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Immigration - Non-Refoulement. Kirby v. Woods
In Kirby v. Woods (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where a "wrongfully retained child was ordered back to her country of origin after Canada granted her refugee status".
Here the court considers the doctrine of non-refoulement:(ii) The Refugee Convention and Non-Refoulement
[51] The rebuttable presumption of grave risk of harm upon return of a refugee child to her home country aligns with Canada’s international refugee obligations. These obligations are set out in the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (the “Refugee Convention”), ratified by Canada in 1969. The primary purpose of the Refugee Convention is to “assure refugees the widest possible exercise of … fundamental rights and freedoms”: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 72, citing the Refugee Convention preamble; see also A.M.R.I., at para. 53.
[52] Where an individual is a Convention refugee, they have been found – by the tribunal designated to make that determination – to have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, to be “outside the country of his nationality”, and to be “unable, or owing to such fear, unwilling to avail himself of the protection of that country”: Refugee Convention, art. 1A(2); see also Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96. The threshold is a “‘reasonable chance’, a ‘reasonable’ possibility, or a ‘serious possibility’” of persecution: Németh, at para. 98.
[53] The Refugee Convention prohibits the return of refugees. Specifically, art. 33 of the Refugee Convention codifies the principle of non-refoulement, which obligates contracting states not to “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened”. As this court stated in A.M.R.I., at para. 55, “[t]he centrality of the principle of non-refoulement to international refugee protection schemes cannot be overstated.” This principle is considered “the cornerstone of the international refugee protection regime”: A.M.R.I., at para. 55, citing Németh, at paras. 18-19; see also Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 108.
[54] The principle of non-refoulement is codified in s. 115(1) of the IRPA, which provides:A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. [55] Refugee status is a point-in-time determination that an individual faces a well-founded fear of persecution. It is not an immutable characteristic. As stated in Németh, at para. 50, citing refugee scholar James Hathaway: “refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings…. ‘[I]t is one’s de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status’”.
[56] Thus, the rights flowing from an individual’s situation as a refugee are temporal, in the sense that the person is a refugee while the risk exists but ceases to be a refugee when the risk ends: Refugee Convention, art. 1(C). In that sense, the return of an individual who was but is no longer at risk within the meaning of the Refugee Convention, does not constitute refoulement: Németh, at para. 103. . A.A. v. Z.S.M.
In A.A. v. Z.S.M. (Ont CA, 2025) the Ontario Court of Appeal allows an appeal, here where the issue involved "the interplay between provincial family law and federal immigration and refugee laws and obligations in the context of a child’s alleged wrongful retention in Canada".
Here the court considers the immigration refugee principle of 'non-refoulement':[84] The principle of non-refoulement “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations”: A.M.R.I., at para. 54, citing Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281. The court in A.M.R.I. acknowledged, at para. 55, citing Németh, at paras. 18-19, that “[t]he centrality of the principle of non-refoulement to international refugee protection schemes cannot be overstated” and that “[i]t has been described as ‘the cornerstone of the international refugee protection regime’ and aims at preventing human rights violations.”
[85] The court highlighted, at paras. 53-55, Canada’s international obligations regarding the principle of non-refoulement under s. 33(1) of the Refugee Convention and the Protocol Relating to the Status of Refugees, which Canada has ratified:33 (1) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.
[86] Section 115(1) of the IRPA codifies the principle of non-refoulement:115(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment. . Canada (Public Safety and Emergency Preparedness) v. Canadian Association of Refugee Lawyers
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.
Here the court considers the international doctrine of 'non-refoulement':[42] The Minister also argued that the reasonableness of the ID’s interpretation of paragraph 34(1)(a) in this case should not turn on whether it considered the principle of non-refoulement. This, the Minister says, is because the determination of admissibility is distinct from the removal process, and the ID’s finding that Mr. Weldemariam is inadmissible to Canada does not put him on a path to removal so as to trigger the principle of non-refoulement.
[43] However, the same may be said of a finding under paragraph 34(1)(e) of IRPA. The Supreme Court was nevertheless of the view that international law principles, including the principle of non-refoulement, should guide the interpretation of that provision: Mason, above at paras. 109-111.
[44] Specifically, the Supreme Court held in Mason that paragraph 34(1)(e) of IRPA had to be interpreted in a manner that complied with Article 33(2) of the Refugee Convention, which creates an exception to the principle of non-refoulement, permitting the removal of individuals who constitute a danger to the community of the host country: Mason, above at paras. 107-111.
[45] Article 1 of the Refugee Convention defines a "“refugee”" as an individual who has a "“well‑founded fear of being persecuted for reasons of their race, religion, nationality, membership in a particular social group or political opinion”". Article 33(1) of the Refugee Convention provides that "“[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”".
[46] In Mason, the Supreme Court described the principle of non-refoulement as the "“centrepiece”" of the Refugee Convention and "“the cornerstone of the international refugee protection regime”": above at paras. 107-108.
[47] "There is, however, an exception to the principle of non-refoulement. That is, Article 33(2) of the Refugee Convention provides that its protection may not be claimed by a refugee for whom "“there are reasonable grounds for regarding as a danger to the security of the country in which he is”". Also excluded from the protection of the Refugee Convention are those "“who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”".
