Federal Court Overturns Immigration Decision for Ignoring International Law

Date: 20260415 Docket: IMM-23912-24 Citation: 2026 [NAME] 498 Toronto, Ontario, April 15, 2026 PRESENT: Mr. Justice Brouwer BETWEEN: [NAME] Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDNESS Respondent

JUDGMENT AND

REASONS [ 1 ] [NAME] is a [NAME] from Nigeria. He was found inadmissible to Canada based on his past membership in an [NAME] called the [NAME] [IPOB]. The Immigration Division [[NAME]] of the Immigration and [NAME] Board [IRB] determined that the IPOB was engaged in subversion by force of the [NAME], and that [NAME]’s membership in the [NAME] therefore rendered him inadmissible under ss 34(1)(b) and (f) of the Immigration and [NAME] Protection Act , SC 2001, c 27 [ IRPA ]. [NAME] argues that the [NAME]’s interpretation of the legislation failed to take international law into account and was unreasonable. As explained below, I agree and will set aside the decision.

I. Background [ 2 ] [NAME] is a citizen of Nigeria and is of Igbo, indigenous descent. In 2010 he became involved in the [NAME] and in 2012, he joined the newly formed [NAME], IPOB. Although there is no evidence to suggest he had any official role within the IPOB, [NAME] identified as a member and supported the [NAME] by helping to organize peaceful protests and disseminating information encouraging Biafrans to speak out about injustices experienced by their community. [ 3 ] In April 2014, [NAME] was arrested and held without charge for three days. Before being released he was warned to stop organizing protests. He did not stop, and in May 2015 he was arrested again. This time he was held for 10 days and tortured before being released, again without charge. He resumed his political advocacy but in October 2015 he learned that the military was looking for him again. He went into hiding to avoid arrest and two months later, in December 2015, he fled to the USA with his wife and their child, on a student visa. His active involvement with the IPOB ceased with his departure from Nigeria. [ 4 ] In November 2019, for reasons detailed in their [NAME] claims, [NAME] and his spouse, along with their daughter and US-born son, crossed into Canada and claimed [NAME] protection. They asserted a well-founded fear of persecution in Nigeria based on [NAME]’s membership in the IPOB and his activism on their behalf. [ 5 ] [NAME]’s spouse and eldest child were granted [NAME] protection by the [NAME] Appeal Division [RAD] of the IRB, based on their association with [NAME]. Both the [NAME] Protection Division and the RAD found [NAME]’s spouse to be a credible witness, and they accepted as fact that [NAME] had been detained and tortured by Nigerian authorities because of his activism with the IPOB. Processing of [NAME]’s own [NAME] claim, however, was suspended because the Canada Border Services Agency [CBSA] had alleged his IPOB membership rendered him inadmissible to Canada on the grounds that the IPOB was engaged in subversion by force of the [NAME], contrary to ss. 34(1)(b) and (f) of the IRPA . The CBSA referred the matter to the IRB’s [NAME] for an admissibility hearing, which took place on January 24, 2024. [ 6 ] By decision dated December 12, 2024, the [NAME] accepted CBSA’s allegation and issued a Deportation Order against [NAME] for inadmissibility under ss. 34(1)(b) and (f) of the IRPA . The [NAME] determined that (a) although [NAME] ceased active involvement with the IPOB when he left the country in 2015 and had had no further contact or involvement since that time, he remained a member for four more years until at least 2019, and (b) the IPOB had been engaged in subverting the [NAME] since its formation in 2012.

II. Legislation [ 7 ] Subsection 34(1) of the IRPA provides as follows: 34 (1) A permanent resident or a [NAME] is inadmissible on security grounds for 34 (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests; a) être l’auteur de tout acte d’espionnage dirigé contre le Canada ou contraire aux intérêts du Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un [NAME] par la force; (b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada; b.1) se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an [NAME] that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c).

