Should an alleged former member   of  a so-called terrorist  group  be  permitted  to  remain  in  Canada?

 

Muhsen Ahmed Ramadanfrom Agraira of Libya came to Canada and later applied for permanent residency. His request was denied even though he has been residing in Canada since 1997. He is married and he and his wife and children are living with him in Canada. He had been found to be inadmissible on security grounds in 2002.  The finding of inadmissibility was based on his previous membership in the Libyan National Salvation Front (LNSF)—an alleged terrorist organization according to the minister of Citizenship and Immigration Canada. (CIC)                              

 

What really was the LNSF? It was a political opposition group active during the rule of the Gaddafi regime in Libya. It was formed in 1981 and called for major liberalizing reforms such as democratic elections, a free press, and the separation of powers. During the 1980s, it pursued a campaign of armed opposition to the Gaddafi regime and made several coup attempts, the most notable being its 1984 armed assault on Gaddafi's Bab al-Azizia compound in Tripoli. After the failure of this and several other coup attempts, the group largely abandoned militancy, and instead used peaceful tactics to promote reform in Libya. In 2005, the NFSL joined with six other groups to form the National Conference for the Libyan Opposition. With the fall of the Gaddafi regime in the 2011 Libyan civil war, the NFSL's main long-term goal was fulfilled. Consequently after the war's end, the NFSL dissolved itself and was replaced by the National Front Party, which won 3 seats in the 2012 General National Congress election. The NFSL's founder and former leader, Mohamed Yousef el-Magariaf was appointed Chairman of the General National Congress, effectively making him interim head of state.

 

What is important in a case like this one is this. Before he came to Canada in 1997, he was a member of the NFSL when that group attacked Gaddafi’s compound in 1984. At that time, Gaddafi was the legitimate ruler of Libya. That being as it is, was the NFSL a terrorist organization or an insurgent organization?

 

There is a difference between the two kinds of groups. Terrorists indiscriminately kill innocent persons whereas insurgents revolt against an existing regime. I suppose we could compare modern-day insurgents with those German officers who attempted to kill the German dictator, Adolf Hitler. Where they terrorists? I hardly think so. We mustn’t forget that Gaddafi was a terrorist who was responsible for the Pan Am/Lockerbie air crash caused by a Libyan terrorist on Gaddafi’s orders. He also supported terrorism.  

 

When Agraira applied for permanent residency in Canada in 2009, the Minister of Public Safety and Emergency Preparedness turned down his request on  the  basis  that it was not in the national interest to admit him because he had sustained contact with known terrorist and/or terrorist-connected organizations. Did the Minister believe that Agraira was in contact with other terrorist organizations or did he believe that the NFSL was and still is a terrorist organization?

He entered Canada in 1997, at Toronto, using a fake Italian passport.  That by itself is grounds for deportation. He then applied for Convention Refugee status Canada on the basis of his affiliation with the LNSF.  On his personal information form, he described his activities with that organization as follows: as a member of an 11-person cell, he had delivered envelopes to members of other cells, raised funds, and watched the movements of supporters of the regime then in power.  As part of his training, he was taught how to engage people in political discourse and how to raise funds.                                                                                                           

Quite frankly, I don’t see that as grounds for deportation. If it is, then any of the German conspirators who tried to kill Hitler and who are still alive, would be denied Canadian citizenship because they also tried to topple a dictatorial regime.

 Later in May 2002, he was interviewed by an immigration officer from the Ministry of Citizenship and Immigration Canada (CIC). In the course of that interview, he confirmed that he had been a member of the LNSF, but claimed that he had previously exaggerated the extent of his involvement in order to bolster his refugee claim.  Although he later claimed that he did not know very much about the LNSF, nevertheless he was able to name its founder and its current leader.  Also, after previously stating that he had attended LNSF meetings in Libya, he said that he had only discussed the group with friends.  Finally, he stated that he had had no contact with the LNSF after leaving Libya, but then acknowledged having received newsletters from chapters in the United States since that time.  These contradictions led the immigration officer to conclude that the appellant was or had been a member of an organization that engaged in terrorism.  Agraira was found to be inadmissible on that basis.   

