Canada (MPSEP) v. Canadian Association of Refugee Lawyers 2024 FCA 69
In Canada (MPSEP) v. Canadian Association of Refugee Lawyers Justices Laskin, Mactavish and Monaghan assessed the Respondent’s inadmissibility determination. The Respondent did not challenge that he was a member of an organization that engaged in espionage, nor did the Minister claim that the espionage carried out by said organization was “against Canada.” The only issue on appeal was whether the Immigration Division (ID) had reasonably determined that the espionage in question was “contrary to Canada’s interest” within the meaning of s.34(1)(a) of IRPA. The ID had made their inadmissibility determination on an interpretation of s.34(1)(a) that did not require the espionage in question to have a link to Canada’s national security or security interests. The Federal Court had found that the ID’s interpretation of s.34(1)(a) was unreasonable, and that the phrase “contrary to Canada’s interests” required a link to Canada’s security interests (Weldemariam, 2020 FC 631). The Federal Court overturned the ID’s decision and remitted the case back to the ID for redetermination.
The Federal Court had also certified the 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?
When it came to the matter of standard review, the Supreme Court’s majority decision in in Mason, 2023 SCC 21, affirmed that reasonableness is the standard to be applied when certifying questions in the immigration context. The Supreme Court found that neither the ID nor the Federal Court had access to the recent Mason decision. In this case, the Supreme Court was to interpret s.34(1)(e) of IRPA which is responsible for finding permanent residents and foreign nationals inadmissible to Canada on security grounds due to “engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.” The Supreme Court determined that there was only one reasonable interpretation of s.34(1)(e) of IRPA, one that required a link to national security or the security of Canada.
The Federal Court of Appel noted that international law clearly had played a central role in the Mason decision. “It is not open to this Court to disregard the express teachings of the Supreme Court with respect to the duty on immigration adjudicators to construe and apply IRPA in a manner that complies with the international human rights instruments to which Canada is signatory: see Mason, above at para. 104.” The Federal Court of Appeal agreed that the Mason decision required it to consider Canada’s obligations under the Refugee Convention and, moreover, the principle of non-refoulment, when assessing the reasonableness of the ID’s interpretation of s.34(1)(a). The Federal Court of Appeal found that the use of international law as an interpretive aid was not raised by the Respondent. Nevertheless, the Supreme Court, in Mason, held that the principle of non-refoulment is a critical legal constraint when it came to interpretation of the IRPA. “The Refugee Convention is thus determinative of how IRPA is to be interpreted, in the absence of a contrary legislative intention” (at para. 53).
Article 33(1) of the Refugee Convention set out the ban on refoulment, while Article 33(2) created limited exceptions to the principle od non-refoulment. In the case at hand, the ID interpreted the phrase “contrary to Canada’s interest” in s.34(1)(a) as encompassing a broad range of Canada’s interests, including acts that are contrary to the values set out in the Charter. The Federal Court found that the ID’s interpretation would grant the refoulment of those found inadmissible under s.34(1)(a) in circumstances that are outside the scope of Article 33(2) exceptions. In comparison, interpreting s.34(1)(a) as requiring a link to Canada’s national security or security interest would confirm with the provisions set out in Article 33 of the Refugee Convention. The s.34(1)(a) interpretation that complies with Canada’s international commitments, including non-refoulment obligations, should be used. The ID’s failure to consider the role of the Refugee Convention when interpreting the IRPA and the constraints it would have, rendered the decision unreasonable. This was sufficient to uphold the Federal Court’s decision.
Furthermore, the Court found that the ID did not consider several techniques of statutory interpretation. Section 34(1)(a) does not define the phrase “contrary to Canada’s interests.” The Court found that the phrase must be interpreted within the context of the rest of s.34(1) as well in a larger context of Division 4 of the IRPA. Approaching it from this perspective makes it clear that the phrase “contrary to Canada’s interests” refers to security interests. Moreover, there are other provisions within IRPA that limit the interpretation of s.34(1)(a) that were not considered by the ID. As an example, the Court highlighted the provisions related to Pre-Removal Risk Assessment (PRRA) supporting the interpretation that security grounds under s.34(1) of IRPA require a link to national security or security of Canada. The Court found that interpreting the aforementioned phrase as requiring a link to Canada’s national security or security interests would align with the purpose of the provision. Due to the 2013 amendments to the IRPA, engaging in acts of espionage and engaging in acts of subversion became two separate and distinct inadmissibility grounds. The Court found that the ID not once considered whether its broad interpretation of s.34(1)(a) was consistent with Parliament’s intention to narrow the scope of espionage grounds for inadmissibility.
