According to a recent Federal Court ruling, Mr. Warssama, a Somalian now age 51, came to Canada in 1989 and his refugee claim was denied.
However, he later got a ministerial permit which allowed him to apply to remain in Canada on humanitarian and compassionate grounds. Due to his failure to keep his address current with the authorities, a number of queries went unanswered and so he never obtained permanent resident status.
He then got in trouble with the law, was found inadmissible for criminality and ordered deported in 2009.
He has been held in jail for more than five years. Why? Because he will not sign a piece of paper.
Mr. Warssama does not wish to return to Somalia and will not sign a declaration that he will cooperate in his return. If not for his criminal record, Canada would not attempt to return him at this time.
The authorities have every reason to believe that if Mr. Warssama is released into the population at large he will not voluntarily appear for his removal. However, he is not considered a danger to the public.
He filed for judicial review of the March 12 decision of the Immigration Division to keep him in detention and wants an answer to the question, was the decision unreasonable?
He was arrested in 2010 and detained for immigration purposes and has remained incarcerated ever since. He made an application for a pre-removal risk assessment which was dismissed.
His recent application to remain in Canada on humanitarian and compassionate grounds is pending, with a “temporary” administrative stay on removal to Somalia but it does not apply to persons found inadmissible on grounds of criminality or serious criminality.
Upon being detained, Mr. Warssama was entitled to an initial review within 48 hours, another seven days thereafter, and 30-day reviews ever since. The law allows Canada to return convicted felons to Somalia “against their will.”
After refusing to sign the original form, about a year ago he was offered a new form to sign. Signing it would mean he promises to cooperate in his removal. He refused to sign this form as well.
Counsel for the minister interprets signing the form as meaning he would not cause a disturbance on the plane and that he would not seek asylum en route. Somalians who agree to return from the Toronto area are first flown to Turkey, then to Kenya, and from there on an airline called African Express to Mogadishu.
The Somalian is accompanied by guards on the first two legs of the trip but not the last.
The judge stated, “Given that we already spent hundreds of thousands of dollars in detaining Mr. Warssama, why not charter a plane?” However, immigration says that is not done because it is too dangerous to send Canadian pilots to Mogadishu.
Court heard that African Express requires a signed form of cooperation and is the only airline which will accept unescorted failed refugee claimants flying from Nairobi to Mogadishu. Immigration Canada considers it too dangerous to send its own people on that flight.
The immigration board member stated that, Mr. Warssama “refused to sign a statutory declaration required for his removal from Canada.” However, that would only apply if Mr. Warssama intended to voluntarily comply with the enforcement. (The minister is entitled to remove him against his will.)
The judge ruled that the member is incorrect in stating that Mr. Warssama is “not willing to sign a statutory declaration that is required for him to leave Canada.” No statute requires him to sign the declaration and that as only African Express requires the signed form inadequate consideration was given to alternatives to detention and the decision is unreasonable. The judge allowed judicial review.
The judge directed that at Mr. Warssama’s next hearing, the minister must produce information on all steps taken to explore returning Mr. Warssama to Somalia other than via African Express.
In addition, the judge ruled the minister must provide evidence in support of the proposition that it is too dangerous to send Canadians to Somalia. The minister shall provide evidence that he has explored the possibility of hiring foreign nationals who would be less at risk than Canadians to escort Mr. Warssama to Somalia.
Given that he has already cost Canadian taxpayers hundreds of thousands of dollars, the minister shall explain why a plane cannot be chartered to fly him directly to Somalia under escort, the judge ruled. If he cannot be returned, the member must consider other alternatives to detention.
The matter was referred back to the Immigration Division of the Immigration and Refugee Board of Canada for reconsideration in accordance with the judge’s directives.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.