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Muhammad Hassan Qureshi's past involvement in Pakistan's MQM party is thwarting his bid for Canadian residency. (March 4, 2009) Even though a federal court ruled he never committed an act of terror, should he be forced to leave the country? It's a question that's confounding Canadian law
March 21, 2009
lesley Ciarula Taylor
Immigration Reporter
At least some of the Tamils who rallied in downtown Toronto earlier this week consider the Liberation Tigers of Tamil Eelam a liberation movement, not a terrorist group, and their leader Velupillai Prabhakaran, a freedom fighter.
Flying flags of the Tamil Tigers – or ones that looked very similar – they demanded that Ottawa help establish a Tamil homeland in Sri Lanka.
"The Tigers are my freedom fighters," rally organizer Aranee Muru, a Canadian-born York University student, told The Star.
On the other hand, Hasaka Ratnamalala, a spokesperson for the Sri Lanka United National Association of Canada, declares that Prabhakaran "is a psycho who has killed thousands of people in Sri Lanka."
When is a terrorist not a terrorist?
That question is at the heart of Federal Court rulings on whether refugees should get landed status or citizenship.
The Immigration and Refugee Protection Act, introduced in the post 9/11 climate of November 2001, deliberately gave the minister of public safety very broad powers to decide if a refugee should stay or go because of terrorist connections.
It has turned into an agonizingly slow process that leaves people in limbo for years, even decades, because the Federal Court decisions just send the cases back for another ministerial ruling, which can again be appealed.
The cast of characters in a dozen cases examined by The Star in Greater Toronto ranges from an accordion player with the Tamil Tigers to a border guard alleged to have worked for the KGB to a Somali economist to a young Palestinian who joined Fatah not long after the Six Day War.
A man who was a Sandinista prison guard in Nicaragua in the 1980s came to Canada in 1991 and is still fighting deportation.
The law raises three big issues:
• Are all violent liberation movements terrorist?
• Is every part of a terrorist or violent organization suspect?
• Does something that happened a long time ago count?
The rulings, spread over the past year, deal with people accepted as refugees a decade or more ago, in many cases precisely because of their connection to a terrorist or violent group. When they try to become permanent residents, several layers of bureaucracy kick in to decide if their past trumps their future in Canada.
"They don't apply (the law) to everybody," said Janet Dench, executive director of the Canadian Council for Refugees. "If they did, it would simply not function. Under the law, Nelson Mandela is inadmissable to Canada, or any of the other members of the ANC. But they are allowed in.
"One of the speculations is that the government is wilfully doing this, hoping that the person will die or go away. In the 1990s, the predominant mood was that nobody would make any decisions at all. They didn't want something appearing in the National Post about someone with dubious connections that would embarrass them, so they let people moulder."
A 55-page government document spells out what the law says. There's also a proviso that the minister of public safety or the minister of immigration can introduce regulations to spell out criteria still further, making the system more transparent and objective. Ultimately, the law hangs onto its "maximum flexibility and capacity to respond quickly" to changing circumstances.
The Immigration and Refugee Protection Act has two pivotal sections: one that excludes people involved in espionage, subversion, crimes or terrorism or for whom there are "reasonable grounds to believe" they belong to an organization that may have been involved. The second covers violations of human rights and crimes against humanity. Both carry an exception, letting the minister decide that someone being in Canada "would not be detrimental to the national interest."
Are all violent liberation movements terrorist?
The question of how history transforms a once-terrorist organization into a freedom-fighting one bedevils every level of decision-making in these cases.
Salah-Eddin Ramadan, born in Palestine but a Jordanian citizen, won refugee status in 1997 because he had been tortured by Jordanian security over his membership in the Fatah faction of the Palestine Liberation Organization.
In trying to stop his permanent residence application, the government argued that while the PLO is now a legitimate representative of Palestinians, it wasn't when he belonged. Perhaps, said the court, but the important question is whether Ramadan, who has lived and worked here for 11 years, is a threat to Canada. The case goes back to the minister.
"Fatah is now an organization with whom we have diplomatic relations, considered to be the legitimate representative of the Palestinian people," said Ramadan's lawyer, Lorne Waldman. "He is being penalized for his membership long ago."
Liberation movements came into play, too, in the case of Edd Abdi Ismeal, who "has lived in Canada since March, 1998, is self-supporting and has never come to our adverse attention," an immigration officer reported in 2003.
But he had been an agitator for the insurgent Oromo Liberation Front in Ethiopia. He won refugee status, but when he applied for permanent residence years later, up went a red flag. The court allowed a new hearing.
Youssef Kanaan has given up and left Canada, 16 years after he arrived from Lebanon, even though the Federal Court has declared the decision by the minister of public safety to deport him "unreasonable."
In his original claim, Kanaan said he had lived all of his life in a Palestinian refugee camp, where he was forced to join the Abu Nidal Organization, considered the world's most dangerous terrorist organization in the 1980s. He later recanted, saying he told that story on the advice of a translator to improve his chances of staying.
While his various applications went through the system, "he became increasingly freaked out," said his lawyer, Andrew Brouwer. He had never seen a daughter, who is now 16. The refugee camp the family had lived in was destroyed; his wife and children were living in a parking garage in Tripoli.
