National security link needed to bar spy service members under immigration law: court

Spy immigration ruling

People can be barred from Canada under espionage-related provisions of the immigration law only when their activities have a clear link to Canadian security, the Federal Court of Appeal has ruled.

The finding came in a pair of decisions involving men from Ethiopia who were deemed inadmissible to Canada for being members of an organization that had engaged in spying.

The Immigration and Refugee Protection Act bars permanent residents and foreign nationals who engage in espionage that is directed against Canada or contrary to Canada's interests.

The prohibition also applies to members of organizations involved in these activities.

At issue in the two cases was how to define the phrase "contrary to Canada's interests."

Medhanie Aregawi Weldemariam and Abel Nahusenay Yihdego are Ethiopian citizens and former employees of the African country's Information Network Security Agency, a state security and intelligence organization.

Weldemariam says his work at the agency involved developing air defence simulation software for training military members. He left in mid-2014 to pursue graduate studies in Sweden, returning to Ethiopia two years later.

Weldemariam came to Canada in 2017 and made a refugee claim, alleging he was at risk of persecution by Ethiopian security forces that had targeted him after his return from Sweden.

Yihdego worked at the intelligence agency as a protocol analyst and network engineer. He claims he was pressured to join the agency's decryption unit, facing threats and harassment when he refused to do so.

Yihdego resigned in 2014, enrolling in graduate studies outside of Ethiopia. He claims that on his return to Ethiopia in 2017, he was detained by security services because of his political activities.

He came to Canada on a temporary resident visa, later seeking refugee protection.

The men's refugee claims were put on hold while the immigration division of the Immigration and Refugee Board weighed their admissibility to Canada.

The division found the Ethiopian intelligence agency gathered information using offensive cybercapabilities and surveillance malware, targeting journalists and political dissidents.

There was no evidence that either Weldemariam or Yihdego were personally involved in the agency's espionage activities, only that they were members of the organization.

In each case, the immigration division found that the espionage at issue was "contrary to Canada's interests," even though it lacked a nexus to Canada's national security or security interests.

In 2020, the Federal Court concluded the division's interpretation of the law was unreasonable on the basis a connection to Canada's security interests was indeed required.

The court quashed the decisions and sent the cases back to the immigration division for reconsideration.

The federal government appealed the court rulings.

In both cases, the Court of Appeal sided with the men, saying there was no suggestion any of the journalists targeted by the Ethiopian intelligence agency lived in Canada.

The court also found no evidence the agency's acts were directed at Ottawa or Canadian companies, institutions or individuals, including members of the Ethiopian diaspora.

As a result, the court saw no need to send the cases back to the immigration division for redetermination.

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