1 Court File No.

: T-745-20

Court File No.

FEDERAL COURT

B E T W E E N:

AMIRA AND IBRAHIM

Applicants

and

HER MAJESTY THE QUEEN AND THE MINISTER OF FOREIGN AFFAIRS AND
INTERNATIONAL TRADE

Respondents

NOTICE OF APPLICATION
Pursuant to section 18 and 18.1 of the Federal Courts Act
____________________________________________________________________________________

TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the
applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial
Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by
the applicant. The applicant requests that this application be heard at (place where Federal Court
of Appeal (or Federal Court) ordinarily sits).

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the
application or to be served with any documents in the application, you or a solicitor acting for
you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and
serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant,
WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules information concerning the local offices of the Court and
other necessary information may be obtained on request to the Administrator of this Court at
Ottawa (telephone 613-992-4238) or at any local office.
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IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR

ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

July , 2020

Issued by: ____________________________

(Registry Officer)

Address of local office: Thomas D'Arcy McGee Building

90 Sparks Street, 5th floor
Ottawa, Ontario
K1A 0H9

TO: The Registrar

Federal Court

AND TO: Her Majesty the Queen

AND TO: The Minister of Foreign Affairs and International Trade

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THE APPLICANTS MAKE APPLICATION FOR:

1. An Order banning the publication or broadcast of details of the Applicants identity or of

information which might tend to identify them as any further identification may

jeopardize the safety and security of the Applicant Amira.

2. An Order in the nature of mandamus pursuant to s. 18(1) and/or s. 44 of the Federal

Court Act that the Respondent(s) comply with their statutory duties pursuant to:

a. a section 3(a) of the Federal Court Act,

b. a section 3 of the Citizenship Act,

c. Articles 7, 8, 10,16, 18 and 20 of the International Convention on the Rights of the

Child (ICRC);

(i) Failing to or refusing to or unreasonable delaying the issuance of emergency

travel documentation to and for Amira;

(ii) Failing to or refusing to comply with the provisions of the Citizenship Act

pursuant to which Amira is a Canadian citizen;

(iii) Failing to or refusing to make a formal request for the repatriation of Amira;

(iv) Failing to or refusing to send a Canadian representative or delegate to facilitate

Amira`s repatriation.

(v) Failing to or refusing to engage/work with a 3rd party Nation that has consular

services in the region in order to facilitate Amira’s repatriation;

(vi) Failing to or refusing to engage/work with a recognized 3rd party humanitarian

organization in the region in order to facilitate the repatriation of Amira.

(vii) Failing or refusing to take the above mentioned steps when it is just to do so.
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3. To the extent and if required, an Order granting leave to the Applicants to seek leave for

the Judicial review of the Respondents decisions.

4. A declaration that the Respondents failure to take all reasonable steps to repatriate Amira

breaches the Respondents statutory duties and obligations.

5. A declaration that the Respondents failure to take all reasonable steps to repatriate Amira

violates her rights as guaranteed under sections 6, 7, 9, 12 and/or 15 of the Canadian

Charter of Rights and Freedoms (“the Charter”).

6. Should mandamus not issue, an Order pursuant to section 24(1) of the Charter

recognizing that there has been a breach of one or all of Amira’s section 6, 7, 9, 12 and

15 rights and then requiring the Respondents to take reasonable steps referred to in

paragraph 2(i) through 2(vi) above as a remedy which is appropriate and just in these

circumstances.

7. An Order pursuant to s. 24(1) of the Charter that the Court retain jurisdiction to hear

reports from the Respondents concerning their progress as to compliance with the terms

of any order issued by the Court.

8. Such injunctive or interlocutory relief as may be sought by the Applicants and this

Honourable Court deems just.

9. Such further and other relief as counsel may advise and this Honourable Court permit.
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THE GROUNDS FOR THIS APPLICATION ARE:

Overview

10. This application is being brought on behalf of the Applicant child Amira (age 5) by her

uncle the Applicant Ibrahim. Amira is one of 47 Canadians, 26 of whom are children

who are being detained in North Eastern Syria under the auspices of the Syrian

Democratic Front (“SDF”) and Autonomous Administration of North Eastern Syria

(“AANES”).

11. The AANES and SDF have repeatedly stated their willingness to facilitate the

repatriation of Amira as they have done with at least 20 other countries who have made

similar requests resulting in repatriation of hundreds of foreign nationals held under

SDF/AANES control.

12. Ibrahim has done everything humanly possible, including travelling to Syria on his own

without security or protection, in an effort to bring his niece home to Canada.

13. The Respondent’s, despite their statutory and international law obligations and the rights

of the Applicant Amira, guaranteed by the Charter, have for more than a year been

unwilling to take a single step to enable the repatriation of Amira to take place.
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The Applicants

A. Amira

14. Amira is one of four children. At the age of 4, she became an orphan when her Canadian

parents and her 3 siblings were killed in an airstrike in Northeastern Syria, which took

place between February and March, 2019.