III. Issues [ 8 ] In his Memorandum of Fact and Law, [NAME] asserts that the [NAME] violated the duty of procedural fairness, made an unreasonable finding regarding the temporality of [NAME]’s membership under s. 34(1)(f) of the IRPA , and based its determination that the IPOB had engaged in “subversion by force” contrary to s. 34(1)(b) of the IRPA on a number of unreasonable findings of fact regarding the character, history and activities of the IPOB. [ 9 ] In addition, following this Court’s request for submissions on the relevance of the October 10, 2025, decision of Justice Sébastien Grammond in [NAME] v [NAME]), 2025 [NAME] 1682 [ [NAME] ], [NAME] argues that [NAME] unreasonably failed to consider whether the Deportation Order against him based on his inadmissibility was “consistent with the constraints imposed by international law, specifically, the principle of non-refoulement set out in Article 33 of the Convention” ( [NAME] at para 7, referring to the Convention relating to the Status of Refugees , 28 July 1951, 189 UNTS 137 [Convention]). As explained below, I find this latter issue to be determinative.

IV. Analysis A. The [NAME] unreasonably failed to take international law, in particular the principle of non-refoulement, into account as an important legal constraint on the interpretation of s. 34(1) of the IRPA [ 10 ] To evaluate the reasonableness of the [NAME]’s decision, this Court asks whether the decision “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” ( Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65 at para 99). This approach applies also to the evaluation of a tribunal’s interpretation of legislation, and requires the reviewing court not to “undertake a de novo analysis of the question or ‘ask itself what the correct decision would have been’” ( [NAME] at para 116) but to “examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached” ( [NAME] at para 116). As the Supreme Court of Canada explained in [NAME] : [69] Although an administrative decision maker need not “engage in a formalistic statutory interpretation exercise in every case” (para. 119), its decision must be consistent with the “modern principle” of statutory interpretation, which focusses on the text, context, and purpose of the statutory provision. The decision maker must demonstrate in its reasons that it was alive to those essential elements (para. 120). The omission of a minor aspect of the text, context, or purpose is unlikely to undermine the decision as a whole: omissions are not “stand-alone grounds for judicial intervention” (para. 122). In each case, “the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker” (para. 122). For example, an administrative interpretation may well be unreasonable if it fails to consider the potentially harsh consequences of its interpretation of a statutory provision for a large class of individuals, and whether, in light of those consequences, the legislature would have intended the provision to apply in that way (paras. 191-92). And even if a decision does not explicitly consider the meaning of a relevant provision, the court may be able to discern the interpretation adopted from the record and evaluate whether it is reasonable (para. 123). [ 11 ] In rendering the decision under review, the [NAME] relied on established jurisprudence from this Court and from the Federal Court of Appeal to interpret the scope of inadmissibility under ss. 34(1)(b) and (f) of the IRPA . In particular, it found based on often-cited judgments in Canada (Minister of Citizenship and Immigration) v [NAME] , 1998 CanLII 8281 ([NAME]) and [NAME] v Canada (Minister of Citizenship and Immigration), 2005 FCA 85 (incorrectly cited by the [NAME] as “2005 [NAME] 1034” ), that “membership” under s. 34(1)(f) has consistently received a “broad interpretation,” and that pursuant to [NAME] v Canada (Citizenship and Immigration), 2022 [NAME] 1520, if membership is admitted there is generally no need for further analysis. [ 12 ] To interpret “subversion by force of a government” under s. 34(1)(b) of the IRPA , the [NAME] relied on Canada (Citizenship and Immigration) v [NAME]., 2014 [NAME] 416 [ [NAME]. ], [NAME] v Canada (Minister of Citizenship and Immigration) (F.C.), 2005 [NAME] 1077 [ [NAME] ], and [NAME] v Canada (Minister of Citizenship and Immigration) , 2014 FCA 262 [ [NAME] ]. These authorities define subversion as “‘accomplishing change by illicit means’ and … most commonly…the use or encouragement of force, violence or criminal means with the goal of overthrowing a government” ( [NAME]. at para 36), and note that “by force” includes “coercion or compulsion by violent means, coercion or compulsion by threats to use violent means, and…reasonably perceived potential for the use of coercion by violent means” ( [NAME] at