Egyptian asylum seeker with rights breached faces deportation

The moment Ahmed Mohamed stepped off the plane in Montreal, the asylum seeker was stopped by two border agents who threatened to send him back to Egypt.Shocked and disoriented, he was told his Canadian visitor visa had been cancelled and a deportation order had been issued against him before his arrival. The agents then led him to a room for “an interview.”“We know what you did. Go and ask your friend, Abdelrahman,” Mohamed recalled an officer telling him.According to the 35-year-old Egyptian journalist, no one would have known he was planning to come to Canada for asylum, except his Canadian lawyer, David Matas, and three other friends, including Abdelrahman Elmady.The group of four — all in exile in Turkey and Saudi Arabia after their country’s first democratically elected government was toppled in a military coup in 2013 — was looking to seek asylum in Canada. Elmady, who has the strongest English, was the point man tasked with corresponding with Matas, the lawyer, for guidance.“They knew I was coming and they knew everything about me. To this date, I still don’t know why,” said Mohamed, who wasn’t allowed to make a refugee claim but a subsequent mandatory risk assessment before his removal concluded he would be in danger if returned to Egypt. All he knew is that he was shown copies of emails with their lawyer, which, he came to learn, had been obtained under a breach of solicitor-client privilege.Elmady, who landed in Vancouver in October 2017, just 10 days before Mohamed’s arrival, was a member of the Freedom and Justice Party that won the 2011 Egyptian election. Canada Border Services Agency considers him a security threat based on his membership with the political arm of the Muslim Brotherhood.Neither the party nor the Muslim Brotherhood group is listed as a terrorist entity by the Canadian government, but the border agency has “reasonable grounds” to believe the group is or was engaged in terrorism and/or subversion.Although an immigration tribunal has concluded that the breach of solicitor-client privilege did occur, Elmady is faced with imminent deportation to Egypt, where his supporters said he would be immediately jailed and tortured by officials. His lawyers are currently seeking relief from the Federal Court.A management consultant, Elmady said he joined the Freedom and Justice Party after the 2011 Egyptian Revolution that overthrew the three-decade presidency of the country’s longest-serving ruler, Hosni Mubarak. His party won the election and its leader, Mohammed Morsi, was president before he was ousted by the military in 2013.Former army chief Abdel Fattah al-Sisi then came into power and the new government banned the Muslim Brotherhood in Egypt and declared it a terrorist organization.Canadian officials relied on two incidents that occurred in the 1940s to find the group is currently a terrorist organization, said Molly Joeck, one of Elmady’s lawyers, and that conclusion is problematic.“Many experts have described the Muslim Brotherhood as a social movement that engages in a broad array of civil society activities, including the provision of free or discounted medical care, food distribution to the underprivileged, and other charitable endeavours,” Joeck said.“Because of the broad interpretations of the definition of member and the definition of a terrorist organization, a problematically wide net is cast.”Elmady, who studied in the United States in 2012 with a Fulbright scholarship, later fled Cairo for Saudi Arabia and arrived in Canada by himself in 2019. His wife and two sons, 11 and five, are still in Egypt.“People in opposition were detained, tortured and forced into disappearance,” the 38-year-old father of two told the Star. “Returning to Egypt was not an option. Egyptian army was after me.”At the Vancouver International Airport, Elmady was referred to an inspection and border agents found in his luggage an Egyptian police summons that said he was charged with “act against the state.”At some point, the border agents asked him for his iPhone password, and he complied. During a search of the phone, the officers found a series of emails between him and Matas, his Canadian lawyer, as well as his three friends.The emails contained attachments that summarized the details and basis of each of the four people’s reasons for asylum. The officers proceeded to go through the emails and questioned Elmady based on the contents.“It’s a fundamental principle of Canadian law. No matter what your legal circumstances are, you are entitled to the private and confidential advice of a lawyer, no matter what you’re alleged to have done,” said lawyer Douglas Cannon, who represented Elmady at the immigration tribunal proceedings. “That’s a right, not a privilege.”He said the officers at the airport undermined that principle by using the confidential communication for their further investigation and intelligence.“This is one of the most egregious acts of impropriety that I have seen in my practice in this

Egyptian asylum seeker with rights breached faces deportation

The moment Ahmed Mohamed stepped off the plane in Montreal, the asylum seeker was stopped by two border agents who threatened to send him back to Egypt.