I can appreciate why the immigration officer arrived at the conclusion that something was definitely amiss considering Agraira’s various explanations that didn’t seem to add up. However, we are still faced with the realization that the LNSF wasn’t a terrorist organization.

On May 22, 2002, Citizenship and Immigration Canada (CIC) sent Agraira a letter advising him of the possibility of requesting ministerial relief.  That kind of relief would grant his permanent residential status based on humanitarian and compassionate reasons only. In July of that year, he applied for that relief.  The immigration officer noted, while preparing her report on the interview, that, once again, there were statements in the appellant’s application for relief that contradicted earlier statements he had made.  For example, the appellant indicated in this application that he had attended meetings of the LNSF at which he had been trained to approach potential members and raise funds.  However, in his interview with the immigration officer, the appellant said that he was unaware how the LNSF funded itself or how it recruited members.  The officer concluded that the appellant had been and continued to be a member of the LNSF, but that his involvement had been limited to distributing leaflets and enlisting support for the organization.  She therefore recommended that he be granted relief. The minister could take into consideration that Agraira’s wife was a Canadian citizen as were his children. If he was sent back to Libya alone, his family would be deserted. If his family returned to Libya with him, then they would be uprooted from their own country. These are certainly grounds for humanitarian and compassionate relief.

Now it would appear that Agraira’s problems were over. Well, they weren’t. At the same time (July 2002), a CIC officer prepared a report on his inadmissibility as a permanent resident of Canada because of her belief that he was a member of a terrorist organization. It is beyond me as to how she arrived at that conclusion since the LNSF doesn’t appear to have been a terrorist organization.

Next, in August 2005, a briefing note for the Minister was prepared by the Canada Border Services Agency (CBSA).  After having been reviewed by counsel for Agraira, who made no further comment, the report was submitted to the Minister on March 9, 2006.  It contained a recommendation that the Agraira be granted relief, as there was “not enough evidence to conclude that Mr. Ramadan Agraira’s continued presence in Canada would be detrimental to the national interest.” This recommendation was based on the following considerations:

“Mr. Ramadan Agraira admitted to joining the LNSF but was only a member for approximately two years. There is some information to suggest that he became a member at a time when the organization was not in its most active phase and well after it was involved in an operation to overthrow the Libyan regime. He initially stated that he had participated in a number of activities on behalf of the organization but later indicated that he had exaggerated the extent of his involvement so that he could make a stronger claim to refugee status in Canada. This is supported to some extent by the fact that his attempts to obtain refugee status in Germany and Canada were rejected on the basis of credibility.  Mr. Ramadan Agraira denied having been involved in any acts of violence or terrorism and there is no evidence to the contrary. He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF. He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC in Oshawa that he would support anyone who tried to remove the current regime in Libya through non-violent means.” unquote

Now that would seem to be sufficient to permit this man to remain in Canada as a permanent resident. Well, it wasn’t. On January 27, 2009, the Minister rejected the recommendation in a briefing report.  The response he gave was as follows:

The applicant offered contradictory and inconsistent accounts of his involvement with the Libyan National Salvation Front. According to the officials in the Ministry, there was clear evidence that the LNSF was a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government. There was also evidence that LNSF has been aligned at various times with Libyan Islamic opposition groups that have links to Al-Qaeda. It is difficult to believe that the applicant, who in interviews with officials indicated at one point that he belonged to a “cell” of the LNSF which operated to recruit and raise funds for LNSF, was unaware of the LNSF’s previous activity. It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. Ministerial relief is denied.

On March 24, 2009, the appellant received notice that his application for permanent residence was denied.  He then applied to the Federal Court for judicial review of the Minister’s decision regarding relief.