para 27). As noted by the [NAME], this jurisprudence also rejected the notion that the term “any government” might be limited to democratic or human-rights-respecting ones, finding to the contrary that the provision also applies to governments that are oppressive and racist ( [NAME] at para 70). [ 13 ] These authorities either do not engage with, or reject, the notion that international law – and particularly the principle of non-refoulement – might constrain the interpretation of the provisions at issue. [ 14 ] This jurisprudence has long been relied upon by this Court as well as by the [NAME] to interpret s. 34(1) of the IRPA as casting a wide net. However, on September 27, 2023 – more than a year before the [NAME] issued the decision under review – the Supreme Court of Canada issued its groundbreaking decision on the interpretation of s. 34(1)(e) of the IRPA in [NAME] v Canada (Citizenship and Immigration) , 2023 SCC 21 [ [NAME] ]. The decision, as I read it, constitutes a course correction, “forcefully” reminding the parties and the courts that international law has an important role to play for the interpretation of domestic legislation, particularly the IRPA ( [NAME]) v [NAME], 2024 FCA 69 at paragraph 34 [ [NAME] ]; [NAME] at paras 104-117). Indeed, the Supreme Court of Canada ruled that a finding of inadmissibility under s. 34(1) of the IRPA that fails to account for the constraints imposed by international law is unreasonable. This is because such an interpretation could result in a [NAME] being returned to a country where they may face persecution, contrary to Canada’s non-refoulement obligation as expressed in Article 33 of the Convention. [ADDRESS] held that “the principle of non-refoulement – ‘the cornerstone of the international [NAME] protection regime’” forms a “critical legal constraint on interpretation of the IRPA, one that Parliament has decreed must be considered in construing and applying the IRPA” ( [NAME] at para 117) . As Justice Grammond has described the decision in [NAME] : [20] …[NAME] signalled a major change with respect to the role of the Convention and the principle of non-refoulement in the interpretation of section 34. [ADDRESS] underscored the presumption that statutes must be interpreted in a manner consistent with international law. It noted that this presumption assumed added force with respect to the Act because paragraph 3(3)(f) of the Act requires it to be construed and applied in a manner that “complies with international human rights instruments to which Canada is signatory”, including the Convention. [ 15 ] The Supreme Court found that to align s. 34(1)(e) with the limited scope of permissible exceptions to the principle of non-refoulement under the Convention, it must be interpreted as requiring a nexus with national security or the security of Canada ( [NAME] at para 121). [ 16 ] In [NAME] , issued a few months after [NAME] , the Federal Court of Appeal considered the implications of [NAME] for the interpretation of a different security inadmissibility provision under s. 34(1) of the IRPA . The Federal Court of Appeal determined that the analysis in [NAME] was not limited in application to s. 34(1)(e) but applied with equal force to the interpretation of s. 34(1)( a) of the IRPA , inadmissibility for “espionage that is against Canada or that is contrary to Canada’s interests.” The Federal Court of Appeal found that the [NAME]’s broad interpretation of the provision, which failed to account for the international law principle of non-refoulement, ran afoul of the Convention: [60] ...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 [NAME]’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. [ 17 ] The Federal Court of Appeal determined that, consistent with the reasoning of the Supreme Court of Canada in [NAME] regarding s. 34(1)(e) of the IRPA , the only reasonable interpretation of s. 34(1)(a) was a narrower one that included a nexus to national security. Notably, the fact that the [NAME]’s decision was rendered before [NAME] had been decided by the Supreme Court of Canada did not insulate it from a finding that the failure to take into account the critical legal constraint of non-refoulement in the interpretation of the provision was a reviewable error ( [NAME] at para 52) and was unreasonable. [ 18 ] In [NAME] , my colleague Justice Grammond applied both [NAME] to find that the [NAME]’s interpretation of ss. 34(1)(b.1) and (f), though generally consistent with the above-noted pre- [NAME] jurisprudence, was unreasonable because it, too, failed to account for the constraints imposed by international law. He explained: [30] In my view, the pre- [NAME] case law gave section 34 a scope that greatly exceeds that of the exceptions to the principle of non-refoulement . This stems from