Wednesday, 23 May 2012


The difference in colour  of the background behind the text is merely an anomaly and nothing more.

Internationally, Canada has what many people world-wide consider as one of the better refugee systems in the world. That is because we as Canadians believe that countries such as Canada that believe in the rights of others, are willing to open our doors to refugees who seek the protection of Canada (and other similar nations) from the regimes of their own countries that would otherwise harm them.

Despite Canada’s largesse, there is a limit as to what Canadians will tolerate once a refugee is allowed to permanently reside in our country. Criminality is a sure way in which to be deported. What follows is the story of one such criminal who was accepted as a refugee and permitted to live in Canada.

Sharmarke Mohamed came to Canada as a refugee at the age of 27 from his homeland, Somalia where he was a citizen of that country. He was accepted by the Canadian Immigration authorities in 1991as a refugee because Canada recognizes the fact that Somalia is truly one of the most dangerous places in the world to live in.

Once in Canada, he had the opportunity to live in a peaceful nation which a recent world-wide poll said that Canada is the fifth nicest place in the world to live in. Opportunities are abundant for people wishing to work and many Somalian refugees have settled down nicely in Canada where their hopes and dreams are being met.                                                                 

Mr. Mohamed worked ten years as a chemical laboratory technician and left British Columbia when the company went bankrupt in 2005.

His settlement in Canada had not been peaceful. He got married twice, had two children from each of those marriages, and later was living separate from his second wife and children. Unfortunately, this particular refugee was actually a criminal. Not just a criminal but a really dangerous criminal. He was convicted of assaulting his roommate with a butcher knife and of robbing three banks. He was also charged with several other offences under the Criminal Code, including assault, assault with weapons and assault causing bodily harm. His anger management issues had also been fuelled by drugs and alcohol. He was the sort of man you really wouldn’t want as a neighbour or as a fellow employee and certainly not as a spouse. I think I am safe in saying that Canada permitted this particular piece of garbage from Somalia to slip under the radar when it accepted Mr. Mohamed into Canada as one of its conventional refugees.

Not surprisingly, the Immigration Review Board issued in 2009 a deportation order against Mr. Mohamed on grounds of his serious criminality. For several years, this most undesirable man remained in Canada as he went through the lengthy and time-consuming appeal process that is available to all refugees facing deportation.

As part of its enforcement of the Immigration and Refugee Protection Act, the Canada Border Services Agency (CBSA) may remove from Canada any person who has been issued a removal order for breaching the Act. There are three types of removal orders and each one has different consequences. A removal order can be appealed in certain situations. People cannot be removed from Canada if they have appealed a removal order and the appeal has not been decided, if they are involved in another legal proceeding or if they have been found to be persons in need of protection.

Depending on the type of removal order required, the order is issued either by a CBSA officer or by a member of the Immigration Division of the Immigration and Refugee Board of Canada (IRB), which is an independent tribunal. The IRB's Immigration Appeal Division hears appeals of eligible removal orders. The Federal Court may review the Immigration Appeal Division's ruling. Mr. Mohamed’s deportation was approved of by the Federal Court.

If either a CBSA officer or a member of the IRB's Immigration Division determines that a person has breached the Immigration and Refugee Protection Act, he or she may issue one of the following removal orders:

A departure order requiring that the person leave Canada within 30 days after the order becomes enforceable.

A person who has been removed as a result of an exclusion order cannot return to Canada for one year unless the written permission of the CBSA is obtained. However, people who are issued exclusion orders for misrepresentation cannot return for two years without written authorization from the CBSA.

A person who has been removed as a result of a deportation order is permanently barred from returning to Canada. Such people may never return unless they receive written permission from the CBSA and that is highly unlikely. It is that order that the federal court approved of with respect to Mr. Mohammed’s deportation.

The Canada Border Services Agency (CBSA) had originally made arrangements to remove Mr. Mohamed to Somalia in October 2011. However, the CBSA agreed to delay the removal pending the determination of Mr. Mohamed’s application for judicial review of the danger opinion.

Upon the dismissal of the application for judicial review, the CBSA made new arrangements for Mr. Mohamed’s removal to Somalia.

