Federal Court closes door on safety in Canada for fleeing Afghan advisors' families

As an Ottawa man who helped the Canadian Armed Forces during its NATO mission in Afghanistan waited for a decision from the Federal Court in a bid to bring his family to safety in Canada from the Taliban’s revenge, he heard distressing news from his sister. She had fled Afghanistan when her husband was shot dead after receiving threatening phone calls from Taliban fighters and was living abroad waiting for a family reunification in Canada, but she had just heard she might be ordered deported to Afghanistan at the end of this week, he said. “She called me crying,” the man told National Post from his home in Ottawa. Then his hope that she could soon join him in Canada collapsed when he heard the decision Monday from Canada’s Federal Court on a case launched in 2023 by him and two other Canadians who all are trying to bring their family to join them in Canada after helping Canada’s military in Afghanistan. “The situation is very serious. After she has been running for years, we heard this very devastating and unfortunate decision by the court,” he said. With a deportation threat looming from her temporary home and Canada’s court closing their escape path to Canada, the family is devastated. “She said, ‘Tell me where should I go? What should I do?’ I said, to be honest with you, I can’t tell you anything. I don’t know what to tell you. And it’s all because of the government’s decision to put such rigid criteria on that public policy that denied her application.” The three men sued the federal government, saying an immigration policy that gives easy entry to Canada to Ukrainian families fleeing Russia’s invasion should also apply to them. All three were born in Afghanistan but had moved to Canada. They returned to Afghanistan to serve as Language and Cultural Advisors (LCA) for the Canadian military in Afghanistan, where they had top-secret security clearance while variously assisting troops from 2007 and 2011. The three men complained to the court that Canada’s fast-track Ukraine policy didn’t have the same limitations that kept their families out, which violates their Charter rights by giving preferential immigration benefits based on race. They asked the court to strike out the words Ukraine and Ukrainian from the government’s fast-track policy so they could benefit from the same rules. Section 15 of the Charter says: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” The three men had their identifies protected by the court because of danger to them and their relatives for working with the International Security Assistance Force, known as ISAF, the NATO-led military mission in Afghanistan. The one who was interviewed by the Post asked that his name not be published for fear it could be used to target his family. After Afghanistan was retaken by the Taliban, Canada announced a special policy to help LCAs bring family here. It included rigid conditions that limited who was eligible. All three men had family denied. In the case of the man interviewed, his sister had fled the country with her children before the fall of Kabul, which made her ineligible. “I was a Canadian citizen. I went there and people found out that I work with Canadian forces, so they targeted my family members there,” he said. “She fled Afghanistan before the Taliban took over because her husband got killed by the Taliban. Her kids were threatened to be assassinated by Taliban, so she had no other choice but to flee Afghanistan because of my job with the Canadian forces.” Canada’s Ukraine special policy was introduced in March 2022. The Afghan LCA special policy was introduced on Jan. 30, 2023. The lawsuits claimed differences in the policies rekindle racist immigration policies in Canada’s past that gave preference to some migrants, primarily white or from European countries, and limited or discouraged immigration from others, primarily brown or black or from Asian, African and Caribbean countries. The government told court that immigration exemptions have long been a part of Canada’s response to various crises in different countries. Several, over the years, gave immigration exemptions for foreign nationals fleeing conflicts other than those in Ukraine or Afghanistan, including Iran, Iraq, Syria, Hong Kong and Sudan. The three former LCAs got their answer from the court on Monday; because the Ukraine policy expired on July 15, 2023, their lawsuit was dismissed. “In my view the application is moot, and in the exercise of its discretion, the Court will not hear the application. Therefore, the application will be dismissed,” wrote Justice Henry S. Brown in his decision. Mootness means that a decision of a court can no longer resolve the issue being argued; that no matter what a judge ruled it would have no practical impact on the problem. Nicholas Pope, lawyer for the three men, said the decision that it is too late for the men to benefit from the Ukraine policy because it has expired was upsetting because the delay came from the government and the courts. “Essentially, the federal government has immunized itself from Charter scrutiny of temporary immigration policies by failing to properly fund the Federal Court,” Pope told the Post. “The executive branch should never be allowed to avoid accountability by inhibiting a court’s ability to do its job.” “The applicants’ family members are still at serious risk of death, torture, and targeted assassination by the Taliban because of the applicants’ service to the Canadian military,” he said. • Email: ahumphreys@postmedia.com | Twitter: AD_Humphreys Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our daily newsletter, Posted, here.