the fact that the presumptions it sets out are not subject to any clearly defined limits that would ensure a nexus with the security of Canada. This is especially the case for the ground of membership in an [NAME]: [NAME] at paragraph 64. As I mentioned above, the [NAME] may have hundreds of thousands of members; it could have renounced its wrongful activities a long time ago, and membership in the [NAME] is defined broadly and flexibly. The concatenation of the broad interpretation of these various concepts, especially if they are assessed independently from one another, results in the inadmissibility of persons who pose no danger to the security of Canada. I also do not exclude that the definition of the wrongful acts—subversion, in this case—may be problematic, even though [NAME] did insist on this aspect in his submissions. [31] This overbreadth stems from the fact that the pre- [NAME] case law defined the main concepts used by section 34 without considering whether the result was consistent with the principle of non-refoulement . In other words, the case law never considered whether the presumptions established by section 34 retained a rational link with their object, namely, the danger to the security of Canada: [NAME] at paragraph 121. It also did not require the [NAME] to consider, at the end of its analysis, whether the person it is about to find inadmissible is a danger to the security of Canada. Yet, according to [NAME] , considering this issue is essential to ensure compliance with the principle of non-refoulement and to guarantee that the Act is construed and applied in a manner that complies with “international human rights instruments to which Canada is signatory”, specifically, the Convention, as required by paragraph 3(3)(f) of the Act. [NAME] dealt with specific components of section 34, their underlying reasoning applies to the provision as a whole and even to other grounds for inadmissibility: [NAME] v Canada (Citizenship and Immigration) , 2024 [NAME] 1985 at paragraphs 24–26. [ 19 ] Justice Grammond concluded: [35] [NAME] … force the [NAME] (and the IAD) to take measures to prevent section 34 from resulting in the inadmissibility of persons who do not pose a danger to the security of Canada. As the [NAME] in [NAME]’s case did not do so, its decision is unreasonable. (1) Applicant’s position [ 20 ] [NAME] argues that the binding decisions in [NAME], together with [NAME], leave no doubt that the [NAME]’s interpretation of ss. 34(1)(f) and (b) was unreasonable because it fails to account for the legal constraints imposed by international law, particularly the principle of non-refoulement . [ 21 ] [NAME] argued before the [NAME] that “subversion by force of any government” should be interpreted in a manner that is consistent with the international legal principle of self-determination, he did not place [NAME] before the [NAME] nor did he raise the principle of non-refoulement as an interpretive constraint. This does not matter. The duty to interpret s. 34(1) of the IRPA consistently with the “critical legal constraint” of international law is not contingent on the parties asking the tribunal to do so. Rather, the duty flows from the requirements of the legislation itself – in particular ss. 3(2)(b) and 3(3)(f) – and the well-established principle of conformity with international law ( [NAME] at paras 104-106, 117; [NAME] at paras 52-54; [NAME] at para 20). (2) Respondent’s position [ 22 ] The Minister does not challenge [NAME]’s assertion that the [NAME] did not consider the principle of non-refoulement. However, she objects to [NAME]’s argument that the [NAME]’s failure to consider the principle of non-refoulement was a reviewable error because [NAME] did not raise the argument in his Memorandum of Fact and Law. She submits in the alternative that [NAME] was wrongly decided and that, “properly understood,” [NAME] do not require the [NAME] to consider the principle of non-refoulement when interpreting ss. 34(1)(b) and (f) of the IRPA . I will address the Minister’s objection first. (a) The objection is unfounded [ 23 ] I agree with the Minister that [NAME] did not clearly argue, in his Memorandum of Fact and Law, that the [NAME] erred by failing to account for the principle of non-refoulement as a critical legal constraint on the interpretation of s. 34(1) of the IRPA . He did, however, expressly rely on [NAME] for “the overarching interpretative principle in s. 3(3)(f) of the IRPA, [that] the Act must be construed and applied in accordance with international instruments to which Canada is a signatory.” [NAME] was therefore before the Court from the outset. The Minister, however, chose not to engage with it in her own Further Memorandum of Argument, and neither party raised [NAME] or [NAME] in their written