Almrei (Re), 2009 FC 1263 (2009)

Conférencier:The Honourable Mr. Justice Mosley
Numéro de Registre:DES-3-08
Parties:Almrei (Re)
 
EXTRAIT GRATUIT

Date: 20091214

Docket: DES-3-08

Citation: 2009 FC 1263

Ottawa , Ontario, December 14, 2009

PRESENT: The Honourable Mr. Justice Mosley

BETWEEN:

IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee

Protection Act ( IRPA );

AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA ;

AND IN THE MATTER OF HASSAN ALMREI

REASONS FOR JUDGMENT

INTRODUCTION

[1] On February 22, 2008, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a certificate in which they state that Hassan Almrei is a foreign national who is inadmissible to Canada on security grounds. As required by subsection 77(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, as amended, ("IRPA"), the certificate was referred to the Court for determination as to whether it is reasonable. These are my reasons for determining that the certificate is not reasonable.

[2] These reasons take into account the information and other evidence heard in closed hearings in the absence of Mr. Almrei and his counsel and of the public. As set out in paragraph 83(1)(c) of the IRPA, the Court may, and shall on the request of the Minister, hear information or other evidence in the absence of the public if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person. A separate private set of reasons for judgment has been filed in the Designated Proceedings Registry of the Federal Court and will be accessible only to the Ministers and their counsel and to the Special Advocates and to any appellate court that may consider this matter further.

[3] In the aftermath of the tragic events of September 9, 2001 (“9/11”), it was reasonable to believe that Hassan Almrei posed a risk to the security of Canada . On the information then available to officials and to the Court, the inference was compelling that he was an extremist who supported the ideology of Osama Bin Laden and was involved in a global false document network. In security intelligence terms, Almrei had a “pedigree”. He came from a Syrian family linked to the Muslim Brotherhood, an organization formerly known for terrorist acts. Raised in Saudi Arabia , he had travelled to Pakistan and Afghanistan to join the jihad against the communist regime in Kabul . He was known to have associated with a leader of the Arab Afghan mujahidin, Ibn al Khattab, and to have supported Khattab’s jihad against the Russians in Chechnya .

[4] Following his admission to Canada in 1999, Almrei was linked to persons believed on reasonable grounds to have extremist views. Almrei was known to have contacts in Canada and abroad from whom he could obtain false identity and travel papers. He had himself used a forged passport to come to Canada . He lied to Canadian authorities about his background and concealed his travels to Afghanistan and Tajikistan . Canada extended its protection to Almrei by recognizing him as a Convention refugee. He returned the favour by providing a forged Canadian passport and funds to an Arab Afghan associate who had crossed our border illegally, arranged a marriage of convenience for a failed refugee claimant and dealt in illicit drivers’ licenses.

[5] In 2001, Almrei was at the very least an opportunist willing, for a suitable fee, to violate Canada ’s laws while he took advantage of its generosity. His object was to gain Canadian permanent residency and Citizenship so he could travel freely abroad for business purposes. Prior to 9/11, this was known to the Canadian Security Intelligence Service (“CSIS”) and their counterparts in the Royal Canadian Mounted Police (“RCMP”). CSIS had been watching his movements and collecting information about him and his associates for over two years. The RCMP was conducting its own criminal investigation. Much of the information collected by both agencies was provided by human sources. CSIS saw Almrei as a “sleeper” and were content initially to keep him under surveillance and to identify his contacts. The events of 9/11 instantly changed that dynamic. Almrei was then viewed, on reasonable grounds, to be part of a much greater threat to North American security as someone who had the skills and the contacts to arrange for terrorists to cross borders on forged papers.

[6] If these proceedings were based solely on the information available to the Ministers and the Court in October 2001, I would have no difficulty in concluding that Almrei’s arrest and detention on a security certificate to contain the perceived threat was reasonable. But the Court is not engaged in that task. Nor is it conducting a judicial review of whether the Ministers who signed the fresh certificate in February 2008 made the correct decision. The question for the Court to determine is whether, on all of the information and other evidence presented in these proceedings, is the certificate reasonable to-day . Or, in other words, is the assertion that Almrei is presently a security risk based on objectively reasonable grounds.