Mosley, the judge in the Federal Court began his analysis of the case by ruling on the standard of review.  He held that the appropriate standard was reasonableness, citing the discretionary nature of the decision, the fact that it was not delegable, and the Minister’s expertise in matters of national security and the national interest.  He added that the political nature of the decision and the Minister’s special knowledge involving sensitivity to the imperatives of public policy and the nuances of the legislative scheme also weighed in favour of deference.

I should point out that when he referred to the Minister, he was actually referring to the Ministry and the officials in it who are familiar with terrorist organizations.

In applying the reasonableness standard, (a standard that is based on common sense and fairness) Mosley considered the fact that the Minister had focused on evidence that the LNSF had engaged in terrorism and been aligned with Libyan Islamic groups that had links to Al-Qaeda.  He found, on the contrary, that the evidence of the LNSF’s engagement in terrorism was minimal at best.  In particular, the LNSF did not appear on the lists of terrorist organizations of the United Nations, Canada and the United States.  Although several Libyan opposition groups had direct links with Al-Qaeda, there was no evidence in the record that LNSF was one of them.  Because it had been previously determined that the LNSF was a terrorist group for the purposes refusing Agraira permanent residency, the court could not review that finding.  However, Mosley found it difficult to understand why the Minister had given so much weight to the LNSF’s engagement in terrorism and its alignment with Libyan Islamic groups that had links to Al-Qaeda.

I believe that I can answer that question. People in authority don’t like losing so they will reach out for any twig of a tree that will support their position, no matter how unstable the twig is.

The Supreme Court of Canada has set down guidelines to deal with problems of this kind facing government officials when it has to decide if a person from another country is eligible for permanent residency in Canada.

Appendix D to the Guidelines contains five questions to be addressed in the context of an application for such relief: 1. Will the applicant’s presence in Canada be offensive to the Canadian public? 2. Have all ties with the regime/organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant might be benefiting from previous membership in the regime/organization? 5.  Has the person adopted the democratic values of Canadian society?

Mosley noted that in the instant case, the Minister had not addressed these questions in the reasons he gave for his decision, nor had he balanced the factors the Federal Court had in past cases identified as being relevant to the determination of what is in the national interest, namely: whether the appellant posed a threat to Canada’s security; whether the appellant posed a danger to the public; the period of time the appellant had been in Canada; whether the determination is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact on both the appellant and all other members of society of the denial of permanent residence; and adherence to all Canada’s international obligations.  He criticized the Minister for not considering in his decision the facts that the appellant had been residing in Canada since 1997 and had been a productive member of society, that he had no criminal record, and that he owned a business earning over $100,000 a year.  In Mosley’s view, the exercise of the Minister’s discretion seemed to have been rendered meaningless by the Minister’s “simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest.”

In other words, if he was a member of a terrorist organization in the past, is it not possible that he has reformed over the years and therefore is not threat to anyone in Canada?  Of course, that would depend on what his role would have been and what kind of terrorist organization it was. For example, if that organization slaughtered innocent people, it would hardly matter to government officials that he had reformed just as we never forgive war criminals for their crimes. However, if the LNSF was just the way Agraira described it, then that could hardly be called a terrorist organization.

Mosley granted Agraira’s application for judicial review and certified the following questions for consideration by the Federal Court of Appeal to wit:  When determining Agraira’s application, the Minister of Public Safety must consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest?  Specifically, the Minister must consider the five factors listed in the Appendix D (as previously listed in this article)

In the Federal Court of Appeal, Justice Pelletier, with Justices, Blais and Noël concurring considered the issues separately in ruling on the standard of review.  He held that establishing the meaning of the term “national interest” for the purposes of answering the five questions (previously states in this article) that the Minister must answer, is a question of law in respect of which the Minister has no particular expertise and for which the appropriate standard is therefore correctness.  The appropriate standard for reviewing the exercise of the Minister’s discretion, on the other hand, is reasonableness.

In my opinion, if the Minister has no expertise in terrorist organizations, then his decision could hardly be called reasonable.  