arguments despite the relevance of the judgments. [ 24 ] Because of this apparent gap in the pleadings with respect to two binding authorities and one very recent potentially persuasive judgment that applied them, the Court issued a Direction to the parties a few days before the hearing, putting counsel on notice that they should be prepared to address the [NAME] judgment in the oral hearing. At the hearing, however, the Minister advised that she had not had enough time to prepare pleadings on [NAME] and requested additional time to do so in writing after the hearing. The Applicant did not object and the Minister’s request was granted, permitting both parties to provide written representation on [NAME] , and on any questions they wish to propose for certification. [ 25 ] Notwithstanding this notice to the parties before the hearing and the Court’s permission to make post-hearing written submissions, the Minister maintains that the Court should decline to entertain [NAME]’s argument based on [NAME] because it is “new” and was not raised either in [NAME]’s Application for Leave and Judicial Review or in his Memorandum of Fact and Law. [ 26 ] There is no merit to the Minister’s objection. The boilerplate list of grounds contained in the Application for Leave and Judicial Review was sufficient to put the Minister and the Court on notice that the reasonableness of the [NAME]’s decision was at issue. As noted above, moreover, while [NAME] was not addressed in [NAME]’s memorandum (because it postdates it), [NAME] was explicitly raised in [NAME]’s challenge to the reasonableness of the [NAME]’s interpretation of the inadmissibility provisions. Moreover, the Minister was put on notice in advance of the hearing that [NAME] was to be addressed and was given an additional week after the hearing to provide written arguments on the issue, notwithstanding the prior notice. The Minister does not allege any prejudice or unfairness, and none arises. The objection is therefore dismissed. (b) [NAME] is persuasive [ 27 ] The Minister argues in the alternative that [NAME] was wrongly decided – largely because it conflicts with the pre- [NAME] jurisprudence that Justice Grammond carefully distinguished – and that [NAME], “properly understood and read in its context,” is “not necessarily dispositive” of grounds of inadmissibility beyond s. 34(1)(e). [ 28 ] The issue before the Court is therefore whether, pursuant to the reasoning in [NAME], the [NAME] is required to take account of the principle of non-refoulement when interpreting the scope of the IRPA ’s security inadmissibility provisions – here ss. 34(1)(b) and (f); in [NAME] s. 34(1)(e); in [NAME] s. 34(1)(a); in [NAME] v. Canada (Citizenship and Immigration) , 2024 [NAME] 1985, s. 35(1)(b); and in [NAME] ss. 34(1)(b.1) and (f). [ADDRESS] of Appeal found it is in [NAME]. Justice Grammond found the same in [NAME], as did my colleague Justice Janet Fuhrer in [NAME]. The Minister has neither distinguished these recent authorities nor persuaded me that they are wrongly decided and should not be followed. [ 29 ] The Minister argues that [NAME] is no more persuasive than two other post- [NAME] decisions, [NAME] v [NAME]) , 2024 [NAME] 1489 [ [NAME] ] and [NAME] v [NAME]) , 2025 [NAME] 138 [ [NAME] ], in which the pre- [NAME] jurisprudence continued to be relied upon. [ 30 ] It is true that in [NAME] applied the pre- [NAME] jurisprudence on “membership” and rejected the submission that [NAME] imposed a requirement to consider the principle of non-refoulement or the consequences of an inadmissibility finding ( [NAME] at paras 70-83). However, with the greatest respect, I am unable to discern in Justice Brown’s findings an engagement with the reasoning of the Supreme Court of Canada in [NAME] at paras 104-111, 115, 117, or of the Federal Court of Appeal in [NAME] at paras 34, 38-65, on these very issues . The [NAME] judgment also appears to rely, at least in part, on the fact that the decision under review was rendered before the [NAME] judgments were issued ( [NAME] at paras 81-82), a consideration that, again with respect, is difficult to square with [NAME] at paragraph 104 and [NAME] at paragraph 52. As such, I do not find that [NAME] undermines the persuasiveness of Justice Grammond’s subsequent and more detailed analysis in [NAME] . [ 31 ] As for [NAME] , while it is true that Justice Grammond stated there that he continued to be bound by the Federal Court of Appeal’s pre- [NAME] decision in [NAME] v Canada (Citizenship and Immigration) , 2015 FCA 86 [ [NAME] ] with respect to the definition of membership under s. 34(1)(f) of the IRPA , there is nothing in the judgment to suggest that the implications of [NAME] were actually raised and argued by the parties, nor did Justice Grammond provide his rationale for