15. After the death of her entire family, Amira was found and brought to the Al-Hawl

detention camp in North Eastern Syria under the auspices of the SDF. Al-Hawl is a camp

with anywhere between 60,000 and 70,000 inhabitants, of which 10-12,000 detainees are

foreign nationals.

16. Al-Hawl is hopelessly overcrowded, has a lack of clean water, many of its detainees

suffer from malnutrition and non-existent hygiene measures and there is an acute

shortage of medical care and facilities.

17. Given the overcrowded and unsanitary conditions, the camp detainees are at heightened

risk of Covid-19.

18. Amira has asthma and is particularly vulnerable to Covid-19 as a result.

19. Within the past 2 weeks, the Syrian Regime has made specific inquiries regarding Amira.

AANES has been clear about their willingness to facilitate in Amira’s repatriation. It is

unlikely that there will be such a favourable position from the Syrian Regime in light of

their abysmal human rights record.

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B. Ibrahim

20. Ibrahim is the uncle of Amira, his brother was Amira’s father.

21. Ibrahim was raised in Toronto and currently resides there with his parents, Amira’s

grandparents.

22. Ibrahim is an engineer.

23. Since April 13, 2019 Ibrahim has done everything in his power to have his niece Amira

return to Canada.

24. He has communicated with Global Affairs Canada, Immigration Refugee and Citizenship

Canada, Members of Parliament, multiple Non-Government Organizations, the United

Nations, international human rights lawyers, documentary film makers, members of

AANES and members of the SDF.

25. In early 2020, Ibrahim travelled to North Eastern Syria without any assistance from the

Canadian Government.

26. Ibrahim was able to cross the border from Iraq into Syria without knowing anyone in the

region and without any form of security or protection.

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27. Ibrahim personally met with Dr. Abdulkarim Omar, the Co-chair of Foreign Affairs for

AANES, and was assured that upon Canada’s request coupled with the attendance of a

delegate or representative on behalf of the Canadian government, AANES would be only

too pleased to facilitate the repatriation of Amira to Canada.

28. Ibrahim was subsequently able to enter Al-Hawl camp and visit his niece Amira but was

not permitted to leave with her.

Legal Foundation

29. The Federal Court has the jurisdiction to act and conduct judicial oversight of Canada’s

immigration system pursuant to multiple statutes including the following Acts:

(a) Immigration and Refugee Protection Act

(b) The Citizenship Act

(c) Federal Courts Act

(d) Department of Foreign Affairs Trade and Development Act

(e) Immigration Act

(f) Canadian Passport Order

30. Under the Federal Court Act, s. 2(1)

“a federal board, commission or other tribunal means any body, person or persons

having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament or by or under an order made pursuant to a prerogative of the

Crown…”
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31. Pursuant to s. 18(1) of the Federal Courts Act the remedy of mandamus may only be

obtained on an application for judicial review.

32. On an application for judicial review, the Federal court may pursuant to section 3(a)

“order a federal board, commission or other tribunal to any act or thing it has unlawfully

failed or refused to do or has unreasonably delayed in doing….” (emphasis added)

33. s. 44 of the Federal Courts Act provides:

“In addition to any other relief that the Federal Court of Appeal or the Federal Court may

grant or award, a mandamus, an injunction or an order for specific performance may be

granted or a receiver appointed by that court in all cases in which it appears to the court

to be just or convenient to do so. The order may be made either unconditionally or on

any terms and conditions that the court considers just.” (emphasis added)

34. Pursuant to the Citizenship Act

Section 3(1) Subject to this Act, a person is a citizen if

(b) The person was born outside Canada after February 14, 1988 and at the time of

his birth on of his parents, other than parent adopted him, was a citizen; (emphasis added)

35. Section 3(1.2) of the Citizenship Act states that a person who would not become a citizen

under (1)(b), (g), (h), (o) or (p) for the sole reason that, on the coming into force of this

subsection, his or her parent – referred to in one of those paragraphs- is deceased, is a

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citizen under that paragraph if that parent but for his or her death, would have been a

citizen under any of paragraphs (1)(k) to (n). (emphasis added)

36. While Canadians abroad are generally bound by the law of the country in which they find

themselves, there is a recognized exception when either Canada’s participation or as in

this case, their refusal to participate in activities of a foreign state are contrary to

Canada’s International obligations or fundamental human rights norms. In Amira’s case,

the Respondent’s refusal to act is contrary to both.

37. The Federal Court has jurisdiction to apply the Charter which applies to inter alia, the

Parliament and the government of Canada in respect of all matters within their authority.

The Parliament and Government of Canada bear the burden of complying with the

requirements of the Charter. The protection of Charter guarantees is a fundamental and

pervasive obligation.

