Canadians’ patience with immigration mismanagement is wearing thin: 56 per cent believe that immigration levels are too high, and one-third believe immigration increases crime. Their growing fears about public safety have now been compounded by the Federal Court, which just released a ruling that threatens to make things worse.
In the Oct. 10 decision of Ali v. Canada, the court imposed two new requirements on immigration officials: they must demonstrate a “rational link” between an individual’s past conduct and actual danger to Canadian security. The court also held that Canada’s non-refoulement obligations — the prohibition on returning people to face persecution or serious harm — must be considered at the inadmissibility stage, even though that stage was designed to evaluate the risk the claimant poses to Canada.
Public Safety Canada would not tell the Post whether it planned to appeal the judgment.
Ali builds upon the Supreme Court of Canada’s Mason v. Canada ruling of 2023, which required immigration adjudicators to show a “nexus” between an individual’s past conduct and potential dangers to Canada, and comply with the principle of non-refoulement. The Ali decision collapses the staged approach that once separated humanitarian concerns for the claimant from security concerns for Canada. This shift in timing and procedure may appear technical, but it could have devastating consequences for Canada’s ability to remove potentially dangerous individuals.
Abdelsakhi Abbas Adesakhi Ali, the individual at the centre of the recent Federal Court ruling, exemplifies the problem. Ali, a former Sudanese politician who served in Khartoum’s legislative council and Sudan’s national parliament, was found inadmissible to Canada because of his membership in the National Congress Party (NCP), the ruling party under dictator Omar al-Bashir. Immigration officials concluded that the NCP had engaged in “acts of subversion against a democratic government” by harassing and arresting political opponents with the help of state security services. Thus, Ali’s affiliations tied him to a government responsible for systemic repression and subversion and he was ordered removed from Canada.
The Federal Court found that immigration officials failed to establish a sufficient link between Ali’s past conduct (his political affiliations and subversive activities) and any current danger to Canada. The court further ruled that officials must assess non-refoulement at the inadmissibility stage, overturning the deportation order and sending the case back to a different immigration decision-maker.
While Mason and Ali do not confer blanket immunity from deportation, the practical effect of these court decisions is troubling. The courts seem to have created a playbook that incentivizes individuals facing deportation for serious reasons — such as terrorist group membership, affiliation with oppressive regimes, involvement in organized crime, subversion or espionage — to raise refoulement arguments and resist deportation by claiming that returning home would put them in danger.
The result is added layers of contestation, delay and appeal injected into a highly overburdened system. Canada already struggles with deportations: since the 2022 ban on Iranian regime affiliates, only one of 23 identified individuals has been removed. These new evidentiary hurdles risk paralyzing enforcement altogether.
Even worse, the ruling creates opportunities for individuals to delay or prevent removal by fabricating persecution claims, invoking non-refoulement protections to remain in Canada. Those exploiting this vulnerability could include active agents operating on behalf of hostile governments. The Hogue Commission exposed extensive foreign interference operations by countries like China, Russia and Iran that target Canadian communities, politicians and institutions. The system designed to shield the vulnerable becomes a shield for bad actors working against Canadian interests.
Before Mason and Ali , the removal process was sequential: establish inadmissibility for complicity in security-threatening activity (such as terrorism, violence or subversion), issue a removal order and then assess the risk of serious danger upon deportation through a pre-removal risk assessment (PRRA). The PRRA’s focus is narrow, looking only for risk of torture, cruel and unusual treatment, or threats to one’s life. Imperfect as it was at removing bad actors, the sequence at least preserved the logic of weighing safety concerns against humanitarian risks after inadmissibility was established. Mason and Ali turn this process on its head, constrain Parliament’s intended sequencing of immigration and protection decisions, and render our immigration system ever more porous.
The Ali decision’s mandate that immigration officials must show a “rational link” between inadmissibility and actual danger to Canadian security undermines the foundational premise that past conduct is the best predictor of future behaviour. The judge stated that “deciding whether someone poses a danger to the security of Canada is a forward-facing exercise. A criminal proceeding is directed toward the past. It follows that criminal-law concepts, such as the criteria for taking part in an offence, may be useful — but not determinative — in deciding whether a person poses a danger to the security of Canada because of the person’s ties to others.”
What can be more rational than denying someone the ability to remain in Canada than a history of espionage, terrorism, subversion of governments by force, or subversion of democratic processes? Parliament created these distinct grounds for inadmissibility not to hinge on proving current danger, but to exclude based on past conduct and organizational affiliations. These are not abstract threats; they are credible safety risks. Our judicial bodies have created conditions where proof of past criminality, terrorism ties or serious misconduct can be dismissed as merely “useful but not determinative” of future danger — especially when non-refoulement concerns arise.
The Mason and Ali rulings also demoralize the very officers responsible for enforcement. Canada Border Services Agency officials already shoulder crushing workloads in a system struggling to process claims efficiently. Rulings like this create perverse incentives to avoid complex cases. Why spend months gathering evidence on terrorist membership or human rights abuses? Rubber-stamping becomes easier than true enforcement. Promises to hire more agents ring hollow when those agents are prevented from doing their jobs. This is death by a thousand cuts: the gradual erosion of our ability to keep dangerous people out.
In the United States, authorities recently arrested Mahmoud Amin Ya’qub al-Muhtadi, a 33-year-old Palestinian from Gaza, accused of participating in the Hamas-led terrorist attack on Israel on October 7, 2023. He fraudulently obtained a U.S. visa and entered the country in September 2024, living undetected in Louisiana until identified by a Justice Department task force. Could Canada deport someone similar? Or would his past conduct be deemed irrelevant and non-refoulement protect him from removal?
This isn’t compassion — certainly not for law-abiding Canadians who value safety and security. It’s systemic dysfunction masquerading as fairness. With public trust collapsing, we cannot afford judicial rulings that tie our hands against obvious dangers. They are a recipe for cynicism, division and a weaker Canada.
By Sophie Milman and Sheryl Saperia
Source: National Post