his conclusion that he remained bound by [NAME] in light of [NAME] . [NAME] is therefore less persuasive than Justice Grammond’s subsequent, fully developed reasoning in [NAME] . (c) Redundancy and “absurd consequences” not established [ 32 ] The Minister also argues that adopting Justice Grammond’s interpretation of [NAME] would render s. 34(1)(d) of the IRPA – inadmissibility for “being a danger to the security of Canada” – redundant and would lead to “absurd” consequences, such as a requirement that the [NAME] conduct an individualized risk assessment as part of every admissibility hearing, which the Minister notes would exceed its jurisdiction. [ 33 ] The redundancy argument was considered in [NAME]. The Supreme Court of Canada was clearly unpersuaded that the potential for redundancy or overlap outweighed the other interpretive considerations – namely the principle of non-refoulement – that justified requiring a nexus between the relevant act of violence and national security or the security of Canada in the interpretation of s. 34(1)(e). As Justice Grammond explained further in [NAME], “the various components of s. 34(1) of the Act can be considered as presumptions that the person concerned is a danger to the security of Canada based on the conduct in question” whereas “[o]nly paragraph 34(1)(d) is not a presumption because it explicitly refers to a danger to the security of Canada” ( [NAME] at para 29). [ 34 ] The Minister’s claim that applying [NAME] and [NAME] would require the [NAME] to conduct an individualized risk assessment as part of every admissibility hearing is, at best, premature and speculative as to how the [NAME] will reinterpret the provisions at issue, on redetermination, in a way that accounts for the constraints of international law. The Minister certainly has not established that the only way to do so is to require an individualized risk assessment as part of the admissibility determination (notably neither [NAME], nor [NAME], nor [NAME] found any such requirement). And there are obvious alternatives, such as requiring a clear nexus to Canada’s national security for inadmissibility under s. 34(1)(b) of the IRPA (as required by [NAME] ), and/or adopting a non-refoulement -respecting interpretation of “membership” under s. 34(1)(f) from [NAME] law (per [NAME] v Canada (Citizenship and Immigration), 2013 SCC 40; see also [NAME] v Canada (Citizenship and Immigration), 2025 [NAME] 111 at para 69). [ 35 ] The Minister will have an opportunity to participate in the redetermination of this matter before the [NAME]. If the [NAME] reaches an interpretation of the provisions at issue with which the Minister disagrees, the Minister can challenge that interpretation on appeal to the Immigration Appeal Division and/or, with leave, on judicial review before this Court. (d) [NAME] has been overtaken by [NAME] [ 36 ] Finally, I am also unable to accept the Minister’s submission that this Court should continue to apply the Federal Court of Appeal’s 2014 interpretation of s. 34(1)(b) of the IRPA from [NAME]. To do so would be to ignore the subsequent binding judgments of the Supreme Court in [NAME] in 2023 and of the Federal Court of Appeal in [NAME] in 2024 . [ 37 ] In [NAME], the Federal Court of Appeal found that inadmissibility and removal are “distinct concepts” that “should not be confused” with one another, and relied on the fact that [NAME] had [NAME] status to find that, regardless of an inadmissibility finding, he could not be removed “without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the [NAME]” ( [NAME] at para 54). The Federal Court of Appeal therefore determined that, for the purposes of [NAME]’s appeal, “the only relevant international human rights instrument” at issue was the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) [being Sch. V of the Geneva Conventions Act, R.S.C., 1985, c. G-3], 8 June 1977, 1125 U.N.T.S. 3, ratified by Canada in 1990 (Protocol I)” (para 47). It is therefore indisputable that that the Federal Court of Appeal did not consider the principle of non-refoulement as a constraint on the interpretation of ss. 34(1)(b) and (f) of the IRPA (paras 47-54). [ 38 ] Nine years later in [NAME] , however, the Supreme Court explained not only that a removal order based on inadmissibility under s. 34(1)(e) of the IRPA would , “as a general rule, allow for a removal order without protection from refoulement, contrary to Article 33(1) of the [NAME]” (para 110), but also that this conclusion was not dependent on the appellant being a [NAME]: [115] That neither Mr. [NAME] nor [NAME] is a [NAME] does not detract from this conclusion. The [NAME] imposes an important legal constraint on the interpretation of s. 34(1)(e) generally, irrespective of whether the specific [NAME] subject to