Symposium on the 1951 Refugee Convention at 75: The Continuing Relevance of the 1951 Convention Relating to the Status of Refugees to the Judiciary in Canada

[The Honourable Russel W. Zinn is a retired Justice of the Federal Court of Canada and President of the International Association of Refugee and Migration Judges]

The Convention Relating to the Status of Refugees [the Convention] was adopted on July 28, 1951.  It is the foundational international treaty defining who a refugee is and their rights.  Originally limited to European refugees post-World War II, the treaty was expanded globally by the 1967 Protocol, which removed temporal and geographic restrictions.

Canada’s Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], specifically sections 96 and 97, incorporates Canada’s obligations as a signatory to  and its 1967 Protocol.  As a result, Canadian national law supersedes those International Instruments.  Having enacted domestic legislation encapsulating its international refugee obligations, one might think that the Convention has no continuing relevance to refugee law in Canada.

However, the recent decision from the Supreme Court of Canada in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason] has reinforced that the Convention remains relevant in Canada to determinations under IRPA.

Mr. Mason was a foreign national in Canada.  He was alleged to have shot two people during an altercation in a bar in British Columbia, Canada on May 12, 2012.  He was subsequently charged with two counts of attempted murder and related firearms offences.  He was never tried on those charges as they were stayed in 2015.  However, the charges and the acts alleged did expose him to scrutiny under IRPA.

Under IRPA, if one is found inadmissible to Canada, then he is prevented from entering or residing in the country.  An inadmissibility determination is usually due to security threats, criminal records, human rights violations, medical conditions, financial instability, or immigration fraud.  If a resident of Canada, without citizenship, is found inadmissible, then he must leave voluntarily or be deported.  An inadmissibility finding can only be reached after the procedural safeguards in IRPA are met.  

First, the IRPA provides that an officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, and transmit it to the Minister.  An inadmissibility report by an officer directed at Mr. Mason was prepared.

Second, IRPA provides that the Minister may refer the report to the Immigration Division [ID] of the Immigration and Refugee Board for an admissibility hearing, if the Minister concludes that the report is well-founded.

Lastly, the ID must hold a hearing to determine if the individual is truly inadmissible under IRPA.

On May 4, 2016, a referral was made by the Minister to the ID alleging that Mr. Mason was inadmissible pursuant to paragraph 34(1)(e) of the IRPA.  That paragraph provides:

A permanent resident or a foreign national is inadmissible on security grounds for … engaging in acts of violence that would or might endanger the lives or safety of persons in Canada.

The ID determined that Mr. Mason is not a person described in paragraph 34(1)(e).  It found that his actions were not caught by the provisions of paragraph 34(1)(e) because his acts of violence had no link to national security or the security of Canada.  In the view of the ID, paragraph 34(1)(e) applied only to acts that had a nexus to national security, not personal security.

The Minister’s appeal of that decision to the Immigration Appeal Division [IAD] was allowed.  The sole issue under appeal was whether individual violent acts that would or might endanger the lives or safety of persons in Canada, without any national security nexus, are caught by paragraph 34(1)(e) of the IRPA.  The IAD ruled that such acts are caught by IRPA:

Inadmissibility under paragraph 34(1)(e) does not require that the conduct have a link to national security or the security of Canada.  Parliament intended that the provisions of subsection 34(1) relate to security in a broader sense.  That includes ensuring that individual Canadians are secure from acts of violence that would or might endanger their lives or safety.

An application for judicial review of the IAD decision was granted by the Federal Court: Mason v Canada (Citizenship and Immigration), 2019 FC 1251, [2020] 2 FCR 3.  Applying the test of reasonableness, proscribed by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov] as the standard of review, the Federal Court held that the IAD’s decision was unreasonable because it failed to appreciate the context of other inadmissibility provisions in the IRPA.  It quashed the decision of the IAD and restored the ID decision.

A further appeal by the Minister to the Federal Court of Appeal was allowed: Canada (Citizenship and Immigration) v Mason, 2021 FCA 156, [2022] 1 FCR 3.  The Court of Appeal found that the Federal Court had wrongly concluded that the IAD’s decision was unreasonable because it failed to appreciate the context of other inadmissibility provisions in IRPA.  In so doing, the Court of Appeal concluded that the review done by the Federal Court was akin to correctness review, not reasonableness review, and accordingly, it erred in law.

In Mason, the Supreme Court of Canada, on appeal from the Federal Courts, considered the interpretation given by those courts and the IRB to paragraph 34(1)(e) of the IRPA.

As noted, the IRB and the Federal Courts, were split as to whether the interpretation of “security ground” in that paragraph means the act(s) of violence in question must have some connection to a threat to the security of Canada or whether it is to be interpreted in a broader sense; namely, to ensure that individual Canadians are secure from acts of violence that would or might endanger their lives or safety.

