Saw this on another board...Hopefully, refugee status and regular immigration in both Canada and the US is being checked very carefully!
Page URL: nationalpost.com
November 24, 2001
Canada and terrorism: programmed to receive
Christie Blatchford
National Post
There is a little-known Canadian link to the first terrorist attack on the World Trade Center.
The connection itself is a bit of a shocker.
At the time, the only hint of any tie to Canada came about a month after the Feb. 26, 1993 blast, when the Toronto Star reported that the Royal Canadian Mounted Police were investigating whether one of the prime suspects, Mahmud Abouhalima, had been planning to use Toronto as a possible escape route.
A Mississauga travel agency had reportedly sold a ticket to Stockholm to someone with the same last name just four days before the powerful car bomb tore apart an underground parking garage at the now-decimated Twin Towers.
But what neither the newspaper, nor anyone else, knew was that Abouhalima's 36-year-old brother, Sherif, was alive and well and living in Toronto -- and that Abouhalima had visited him here about three months before the bombing.
What no one could have known then was that Sherif Abouhalima would go on to claim refugee status in Canada, be turned down, and twice go to the Federal Court of Canada in his efforts to stay here.
And it is here that the story really becomes instructive.
There was never any evidence that Sherif Abouhalima was involved in radical Islamic fundamentalist groups, let alone in the World Trade Center bombing.
At his most grievous, it could be argued, he had lousy taste in brothers -- Mahmud, who was eventually extradited from Egypt, where he had fled after the blast, and was convicted and sentenced by a U.S. judge to 240 years in prison, and another brother who was later accused of helping Mahmud make his brief escape.
As the old maxim has it, you can't choose your relatives.
But Sherif Abouhalima was also an illegal (he had come here as a visitor and overstayed his visa) and a refugee of convenience who made his claim only after being turned away at the U.S. border in the spring of 1994 as he was apparently en route, with Mahmud's wife, to visit relatives.
Theoretically, Sherif came to the end of the line on Jan. 30, 1998, when Federal Court Judge Frederick Gibson rejected his second appeal, finding he would not be persecuted if he was forced to return to Egypt.
The question is, has he been forced to return there?
"Who would have any confidence that he [Sherif] has left?" a particularly well-informed man asked recently. "I know I don't."
Alarmingly, that man knows better than most the myriad weaknesses of the Canadian refugee system.
He was, until recently, a member of the Immigration and Refugee Board (IRB), the federal tribunal that determines who is a real refugee and who isn't. He knows first-hand what many Canadians suspect is true: The mere fact of making a refugee claim in Canada is more often than not a ticket to ride.
Consider seven of the men with Canadian connections who are either suspected or convicted terrorists, with either alleged or court-proven links to Osama bin Laden and his al-Qaeda network or other related terrorist organizations.
While the seven hail from a handful of different countries (Algeria, Egypt and Syria), lived here in Montreal, Toronto or Vancouver and have a variety of backgrounds, they have one simple and inarguable thing in common: They all claimed refugee status in Canada.
That no fewer than five of them failed in their initial bids appears to have been irrelevant.
They were not removed by Citizenship and Immigration Canada (CIC).
They continued to live in this country, in the main as blissfully undisturbed as any law-abiding citizen, permanent resident or genuine refugee.
If ever they left -- as at least one of them did, temporarily -- it was purely of their own volition.
Indeed, for the world's burgeoning refugee population, Canada is a little akin to the fictional Hotel California in the old rock 'n' roll anthem by The Eagles, except that here, they can check in any time they like, and they almost never have to leave.
The minority who are turned down and deemed not to be Geneva Convention refugees have a variety of potential appeals open to them -- the Federal Court; a curious process called "Pre-Removal Risk Assessment," those decisions themselves appealable to the Federal Court, and, soon, a paper review that will be conducted by a brand-new Refugee Appeal Division created by Bill C-11, which was passed last month and is expected to take effect next spring.
Measuring, let alone comparing, rates at which refugees are accepted worldwide is widely considered to be a mug's game: The determination systems vary from country to country, which can result in apples being compared to oranges, and many appeal procedures stretch over years, making any particular year's figures incomplete or unreliable.
That said, Canada's rate of acceptance in what's called "the first instance" -- that is, at the first hearing only -- was last year deemed by the United Nations High Commission for Refugees, the UN refugee agency, to be 49%, and by one set of the IRB's own figures to be 58%.
