OTTAWA — The federal government is asking a judge to combine two separate lawsuits, after another Afghan Canadian alleged Canada discriminated against Afghan refugees by treating them differently than they did Ukrainians fleeing the Russian invasion.
A former Canadian language and culture adviser who served NATO in Afghanistan filed a lawsuit at the end of July alleging the government has not allowed his family in Afghanistan to seek refuge in Canada.
That followed a case filed in May by two other former language and culture advisers who served in the Canadian military. They similarly accuse the government of insisting their families don't qualify for programs bringing Afghan refugees to Canada.
They all accuse the government of offering advantages to Ukrainians that were not offered to Afghans hoping to escape the Taliban takeover in 2021.
Canada allowed an unlimited number of Ukrainians and their family members to come to Canada on an emergency visa for three years to work and study while they escape the Russian invasion of their home country.
"Many benefits are conferred upon Ukrainians … that are not conferred upon foreign nationals from other countries, including from other countries experiencing devastating wars and human rights abuses," the adviser to NATO alleges in the court filing.
He names Afghanistan, Yemen, Ethiopia, Somalia and Myanmar as examples. None of the former advisers are named in the court documents because of the significant danger their families face in Afghanistan.
To date, Canada has welcomed 175,729 Ukrainians since the Russian invasion in February 2022. That is more than four times the number of Afghans who have come to Canada as refugees since August 2021.
The government has not yet filed a defence to the applications from the Canadian advisers, but in a similar case before the Canadian Human Rights Tribunal, the government argued that unique crises require a unique response.
The Canadian military recruited some 45 Canadian citizens with Afghan heritage to serve as language and cultural advisers — called LCAs — during the mission in Afghanistan. They were granted top-secret security clearance and risked their lives to serve alongside soldiers.
The former NATO adviser behind the lawsuit is one of at least six Canadian citizens who worked as an interpreter helping Canadian, American and other NATO member countries' military forces, and served from 2007 to 2011.
He says in his court filing that his six siblings and their families are at significant risk of torture, death or injury in Afghanistan because of their connection to him and the work he did.
They don't qualify to come to Canada. But the lawsuit alleges that if they were Ukrainian nationals, they would be welcomed with an emergency visa.
After a group of LCAs made a human rights complaint about the situation, the government reached a voluntary settlement and launched a special program in March specifically to bring their families to safety.
The criteria of that program are restrictive, however, and it isn't open to all extended family members, such as adult nieces and nephews. It also doesn't apply to people who worked for NATO instead of the Canadian military.
The government said at the time that the eligibility criteria were informed by a "range of stakeholders" but were not specific, saying only that the approach was "flexible and tailored."
NDP immigration critic Jenny Kwan wrote to the immigration minister in April to raise concerns about the program and the fact that it doesn't apply to NATO personnel.
"As Afghanistan has come under Taliban rule since 2021, links to NATO/ISAF personnel represent a clear and present danger to the families of those who help Canada with their mission," Kwan wrote to the immigration minister at the time, Sean Fraser.
"Canada must make every effort to bring them to safety."
Sharry Aiken, a law professor at Queen's University who specializes in immigration, said it's common for the courts to deal with similar cases together when they raise similar legal issues.
"What you want to pay attention to is the fact that this is not just one complaint. It is a series of complaints from an affected population. And, you know, I wouldn't be surprised if there were more coming forward," she said.
She said she was glad to see another case come forward that throws the distinction between the way Canada handled the Taliban takeover of Afghanistan versus the way it reacted to the Russian invasion of Ukraine into such sharp relief.
"I don't in any way want to suggest that Canada's policy response to Ukraine was wrong or misguided. It wasn't, it was appropriate," she said.
But when compared to the assistance offered to Afghans, she said: "I think that the there's absolutely grounds for judicial over oversight of this and, I hope, correction of the policy."
This report by The Canadian Press was first published Sept. 1, 2023.
Laura Osman, The Canadian Press
