Canada ordered to make decision on residency applications by two Uyghurs after decade-long delay

A federal court judge has given Canada’s immigration minister 30 days to make up his mind on the permanent residency applications of two Chinese citizens of Uyghur ethnicity captured in Pakistan and turned over to the United States military after coalition forces invaded Afghanistan in response to the 9/11 terrorist attacks.

Khalil Mamut and Salahidin Abdulahad were transferred to the Guantanamo Bay detention facility and held there until 2009, when they were released to be resettled in Bermuda.

Both of their wives can live in Canada — one is now a citizen and the other has permanent residency status.

“Mr. Abdulahad’s application for permanent residence has now been outstanding for almost 11 years; Mr. Mamut’s for over nine years,” Justice John Norris wrote in a recent decision.

The men and their wives applied for a judicial review, arguing they’re entitled to a legal remedy because Immigration Minister Marc Miller has failed to make decisions on their outstanding applications.

“There is no issue that the delay in processing the applications for permanent residence has been largely, if not entirely, due to concerns that Mr. Abdulahad and Mr. Mamut may be inadmissible to Canada for security reasons,” Norris wrote in his Oct. 8 decision.

“Specifically, after they applied for permanent residence, concerns were raised that Mr. Abdulahad and Mr. Mamut may be inadmissible to Canada due to their alleged association with the East Turkistan Islamic Movement (ETIM). U.S. authorities had also relied on this alleged association to justify the men’s detention at Guantanamo Bay. The issue of inadmissibility on security grounds has still not been resolved by decision makers acting on behalf of the minister of citizenship and immigration.”

The pair contend that “the delay in resolving the issue of their inadmissibility on security grounds is so excessive, oppressive, and unfair as to constitute an abuse of process,” said the Ontario judge.

The two men asked for an order “staying the security inadmissibility proceedings and directing the minister to proceed with the processing of their applications for permanent residence. In the alternative, they seek an order directing the minister to find that they are not inadmissible on security grounds or, conversely, prohibiting the minister from finding them inadmissible on this basis.”

The judge was satisfied that there has been “an inordinate delay in the processing of the applications for permanent residence and that this entitles the applicants to a remedy. While I agree that the delay in both cases is excessive, it would not assist the applicants to characterize it as amounting to an abuse of process. This is because the remedy they seek on this basis — a stay of the inadmissibility assessments — is self-defeating.”

The court doesn’t have the power to order Miller to disregard legal requirements laid out in the Immigration and Refugee Protection Act, Norris said.

“Under that act, before Mr. Abdulahad and Mr. Mamut can become permanent residents, an officer must be satisfied that they are not inadmissible. As a result, if the minister were ordered not to consider their inadmissibility on security grounds, this would stymie their applications for permanent residence; an officer acting on behalf of the minister would have no choice but to reject the applications.”

But the delays they have faced are “clearly excessive,” said the judge.

“The minister has fallen far short of demonstrating that the time that has been taken is justified, and the minister has not shown why any additional time to make decisions on the applications for permanent residence is warranted.”

Abdulahad was born in 1977 in Kashgar, People’s Republic of China.

“In June 2001, after witnessing the ongoing persecution of Uyghurs … and the harassment of his family, Mr. Abdulahad left China for Pakistan, hoping to continue his education there,” said the decision.

“When his legal status in Pakistan expired (it was valid for only one month), he feared returning to China so he decided to seek out a Uyghur community he had heard about in a village outside Jalalabad, Afghanistan. He arrived there in August 2001.”

Mamut was born in Kashgar in 1978.

“Due to Chinese oppression and persecution of Uyghurs, in 1998, he left China to study in Pakistan,” said the decision.

“He studied in Lahore for three years. In 2001, his Chinese passport was expiring so, being afraid to return to China, Mr. Mamut sought out a group of Uyghurs in Afghanistan he believed could help him with the renewal of his passport so that he could return to Pakistan. He ended up in the same village in Afghanistan as Mr. Abdulahad.”

The pair “had to flee the village in Afghanistan at the end of October 2001, when it came under aerial bombardment by U.S. forces,” said the decision. “Together with a group of 16 other Uyghurs, they hid in nearby mountains and then made their way to Pakistan. At first, some local individuals assisted the group but they soon turned them over to the Pakistani military, reportedly in exchange for bounties. Mr. Abdulahad, Mr. Mamut, and the others were then turned over to the U.S. military. Subsequently, they were all transferred to the detention facility that had just been constructed at the U.S. Naval Base at Guantanamo Bay, Cuba.”

The allegation that Abdulahad and Mamut were members of the ETIM “appears to have rested largely, if not entirely, on the characterization of the village near Jalalabad, where they had admittedly stayed for a few months, as an ETIM training camp,” said the decision.

“Mr. Abdulahad and Mr. Mamut maintained that they had gone to the village solely because they believed they would be safe there and they had nowhere else to go. They denied being members of the ETIM. Indeed, they maintained that the first time they ever heard about the group was when they were questioned about it by U.S. officials. They maintained that they bore no enmity towards the United States and had never engaged in hostilities against it. U.S. authorities did not produce any evidence to contradict these latter assertions.”

The U.S. designated ETIM as a terrorist organization in August of 2002, but revoked that designation in October of 2020.

“However, the ETIM still appears on the United Nations Security Council sanctions list,” said the decision. “The organization has never been designated by Canada as a terrorist entity.”

According to the judge, the immigration minister “has failed to provide a satisfactory explanation for the delay in either case.”

The federal government told Norris 30 days wasn’t enough time to make decisions about the pair’s permanent residency applications, and that “instead, a further six months should be granted.”

The judge noted that Miller’s department “did not offer any evidence to support either of these positions.”

Norris acknowledged Ottawa has the right to request more time to make the decisions. “If the extension is opposed, a motion record and supporting evidence will be required.”

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