Whichever numbers you use, the Canadian rate is consistently higher than that of any other Western industrialized country, double that of some.
And the unofficial acceptance rate in Canada may approach almost 70%, say insiders, if one factors into the equation the number of claimants who abandon their cases (but who nonetheless remain here), those who successfully appeal negative decisions (but who are counted in any given year only as unresolved) and those who, as with some of the cases examined here by the National Post, lose their appeals or even the appeals of their appeals (but who simply stay anyway).
Take, for instance, the case of 32-year-old Moktar Haouari, who was convicted in New York last summer for his role in the so-called millennium plot to bomb Los Angeles International Airport. He is slated to be sentenced next month.
Haouari arrived in Toronto on Aug. 11, 1993, using a fake French passport, and claimed refugee status.
On July 19 the following year, the IRB turned him down. He sought leave to appeal that decision at the Federal Court, but was denied in January of 1995.
The CIC's pre-removal risk assessment kicked in then -- the process is not quite as ridiculous as it would seem on its face, in that it's possible that someone who is not a Convention refugee and thus not fleeing persecution may still face severe sanctions, even death, for having left his country illegally or some such --and Haouari was deemed to be in no danger if returned to his native Algeria.
But again, he sought leave from the Federal Court to appeal, and won that round on July 3, 1996, when the court ordered CIC to re-evaluate the risk of return.
And in those six long years between 1993 and 2000, when the federal justice department got involved after the United States requested extradition, Haouari remained happily in Canada, and he was busy as a bee, too -- and not with his innocent craft shop in Montreal, as he first protested after his arrest, but as a documents forger for other Islamic militants.
Among the beneficiaries of his efforts was Ahmed Ressam, who used some of the cash he got from Haouari to buy bomb-making equipment as part of a jihad -- a holy war -- against America.
Ressam was convicted last April of conspiracy to commit terrorism in connection with the foiled millennium plot.
He, too, was a failed refugee, his claim first deemed abandoned in 1995 and then denied by the Federal Court in 1996.
He, too, had arrived in Montreal with a forged French passport.
Yet despite that, despite an admission that he was a suspected Islamic terrorist and had spent more than a year in an Algerian jail for arms dealing, and despite arrests in Canada for theft, Ressam was never deported --and in fact, managed to collect welfare for most of his time in this country.
He was only arrested by an alert U.S. Customs agent at the Canada-United States border on Dec. 14, 1999, caught with powerful explosives (and a bogus Canadian passport he obtained with a forged baptismal certificate from Quebec) in the trunk of his car.
And earlier this month, Samir Ait Mohamed, another Algerian who won a new refugee hearing after his initial claim was rejected and who had been detained for months in Vancouver as a result of Ressam's having identified him to investigators, was formally arrested on charges he supplied guns and credit cards in the millennium plot.
American authorities are seeking to have him extradited to the United States, where he has been indicted by a federal grand jury.
The 32-year-old arrived in Canada on Oct. 22, 1997, on a tourist visa, and made his first refugee claim the following month.
Almost a year later, Ait Mohamed was turned down, his claim deemed "contradictory, implausible and hardly credible" by the IRB.
But he appealed, and in the fall of 1999, a Federal Court judge pronounced the IRB decision flawed and unreasonable, and ordered the case back to the board to be heard again.
It can't be ascertained if that second hearing ever took place --unless a decision is appealed to the Federal Court, there are no public records of IRB proceedings, which are held in secret --but certainly, Ait Mohamed was still living in Vancouver when he was first detained last summer.
Three others of the seven men -- Mohamed Zeki Mahjoub and Hassan Almrei, who were found to be refugees, and Mahmoud Jaballah, who never got to have his first claim re-heard -- are now being held on what are called Section 40 certificates, deemed threats to national security because of their alleged terrorist links.
The accusations against them from the Canadian Security and Intelligence Service (CSIS) are unproven and, in the case of Mr. Jaballah, an Egyptian who is being detained on his second Section 40 certificate, virtually identical allegations were quashed two years ago by the Federal Court.
Though Mr. Jaballah was first turned down by the IRB in February, 1999, he was arrested on the first Section 40 before he could appeal that decision. After the Federal Court agreed with Mr. Jaballah's lawyer, Rocco Galati, that there was no evidence Mr. Jaballah was a terrorist, the lawyer successfully appealed the rejected refugee claim. The fresh hearing was slated for last Aug. 16, but just two days before, Mr. Jaballah was arrested on the second Section 40. The hearing is now scheduled to begin next month.
