Cablegate: Canadian Court Intervenes Over Tamil Release

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SUBJECT: CANADIAN COURT INTERVENES OVER TAMIL RELEASE

1. (SBU) Summary: A Federal Court decision has underscored the
federal government's responsibility to exercise due diligence in
determining the admissibility of individuals to Canada on security
grounds, overturning an Immigration and Refugee Board (IRB) order
to release a Tamil male whom the government had alleged was a
suspected terrorist. The individual is one of 76 asylum seekers
who arrived off the coast of British Columbia in October 2009
(reftel). The case is the first to clarify the limited scope of
the IRB's authority to release an individual over the objections
of the federal government whenever the government has a
"'reasonable suspicion" that the individual is inadmissible on
grounds of security or violation of human or international rights,
or when a federal probe into their admissibility remains ongoing.
The Federal Court's ruling is a major victory for the government in
its anti-terrorism efforts, to which Canadian courts have not
always been sympathetic. End summary.

TAMILS: ASYLUM SEEKERS OR TERRORISTS?

2. (U) On February 2, the Federal Court of Canada overturned a
release order by the IRB for one of 76 Tamils who arrived in
October 2009 off the coast of British Columbia. On October 17,
2009, Canadian authorities had intercepted the freighter Ocean Lady
off the coast of British Columbia. The vessel contained 76 Tamil
males allegedly fleeing the conflict in Sri Lanka; all made refugee
claims upon arrival. Authorities detained the men pending an
investigation to verify their identities and their admissibility to
Canada under the Immigration and Refugee Protection Act (IRPA).
Reports alleged that the migrants had possible links to human
smuggling or to the Liberation Tigers of Tamil Eelam (LTEE), which
Canada has designated as a terrorist organization. Authorities
detained the men subject to regular detention reviews.

IRB SATISFIED, BUT FEDERAL GOVERNMENT NOT

3. (U) The IRB had ordered the release of all 76 of the migrants,
including at least one individual (whose identify is banned from
publication) whom the federal government suspected as a member of
the LTEE. Authorities have already released 48, but the federal
government contested the release of others, pending the outcome of
an ongoing investigation into their admissibility to Canada. In
December 2009, the government applied to the Federal Court to
overturn the IRB order. The Court heard the appeal in Vancouver on
January 7 and rendered its judgment on February 2 in Ottawa. The
individual (and the other 27) remain in custody.

4. (U) In support of its release order, the IRB had reported that
it had found the respondent "credible" and the government's expert
witness (Dr. Gunaratna) "not credible" because of his links to the
government of Sri Lanka. The IRB accepted that the Ocean Lady
"possibly" was an LTEE-controlled ship, that "perhaps ... several"
LTEE members were on board, and that Canadian authorities had found
traces of explosives on the vessel. However, it asserted that "at
this point" there was "nothing whatsoever" to tie the respondent to
past or present membership in the LTEE. It further questioned the
necessity and quality of the federal government's continued probe
into the respondent's admissibility, judging that the probe was "no
more than a fishing expedition" that was likely to turn up "nothing
further of value." It concluded that while "a suspicion" remained
that the respondent was inadmissible on security grounds, this was
only "a mere possibility," and the suspicion was "no longer
reasonable." In ordering the individual's release, it asserted
that "detention is to be seen as a last resort" and that people in
Canada are not detained on such mere possibilities."

5. (U) In response, the federal government contended that the IRB
had erred in law by failing to recognize limitations under
sec.58(1)(c) of IRPA requiring the IRB to defer to the government's
assessment of the evidence and the need for further investigation
when the government had "reasonable suspicion" of inadmissibility
on security grounds.

PRIORITY OF PROTECTING CANADIANS AND BORDERS

6. (U) The Federal Court unequivocally upheld the government's
argument and confirmed that the IRB's decision had "effectively
usurped" the government's role in investigating national security
threats. It judged that the IRB was "misconstruing the scope of
its authority" under sec.58(1)(c) of the IRPA and rebuked the IRB
for its "rather simplistic" view of the complexity of the
investigation into the migrants' backgrounds, adding that "it was
wrong" of the IRB to decide for itself whether the government had
done enough to verify the individual's status. While it
acknowledged that "the importance of not unduly detaining such
persons cannot be forgotten," it underscored that "'the protection
of Canadians and Canada's pressing interest in securing its borders
are also worthy considerations" and that the government was
entitled to a "reasonable time" to complete its investigation. The
full text of the Court's decision is available at
http://decisions.fct-cf.gc.ca/en/2010/2010fc1 12/2010fc112.html

7. (U) The Court gave the IRB until February 9 to submit additional
written arguments and the federal government until February 16 to
respond to them before the Court's ruling becomes final. An IRB
spokesperson said the Board is "studying the decision with
interest."

8. (SBU) Comment: The Federal Court's ruling is a major victory
for the government in its anti-terrorism efforts, to which Canadian
courts have not always been sympathetic. The legal battles in this
case are probably not over yet, however.
JACOBSON

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