Is One Act of Terrorism Enough to Deny Refugee Protection?

A Fokker 28 airplane, similar to the one hijacked in 1989. 
Photo by: Richard SilagiA Fokker 28 airplane, similar to the one hijacked in 1989. Photo by: Richard Silagi

Should a terrorist act preclude someone from making a refugee claim under the Immigration and Refugee Protection Act?

What if that terrorist act was committed years ago in a move to advocate for democracy?

These are the questions that the Federal Court wrestled with in determining the reasonableness of a January decision from the Minister of Public Safety and Emergency Preparedness.

The applicant in this case is a Myanmar national who was involved in a 1989 plane hijacking that was meant to illuminate human rights abuses and protest the military rule in what was then Burma. Following a nine hour standoff with Thai police, the applicant and his accomplice surrendered, on the condition that they would be able to broadcast their demands. They demanded that the military government release Buddhist monks and political prisoners such as Aung San Suu Kyi from jail, as well as demanded that the military be sent back to barracks and stop suppressing Burmese citizens. The applicant spent several years in a Thai jail for his stunt, after which he and his accomplice were pardoned and taken to a United Nations safe camp.

On recommendation by the US state department and the UN High Commissioner for Refugees, the applicant enrolled in an American university and applied for asylum. Despite recognition  of his plight in Burma and his involvement with pro-democracy groups, his application was denied due to his participation in the 1989 hijacking.

The applicant came to Canada in 2003 and has been fighting to get refugee status ever since. Between applications to the Minister and the Immigration and Refugee Board of Canada, he has struggled to find any sort of relief. That may be about to change.

In the judgment released this week, the federal court decided that the Minister’s decision to deny the applicant relief was unreasonable. Justice Russell focused on the lack of justification, transparency and intelligibility in the Minister’s decision, and remitted the matter for redetermination.

Previously, the Canada Border Services Agency (CBSA) submitted to the Minister that he should deny the applicant Ministerial relief due to the “manner in which the Applicant had pursued his democratic values”. There could be no doubt that the applicant was committed to democracy, but the CBSA concluded that terrorism is no way to go about it. Even though the “bombs” that the applicant used to hijack the plane were fake, the CBSA still had a problem with the fact that one of the laundry boxes used in the fake bombs contained flammable fertilizer.

The Minister took the CBSA’s recommendation and denied Ministerial relief, reasoning that the fake bombs contained “components essential to producing an incendiary device”, which justified categorizing the event as a “violent and dangerous act of terrorism”. It was on this basis that the applicant posed a threat to national security, rendering him inadmissible as per section 34(1) of the Immigration and Refugee Protection Act (IRPA). 

Despite section 34(1), sections 34(2) and 42.1 of IRPA allow for exceptions, so long as an applicant can prove to the Minister that his or her presence would not be detrimental or contrary to the national interest. This is where the federal court took issue with the Minister’s decision. The Minister made it clear that the decision was based on national security and public safety, yet made no assessment as to the risk the applicant poses outside of the hijacking incident. It made no difference that the applicant submitted petitions and glowing letters of support from members of the community, university educators and a previous landlord. One terrorist act was enough to preclude him from obtaining relief.

In the opinion of the court, this reasoning was neither justifiable, intelligible, nor transparent. Justice Russell added that the Minister did not explicitly state that the hijacking incident was sufficient enough to deny relief under section 34(2). In the years since the applicant’s first claim for refugee protection, there has been no evidence presented that the applicant is currently a threat to Canada or public safety, leaving the federal court to reason that the Minister’s decision was unreasonable. The Minister’s decision was ultimately quashed and sent back for re-determination.

What do you think? Is one act of terrorism enough to disqualify a person from seeking asylum in Canada? Or should there be room for forgiveness and second chances? These are very interesting but tough questions for the courts to wrestle with, and it remains unclear as to which answer will come out on top.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.