Jane Armstrong and Colin Freeze, Globe and Mail, Jan. 05, 2010

With the power of security certificates being nullified in the courts, Ottawa is wielding a rarely used section of federal immigration law in their place to ensure that 25 migrants they suspect are Tamil Tigers remain behind bars. Starting as early as this month, secret evidence will be used in closed hearings at the Immigration and Refugee Board in Vancouver. Government lawyers will introduce evidence they hope will persuade the board to continue the incarceration of about two dozen Tamil migrants, who arrived in a ship off Canada’s West Coast last fall claiming to be refugees from postwar Sri Lanka. Unlike ordinary detention hearings, these sessions are closed to the public, to the migrants involved and to their lawyers, and the evidence given is secret. Special advocates, appointed by the government, represent the migrants’ interests.

The hearings, which are permissible under Section 86 of the Immigration and Refugee Protection Act, are akin to watered-down security certificate evidence. Two security certificate cases have recently been defeated in the courts, with judges criticizing federal agents for relying on dubious intelligence, questionable informants and incomplete notes. In December, the Federal Court of Canada quashed the certificate against Syrian-born Toronto resident Hassan Almrei, and in September, Moroccan-born Montreal resident Adil Charkaoui was cleared after the government withdrew its certificate evidence against him rather than subject it to scrutiny.

That Ottawa is resorting to its so-called “security certificate lite” power shows it is serious about pursuing allegations that at least one-third of the migrants may be Tamil Tigers. The Liberation Tigers of Tamil Eelam (LTTE) were declared a terrorist organization by the Conservative government.

“Given the gravity of the matter and the concern in North America about security generally, and given the Tamil Tigers are on the list, to do nothing is not an option,” said Ron Atkey, a former federal cabinet minister who has acted as a special advocate in the past.

Some lawyers for the affected migrants say they are concerned by the secret hearings because their clients won’t be able to respond to the undisclosed allegations levelled at them.

“We do feel out of the loop,” said Toronto lawyer Hadayt Nazami, who represents five migrants facing Section 86 hearings.

“If the client knew who the source of information was, they might be in a better position than the special advocate to answer them.”

There has been speculation that the secret evidence to be raised comes from other migrants on the boat.

Meanwhile, human rights groups are concerned that introducing secret evidence against foreign nationals could result in them being deported to a country where their lives could be in jeopardy.

“The great danger of secrecy is that while it gets wrapped in this flag of ‘This is all about protecting national security,’ there is a whole host of other excuses, shortcomings, mistakes, embarrassments, biases that also get shrouded by that secrecy,” said Alex Neve of Amnesty International Canada.

The timing of the special hearings has raised eyebrows. The government sought them last month after many of migrants were ordered released from custody while they pursue their refugee claims. So far, 35 of the 76 migrants have been ordered released.

Toronto immigration lawyer Lorne Waldman, who represents some of the Tamil migrants and is a special advocate in other unrelated cases, said there are many reasons the secret hearings are appealing to the government.

For one, they can be used to protect the identities of any informants who could pick out the Tamil Tigers who arrived on the ship. For another, the tribunal adjudicators may well prove more accepting of secret federal evidence than Federal Court judges have been of late.