Failed refugee stuck in jail because Canada considers it too dangerous to escort him back to Somalia

Wednesday, December 02, 2015

Central East Correctional Centre in Lindsay, Ont., where Abdirahmaan Warssama is locked up.

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If Abdirahmaan Warssama signs a piece of paper, he can get out of the high-security prison where he has spent the last five years. But he won’t sign it.

Signing a note assuring an airline he will not cause a ruckus on board means the 51-year-old will be deported to his homeland, Somalia, a place deemed too dangerous for Canadian pilots to fly him and too risky for Canadian border agents to escort him. Meanwhile, hundreds of thousands of dollars have been spent keeping him behind bars, even though he is not deemed a danger to the public.

How does Canada solve a problem like Warssama?

That’s the dilemma Canada Border Services Agency (CBSA) and the Immigration and Refugee Board (IRB) face in the unusual case.

Warsamma’s lawyer, however, challenges the notion his client is in an Ontario prison for any legitimate reason and last week the Federal Court of Canada added a stern reprimand of its own.

“They were basically trying to get him to perjure himself — to say he wishes to go back when he really doesn’t,” said Warssama’s Toronto lawyer, Subodh Bharati.

“He’s been kept in detention for over five years because he wouldn’t sign.”

‘Given that we already spent hundreds of thousands of dollars in detaining Mr. Warssama, why not charter a plane?’
In his homeland, Warssama faced a nightmare of violence and torture, said Bharati. After Warssama’s father was killed, he and his brother were kidnapped and tortured. The boys were placed in bags and dunked in the ocean in a form of waterboarding.

His mother pulled together enough money to pay a bribe and free him and move him to India and from there to Canada in 1989, he said.

His refugee claim was dealt with soon after his arrival — within two weeks — and was denied. It was only after his claim was tossed that he sought medical attention and treatment from the Centre for Victims of Torture.

He was diagnosed with post-traumatic stress disorder.

It was compelling enough for the government to intervene, allowing him to stay on humanitarian and compassionate grounds; but Warssama moved around and didn’t obtain permanent residency status or citizenship.

He also got into trouble: he received at least two criminal convictions of a seemingly minor nature around 2005, although the specific charges are not outlined in a recent judgment.
As a non-citizen convicted of crimes, he was found inadmissible to Canada and ordered deported in 2009. He was arrested over his immigration status a year later and has been in a Lindsay, Ont., prison since.

While Canada has placed a “temporary” administrative hold on removing people to Somalia, it does not apply to someone found inadmissible on the grounds of criminality. But while regulations allow for Warssama’s deportation, logistical problems make it difficult.

Somalia has been described as a “failed state,” torn apart by civil war.

CBSA seems reluctant to force anyone back to such a place against their will, perhaps for public relations reasons, said Bharati.

Somalis who are returned are typically flown from Toronto to Turkey, then to Kenya and, from there, on to Somalia’s capital Mogadishu. CBSA guards accompany deportees on the first two legs of the trip but not the last, court heard.

African Express Airways, a short-haul airline based in Nairobi, is the only airline willing to fly a failed refugee claimant back to Somalia unescorted, but it requires a signed consent form from the person agreeing to co-operate in the removal, court heard.

That’s the paperwork Warssama refuses to sign, putting the brakes on his deportation but leaving him in prison.

“Given that we already spent hundreds of thousands of dollars in detaining Mr. Warssama, why not charter a plane?” asked Federal Court Judge Sean Harrington, who heard Warssama’s appeal for the court’s intervention. “Apparently, because it is too dangerous to send Canadian pilots to Mogadishu!” he answered himself.

And why must a person be unescorted on the last leg of the long trip? “Because Immigration Canada considers it too dangerous to send its own people there!” he wrote.

(Harrington apparently found the situation so alarming it prompted the rare, injudicious use of exclamation points in his written decision.)

The final question is whether Warssama needed to remain in prison while the stalemate held.

“As matters presently stand, Somalia is a failed state and Mr. Warssama may remain incarcerated in Canada for the rest of his life,” Harrington wrote.

‘There comes a point in time in which time itself becomes overwhelming, requiring the parties, and the (IRB) to think outside the box’
Bharati agreed if his client was released he would likely not voluntarily show up for removal, and the government agreed Warssama didn’t pose a danger to the public if released.

“There comes a point in time in which time itself becomes overwhelming, requiring the parties, and the (IRB) to think outside the box,” wrote Harrington.

“The whole process became completely unreasonable.”

Typically, a successful appeal to the Federal Court simply puts the person back before the IRB for another hearing. This case needed more.

Harrington ordered the government to not only convene a new review but detailed steps to look for solutions.

CBSA has to prove it is “too dangerous to send Canadians to Somalia” and show it has “explored the possibility of hiring foreign nationals who would be less at risk than Canadians” to escort him home.

“Given that Mr. Warssama has already cost the 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.”

And, if nothing else, the government must explore alternatives to prison.

Warssama’s new review is scheduled for next week.

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