38. Even the exercise of what traditionally have been discretionary-type or common law

powers under the royal prerogative are not exempt from judicial security for

constitutional compliance. Any action by the Parliament or Government of Canada must

be consistent with the Charter.

39. In order for the mobility rights to which all Canadians are entitled to be meaningful,

respected and to be exercised, the Canadian citizen is entitled to a passport. The failure

of the issuance of a passport or its emergency equivalent is not an extraordinary action

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but the refusal to do so is a violation of the mobility rights guaranteed by section 6 of the

Charter.

40. Given the repeated stated willingness of AANES, SDF and Dr. Abdulkarim Omar to

“hand over” Amira to Canada, there is only one entity which continues to cause and is

responsible for the deprivation of liberty, and the risk to the health, safety and security of

Amira and that is the Government of Canada.

41. The violation of Amira’s s. 7 rights under the Charter has resulted in deprivation of life,

liberty and security which is not in accordance with the principles of fundamental justice.

42. The Charter remedy being sought requiring the government of Canada to formally ask

for the repatriation of Amira and then take reasonable steps to facilitate this is one that

meaningfully vindicates the rights and freedoms of Amira. The breach of s. 6, 7, 12 and

15 of the Charter is ongoing and lies at the feet of the Government of Canada.

43. The Federal Court has jurisdiction and the obligation to interpret the jurisdictional reach

and limits of the Charter. Where the question of application involves issues of

extraterritorially, Canada’s obligations under international law assist in the interpretation

exercise.

44. The Courts have also looked to international law to assist in the interpretation of the

Charter. The Courts have sought to ensure consistency between Canada’s international

obligations and the relevant principles of international law. The Charter and those
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entitled to the full benefit of its protection are to be afforded protection at least as great as

that afforded under similar provisions in international human rights documents which

Canada has ratified.

45. The Court should seek to ensure compliance with Canada’s binding obligations under

international law.

46. Canadian Courts have adopted and incorporated directly into Canadian domestic law, the

rules of customary international law provided there is no valid legislation that conflicts

with the customary common law rule.

47. The International Convention on the Rights of the Child (“ICRC”) was adopted and

opened for signature by resolution of the United Nations on November 20, 1989 and

entered into force on September 2, 1990. Canada became a signatory to the ICRC in

1990 and ratified the ICRC in 1991.

Other Countries

48. At least 20 countries including the United States, France and Germany have successfully

repatriated their citizens upon request and without any incident or harm. Five countries

that do not have consular services in Syria have arranged through 3rd part Nations and/or

recognized 3rd party humanitarian organizations to repatriate their citizens

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Canada’s failure/refusal to act

49. Despite numerous request the Respondents have failed or refused to:

a) Provide emergency travel document or passport equivalent for Amira;

b) Make a formal request for the repatriation of Amira;

c) Make any attempt to coordinate with AANES or its representative Dr. Abdulkarim

Omar, the logistics in order to repatriate Amira;

d) Appoint or assign a Canadian delegate or representative to meet with a representative

of AANES in order to repatriate Amira;

e) Engage or work with other third party nations that have consular services and have

successfully repatriated their citizens in order to arrange a third party nation to

facilitate the repatriation of Amira;

f) Engage or work with a recognized 3rd party humanitarian organization to facilitate the

repatriations of Amira;

g) Properly assess the security situation on the ground despite relying on it as the basis

for the failure/refusal to take any of the steps outlined in (a) to (d) above.

THE APPLICANTS RELY UPON:

(a) Federal Courts Act, RS 1985, c. F-7, sections 3(a), 18(1), 18.1 and s. 44 .

(b) Citizenship Act, RSC 1985, C-29 sections 3, 4, 5.1, 6 and 22.1.

(c) Canadian Charter of Rights and Freedoms, sections 6, 7, 9, 12, 15 and 24 (1).

(d) International Convention on the Rights of the Child, Arts. 7.1, 7.2, 8.1, 8.2, 10.1, 10.2,

16.1, 16.2, 18.1, 18.2, 20.1, 20.2 and 20.3.

e) Such further and other laws as counsel may advise.

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THE APPLICATION WILL BE SUPPORTED BY THE FOLLOWING

MATERIALS:

(a) Affidavit of Ibrahim

(b) Affidavit of Leah West

(c) Human Rights Watch report dated June 29, 2020

(d) Such further and other material as counsel may advise and this Honourable Court permit.

Dated at Ottawa this 14th day of July, 2020.

_____Lawrence Greenspon__
Greenspon Granger Hill
331 Somerset St West
Ottawa, ON K2P 0J8
Tel: (613) 288-2890
Fax: (613) 288-2896

Lawrence Greenspon
(Lawrence@gghlawyers.ca)

Graham Bebbington
(graham@gghlawyers.ca)

Counsel for the Applicants