People can be barred from entering Canada under provisions of immigration law related to espionage only when their activities have a clear link to Canadian security, the Federal Court of Appeal has ruled.
The discovery 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 espionage.
The Immigration and Refugee Protection Act prohibits permanent residents and foreign nationals from engaging in espionage directed against Canada or contrary to Canada’s interests.
The ban also applies to members of organizations involved in these activities.
What was at stake in both cases was how to define the phrase “contrary to the interests of Canada.”
Medhanie Aregawi Weldemariam and Abel Nahusenay Yihdego are Ethiopian citizens and former employees of the African country’s Information Network Security Agency, a state intelligence and security organization.
Weldemariam says his work at the agency involved developing air defense simulation software to train military members. He left in mid-2014 for graduate studies in Sweden and returned to Ethiopia two years later.
Weldemariam arrived in Canada in 2017 and made an asylum claim, claiming he was at risk of persecution by Ethiopian security forces who had attacked him after his return from Sweden.
Yihdego worked at the intelligence agency as a protocol analyst and network engineer. He claims that he was pressured to join the agency’s decryption unit and that he faced threats and harassment when he refused to do so.
Yihdego resigned in 2014 and enrolled in graduate studies outside Ethiopia. He claims that, upon his return to Ethiopia in 2017, he was detained by security services due to his political activities.
He came to Canada on a temporary resident visa and then sought protection as a refugee.
The men’s asylum claims were put on hold while the immigration division of the Immigration and Refugee Board weighed their admissibility to Canada.
The division found that the Ethiopian intelligence agency collected information using offensive cyber capabilities and surveillance malware, targeting journalists and political dissidents.
There was no evidence that 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 concluded that the espionage in question was “contrary to the interests of Canada,” although it lacked a nexus to national security or Canada’s security interests.
In 2020, the Federal Court concluded that the division’s interpretation of the law was unreasonable because a connection to Canada’s security interests was effectively required.
The court vacated the decisions and returned the cases 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 indication that any of the journalists targeted by the Ethiopian intelligence agency lived in Canada.
The court also found no evidence that 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.