Another of this trio, 39-year-old Mr. Mahjoub, is also an Egyptian who came to Canada in 1995 and was deemed a genuine refugee the following year.
He has since volunteered that for about nine months in 1992-93, he not only worked for a bin Laden-owned company in Sudan which U.S. officials now say was a front for al-Qaeda, but also to having personally met the most-wanted-terrorist-in-the-world himself several times.
Mr. Mahjoub maintains that at the time, he had no idea that al-Qaeda was a terrorist organization; CSIS, however, alleges he is a "high-ranking member" of a radical wing of the Egyptian Islamic Jihad.
The seventh man, Syrian Nabil Al-Marabh, is believed to be a leading bin Laden agent and is allegedly is linked to the Sept. 11 terrorist attacks in New York and Washington.
He remains in prison in New York.
His Canadian refugee claim was turned down on Oct. 26, 1994, but even when he was caught seven long years later -- in June of this year -- trying to sneak into the United States, and despite an earlier criminal conviction there, he was freed on a $7,500 bond by a Canadian immigration adjudicator.
The Post has learned that Mr. Al-Marabh may even have admitted to Canadian authorities that he was in Afghanistan the year before he made his refugee claim, but neither that, nor his conviction last year for assault with a weapon in Boston, ever impacted on his ability to stay here.
Mr. Al-Marabh was finally arrested, shortly after the Sept. 11 attacks, in Chicago.
During a brief period when he was held in a Thorold, Ont., jail last summer, before his Toronto uncle posted the $7,500 bond, he was visited by Mr. Almrei, a 27-year-old Syrian who first came to Canada as a visitor, filed a refugee claim within three months, and was accepted by the IRB in June of 2000.
Just last week, a Federal Court judge in Toronto ruled there are "reasonable grounds" to believe Mr. Almrei has terrorist links, paving the way for Elinor Caplan, the Minister of Citizenship and Immigration, to begin proceedings to deport him to Syria.
At bottom, it is clear that while Prime Minister Jean Chrétien may be technically correct that, as he said shortly after the Sept. 11 attacks, "There is no indication at this moment that those perpetrators were coming from Canada," he is misstating, or not understanding, the spirit of the larger and more significant question.
To that one -- does Canada's generous refugee system provide a haven for those involved in what CSIS calls "bureaucratic" terrorism? -- the answer would appear to be a resounding Yes.
CSIS says that while some bin Laden operatives, such as the Sept. 11 hijackers and Ressam, are trained in Afghanistan and participate directly in terrorist activities, others provide "logistical support such as false documentation, funding or other items/services necessary to facilitate travel, surreptitious entry into countries and the successful execution of any planned attack."
Haouari stands convicted of supplying Ressam with just some of those tools; Ait Mohamed is alleged to have handed over guns and credit cards in the same millennium plot; Mr. Al-Marahb allegedly worked for a time at his uncle's copy shop in downtown Toronto and there are unsubstantiated media reports, which the uncle denies, that police suspect the shop was used to churn out fake papers; finally, CSIS alleges Mr. Almrei "is involved in a forgery ring with international connections that produces false documents."
What is arguably the fatal flaw in the Canadian refugee system -- that it is so proudly and resolutely non-adversarial -- not only remains unaddressed by Bill C-11 but also is rarely even raised as an issue.
From the moment claimants arrive in Canada -- an estimated 40% of them without any documentation to prove who they are or where they have been, until the moment, an average 10 months later, that they appear for their hearings -- they are presumed both to be telling the truth and to be benign.
Once interviewed by a senior immigration officer -- who decides whether the claim is eligible to go to the IRB (and the vast majority are) -- claimants are fingerprinted, photographed and free to go on their merry way unimpeded until their hearing.
At the hearings, which are closed to the public, claimants may be represented by a lawyer and often are, but ordinary Canadians, who arguably have just as much at stake, have no real voice.
The approximately 180 members of the IRB's Convention Refugee Determination Division are generously rewarded -- they are paid between $82,600 and $97,100 a year -- political appointees of the government of the day.