It is important to remember that according to the principle of “non-refoulement” (in refugee law, a refugee should not be returned to a country where he or she would risk being persecuted). The non-refoulement principle is found at section 115 of the IRPA. This section prohibits the return of Convention refugees to a country where there is a risk of persecution on Convention grounds or is at risk of torture or cruel and unusual treatment or punishment.

The Immigration Department was well aware that at this time, Somalia is one of the most dangerous places in the world. It was cognizance of the fact that the area surrounding the Somali capital, Mogadishu and also the rest of the south and central part of Somalia is unstable and extremely dangerous. One million Somalis are internally displaced; hundreds of thousands are newly displaced refugees and the entire population of Mogadishu carries the scars of having witnessed or experiences egregious violations of human rights and international humanitarian law. Somali civilians have been routinely targeted and have suffered violations of human rights and international humanitarian law in the conflict areas of southern and central Somalia They have even been targeted on the roads as they fled conflict areas, and in camps and temporary settlements to which they fled.

If the rest of Somalia was equally dangerous, the Immigration authorities wouldn’t deport him to Somalia. They would seek another country that might be willing to take him.

However, they were satisfied that in the northern part of Somalia, where this man could be deported, it is much more stable and as such, it is a relatively safe place for this man to live such as Bossaso and Puntland in northern Somalia. Large parts of northern Somalia are relatively safe regardless of clan membership. Somaliland and Puntland remain a generally safe place to live despite some armed violence and targeted assassinations. In other parts of Somalia, it is unlikely that any Somali belonging to one of the major clan-families (their immediate clan groups or associated sub clans) would be able to demonstrate that they have a well-founded fear of ill-treatment on return on the basis of their clan affiliation alone.

Despite the aforementioned, subsection 115(2) of the IRPA provides exceptions to the non-refoulement principle, such as where the person is inadmissible on grounds of serious criminality and constitutes a danger to the Canadian public in the opinion of the Minister. For this reason, the Minister still wanted him deported.

Mr. Mohammed filed a notice of appeal on February 17, 2012. When the matter was heard in the Federal Court of Appeal, the argument of his lawyer was in part;

“To allow the Minister to avoid balancing the risk faced upon return to the country of origin by simply finding that this risk is of generalized nature, would allow a person’s Section 7 rights to be violated in a way that is not in accordance with the principles of fundamental justice.”

Section 7 of the Charter of Rights states;

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in the accordance with the principles of fundamental justice. unquote

Section 7 relates to a person’s physical and mental wellbeing.

Obviously, it is quite conceivable that if Mr. Mohamed was sent to Somalia, he might very well be murdered or even imprisoned without the benefit of a trial however, Section 7 actually applies to persons who are still residing in Canada and not somewhere else. He certainly had the benefit of a trial and an appeal and at no time was his life at risk while he was residing in Canada. Further, Section 7 doesn’t just apply to courts, it also applies to tribunals and he was given a fair hearing before the Immigration Tribunal. 

The issue on appeal has been litigated in the United Kingdom all the way to the European Court of Human Rights (ECHR) in a case involving a similar context. The ECHR found that risks generally faced by the population may amount to a real risk of ill-treatment to the deportee

As for the Minister’s argument, he refuted the applicant’s (Mohammed) argument. He submitted that the refugee law does not prohibit the removal of a refugee to a country where the whole population faces some generalized risk to their life. Further, foreign cases are not binding on Canadian courts. In fact, there is no Canadian authoritative case to support Mr. Mohamed’s arguments that the Minister’s delegate must consider generalized risks as part of the danger opinion analysis.

Yet as I said earlier, the situation is not as bleak as it may seem in Somalia. Some parts of Somalia, most notably Somaliland and Puntland in the north, are relatively stable, and as the ill-fated Union of Islamic Courts demonstrated in 2006, it is possible to rapidly re-establish peace and stability in central and south Somalia if the right conditions exist. Contrary to what is often assumed, there is little anarchy in the country. Local authorities administer most areas and maintain a modicum of law and order. Somalis and humanitarian agencies and NGOs on the ground know who is in charge and what the rules are and get on with their work.