deportation is a [NAME]. [ 39 ] The Supreme Court concluded that “the role of the [NAME] in constraining the interpretation of the IRPA is a question of law, one that Parliament by s. 3(3)(f) has expressly directed a court or administrative decision maker to consider,” and that the principle of non-refoulement is “‘the cornerstone of the international [NAME] protection regime’, and a critical legal constraint on interpretation of the IRPA, one that Parliament has decreed must be considered in construing and applying the IRPA” (para 117). It determined therefore that a failure to consider the issue was not merely “the omission of a ‘minor aspect of the interpretive context’” but was “a crucial omission” that made a decision unreasonable” (para 117). [ 40 ] In [NAME] the Minister argued that “the reasonableness of the [NAME]’s interpretation of paragraph 34(1)(a) … should not turn on whether it considered the principle of non-refoulement.” This was because, according to the Minister, echoing the reasoning from [NAME], “the determination of admissibility is distinct from the removal process, and the [NAME]’s finding that [NAME] is inadmissible to Canada does not put him on a path to removal so as to trigger the principle of non-refoulement” ( [NAME] at para 42). The Federal Court of Appeal found, however, that it was now bound by [NAME] (para 40), and it therefore rejected the Minister’s argument: [43] [T]he 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: [NAME] , above at paras. 109-111. … [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 [NAME] : [NAME] , above at paras. 110-114. These processes are similar to those that would be available to [NAME] following an inadmissibility finding under paragraph 34(1)(a) of IRPA . [51] From this, I am satisfied that the Supreme Court’s decision in [NAME] requires that this Court consider Canada’s obligations under the [NAME] , and, in particular, the principle of non-refoulement , in assessing the reasonableness of the [NAME]’s interpretation of paragraph 34(1)(a) of IRPA at the admissibility stage of the process. [ 41 ] Although I acknowledge that [NAME] has not been expressly overturned, it is nevertheless clear that its reasoning has been overtaken by [NAME] , and that the latter judgments now govern. As the Federal Court of Appeal found in [NAME] at paragraph 41: “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.” V. Conclusion [ 42 ] For all these reasons, I agree with Justice Grammond’s analysis and find that [NAME] require ss. 34(1)(b) and (f) to take international law, in particular the principle of non-refoulement , into account as an important legal constraint on the interpretation of s. 34(1) of the IRPA . This is not only a reflection of horizontal stare decisis ; I would have reached the same conclusion on the basis of [NAME] even if [NAME] had not already been decided. [ 43 ] In the case at bar, the [NAME] did not take into account the principle of non-refoulement when interpreting the scope of ss. 34(1)(b) and (f) of the IRPA as the Supreme Court of Canada and the Federal Court of Appeal required it to do. The [NAME]’s interpretation is therefore unreasonable. [ 44 ] The remedy sought by [NAME] is an order setting aside the [NAME] decision and remitting the matter of [NAME]’s inadmissibility to a different panel of the [NAME] for redetermination. I will so order. The [NAME] will have an opportunity to reinterpret the scope of inadmissibility for “subversion by force of any government” (s 34(1)(b) of the IRPA ) and for “membership” (s 34(1)(f)) in light of the legal constraints imposed by international law, in particular the principle of non-refoulement . A. Other grounds [ 45 ] [NAME] also asserts that the [NAME] violated the duty of procedural fairness, made unreasonable findings of fact regarding [NAME]’s membership in the IPOB and the nature and activities of the IPOB itself, and erred in finding that “there is no temporal component in the analysis of an allegation of inadmissibility,” contrary to well-established jurisprudence ( [NAME] v [NAME]), 2013 [NAME] 612 at para 62; [NAME] (Re) , 2013 [NAME] 1092 at para 49; [NAME] v Canada (Citizenship and Immigration), 2017 [NAME] 189 at paras 13-20; [NAME] v Canada (Citizenship and Immigration) , 2021 [NAME] 949 at paras 28-34; and [NAME] v [NAME]), 2022 [NAME] 510). As I have already found that the decision was unreasonable for other reasons, it is unnecessary to decide these additional issues and the principle of judicial restraint weighs against doing so. The matter of [NAME]’s admissibility will be remitted to the [NAME] for redetermination by a different Member in any event, and that redetermination must be reasonable, procedurally fair, and consistent with the applicable jurisprudence including this judgment.