And since 1993, when Mr. Chrétien first led the Liberals to victory, they have been drawn heavily from both the refugee and immigration bar and the refugee advocacy field.
While the legislation, old and new, stipulates that at least 10% of IRB members must be lawyers, there are many more than that.
Before a recent round of appointments this month, there were 171 IRB members involved in refugee determination -- 54 with law degrees, 17 of them lawyers who specialized in refugee and immigration matters.
Another 42 members are former refugee or immigration activists or consultants, race-relations experts or former spokesmen for the various multicultural communities they call their own.
A sampling from this ethnically diverse group might include Janice Dembo, a social worker who for 11 years headed the oft-acrimonious Toronto Mayor's Committee on Community and Race Relations; Milagros Eustaquio, former executive director of the Peel Multicultural Council and a founding member of the National Organization of Immigrant and Visible Minority Women of Canada; former immigration consultant Hugh Evelyn; former Canadian Hispanic Congress president Felix Mora; Yasmeen Siddiqui, a race relations consultant and volunteer with the Islamic Social Services Referral Association who is married to Haroon Siddiqui, the Toronto Star columnist; and Kamala-Jean Gopie, a past president of the Urban Alliance on Race Relations in Toronto
Added together, those who directly made their living representing refugees and those who spent years, even lifetimes, fighting for the rights of refugees or various minority groups account for more than a third of board members.
Of the remainder, there are career feminists, more than 20 former federal and provincial government bureaucrats, five with United Nations' experience (four of whom were employed directly by the UN High Commission for Refugees), two former immigration top guns (from Quebec, former immigration minister Louise Robic, and from British Columbia, former director of immigration policy George Whitehead), a half-dozen former politicians (including David Cooke, who served with the Bob Rae government in Ontario), a sprinkling of university professors and social workers and one mother of a former Liberal prime minister's child (lawyer Deborah Coyne, who may be better-known publicly for the daughter she had, late in his life, by the late Pierre Trudeau).
On the board are very few ordinary Canadians -- those without political currency, whether direct ties to the Liberals or the sort of multicultural-cum-equity credentials the party historically admires and rewards.
Only a dozen or so members -- former police or immigration officers and a smattering of business folk from the private sector -- could be remotely described as having come from the right side of the political spectrum.
Few would doubt the honour inherent in battling on behalf of refugees either as a volunteer, activist lawyer or member of a non-governmental organization, but the point is, the collective tilt of the IRB is decidedly pro-refugee.
So is the hearing itself.
It used to be that board members could call upon the expertise of refugee hearing officers, or RHOs as they were once known.
These were independent civil servants who functioned a little like Crown prosecutors -- albeit as hamstrung ones -- and if anyone was asking hard questions of a dubious claimant it was more often than not the RHOs.
Theirs was never a popular role even at the board. As Robin Kers, the national vice-president of their union, noted recently, "The IRB has never celebrated the success of busting the liars or the routing of the truly evil," but always found this aspect of the system embarrassing, "a messy sideline that sullies the warm fuzzy work of validating genuine refugees."
Mr. Galati, the lawyer representing both Mr. Jaballah and Mr. Mahjoub, agrees with this assessment of the IRB. As political appointees, he said bluntly last week, "They will never have the political stomach to enforce the act and differentiate the good people from the dangerous.
"The result is that real refugees don't get in, and bogus one sometimes do."
When last I wrote extensively about the Canadian refugee system it was 1995, and the IRB was rumoured to be preparing to dump the RHOs, the only people who in my view imbued the process with any legitimacy.
The board didn't do away with them, but in the intervening years they were renamed (they're now RCOs, or refugee claims officers) and their numbers were eroded (there were 135 RHOs six years ago; there are 103 RCOs now) as surely as their authority was.
Under C-11, they have been formally emasculated: They have lost their legislated role to ask questions of claimants and witnesses and raise certain kinds of unpleasant issues, such as credibility.
As Mr. Kers said last week, "Now, the board members decide, period. That has been the practice for a few years, but now it is legitimized -- or rather, illegitimized."
In a recent presentation to the Senate sub-committee now studying the new bill, Mr. Kers painted a gloomy picture: Not only is the IRB short of the newly diminished RCOs, but the newly diminished RCOs have very few tools at their disposal.
It can take months, he said, before they get police information about claimants, or information from their home countries, by which time they may have disappeared; forensic examination of suspicious documents can take as long as a half a year; RCOs are all too often discouraged from even "making a summation of the evidence."