Justice Pelletier confirmed that, in an application for ministerial relief, the onus is on the applicant to satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest.  Because this onus was reversed in the briefing report, the judge held that it was open to the Minister to disregard the recommendation made in the report. In other words, the Minister should pay little heed to what his underlings stated in their recommendation that Agraira was a member of a terrorist organization.

Pelletier next turned to the interpretation of s. 34(2) of the Immigration and Refugee Protection Act (IRPA).  He tracked the legislative evolution of s. 34(2) to find what, in his view, was the correct interpretation of this subsection.  He noted that Parliament had transferred the responsibility for exercising the discretion from the Minister of Citizenship and Immigration (MCI) to the Minister. As a result of this change, s. 34(2) has to be read in light of the objects of the (DPSEPA—the Minister’s enabling statute), the Canada Border Services Agency Act,  (CBSAA) (the statute governing the CBSA, the organization that assists the Minister in his or her duties), and the Immigration and Refugee Protection Act (IRPA).  These statutes work together as part of a statutory scheme to which the presumption of coherence must be applied.

In May 2002, when Agraira’s admissibility interview took place, the initial assessment was in force.  At that time, the Minister of Citizenship and Immigration was responsible both for the determination of inadmissibility and for the decision on granting relief.  He or she was also responsible for deciding whether to grant exemptions from the initial assessment on humanitarian and compassionate grounds.

On June 28, 2002, the (IRPA) replaced the initial assessment.  Under the transitional provisions of the IRPA, the appellant’s application for relief would now be governed by the IRPA, and more specifically by s. 34 of that Act.  At that time, the MCI was still responsible for deciding whether to grant relief under s. 34(2).  After the Canada Border Services Agency (CBSAA) was passed in 2005, the responsible minister became the Minister as defined in section 2” of the CBSAA. In 2008, the Minister was specifically identified as the responsible minister.  The Minister of Citizenship and Immigration retained the ability to grant exemptions from the IRPA on humanitarian and compassionate grounds.

Despite the above observations on the law, Justice Pelletier concluded that the Minister’s decision was reasonable.  The Minister had addressed the appellant’s submission that his involvement with the LNSF was either non-existent, innocent or trivial and had found the appellant’s account of his involvement to be contradictory and inconsistent.  Ultimately, because the appellant lacked credibility as a result of these contradictions and inconsistencies, the Minister had had no faith in any of his representations.  Accordingly, the Minister had not acted unreasonably in reaching the conclusion he had.  The application for judicial review was dismissed.

Agraira appealed to the Supreme Court of Canada. His lawyer argued that the Federal Court of Appeal relied too heavily on the legislative transfer of ministerial responsibility in interpreting the term “national interest” for the purposes refusing Agraira’s application.  He argued that the shift in responsibility between governmental departments does not indicate a concomitant legislative intent to change the interpretation of the Immigration and Refugee Protection Act.  He also argued that the term “national interest” should be given a broader meaning than the one ascribed to it by the Federal Court of Appeal.  Although public security and national defence should both be taken into account as relevant factors in the Minister’s exercise of discretion, they should not be the only factors considered in applying the “national interest” test.  In taking an unduly narrow view of the term “national interest” by equating it with one aspect of that interest (national security and public safety), the Federal Court of Appeal set a precedent which unlawfully fetters the Minister’s discretion by requiring that he or she consider only that one aspect when dealing with future applications for relief.

Despite that argument, the Supreme Court denied Agraira’s appeal.

There is a lesson to be learned from this case. Agraira should have been honest up front and explained his real history with the Libyan National Salvation Front. Instead, he chose to give two versions. This brought suspicion in the minds of the government officials as to what he really had been doing in Libya when he lived there.

If the Minister grants Agraira permanent residency in Canada for humanitarian and compassionate reasons, it will be solely because to do otherwise, will bring misery upon his innocent family.

I am inclined to believe that he was not a terrorist but the government simply can’t really be sure that he didn’t participate in terroristic activities because he wasn’t up front with them when he told them of his activities with the Libyan National Salvation Front.

I will update you later when I learn what the government’s final decision is.