Shocked and disoriented, he was told his Canadian visitor visa had been cancelled and a deportation order had been issued against him before his arrival. The agents then led him to a room for “an interview.”

“We know what you did. Go and ask your friend, Abdelrahman,” Mohamed recalled an officer telling him.

According to the 35-year-old Egyptian journalist, no one would have known he was planning to come to Canada for asylum, except his Canadian lawyer, David Matas, and three other friends, including Abdelrahman Elmady.

The group of four — all in exile in Turkey and Saudi Arabia after their country’s first democratically elected government was toppled in a military coup in 2013 — was looking to seek asylum in Canada. Elmady, who has the strongest English, was the point man tasked with corresponding with Matas, the lawyer, for guidance.

“They knew I was coming and they knew everything about me. To this date, I still don’t know why,” said Mohamed, who wasn’t allowed to make a refugee claim but a subsequent mandatory risk assessment before his removal concluded he would be in danger if returned to Egypt.

All he knew is that he was shown copies of emails with their lawyer, which, he came to learn, had been obtained under a breach of solicitor-client privilege.

Elmady, who landed in Vancouver in October 2017, just 10 days before Mohamed’s arrival, was a member of the Freedom and Justice Party that won the 2011 Egyptian election. Canada Border Services Agency considers him a security threat based on his membership with the political arm of the Muslim Brotherhood.

Neither the party nor the Muslim Brotherhood group is listed as a terrorist entity by the Canadian government, but the border agency has “reasonable grounds” to believe the group is or was engaged in terrorism and/or subversion.

Although an immigration tribunal has concluded that the breach of solicitor-client privilege did occur, Elmady is faced with imminent deportation to Egypt, where his supporters said he would be immediately jailed and tortured by officials. His lawyers are currently seeking relief from the Federal Court.

A management consultant, Elmady said he joined the Freedom and Justice Party after the 2011 Egyptian Revolution that overthrew the three-decade presidency of the country’s longest-serving ruler, Hosni Mubarak. His party won the election and its leader, Mohammed Morsi, was president before he was ousted by the military in 2013.

Former army chief Abdel Fattah al-Sisi then came into power and the new government banned the Muslim Brotherhood in Egypt and declared it a terrorist organization.

Canadian officials relied on two incidents that occurred in the 1940s to find the group is currently a terrorist organization, said Molly Joeck, one of Elmady’s lawyers, and that conclusion is problematic.

“Many experts have described the Muslim Brotherhood as a social movement that engages in a broad array of civil society activities, including the provision of free or discounted medical care, food distribution to the underprivileged, and other charitable endeavours,” Joeck said.

“Because of the broad interpretations of the definition of member and the definition of a terrorist organization, a problematically wide net is cast.”

Elmady, who studied in the United States in 2012 with a Fulbright scholarship, later fled Cairo for Saudi Arabia and arrived in Canada by himself in 2019. His wife and two sons, 11 and five, are still in Egypt.

“People in opposition were detained, tortured and forced into disappearance,” the 38-year-old father of two told the Star. “Returning to Egypt was not an option. Egyptian army was after me.”

At the Vancouver International Airport, Elmady was referred to an inspection and border agents found in his luggage an Egyptian police summons that said he was charged with “act against the state.”

At some point, the border agents asked him for his iPhone password, and he complied. During a search of the phone, the officers found a series of emails between him and Matas, his Canadian lawyer, as well as his three friends.

The emails contained attachments that summarized the details and basis of each of the four people’s reasons for asylum. The officers proceeded to go through the emails and questioned Elmady based on the contents.

