Experts say security reasons may keep Tamils in detention

VANCOUVER -- Ever since a shipload of Tamil migrants arrived in Canada on Aug. 13, the government has argued for their continued detention on the basis that their identities have not been verified.

But as a third round of detention hearings gets underway on Wednesday, lawyers for the migrants say they won't be surprised if the government starts making a new argument: that some of the migrants should be held because they pose a possible security threat.

If that happens, it'll bring a new level of complexity to the hearings, experts say, putting Immigration and Refugee Board adjudicators into the difficult position of having to weigh the migrants' rights to liberty with protecting the country.

"They're in a bit of a tough spot," said Gregory James, a Toronto-based immigration lawyer.

When the cargo ship MV Sun Sea arrived on B.C.'s coast last month with 492 men, women and children aboard, Public Safety Minister Vic Toews stated publicly that the ship included "suspected human smugglers and terrorists" belonging to the Liberation Tigers of Tamil Eelam, a separatist group that battled the Sri Lankan government for 25 years and whose members are banned from entering Canada.

And Rohan Gunaratna, who has consulted for the Canadian government and is a professor at the S. Rajaratnam School of International Studies in Singapore, was quoted widely in media reports saying the captain of the Sun Sea was a Tamil Tiger.

But so far, officials with the Canada Border Services Agency are keeping mum about what evidence, if any, they have to support those claims.

"The CBSA is exercising due diligence in the screening of all irregular migrants for both security and criminal threats. This is an ongoing investigation and the CBSA cannot comment at this time," said spokeswoman Esme Bailey in an e-mail.

One of the migrants' lawyers, Douglas Cannon, who says Toews' comments amounted to "fear mongering," says he is anxious to learn what the government knows.

"If you have evidence, come out with it," he said.

Larry Smeets, another migrant lawyer, says, based on Toews' remarks, he has warned his clients that they could remain in detention even after their identities have been verified.

"I expect that's what's going to happen," he said.

Last October, 76 Tamil migrants showed up on the B.C. coast aboard another vessel, the Ocean Lady. Official transcripts from the detention hearings of those migrants offer some insight into what could be in store for the current group of migrants.

Initially, the 76 migrants - all men - were held on the grounds that their identities still needed to be verified. But after a couple of weeks, the government started making the case that the migrants were potential security threats.

Government lawyers said traces of explosives had been found on the Ocean Lady and on the personal belongings of a few of the migrants.

They said the ship's name had been deliberately disguised and that its true name was the MV Princess Easwary.

They cited testimony from Gunaratna, who asserted that, based on information from a terrorism database he maintains and confidential sources, the ship was owned by the Tamil Tigers.

Immigration and Refugee Board adjudicators sided with the government in those early days, and agreed to continue holding the migrants on security grounds.

However, one adjudicator, Leeann King, acknowledged during one hearing that she had an "extremely difficult" time making her decision.

"This section of the (Immigration and Refugee Protection) Act was passed in the aftermath of September 11th, 2001, and has been seen very rarely by members of this division in this region," she said.

"I don't have much guidance."

But by December, adjudicators were starting to become impatient with the government and started ordering the releases of migrants.

In one particularly tense hearing, adjudicator Otto Nupponen said flatly that "there is nothing whatsoever" that would tie the migrant in question with the Tamil Tigers and that any further steps the government took to inquire into his background would likely amount to "a fishing expedition."

He raised questions about the credibility and impartiality of the government's witness, Gunaratna, pointing out that he had close ties to the Sri Lankan government and that he had even helped the president write his memoirs.

"There is more than just a slight basic apprehension of bias," Nupponen said.

On the discovery of trace amounts of explosives, Nupponen said the government could keep swabbing the ship, but "one once again needs to question what the purpose of that really would be and if there are further hits, what then? What is that supposed to mean?"

Government lawyers appealed to the Federal Court to stay the releases and even called for top-secret hearings so that they could share in more detail some of the security concerns they had with respect to 25 of the migrants.

But just as those hearings were set to begin in January, the government called off the hearings. Instead, it consented to the release of all the migrants under a host of conditions, including that the migrants report to Canada Border Services Agency officials on a weekly basis and that they not associate with members of any criminal organizations or anyone who supports foreign or domestic terrorism.

"Over time, the longer you keep someone in detention, the harder it is to justify," said James, the immigration lawyer.

Factbox:

The government can detain foreign nationals if it has reasonable grounds to believe they:

- are unlikely to appear for an examination, hearing or removal

- are a danger to the public

- are inadmissible for security reasons or for violating human or international rights

- have not established their identity

Source: Immigration and Refugee Board of Canada