The Court did acknowledge that even though there were some constraints that would support the ID’s interpretation of s.34(1)(a), there were also fundamental legal constraints and principles of statutory interpretation that the ID failed to address that led to the opposite interpretation. These constraints greatly supported the conclusion that there is only one reasonable interpretation of s.34(1)(a) of IRPA “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” (at par. 118). The decision of the ID was deemed unreasonable and to be quashed. In the case at hand, ss.34(1)(a) and (f) of the IRPA did not offer legal grounds for finding the Respondent inadmissible to Canada. As the Minister did not allege any other grounds for inadmissibility, the matter would not be remitted back for redetermination. The certified question was answered in the negative and the Court dismissed the Minister’s appeal.
Canada (MPSEP) v. Yihdego 2024 FCA 70
In Canada (MPSEP) v. Yihdego Justices Laskin, Mactavish, and Monaghan J.J.A. examined the Respondent’s inadmissibility determination. The Respondent was found inadmissible to Canada pursuant to s. 34(1)(a) and (f) of the IRPA. The Respondent did not challenge that he was a member of an organization that engaged in espionage, nor did the Minister claim that the espionage carried out by said organization was “against Canada.” The only issue on appeal was whether the Immigration Division (ID) had reasonably determined that the espionage in question was “contrary to Canada’s interest” within the meaning of s.34(1)(a) of IRPA. The ID had made their inadmissibility determination on an interpretation of s.34(1)(a) that did not require the espionage in question to have a link to Canada’s national security or security interests. The Federal Court (2020 FC 833) determined that the ID’s interpretation of s.34(1)(a) was unreasonable, quashing the ID’s decision and sending the case back for redetermination. The Federal Court also certified a similar question, the one certified in Weldemariam, 2020 FC 631. The Minister’s appeal of the two decisions were heard jointly, with the arguments proceeding largely the same way.
The Federal Court of Appeal had provided a detailed analysis of the international law and other statutory interpretations in connection with to the interpretation of s.34(1)(a) of IRPA in its decision related to the Weldemariam appeal. The same analysis was equally applicable to the present case. For the same reasons, the Federal Court of Appeal concluded there is only one reasonable interpretation of s.34(1)(a) of IRPA “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” (at par. 24). In the case at hand, ss.34(1)(a) and (f) of the IRPA did not offer legal grounds for finding the Respondent inadmissible to Canada. As the Minister did not allege any other grounds for inadmissibility, the matter would not be remitted back for redetermination. The certified question was answered in the negative and the Court dismissed the Minister’s appeal.
Maleki v. Canada (MCI) 2024 FC 590
In Maleki v. Canada (MCI) Justice Southcott reviewed the Applicant’s Refugee Appeal Division (RAD) decision. The Applicant was a citizen of Iran who feared harm from the Iranian regime due to 1) a land dispute with a Shia mullah; 2) his Kurdish ethnicity; and 3) his Sunni religion. The Refugee Protection Division (RPD) had rejected his claim and the RAD dismissed the appeal. The Applicant secured new counsel, filing an application to re-open his RAD based on inadequate representation by his former legal representative. The RAD had reopened the appeal. The RAD took into consideration three new pieces of evidence provided by the Applicant: a 2021 summons, a 2022 summons, and a letter from the Applicant’s mother. The RAD found the summons to be fraudulent as they were inconsistent with the samples within the National Documentation Package (NDP). As the mother’s letter referred to the service of a summons (which was deemed fraudulent), the RAD deemed the letter’s contents to not be credible or relevant, and dismissed it for lack of probative value. The RAD rejected all new evidence and the appeal was dismissed for a second time.
On judicial review, Justice Southcott found that the RAD erred in determining that the 2021 summons did not have the agent serving the document or a spot for signature. At the time of the hearing, the Respondent had conceded that the above summons did have this information, but that the 2022 summons was missing information contained in the NDP sample, which included the signature of the serving agent. It was Justice Southcott’s view that the RAD erred in their comparison of the 2021 summons to the sample, which contributed to the determination that the 2021 summons was fraudulent. This was a reviewable error that undermined the reasonableness of the decision and favoured the granting of the application for leave and judicial review. Even if the RAD’s analysis of the 2022 summons remained unchallenged, the potential that at least one of the two summons was legitimate demanded that the decision be quashed. The application for leave was allowed.