The case is back a third time before the minister, now Peter Van Loan, and Kanaan is out of the country.
"The government casts a ridiculously wide net" in its definition of reasonable grounds to believe someone belongs to a group involved in terrorist activities, said Brouwer. "Not every liberation movement is a terrorist group."
The Kanaan decision has turned into a precedent for other rulings. The court in Kanaan derided the "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 of Canada."
Is every part of a terrorist or violent organization suspect?
Cases often hinge on what "member" of a terrorist organization means. Mohammed Reza Sepid admitted he recorded videotapes, made photocopies and distributed flyers about the political agenda of MEK, one of the 40 entities "listed" by the Ministry of Public Safety and described as an Iranian terrorist organization dedicated to overthrowing the Iranian government. The court rejected his argument he was merely a "supporter."
Timing tipped the balance for Mozafar Chogolzadeh, who had a "long standing past membership" in MEK, which even arranged immigration to Canada for him and his family. He broke with the Iranian terrorist organization, but only when it sided with Iraqi leader Saddam Hussein against the Iraqi Kurds. Since that was too little, too late, the court said, his review was denied.
Muhammad Hassan Qureshi joined the Muttahid Qaumi Movement, or MQM, as a student in Pakistan, fleeing to Canada because he feared for his life from other political parties. The MQM is a socialist political party and part of the current government. It has been called a terrorist group by Canadian government lawyers.
An Immigration and Refugee Board hearing found Qureshi "complicit in crimes against humanity" and didn't believe he couldn't have known of MQM's violence, rioting and torture.
The federal court said there was no evidence Qureshi engaged in terrorism and that it was unreasonable to conclude he was complicit in crimes against humanity. But the court agreed he was definitely a member of MQM. It turned down his appeal but encouraged him to apply for ministerial relief.
"A lot of Pakistanis accepted in the 1990s were members of MQM, and this is coming back to bite" the government, said Max Berger, Qureshi's lawyer. "MQM is no better or worse than any other political party in Pakistan."
Qureshi, a 34-year-old security guard in Toronto, said in an interview he was "working for a cause, a good cause" in Pakistan to fight poverty, joblessness and unjust quotas. "Everybody was supporting MQM in Karachi."
It was only when he came to Canada, he said, that he heard about its dark side.
Zubair Afridi, a Toyota assistant sales manager in Brampton, arrived in 1998 on the run from security forces in Pakistan he believed would kill him. He had belonged to the MQM, as had most of his family, as a political organizer.
As in most of the cases, Afridi asked for "ministerial relief" and was refused. The court overturned the minister's decision, which means it goes back to the minister for a second verdict.
The legal language is too vague, lawyers say.
"It becomes a question of: `Do we like your movement?'," said Raoul Boulakia, who represented a Sri Lankan case.
"We need a definition, not loose impression," said Brouwer.
"Hezbollah is a good example," noted Berger. "It has a wing of suicide bombers and a wing that just does charitable work. Under the current law, a doctor working for Hezbollah would not be admissable."
Imad Uddin Jilani, who said he joined the MQM to do social work, belonged for 16 years before coming to Canada in 2003. Whether or not he engaged in terrorism, the court said, MQM did. His appeal was also denied.
MQM has several branches in Canada, including Toronto. Stephen Harper had his picture taken with MQM-Canada leaders in 2006, when he was Conservative leader.
Abdullahi Mohamed Yahie had been a human resources director in a ministry of the Somali government. Ottawa argued Yahie worked for it during the height of the government's atrocities. But was he a senior official? No, said the court.
"Sometimes it's pretty obvious," said lawyer Waldman, who represented Yahie, now a socioeconomist at the African Development Bank in Tunisia hoping to be reunited with his family north of Toronto.
"If you were a member of the cabinet of the Nazi regime during the Holocaust or the Pol Pot regime during the killings in Cambodia, that's one thing.
"A lot of people work in government, but that doesn't mean they're complicit in the atrocities committed. In some cases, they're trying to ameliorate the situation."
Three cases involve the Tamil Tigers, which Canada clearly defines as terrorist. Mary Antanita Savundaranayaga, who played accordion in the cultural wing, and Kanapathy Murugamoorthy, a reporter with a Tiger-controlled newspaper, won their reviews because there was no evidence of direct involvement in crimes.
Raveendran Rajadurai, who admitted to having dug bunkers, hung posters and supplied food for the Tigers, lost.
"Everything armies do in war can be considered terrorism," said Boulakia, Savundranayaga's lawyer. "There are very few wars where the rule of law is obeyed."
Does something that happened a long time ago count?
In the case of Basheer Kablawi, who had belonged to the Syrian Socialist Nationalist Party for two decades before arriving in Canada in 1995, the court said the minister was right "to be skeptical about Mr. Kablawi's claimed ignorance of the SSNP's history of violent behaviour" even though he had been law-abiding and was well-established in Canada and had three daughters at the University of Western Ontario.
Jaime Carrasco Varela, who spent six years with Nicaragua's Sandinista military in the 1980s, argued that the Managua Accord led to a general amnesty when the fighting against the U.S.-backed Contras ended.
"Mr. Carrasco's participation in a death squad and the treatment of the prisoners was so grave" that he should not be part of the pardon, the court said.
Carrasco is still fighting to stay in Canada.
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