“It’s a fundamental principle of Canadian law. No matter what your legal circumstances are, you are entitled to the private and confidential advice of a lawyer, no matter what you’re alleged to have done,” said lawyer Douglas Cannon, who represented Elmady at the immigration tribunal proceedings. “That’s a right, not a privilege.”

He said the officers at the airport undermined that principle by using the confidential communication for their further investigation and intelligence.

“This is one of the most egregious acts of impropriety that I have seen in my practice in this area, to take a vulnerable person and make them even more vulnerable. It is inexcusable,” said Cannon, who has practised immigration law for more than two decades.

“There’s absolutely no way that this was an honest mistake. How does this go through the layers of officers that were involved in this, multiple officers, multiple emails and discussion with supervisors. How did nobody step up and say, “Wait a second. This is wrong?’”

Canadians should be concerned about the conduct of border enforcement officials because anyone entering Canada is subject to questioning and examination upon return at airport and could be put in the same situation, he warned.

According to the border agency, 31,579 travellers out of a total of 234.5 million had their digital devices examined up to last December, since it started collecting relevant data in November 2017. It said only 0.013 per cent of all travellers, or 13 in every 100,000 travellers, undergo an examination of their digital devices

Of these examinations, 37.8 per cent or 11,955 cases resulted in a customs or immigration-related offence, which ranged from evidence of money laundering, the discovery of prohibited goods that pose a threat to public safety such as pornography and obscenity, or undervalued or undeclared goods.

Canada Border Services Agencies can’t comment on the Elmady case because the matter is still before the court. But it said officers do not examine travellers’ digital devices as a matter of course and only proceed to perform an examination when there are multiple indicators that there may have been a contravention of border laws.

“CBSA officers are instructed not to examine content clearly marked as being subject to solicitor-client privilege, nor to examine content over which a traveller asserts privilege. Officers are also instructed not to examine content if, over the course of an examination, they become aware of potential solicitor-client privilege,” said agency spokesperson Jacqueline Callin.

“If, during port of entry processing, an officer develops concerns about the potential compromise of solicitor-client privilege, they are instructed to notify their immediate supervisor to determine whether the goods in question, including devices, should be released to the traveller without examination or, whether they should be sealed and set aside for review by a court for confirmation of privilege.”

Matas, a renowned immigration lawyer based in Winnipeg, said it was not unusual for prospective asylum seekers abroad to reach out to him to inquire about Canada’s asylum process and for guidance. The email correspondence was apparently confidential between a lawyer and a group of clients.

“You don’t have to assert your client privilege for it to exist. You have to waive it for it to disappear,” he noted. “That privilege exists unless the Canada Border Service Agency says, ‘You’ve got this privilege. Do you waive it? Am I allowed to look at these emails?’”

At the immigration tribunal hearing, lawyers for the border agency argued that Elmady’s emails were not marked “Solicitor-Client Privilege” or “Confidential” and Matas’ email address did not suggest it’s coming from a law firm.

They further contended that the emails between Elmady and Matas included third parties, hence the communications were no longer restricted to the client and solicitor.

However, the government lawyers did agree that “questions regarding Mr. Elmady’s correspondence with Mr. Matas were inappropriate” and asked those questions and responses be excluded from evidence.

The immigration tribunal rejected Elmady’s request to stay the proceeding and ruled him inadmissible in Canada. An immigration officer in March found he would not face risk of torture, cruel treatment or punishment were he to return to Egypt.

Matas said the border agency only made amend in Elmady’s case after its officers were caught and the case speaks to the need for stronger civilian oversight over border agents to ensure they do their job properly.

“What happened in this case is typical,” said Matas. “This is just a glimpse into a pattern of behaviour.”

Mohamed said he became a close friend to Elmady after the two were on an educational trip hosted by the European Union in 2012 to learn about democracy and human rights.

“He’s a kind-hearted person. He’s loved by many people,” said Mohamed. “He faces a huge risk to his life. If he’s sent back to Egypt, I can see him dying right in front of me.”

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung

Source : Toronto Star More