By Douglas Quan

http://www.edmontonjournal.com/touch/story.html?id=10029574

A senior immigration officer’s decision to deny permanent residency to a failed asylum seeker because of his links to a resistance movement in El Salvador did not take into account “exceptionally strong” humanitarian and compassionate reasons to let him stay, a federal judge has ruled in a case that activists say highlights how Canada’s laws can too easily peg someone as a security threat.

Jose Figueroa, who came to Canada as a refugee in 1997, was once a member of Frente Farabundo Marti para la Liberacion Nacional (FMLN) that opposed El Salvador’s former military regime. He helped recruit for the FMLN and organized meetings but was not involved in the armed struggle.

In a decision last year, Karine Roy-Tremblay, director of case determination for Citizenship and Immigration Canada, rejected Figueroa’s application to be allowed to stay in Canada on humanitarian and compassionate grounds after he had been deemed inadmissible to the country on security grounds.

While acknowledging that he had not taken part in any violent campaigns with the FMLN, Roy-Tremblay said Figueroa was “not just a sympathizer to the causes.” She deemed him to have been a member of an organization that engaged in terrorism, and, therefore, a security risk.

But in a ruling posted online Monday, Richard Mosley, a federal judge, said the immigration officer’s decision was unreasonable “as it failed to take into account the nature of the conflict and Mr. Figueroa’s personal role as a non-combatant political advocate” and ordered that a different immigration officer review the application.

It was surprising, the judge wrote, that Roy-Tremblay’s decision failed to reflect the history of the conflict in El Salvador, including “the political violence inflicted on the population by military and security forces over many years.”

The FMLN was a legitimate, broad-based resistance group fighting against an oppressive military regime — not unlike the African National Congress’s struggle against apartheid in South Africa, the judge continued.

He scolded the immigration officer for referring to the FMLN as a “terrorist organization” and noted that the group has now formed the government.

The judge also cited Figueroa’s family situation. Figueroa, 47, who has been holed up in a Langley, B.C., church since October to avoid deportation, has a wife and three Canadian-born children, who have all been allowed to stay in Canada.

Roy-Tremblay had said that Figueroa could continue to maintain a relationship with his children over Skype upon removal, but Mosley said the suggestion ignored the difficulties Figueroa’s wife would face caring for all three children, one of whom has autism.

Activists say cases like Figueroa’s highlight how sections of Canada’s Immigration and Refugee Protection Act are too broad and can too easily lead refugee claimants — particularly those who took part in liberation movements abroad — to be deemed inadmissible to Canada on security grounds.

Under Section 34(1)(f) of the Act, a foreign national can be barred from admission to Canada for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in” espionage, subversion or terrorism.

“It’s guilt by association, which is fundamentally unfair,” said Janet Dench, executive director of the Canadian Council for Refugees. “The provision says because you are a member, you are held responsible for things your organization did. … It’s a broad net applied blindly.”

Asked to respond to the federal court ruling, Alexis Pavlich, a spokeswoman for Immigration Minister Chris Alexander said via email: “Canada won’t be a safe-haven for past members of terrorist organizations. This individual has availed himself of Canada’s fair and generous asylum and immigration systems… We expect that once an asylum seeker has exhausted all their avenues of appeal, they will leave Canada.”

Last year, the federal government passed Bill C-43, known as the Faster Removal of Foreign Criminals Act, which prevents anyone deemed inadmissible on security grounds from applying to stay in Canada for humanitarian and compassionate reasons.

Because Figueroa made his application before the law came into effect, he is still eligible for the exemption, his lawyer, Peter Edelmann, said Monday.

Edelmann added that Figueroa made a separate application for ministerial relief from the public safety minister. A decision is still pending.