[7] In arriving at a conclusion on that question, the Court has considered information and evidence that was not placed before the Ministers when the decision was made to issue the 2008 certificate, and that was not previously presented to the Court, which has cast a different light on circumstances and events.

[8] In these reasons, I will first set out the background to the issuance of the certificate, the procedural history of this application and the present legislative regime under which it was considered. Next, I will review the evidence and the issues, both legal and factual, that were raised during the proceedings. I will then outline the allegations concerning Mr. Almrei. Finally I will discuss my analysis and conclusions arising from the evidence and issues. Formal judgment will be reserved to allow the parties some time to review these reasons and propose questions for certification. An index is provided for convenient reference.

INDEX (by paragraph numbers):

Background 9-17

Procedural History of this Application 18-53

Legal Framework 54-57

Inadmissibility 58-62

“Member of an Organization” 63-69

“Terrorism” 70-74

Armed conflict exemption 75-79

“Danger to National Security” 80-81

Burden of Proof 82

Quality of the Evidence 83-85

Standard of Proof 86-105

Procedure 106-111

Role of the Special Advocates 112-113

The Issues 114-120

The Allegations 121-122

The “Information and Other Evidence”

Overview 123-127

The Open Source Information 128-131

Third Party Information 132-140

Telecommunications Intercepts 141-145

Physical Surveillance Reports 146-148

Information Obtained or Derived from

Torture or Cruel, Inhumane or

Degrading Treatment 149-153

The Human Source Information 154-164

The Service Witnesses 165-201

Hassan Almrei 202-260

The Expert Opinion Evidence 261-262

Dr. Martin Rudner 263-286

Mr. Thomas Quiggin 287-322

Sheikh Ahmad Kutty 323-335

Dr. Lisa Given 336-348

Dr. Brian Williams 349-394

Analysis

Are the factual allegations against Almrei supported by the information and other evidence? 395-398

Osama Bin Laden, Al Qaeda and the “Bin Laden Network” 399-429

Almrei’s Travel and Status in Canada 430-434

Almrei’s association with Osama Bin

Laden and support for jihad 435-455

Arab Afghan Connections 456

Ibn Khattab 457-464

Nabil Almarabh 465-469

Ahmed Al Kaysee 470

Hisham Al Taha 471

Involvement in False Documentation 472-478

Security Consciousness and Use of

Clandestine Methodology 479

Should the Certificate be Stayed as an Abuse of the Court’s Process? 480-483

Lack of Disclosure/Inability to

Meet the Case 484-489

Destruction of Evidence 490-492

Choice of Procedure 493-497

Breach of the Duty of Candour 498-503

Conclusion 504-509

Certified Questions 510-513

BACKGROUND

[9] In January 1999, Almrei arrived at Pearson Airport using a false United Arab Emirates passport bearing a valid multiple entry visa, was admitted as a visitor, and subsequently claimed Convention refugee protection on the ground that he feared persecution in Syria . The Immigration and Refugee Board granted him protection in June 2000. He applied for permanent residence in November 2000.

[10] A certificate naming Almrei as a security risk was signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada on October 19, 2001. Almrei was then taken into custody and detained in accordance with subsection 40.1(1) of the Immigration Act , R.S.C. 1985, c. I-2, as amended, (“the former Act”). The matter was then referred to the Federal Court for a determination as to the reasonableness of the certificate. Hearings were held in October and November 2001. Following a ruling that he could not testify in a closed session, as he had requested, Mr. Almrei declined to provide evidence in that proceeding.

[11] The Court concluded that the closed evidence, heard in the absence of Mr. Almrei and his counsel, provided reasonable grounds to believe that Mr. Almrei was a member of an international network of extremist individuals who supported the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei was involved in a forgery ring with international connections: Almrei (Re), 2001 FCT 1288, [2001] F.C.J. No. 1772.

[12] Efforts followed to remove Almrei from Canada . Opinions were issued by delegates of the Minister of Citizenship and Immigration that Almrei was a danger to the security of Canada and could be removed to Syria , his country of nationality. Mr. Almrei sought judicial review of those opinions in the Federal Court and brought several applications for release from detention: Almrei v. Canada (Minister of Citizenship and Immigration) , 2004 FC 420, [2004] F.C.J. No. 509 affirmed, Almrei v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 54, [2005] F.C.J. No. 213; Almrei v. Canada (Minister...

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