Background
Leonidas Nahayo, a citizen of Burundi, served in the Burundian army from 1982 until 2016. He came to Canada in July 2017 and claimed refugee protection, but that claim was suspended when he was referred to an admissibility hearing. The issue was whether he was inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act because he had been a member of an organization reasonably believed to have engaged in subversion by force under paragraph 34(1)(b).
The parties did not significantly dispute that the Burundian army had participated in attempted or successful coups, including those in 1993 and 1996, or that documentary evidence indicated most of the armed forces were actively or passively complicit. The Immigration Division nevertheless found Nahayo not inadmissible and declined to issue a deportation order. On the Minister’s appeal, the Immigration Appeal Division held that the governing jurisprudence required a broad interpretation of “membership” and that Nahayo’s membership in the army at the relevant times was sufficient to establish inadmissibility.
The Court’s Holding
The Federal Court granted judicial review and set aside the IAD’s decision. Relying on the Supreme Court of Canada’s reasoning in Mason and the Federal Court of Appeal’s subsequent decisions in Weldemariam and Wahab, the Court held that adjudicators must use the Refugee Convention’s principle of non-refoulement as an interpretive guide at the admissibility stage when inadmissibility would effectively sanction refoulement contrary to Article 33(1).
Because the IAD interpreted paragraphs 34(1)(b) and (f) solely by reference to the Burundian army’s conduct and Nahayo’s membership, without considering non-refoulement in light of his circumstances, its decision could not stand. The Court did not decide how non-refoulement should ultimately affect the interpretation of “membership” or the evidence. It remitted the matter to the same IAD member, if available, or another member for reconsideration after giving the parties an opportunity to make additional submissions. No question was certified.
Key Takeaways
- Immigration adjudicators must consider the Refugee Convention’s non-refoulement principle when interpreting security inadmissibility provisions if inadmissibility would effectively permit refoulement contrary to Article 33(1).
- Prior authority broadly interpreting “membership” under paragraph 34(1)(f) did not excuse the IAD from addressing that international-law constraint.
- The Court did not determine whether Nahayo is inadmissible; it returned that question to the IAD for a fresh decision based on the existing record and further submissions.
Why It Matters
The decision confirms that the interpretive approach developed in Mason is not confined to the particular inadmissibility provision considered there. Following the Federal Court of Appeal’s decision in Wahab, non-refoulement can constrain the interpretation of other security inadmissibility grounds, including alleged membership in an organization involved in subversion by force.
For immigration practitioners, the ruling makes an applicant’s potential exposure to refoulement relevant at the admissibility stage rather than only at a later removal stage. Decision-makers must confront that issue expressly, while the precise effect of the principle on the statutory meaning of membership remains for the IAD to determine on the facts.