The Supreme Court held that there is only reasonable interpretation of the provision and the meaning of “security ground” is that there must be a national security nexus to paragraph 34(1)(e), which is beyond a finding that the persons pose a risk to the health and safety of Canadians.

In coming to this interpretation, the Supreme Court of Canada relied heavily on Article 33 of the Convention and its non-refoulment provisions.  

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.

The Supreme Court noted that the broader interpretation which focuses on conduct that may result in Canadians not being secure from acts of violence or which might endanger their lives or safety cannot be accepted as a reasonable interpretation because it conflicts with Canada’s obligations under the 1951 Convention.

Specifically, the Supreme Court found that the broad interpretation would allow a foreign national found inadmissible under paragraph 34(1)(e) of IRPA to be subject to refoulement contrary to Article 33(1) of the Convention.  The Supreme Court observed that if the broader interpretation applied, then a foreign national could be deported to persecution based on a finding that they were inadmissible for acts violence that extend from “domestic altercations” to “bar fights and schoolyard fights.” 

By way of contrast, the Court observed that interpreting paragraph 34(1)(e) as requiring a nexus with national security or the security of Canada would mean that a removal order would not breach Article 33 of the Convention as it falls within the exception described in Article 33(2)

Additionally, the Supreme Court observed that this interpretation complied with paragraph 3(3)(f) of IRPA which provides:

“This Act is to be construed and applied in a manner that … complies with international human rights instruments to which Canada is signatory.”

It is fair to observe that but for the obligations under the Convention, either of the interpretations given to paragraph 34(1)(e) could be said to be a “reasonable” interpretation.  

Relevant to the Mason decision, in Vavilov, the Supreme Court stated that an administrative decision will be unreasonable:

“when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.” 

One of the legal restraints bearing on the interpretation of paragraph 34(1)(e) is the Convention and its prohibition in Article 33 on refoulment.  

Following Mason, there are two immediate consequences for tribunals making inadmissibility determinations and courts reviewing those decisions.  The first is that decision-makers ought not blindly rely on jurisprudence prior to Mason.  The second is that whether raised or not, first level decision-makers must show that they have considered the Convention, or risk a court finding the decision unreasonable.

Two recent examples of the second consequence may be found in Ali v Canada (Public Safety and Emergency Preparedness), 2025 FC 1682 [Ali] and Ahamba v Canada (Public Safety and Emergency Preparedness), 2026 FC 498 [Ahamba] 

Mr. Ali, a former Sudanese politician, was found inadmissible by the ID on security grounds under paragraph 34(1)(b.1) of the IRPA for being a member of an organization that there are reasonable grounds to believe engages in acts of subversion against a democratic government, institution or process in his country of origin.  

He was a member of the National Congress Party [NCP], which was the party in power at the time, led by General al-Bashir.  He held important political positions including being a member of the national parliament.  He says that in December 2016 he was interviewed on the radio and expressed his criticism of the direction the government was taking.  This cost him his position within the party, even though he kept his seat in parliament until 2019, when a coup d’état toppled General al-Bashir’s government.

The ID found that the NCP was an organization that engaged in “an act of subversion against a democratic government, institution or process” within the meaning of paragraph 34(1)(b.1) of the IRPA.  It made this finding without considering any of Canada’s international law obligations. 

The Federal Court allowed his application for judicial review finding that the ID did not consider the issue that the Supreme Court in Mason required it to address.  The only relevant exception to the principle of non‑refoulement is the danger posed by the person concerned to the security of Canada.  Setting aside the pre-Mason case law which gave a broad scope to section 34 of IRPA, the Court held that:

“there is no guarantee that a person in Mr. Ali’s situation would be declared inadmissible only if that person poses a danger to the security of Canada.” 

The inadmissibility decision was return to the ID with instructions to comply with Mason.

The decision involving Mr. Ahamba is similar.  He was a refugee claimant from Nigeria who was found inadmissible to Canada because of his past membership in an organization called the Indigenous People of Biafra [IPOB].  The ID determined that the IPOB was engaged in subversion by to the Nigerian government, and that Mr. Ahamba’s membership in the organization therefore rendered him inadmissible under the IRPA.  

The Federal Court allowed the judicial review application, finding the ID’s decision unreasonable.  Following Mason, the Court found that the ID’s interpretation of the legislation failed to take international law into account and was therefore unreasonable and it quashed the decision.

Mason and these subsequent decisions clearly show that the Convention has a continuing relevance in Canada to the interpretation of the IRPA, and to refugee determinations. 

In future, absent a prior binding judicial interpretation of a ground of inadmissibility, those charged with making such interpretations must consider Canada’s obligations under the Convention.

Photo attribution: by Shaawn on Unsplash