As well, Mr. Kers told the sub-committee last month, the new bill does nothing to deal with the utter lack of IRB accountability for its positive decisions.
Under both the old and new legislation, negative decisions --those in which a refugee is turned down -- must be delivered in writing, and over the years, significant case law has developed as claimants appeal them to the Federal Court, successfully about 1% of the time.
The IRB says its practice is to ask board members to also write reasons for positive decisions, but Post sources say what more often happens is that transcripts of the oral hearings are simply ordered and offered in lieu of a proper rationale.
This, coupled with the fact that the department infrequently appeals positive decisions, means there is virtually no scrutiny of what the board does about half the time.
"The correct approach," Mr. Kers said, "would be to know that correct decisions are being made in those thousands of secret hearings."
In his written brief, Mr. Kers was also critical of the board's expedited process, developed to streamline the procedure for simple cases from those countries dependably producing Convention refugees.
About 10% of claims, or about 2,800 cases last year, are put through this fast-track process, which does away with the necessity for even a friendly hearing. Instead, claimants are merely interviewed by a RCO, who then makes a recommendation to a board member.
"Does the IRB constantly pressure RCOs to push cases through without a hearing at all?" Mr. Kers wrote of the process. "Yes!," he answered.
Critically, those nations that are deemed "refugee-producing" are often also "terrorist-producing" -- young Tamil males, for instance, might fit on the face of things both profiles equally well.
Yet terrorist-producing countries -- some of which, like Sri Lanka, Iran, Algeria, Turkey and Pakistan, have consistently ranked among Canada's Top 10 "source countries" for refugees for the past decade -- are not excluded from this expedited process.
"From our lonely perspective," Mr. Kers said, "they should be."
And it is not as though it is difficult to identify which countries fit the bill.
For instance, one of the world experts on the subject, Paul Wilkinson of the University of St. Andrew's in Scotland, wrote six years ago that if Algeria and Turkey are defined as part of the Middle East, then the Middle East is the world's "most dangerous" source of terrorists.
This would suggest claims from this part of the planet should at minimum be examined at a hearing, but they continue to be eligible for the fast-track process.
And the former board member told the Post that about a year ago, the IRB was keeping statistics on its own members, assessing them by the number of resources they used, with those who used the fewest and arguably called for the least scrutiny -- that is, handled the most expedited cases -- being most highly rated.
None of this does the new legislation even acknowledge, let alone address.
What Ottawa has done with C-11 is tinker. It has removed a refugee's ability to file multiple claims, but added the opportunity for multiple pre-removal risk assessments; thrown in a new appeal division; stiffened penalties for those found to have made fraudulent claims; and made it more difficult for suspected terrorists to pursue a claim while doing little to address the fact that many of them become suspect only after they have disappeared from view, and that others, who are approved, never become suspect because positive decisions are so rarely reviewed.
Even the new public security bill, introduced late last week, will only hurry the implementation of these changes.
The most alarming one, given the composition of the board, is that one-member hearings will be the new norm. As the former board member said, "Now they won't be accountable even to a colleague."
As for the long-standing enforcement problem that sees failed claimants remain in the country for years -- as some of the seven men with proven or alleged terrorist links did -- is not an IRB responsibility but a CIC one.
The fact is that the department traditionally hasn't been terribly interested in what happens to claimants who fail, or abandon their cases, or simply disappear; after all, they're presumed to be harmless. And to be fair, immigration officers have their hands full stopping known criminals and security risks from entering the country or getting them removed after they have landed.
There is a process in place for rejected refugees to leave voluntarily -- they are issued departure notices, and depending on whether they get the notice in person or by mail, have either 30 or 37 days to go -- but for the most part, it remains up to them if they do.
Here, the pure bottom-line numbers are powerful: Last year, 34, 287 people arriving at Canadian airports and border points made refugee claims, and came into the country; 5,755 failed claimants were issued departure orders or deported, and went out.
That brings us back to square one, and the first World Trade Center bomber's brother, Sherif Abouhalima: Is he still here?
Well, the answer to that is not only can Canadians not be told the answer, CIC refuses even to say if their officials know the truth of it.
As the Hotel California doorman says in the old song, "We are programmed to receive."
Christie Blatchford can be contacted at cblatchford@nationalpost.com |