[48] The Minister submits that IRPA includes safeguards that would be available down the road that would protect Mr. Weldemariam against refoulement. As a result, he says that interpreting paragraph 34(1)(a) without requiring a nexus to Canada’s national security or security interests at the admissibility stage would not contravene Article 33(2) of the Refugee Convention.
[49] However, the Supreme Court carefully assessed the ability of potential "“safety valves”" to ensure compliance with Canada’s international obligations under the Refugee Convention in Mason. In so doing, the Court examined the structure of IRPA, including the interaction between its inadmissibility provisions and the purported safety valves available during the removal process.
[50] The Supreme Court specifically rejected the argument that processes available after a finding of inadmissibility under paragraph 34(1)(e) provide adequate protection against refoulement. Indeed, the Court expressly found that none of these processes ensured compliance with Canada’s international legal obligations under the Refugee Convention: Mason, above at paras. 110-114. These processes are similar to those that would be available to Mr. Weldemariam following an inadmissibility finding under paragraph 34(1)(a) of IRPA.
[51] From this, I am satisfied that the Supreme Court’s decision in Mason requires that this Court consider Canada’s obligations under the Refugee Convention, and, in particular, the principle of non-refoulement, in assessing the reasonableness of the ID’s interpretation of paragraph 34(1)(a) of IRPA at the admissibility stage of the process.
[52] Before commencing this assessment, however, and in fairness to the ID, I should note that the utility of international law as an interpretive aid does not appear to have been raised before it in Mr. Weldemariam’s case. The Supreme Court nevertheless held in Mason that the principle of non-refoulement is a critical legal constraint on interpretation of IRPA—one that Parliament has mandated that immigration adjudicators consider in interpreting the legislation: IRPA at paras. 3(2)(b) and 3(3)(f); Mason, above at paras. 85, 106, 117 and 118; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 at para. 49.
[53] The Refugee Convention is thus determinative of how IRPA is to be interpreted, in the absence of a contrary legislative intention: Mason, above at para. 106; de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 at para. 87; B010, above at para. 49. Neither the parties nor the interveners have identified any legislative provision that would evidence such a contrary intent on the part of Parliament.
[54] Canada has ratified both the Refugee Convention and the Protocol Relating to the Status of Refugees, Can. T.S. 1969 No. 29. These international human rights instruments trigger the interpretive presumption of conformity with international law: Mason, above at para. 105; Németh v. Canada (Justice), 2010 SCC 56, at para. 17.
[55] As noted, Article 33(1) of the Refugee Convention enshrines the ban on refoulement, prohibiting contracting states from expelling or returning refugees to countries where their lives or freedoms would be threatened on account of their race, religion, nationality, membership in a particular social group or political opinion.
[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. . Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers the immigration concept of non-refoulement:(c) Failure to Address Constraints Imposed by International Law
[104] Finally, the IAD failed to address the legal constraints imposed by international law on its interpretation of s. 34(1)(e). As I will explain, the IAD’s interpretation allows foreign nationals to be returned to countries where they may face persecution, contrary to Canada’s non-refoulement obligation in Article 33 of the Refugee Convention. By contrast, interpreting s. 34(1)(e) as requiring a nexus with national security or the security of Canada means that a removal order would not breach Article 33. Although this argument was not presented to the IAD, the IAD was required by its home statute to interpret and apply the IRPA in a manner that complies with Canada’s international human rights obligations, including Canada’s non-refoulement obligation under Article 33 of the Refugee Convention.
....
[107] The centrepiece of the Refugee Convention is contained in the provisions relating to “expulsion and return” (Németh, at para. 18). Article 33, which has been expressly incorporated into the IRPA (s. 115), bars the expulsion or return of a refugee, by any means, to a country where they are at risk of persecution, unless they are found to pose a danger to the security of the host country or are convicted of a serious crime. Article 33 of the Refugee Convention provides:Article 33
Prohibition of Expulsion or Return (“Refoulement”)
1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. [108] Article 33(1) enshrines the principle of non-refoulement, which has been described as “the cornerstone of the international refugee protection regime”, and which, generally, “prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations” (Németh, at paras. 18‑19). Article 33(2), which operates as a limited exception to the principle of non-refoulement in Article 33(1), allows a person to be removed in exceptional circumstances: when there are reasonable grounds for regarding the person as a danger to the security of the country in which they are, or when the person is convicted of a serious crime and is a danger to the community of that country (see Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at para. 25). Article 42 of the Refugee Convention further stipulates that ratifying states may not make reservations to the non-refoulement protections of Article 33 (Németh, at para. 18). The principle of non-refoulement is generally recognized as a norm of customary international law (see Prosecutor v. Germain Katanga, ICC-01/04-01/07, Decision on the application for the interim release of detained Witnesses, 1 October 2013 (Trial Chamber II), at para. 30; Zaoui v. Attorney-General (No. 2), [2005] 1 N.Z.L.R. 690 (C.A.), at paras. 34-35; S. E. Lauterpacht and D. Bethlehem, “The scope and content of the principle of non-refoulement: Opinion”, in E. Feller, V. Türk and F. Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003), 87, at paras. 193-253; H. Lambert, “Customary Refugee Law”, in C. Costello, M. Foster and J. McAdam, eds., The Oxford Handbook of International Refugee Law (2021), 240, at pp. 242-49; and United Nations High Commissioner for Refugees, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (2007), at paras. 14-16).
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