He returned in 2002 to work for the Karzai government, even serving in an embassy position in Germany, before claiming refugee status in Canada.

His wife and children were both accepted as refugees, but Mr. Maqsudi was turned down. In a legal brief, Mr. Maqsudi notes that he has been deemed inadmissible for belonging to a group that  “subverted the Afghan Communist government by force,” even though that government (which ruled from 1978-1982) “has been designated by the Canadian government as a regime characterized by systematic or gross human rights violations, genocide, or war crimes and crimes against humanity.” Notably, the refugee board found that the organization to which Mr. Maqsudi belonged was not involved in terrorism, crimes against humanity or war crimes.

So what does one do if, despite being on the right side of history (at least in the eyes of Canada's government), an individual nonetheless belonged to an organization, one of whose purposes was forcing change on an undemocratic government? It's a conundrum that has been applied to exclude visitors and potential future citizens such as former and current members of the African National Congress (without his honourary citizenship, Nelson Mandela would be unable to get landed status in Canada) as well as individuals who were part of the Farabundo Marti National Liberation Front (FMLN) in El Salvador. FMLN is currently that country's ruling party but it was at one timed deemed subversive for seeking to overthrow a government that ran death squads and oversaw the forced disappearance, torture, and summary execution on thousands of people during the 1980s. This one-size-fits-all approach is ruining the lives of refugees who have been waiting for landing, in some instances, for almost 20 years.

The ultimate disposition of such cases may be decided by the Supreme Court of Canada, which in October heard a significant appeal that, while garnering very little publicity, may have major ramifications.

The appeal involves Muhsen Ahemed Ramadan Agraira, a Libyan national who left his country in 1996 and eventually claimed refugee status in Canada due to membership in the Libyan National Salvation Front (LNSF). Notably, the LNSF was a secular paramilitary group that received the support of Middle Eastern and Western agencies, including the CIA, in efforts to destabilize the Gadhafi regime. The group ended armed operations in 1995.

Mr. Agraira's claim was rejected, but he married a Canadian in 1999. She submitted an application to sponsor her husband, which was accepted in principle, and Mr. Agraira proceeded to apply for permanent residence. In interviews with CSIS (Canada's spy agency) and immigration officials, he said that he had only been involved minimally with the LNSF, that he supported their goal of democracy, and that he had exaggerated his original involvement in the group to strengthen his refugee claim. He also said he had no knowledge that the group advocated violence and would not have been involved if he had known it to be true. Declared inadmissible, in 2002, he sought out the faint-hope clause and in 2006, the Canadian Border Services Agency ”“ not known for friendliness towards refugees ”“recommended that he be granted relief when it concluded his presence in Canada would not be detrimental to the national interest. In 2009, the Minister of Public Safety disagreed and turned him down, even though Mr. Agraira had by then lived nine years of normal Canadian life, was a productive member of society earning over $100,000 a year, and had no criminal record.

Ottawa's Orwellian and stubborn insistence on labeling organizations that the Canadian government itself has supported as subversive has become so perverse, Mr. Agraira's lawyers argued, that  “individuals can be rendered inadmissible to Canada on the basis of activities that are legal and in accordance with Canadian values” Under this broad interpretation of ”˜subversion', individuals who worked with Canadian Forces or the United Nations against dictatorial governments that have committed mass human rights violations could be found to have engaged in ”˜subversion by force'”.

Indeed, the Canadian government, in helping overthrow the Gaddafi regime, worked alongside of the LNSF among many other groups.

Longtime refugee lawyer and outspoken advocate Barb Jackman, representing the Canadian Arab Federation and the Canadian Tamil Congress, argued at the Supreme Court that the growing list of those caught in this frustrating net include a Sri Lankan woman who cooked meals for and acted as a secretary to her husband, a member of a legal political party who was assassinated. But because that party worked with the Tamil Tigers to negotiate an end to that nation's civil war, however, she was judged inadmissible to Canada for being associated with a group that allegedly engages in terrorism.

In another instance, Ms. Jackman pointed to a young woman from Namibia who attended a few meetings of a secessionist organization with her boyfriend. She had no knowledge of the group's aims and activities, but was nonetheless found inadmissible because the government of Canada said the group was engaged in subversion.

In her trademark style, Ms. Jackman helped personalize this dilemma for the Supreme Court, explaining, “You can be a kid growing up in Gaza and you want to go to university. The only way to get a scholarship? You join Hamas, in order to get out, and then, you can't get landed [in Canada] because you joined Hamas to get the scholarship.” It's those kinds of situations, she notes, that have plagued dozens of her clients and continue to cause the kinds of psychological stress and emotional upset that leave them separated from loved ones abroad, unable to get on with their lives, having to apply every year for a work permit or health coverage, essentially stateless.

As the court ponders its decision, individuals like Messrs. Agraira and Maqsudi continue living in limbo, never knowing if they will enjoy the peace and security they sought when they claimed asylum in Canada years ago. Even if the court rules in favour of Mr. Agraira, he won't be out of the woods just yet. The Conservatives' Bill C-43, if passed, will completely eliminate the faint-hope clause, thereby prohibiting anyone found inadmissible on security grounds from even requesting such relief.

Matthew Behrens is an Ottawa writer and activist.