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Immigration - Inadmissibility. Canada (Public Safety and Emergency Preparedness) v. Yihdego
In Canada (Public Safety and Emergency Preparedness) v. Yihdego (Fed CA, 2024) the Federal Court of Appeal upheld a successful JR against a 'security inadmissibility' finding by the Immigration Division (ID) [under IRPA s.34(1)(a,f)]:[1] Abel Nahusenay Yihdego was found to be inadmissible to Canada pursuant to paragraphs 34(1)(a) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for being a member of an organization for which there are reasonable grounds to believe had engaged in espionage. These provisions make permanent residents and foreign nationals inadmissible to Canada on security grounds if they are members of an organization for which there are reasonable grounds to believe engages, has engaged or will engage in espionage "“against Canada or that is contrary to Canada’s interests”".
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[4] In rendering judgment allowing Mr. Yihdego’s application for judicial review, the Court certified the following question:Is a person inadmissible to Canada pursuant to paragraph 34(1)(f) of the Immigration and Refugee Protection Act for being a member of an organization with respect to which there are reasonable grounds to believe it has engaged in, engages in, or will engage in acts of espionage that are “contrary to Canada's interests” within the meaning of paragraph 34(1)(a) of the Act if the organization’s espionage activities take place outside Canada and target foreign nationals in a manner that is contrary to the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of Canada, including the fundamental freedoms guaranteed by paragraph 2(b) of the Charter? [5] For the reasons that follow, I find that the Federal Court did not err in finding that the ID’s decision was unreasonable, and in concluding that the phrase "“contrary to Canada’s interests”" requires a nexus to Canada’s national security or security interests. I am satisfied that the ID failed to have regard to legal constraints imposed on it by international law, in particular the non‑refoulement provisions of the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention), as well as recognized principles of statutory interpretation.
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VI. Analysis
[22] The question certified by the Federal Court in Mr. Yihdego’s case is the same question that was certified by the Federal Court in Weldemariam FC. The Minister’s appeals from the two decisions were heard together, and the arguments advanced by the parties in each case were largely the same.
[23] This Court provided a detailed analysis of the international law and other statutory interpretation issues relating to the interpretation of paragraph 34(1)(a) of IRPA in its decision related to Mr. Weldemariam’s appeal, which was released contemporaneously with this one (Canada (MPSEP) v. Weldemariam, 2024 FCA 69 (Weldemariam FCA)). That analysis is equally applicable to Mr. Yihdego’s appeal.
[24] Thus, for the reasons given by this Court in Weldemariam FCA, I have concluded that there is only one reasonable interpretation of the disputed portion of paragraph 34(1)(a) of IRPA. That is, permanent residents or foreign nationals may only be found to be inadmissible to Canada under paragraphs 34(1)(a) and 34(1)(f) of IRPA where the espionage in which they are involved—either directly or indirectly—is directed against Canada, or has a nexus to Canada’s national security or security interests. It follows that the decision of the ID was unreasonable, and that the Federal Court did not err in setting that decision aside. . Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers [security]
In Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here where the successful JR applicant argued that immigration inadmissibility [under IRPA, s.34(1)(a) and (f) - 'Inadmissibility - Security'] required that the applicant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in espionage "contrary to Canada’s interests", and that such espionage have a Canadian nexus:[21] The Federal Court found that the ID’s decision was unreasonable in three respects. First, the ID failed to consider the history and purpose of paragraph 34(1)(a), which demonstrated that the provision was introduced to constrain determinations of inadmissibility on espionage‑related grounds.
[22] Second, the ID had treated "“Canada’s interests”" as being equivalent to "“things Canada is interested in”", without considering that there must be some actual nexus to Canada for paragraph 34(1)(a) to be engaged.
[23] Finally, relying on the Federal Court’s decision in Mason v. Canada (Citizenship and Immigration), 2019 FC 1251, the Federal Court found in Mr. Weldemariam’s case that a nexus with national security was required to bring a matter within the scope of subsection 34(1) of IRPA. The Court further found that the ID failed to explain the nexus between the actions of INSA and Canada’s national security.
[24] The Federal Court recognized that espionage activity directed against Canada’s allies may be contrary to Canada’s interests, and that the targeting of an ally could easily be understood as engaging Canada’s national security. However, INSA was not targeting the United States or Belgium—it was targeting private individuals who were merely residing in these countries.
[25] In the Federal Court’s view, it was "“something else entirely”" to suggest that Canada’s national security interests are engaged by the targeting of individuals who are nationals or residents of one of its allies, rather than by the targeting of the ally itself. The Federal Court held that at the very least, it was necessary for the ID to provide a reasonable explanation of the nexus between the targeting of individuals in other countries and Canada’s national security interests for the decision to withstand review. As no such explanation had been provided by the ID, the Federal Court found that its decision lacked justification, transparency, and intelligibility, and Mr. Weldemariam’s application for judicial review was therefore granted.