Tapambwa v. Canada (MCI) 2024 FC 577
In Tapambwa v. Canada (MCI) Justice Southcott assessed the Applicants’ citizenship application decision. The Applicants sought to appeal their refused applications for Canadian citizenship, which were refused pursuant to s.5(4) of the Citizenship Act. The Applicants had served in the Zimbabwean National Army (ZNA) as civilian employees between 1981 to 2001. They were primarily responsible for payroll. The Applicants had left Zimbabwe in 2001 and went to the United States (US). In 2011, the Applicants came to Canada and proceeded to seek asylum. The Refugee Protection Division (RPD) found the Applicants to be excluded from protection under Article 1F(a) as there were serious reasons to believe that the Applicants were complicit in crimes against humanity committed by the ZNA. Based on the RPD’s exclusion finding, in 2013, the Applicants were found inadmissible to Canada pursuant to s.35(1)(a) of IRPA. Since then, the Applicants have put forward 3 unsuccessful Pre-Removal Risk Assessment (PRRA) application. The Applicants had also submitted applications for Citizenship in 2019, seeking discretionary consideration under s.5(4) of the Citizenship Act. The Minister’s delegate refused their applications.
On judicial review, Justices Southcott’s decision pivoted on the Applicants’ argument that the Minister’s delegate failed to intelligibly address their main argument that they had been “wrongly” excluded and “wrongly” found inadmissible and, as IRPA provisions had no relief mechanism against such circumstances, a discretionary remedy under s.5(4) of the Citizenship Act was appropriate. To support this argument, the Applicants highlighted that in a Restriction Assessment (conducted with regards to the second PRRA), Canada Border Services Agency (CBSA) had determined that upon application of the legal standard for complicity identified by the Supreme Court in Ezokola, 2013 SCC 40, the applicants were not complicit in crimes against humanity. Justices Southcott found this to be a compelling argument, as the Applicant’s inadmissibility determination had been made based on the pre-Ezokola test for complicity. When applying what is now considered the correct test for complicity, the Applicants were not complicit in crimes against humanity. The Minister’s delegate failed to meaningfully engage with this argument. The application for leave was allowed.
Cheng v. Canada (MCI) 2024 FC 560
In Cheng v. Canada (MCI) Justice Ahmed examined the Applicants’ Humanitarian and Compassionate (H&C) decision. The Principal Applicant (PA) and her minor son came to Canada in 2019 and made an unsuccessful claim for asylum, as well as a subsequent unsuccessful H&C application in 2022. On judicial review, Justice Ahmed found that the Officer had erred by giving neutral weight to the PA’s establishment, calling her circumstances “typical” when compared to other applicants in similar situations. Justice Ahmed found that this comparative approach is not in line with the basic nature of an H&C: the examination of an individual person’s circumstances to ascertain whether H&C relief is warranted. A comparative approach demands that an individual’s circumstances be exceptional in order to be granted positive weight, which is not the correct threshold to be applied. In addition, the Officer’s statement when it came to the PA’s activities as “not uncharacteristic activities undertaken by newcomers to a country” was unreasonable. Justice Ahmed went on to state that “faced with an officer deeming one’s situation be “typical,” an applicant encounters an inauspicious logic: “Establish yourself in Canada and be deemed ‘typical;’ fail to establish yourself in Canada and be deemed to lack ties in Canada. Either will seal your fate.” This renders the establishment analysis a meaningless disjunction, and therefore illogical” (at par. 25).” Justice Ahmed found it concerning that the Officer’s decision had simplified the PA’s establishment efforts to her being a “newcomer.” Labeling individuals as “newcomers” who took part in “newcomer” activities was stereotyping and is the opposite of viewing an applicant’s case with compassion.
While the faulty establishment analysis was sufficiently serious to render the whole decision unreasonable, Justice Ahmed also found the Officer’s Best Interests of the Child (BIOC) analysis unreasonable. The Officer had determined that returning the PA’s son to China would not “compromise his best interests” as there was no evidence that he suffered from a medical condition for which treatment was not available in Hong Kong, and he would be able to continue his education in China, despite excelling academically and thriving socially in Canada. This analysis was incorrect as it suggested that the child’s best interests when it came to remaining in Canada were somehow mitigated if the alternative would meet the child’s basic needs. In addition, the Officer provided only speculative evidence for finding that the child’s needs could be met in China, making the decision lack justification. Lastly, Justice Ahmed found that the Officer overly deferred to the Refugee Protection Division’s (RPD) decision regarding hardship that Applicants would face in China. The application for leave was allowed.