The UK Border Agency’s report, “Somalia: Report of Fact Finding Mission to Nairobi” stated;

Apart from some areas, there is normal life in Mogadishu, like children playing in the street. Most of the city is traversable but it depends who you are. Everybody who is not Somali is at risk, including AMISOM and NGOs. For ordinary Somalis who go about their day-to-day life, Mogadishu is reasonably safe. They can go shopping and to the market, children go to school. There is public transport, minibuses and taxis are available. The Mogadishu economy is booming and thriving despite the lack of regulations. Quite a lot of people have left Mogadishu but there is still evidence of a normal life. In the security advisor’s opinion, returnees would not be at risk at all in Mogadishu.

The presiding judge after hearing the arguments of both sides during Mr. Mohamed’s appeal said in part;

“It is not my duty at this stage to review the ministerial delegate’s danger opinion. Nor is it my duty to second guess all the ministerial delegate’s findings of fact regarding the situation in Somalia. That being said, I have to make my own findings on whether Mr. Mohamed will suffer irreparable harm if he is deported to his country of origin.”
He decided that Mr. Mohamed would not be at any more risk as a citizen of Somali than any other citizen in that country and for this reason; he ordered that Mr. Mohamed was to be deported.

The CBSA’s current protocol for removal to Somalia requires pre-approval by the commercial air carrier, which confirms that the proposed final destination in Somalia is a suitable destination in light of the deportee’s clan and sub-clan support group. Once approved by the airline, the removal to Somalia is routed through NairobiKenya. From Nairobi, the deportee flies to Mogadishu on a commercial flight and then on to his or her final destination in Somalia.

Mr. Mohamed then asked the judge that he instead be taken directly to Bosaso, in northern Somalia. He suggested that it would be easier for him to fly to Djiboutiand then proceed to Bosaso from there. His request was based on the humanitarian crisis that is currently plaguing Somalia, and particularly, the Mogadishu area. He also indicated that he may have some distant relatives in Bosaso who could assist with his resettlement.
The judge after hearing from both sides said;

“I have reviewed the information provided by the parties concerning the situation in northern Somalia, particularly the situation in the city of Bossaso. I have also reviewed the information provided by Mr. Parsons with respect to the capacity to remove Mr. Mohamed to Bossaso, together with Mr. Mohamed’s comments and suggestions concerning his capacity of resettlement in Bossaso. I am not convinced that he will be personally at risk of persecution on Convention grounds nor at risk of torture or cruel and unusual treatment or punishment if he is deported to Somalia.” unquote

I have searched that ruling and have to admit that I am at a loss as to whether or not he granted Mr. Mohamed’s final wish that he be flown to Bossaso. I suppose what Mr. Mohamed was really asking the judge to rule on was that the government pay for his air fare not only to Kenya but also to Bossaso.

This case, in my respectful opinion, was a fairly simple one for the appeal court to deal with because the balance of convenience weighed heavily in favour of the Minister where Mr. Mohamed who was facing deportation had been convicted of criminal offences over a period of two decades and found to be a danger to the public. There wasn’t any evidence that he had reformed himself into being a law abiding resident of Canada.

Based on the balance of convenience, Mohamed’s criminal history was outweighed by the public interest in his prompt removal from Canada. If the administration of immigration law is to be credible, the prompt removal of such criminals should be ordered deported and it should be the rule, and permitting someone with his criminal background should be the exception.

He was detained during the various stages of his appeals because he still serving his sentences for his serious crimes. Upon his release, the court concluded that he would still remain a danger for the Canadian public.

If Mr. Mohamed was from a European country or any other peaceful country,  he would have been booted out of Canada long ago, but because he came to Canada from war-torn Somalia, he had been allowed to linger in Canada thereby causing mayhem through his escalating violence. Finally the Canadian authorities decided that enough was enough.
Despite Mohamed having been granted refugee protection after fleeing to Canada — and a plea from the United Nations that he not be sent home to “one of the most dangerous places on earth” — his drug and alcohol-fuelled crimes pose such a danger to Canada, he must be sent back regardless, Justice Sean Harrington had ruled.
Admittedly it is unusual for Canada to deport someone to a country where it is clear they might be in significant danger. But rulings such as the one made in Mr. Mohamed’s case makes it clear that there are limits to that tradition just as there are limits to our patience.
Justice Harrington correctly said in his ruling;
“We are not obliged to keep someone here who is a danger to the public.”
I should add that when we throw our garbage out, we don’t expect to get it back. Sometimes it has happened when it has slipped past our doors. If this criminal slips back into Canada, we should all shout in unison—“Enough is enough. Get out!” 

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