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[30] Before commencing my analysis, it is important to note that neither the ID nor the Federal Court had the benefit of the Supreme Court’s recent decision in Mason. There, the Court was called upon to interpret paragraph 34(1)(e) of IRPA, which makes permanent residents and foreign nationals inadmissible to Canada on security grounds for "“engaging in acts of violence that would or might endanger the lives or safety of persons in Canada”".
[31] The Supreme Court concluded in Mason that there was only one reasonable interpretation of paragraph 34(1)(e) of IRPA, namely one that requires a nexus to national security or the security of Canada: above at para. 121.
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[56] Again as noted earlier, Article 33(2) of the Refugee Convention creates limited exceptions to the principle of non-refoulement, allowing refugees to be refouled where there are reasonable grounds to believe that the person poses a danger to the security of the host country or has been convicted of a serious crime: Mason at para. 109; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 25.
[57] As a result, a finding of inadmissibility under either paragraphs 34(1)(a) or 34(1)(e) of IRPA can effectively deny a person access to Canada’s refugee procedures and protections.
[58] The Supreme Court observed in Mason that if paragraph 34(1)(e) were interpreted as not requiring a nexus to Canada’s national security or security interests, a foreign national could be deported to persecution once they have been found to be inadmissible under that provision. This could occur without there ever being a finding that the person poses a danger to the security of Canada or has been convicted of a serious crime. This is because the exceptions under Article 33(2) would not apply: Mason, above at para. 109.
[59] The same analysis would apply in the case of inadmissibility under paragraph 34(1)(a) of IRPA.
[60] In this case, the ID interpreted the phrase "“contrary to Canada’s interests”" in paragraph 34(1)(a) as encompassing a broad range of Canada’s interests, including activities that are contrary to the values enshrined in the Charter. This interpretation could subject individuals to being deported to persecution once they have been found to be inadmissible under paragraph 34(1)(a) for being engaged in activities that were contrary to Canada’s interests, without there ever being a finding that there were reasonable grounds to believe that they pose a danger to the security of Canada. This is because, under this interpretation, the exceptions under Article 33(2) would not apply.
[61] In other words, the ID’s interpretation would allow the refoulement of persons inadmissible under paragraph 34(1)(a) of IRPA in circumstances that are outside the scope of the Article 33(2) exceptions.
[62] In contrast, interpreting paragraph 34(1)(a) of IRPA as requiring a nexus with Canada’s national security or security interests would bring the provision into conformity with Article 33 of the Refugee Convention. In accordance with this interpretation, a person found inadmissible under paragraph 34(1)(a) for being engaged in activities that were contrary to Canada’s national security or security interests would come within the security exception to the principle of non‑refoulement enshrined in Article 33(2): Mason, above at para. 109. The result of this would be that a removal order in such cases would not breach Canada’s obligation of non-refoulement: Mason, above at para. 111.
[63] When presented with two competing interpretations of paragraph 34(1)(a) of IRPA, one of which would comply with the requirements of Article 33 of the Refugee Convention and one of which would not, the interpretation that would comply with Canada’s international commitments, including its non-refoulement obligations, should be utilized.
[64] As the Supreme Court observed in Mason, the failure of the ID to consider the role of the Refugee Convention in constraining the interpretation of IRPA was not a minor omission, but a crucial one—one that overlooks the principle of non-refoulement—the very cornerstone of the international refugee protection regime: Mason, above at para. 108; Németh, above at paras. 18‑19. The ID thus ignored a critical constraint on the interpretation of IRPA—one that Parliament has expressly stated must be considered by immigration adjudicators in construing and applying the Act: Mason, above at para. 117. This makes the ID’s decision in this case unreasonable.
[65] This finding provides a sufficient basis for upholding the Federal Court’s decision to set aside the ID’s decision in Mr. Weldemariam’s case. ....
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[97] The understanding that the interests at stake in paragraph 34(1)(a) are Canada’s security interests is further confirmed when regard is had to the chapeau of subsection 34(1). This states that permanent residents or foreign nationals are "“inadmissible on security grounds”" [my emphasis] for various activities, including espionage and membership in organizations that engage in espionage. Once again, this suggests that Parliament intended that the Canadian interests at stake under this provision are its national security or security interests.
[98] In addition to espionage, permanent residents or foreign nationals may be found inadmissible to Canada under subsection 34(1) for involvement in the subversion by force of any government, engaging in terrorism, being a danger to the security of Canada, or engaging in acts of violence that could endanger the lives or safety of persons in Canada. Individuals may also be found to be inadmissible to Canada for being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in any of these activities.
[99] That paragraph 34(1)(a) appears amidst other security grounds in subsection 34(1), "“all of which have a link to national security or the security of Canada”" is telling: Mason, above at para. 121. This placement further constrains the reasonable interpretation of paragraph 34(1)(a) of IRPA.
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