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Supreme Court to hear case of Libyan dissident who was denied refugee status

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OTTAWA - Last month, the Conservative government staged an unprecedented military display on Parliament Hill to celebrate how Canadian fighter jets and a warship helped overthrow Libya's tyrant dictator Moammar Gadhafi.

Nearly three years earlier, Libyan-born Mushen Ahemed Ramadan Agraira had appealed to the government to be allowed to settle in Canada, not hiding the fact that he once belonged to a group dedicated to Gadhafi's overthrow.

Then-public safety minister Peter Van Loan's conclusion: Agraira was a terrorist, who should be denied entry.

Now, that decision will be dissected by the Supreme Court of Canada, which will decide if Agraira is entitled to a judicial review of his case.

The high court granted Agraira's request for leave to appeal on Thursday, but as is usual gave no reasons.

"The case has interesting factual aspects to it, and it has interesting legal aspects to it," said Agraira's lawyer, Lorne Waldman. "What was it that caught the court's attention? I wouldn't speculate; I'm just very pleased we got leave."

What appears certain is that Van Loan's decision in a Jan. 27, 2009 letter will now be closely examined in a new political context: Canada went to war over Libya this year, joining a United Nations-sanctioned, NATO-led aerial bombardment and naval blockade that gave a rag-tag group of rebels the support they needed to overthrow, capture and kill Gadhafi.

Agraira came to Canada on a false Italian passport in 1997 that he bought in Germany a year earlier.

He claimed refugee status because he was a member of the Libyan National Salvation Front — a group that opposed Gadhafi and has reportedly enjoyed the backing of the U.S. Central Intelligence Agency, among others.

Canada rejected his claim in 1998 because his application was not deemed credible, and against the country's national security interest.

He married a Canadian woman in 1999, who sponsored him for permanent residency.

In 2002, the Immigration Department rejected his request, saying it had new information he was engaging in terrorism. Agraira wasn't told what that new information was.

In January 2009, some 34 months after Agraira appealed to Van Loan for ministerial relief in his immigration case, he was told it would not be in the "national interest" to admit him to Canada. Among Van Loan's conclusions:

- "The applicant offered contradictory and inconsistent accounts of his involvement with the Libyan National Salvation Front (LNSF).

- "There is evidence that the LNSF is a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government.

- "There is evidence that LNSF has been aligned at various times with Libyan Islamic opposition groups that have links to al-Qaida.

- "It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist connected organizations."

Agraira's lawyers sought a formal judicial review of his case at the Federal Court — and won.

In a judgment on New Year's Eve, 2009, Justice Richard Mosley denounced Van Loan's reasoning.

Mosley questioned Van Loan's assertion that Agraira was a member of a terrorist group, saying the evidence in the case was "minimal at best" of any al-Qaida links. He noted that the LNSF was not on Canada's list of banned terrorist entities.

Moreover, Mosley ruled that the group was apparently receiving funding from Western governments to overthrow Gadhafi.

Mosley found that Van Loan had not balanced the factors in prior Federal Court decisions on determining what is in Canada's national interest.

Mosley granted the application for judicial review, but the government took the case to the Federal Court of Appeal and won.

Justice Denis Pelletier sided with Van Loan, saying that Agraira offered "contradictory and inconsistent" accounts of his connection to the LNSF.

Pelletier pointed to Agraira's own statement in a June 2009 affidavit when he tried to renounce his earlier declaration that he was an LNSF member.

"I was ill-advised when I arrived in Canada and that stating this would help my refugee claim," he said.

On arrival in Canada in March 1997, Agraira described what he said were his LNSF activities.

"As part of an eleven member cell, he delivered envelopes to members of other cells, raised or attempted to raise funds and watched and reported on the movements of supporters of the Libyan regime," Pelletier wrote in the March 2011 ruling.

Agraira also presented a letter from the LNSF that said he was a member of the group.

"Notwithstanding this evidence, on October 24, 1998, his claim for Convention Refugee status was refused on the basis of his lack of credibility," wrote Pelletier.

Waldman said he looked forward to arguing the case before the country's highest court.

As of Thursday afternoon, he still had one piece of unfinished business — telling his client about his successful leave application earlier that morning.

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