VI. Certified question [ 46 ] The Minister has proposed the following question for certification: Does the SCC’s decision in [NAME] interpreting para. 34(1)(e) IRPA require a narrow interpretation of para. 34(1)(b) of IRPA that would thwart Parliament’s clear intent as evidenced by Standing Committee testimony and referred to by the Federal Court in [NAME] v. Canada (MPSEP), 2013 [NAME] 876, aff’d in [NAME] v. Canada (MPSEP) , 2014 FCA 262, application for leave dismissed by the SCC 2015-04-23? [ 47 ] To be certified under s. 74(d) of the IRPA , a question must meet certain criteria. As the Federal Court of Appeal explained in [NAME] v [NAME]), 2023 FCA 151: [28] It is well established in the jurisprudence of this Court that a question cannot be certified unless it is serious, dispositive of the appeal and transcends the interests of the parties. It must also have been raised and dealt with by the court below, and it must arise from the case rather than from the judge’s reasons. Finally, and as a corollary of the requirement that it be of general importance pursuant to section 74 of the IRPA, it cannot have been previously settled by the decided case law: see [NAME] v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1637 (QL) at para. 4; [NAME] v. Canada (Citizenship and Immigration) , 2016 FCA 178 at para. 36; [NAME] v. [NAME]) , 2017 FCA 130 at paras. 36, 39 ( [NAME] ). [ 48 ] The Applicant opposes certification, arguing that the Respondent has not raised an unsettled question or issue of broad significance or general importance: [T]he interpretive constraint is settled by SCC ( [NAME] ) as confirmed at the FCA ( [NAME] ) and again at the [NAME] ( [NAME] ). The Respondent’s position is essentially a disagreement with the law as it stands. Certification cannot be used to re-litigate facts or repackage fact-specific disputes as a legal issue. [ 49 ] I agree with [NAME] that the question proposed by the Minister cannot be certified. Even assuming for the sake of argument that the question of whether [NAME] requires an interpretation of s. 34(1)(b) of the IRPA “that would thwart Parliament’s clear intent as evidenced by Standing Committee testimony” is serious (which is doubtful), it does not arise from this case and has not been raised and dealt with in this judgment. It is thus also not dispositive. Further, even if the question were rephrased to remove the leading rhetorical framing, the underlying question – as far as this Court can tell – of whether the interpretive constraint identified in [NAME] in respect of s. 34(1)(e) applies also to s. 34(1)(b), the answer is, in my respectful view, clear from the reasoning in [NAME] and confirmed by [NAME] and [NAME] . While the question of how international law – in particular the principle of non-refoulement – impacts the interpretation of ss. 34(1)(b) and (f) of the IRPA remains open, to be addressed by the [NAME] on redetermination, the question of whether it has a role to play is settled. [ 50 ] The question proposed by the Minister therefore cannot be certified.

VII. Conclusion [ 51 ] For all of these reasons, [NAME]’s application will be granted and the matter of his admissibility to Canada will be remitted to the [NAME] for redetermination in accordance with these reasons and the binding caselaw discussed in it. [ 52 ] There is no serious question of general importance for certification.

JUDGMENT in IMM-23912-24 THIS COURT’S

JUDGMENT is that : The Application is granted. The decision under review is set aside and the matter is remitted to the Immigration Division for redetermination by a different Member in accordance with these reasons. No question is certified. "Andrew J. Brouwer" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-23912-24 STYLE OF CAUSE: [NAME] v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPARDNESS PLACE OF HEARING: TORONTO, ontario DATE OF HEARING: JANUARY 27, 2026

JUDGMENT AND

REASONS: BROUWER j. DATED: april 15, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent SOLICITORS OF RECORD : [COMPANY], Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent