A Canadian border agent told him to ‘Get the hell back to your country.’ Instead, this Algerian went to court — and won

Smail Khaniche is one of thousands of visitors turned away by Canada annually but he did something few would do.

Told to get the hell back to your country," the Algerian man instead challenged the border agent in court - and won.

What happened to me is inhumane and I ask that justice be served," said the 41-year-old railroad mechanic, who was sent straight back home from Montreal's Pierre Elliott Trudeau International Airport on Nov. 2, 2018.

It was meant to be his second visit to see his Canadian brother in Montreal, with a multiple-entry visa that's issued a year beforehand and valid until 2025.

On paper, there was nothing atypical in the unnamed border agent's official notes in refusing Khaniche's entry into Canada.

The officer cited a long list of red flags, claiming: the subject requested to stay for 999 days, had not booked a hotel, bought his ticket only two days ago in cash, had little connection with his country, carried luggage that didn't reflect the duration of the trip.

In fact, Khaniche had a round-trip ticket with a return date in less than a month, was going to stay with his brother, paid the ticket in cash because that was the only way of making the transaction in Algeria, and had a wife and two young children to go back to after the visit.

Subject failed to satisfy the office that he was a bona fide traveller and would leave at the end of the authorized period," the officer concluded, adding that Khaniche was allowed to leave" Canada voluntarily.

However, according to a recent federal court decision dissecting the officer's decision, Khaniche was refused admission and forced to leave on the same plane he flew in on. In fact, he refused to sign the form that indicated he voluntarily withdrew his request to enter Canada.

The officer skirted the process of withdrawing the application in order to obscure a decision of inadmissibility to make a removal order that was in fact made unilaterally by the officer," Justice Peter Pamel wrote in his judgment.

The officer's actions fall far below the standards of conduct applicable to Canadian government officials and constitute a clear breach of procedural fairness. No one deserves to be treated with such contempt at an immigration examination."

Khaniche's lawyer, Annabel Busbridge, said the case is unique because few foreign visitors would challenge border admission decisions in court, let alone pay the legal fees that accompany such a challenge.

Typically, border agents must submit an admissibility report against a visitor, reviewed by a delegate of the public safety minister, before referring the case to a federal tribunal, where the rejected person has the chance to make his arguments.

However, in this case, Busbridge said, the officer tried to disguise his decision by painting her client's departure as voluntary when, in reality, he was being forcefully removed from Canada.

This is a good reminder to all Canada Border Services Agency officers who work at ports of entry that there's a duty of procedural fairness to respect. If you don't respect it, federal judges are able to review a decision you make," she noted.

The judge drove home the point that Canada is a country where procedures are fair and if you're going to remove somebody from the country, even though they are not a citizen or a permanent resident and have no right to enter, they do have a right to be treated fairly."

Khaniche told the court that the border officer confiscated his cellphone and compelled him to reveal the password before examining its contents. He claimed the agent then removed his passport, airline ticket and other identification.

The court also heard that he was escorted by the agent and police to the flight and allegedly told to get the hell back to your country."

Lawyers for the government, however, argued that the case should be dismissed because Khaniche volunteered to leave and was no longer in Canada.

The complainant's brother Ali Khaniche, 52, said he was both ashamed and angry at how his adopted country treated his sibling.

I was upset by the way my brother was treated. They humiliated him and treated him like a criminal, as if he had done something wrong. We just wanted justice and an apology," said the older Khaniche, a longtime Canadian citizen who works in Fort McMurray.

I'm in my country and can't even invite my family to visit? What happened was not pleasant. We understand the job of the border agents but they must do it properly and not discriminate."

The court ordered the border agent's decision be quashed and the red flag in Khaniche's case file be voided. It also awarded the complainant $500 in costs.

The older Khaniche said his brother did not get the apology that he deserved but the legal fight was still worth it.

With a file from Gilbert Ngabo

Nicholas Keung is a Toronto-based reporter covering immigration for the Star. Follow him on Twitter: @nkeung