SUPREME
COURT OF CANADA
Between:
Muhsen
Ahmed Ramadan Agraira
Appellant
and
Minister
of Public Safety and Emergency Preparedness
Respondent
-
and -
British
Columbia Civil Liberties Association,
Ahmad
Daud Maqsudi, Canadian Council for Refugees,
Canadian
Association of Refugee Lawyers,
Canadian
Arab Federation and Canadian Tamil Congress
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Moldaver
and Karakatsanis JJ.
Reasons for
Judgment:
(paras. 1 to 103)
|
LeBel J. (McLachlin C.J. and Fish, Abella, Rothstein,
Moldaver and Karakatsanis JJ. concurring)
|
Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.
559
Muhsen Ahmed Ramadan Agraira Appellant
v.
Minister of Public Safety and
Emergency Preparedness Respondent
and
British Columbia Civil Liberties
Association,
Ahmad Daud Maqsudi,
Canadian Council for Refugees,
Canadian Association of Refugee Lawyers,
Canadian Arab Federation and
Canadian Tamil Congress Interveners
Indexed as: Agraira v. Canada (Public Safety and Emergency
Preparedness)
2013 SCC 36
File No.: 34258.
2012: October 18; 2013: June 20.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Moldaver and Karakatsanis JJ.
on appeal from the federal
court of appeal
Administrative
law — Judicial review — Standard of review — Ministerial decisions — Immigration
— Citizen of Libya found to be inadmissible based on membership in terrorist
organization — Application for ministerial relief denied — Appropriate standard
of review to apply to Minister’s decision — Whether, in light of this standard,
Minister’s decision is valid — Immigration and Refugee Protection Act, S.C.
2001, c. 27, s. 34(2) .
Administrative
law — Natural justice — Doctrine of legitimate expectations — Citizen of Libya
found to be inadmissible based on membership in terrorist organization — Application
for ministerial relief denied — Whether there was failure to meet legitimate
expectations — Whether there was failure to discharge duty of procedural
fairness.
Immigration
— Inadmissibility and removal — Ministerial relief — Citizen of Libya found to
be inadmissible based on membership in terrorist organization — Application for
ministerial relief denied — Interpretation of term “national interest” — Immigration
and Refugee Protection Act, S.C. 2001,
c. 27, s. 34(2) .
A, a
citizen of Libya, has been residing in Canada continuously since 1997, despite
having been found to be inadmissible on security grounds in 2002. The finding
of inadmissibility was based on his membership in the Libyan National Salvation
Front (“LNSF”) — a terrorist organization according to Citizenship and
Immigration Canada (“CIC”). A applied in 2002 under s. 34(2) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”), for
ministerial relief from the determination of inadmissibility, but his
application was denied in 2009. The Minister of Public Safety and Emergency
Preparedness (“Minister”) concluded that it was not in the national interest to
admit individuals who have had sustained contact with known terrorist and/or
terrorist‑connected organizations. A’s application for permanent
residence was denied.
A
applied to the Federal Court for judicial review of the Minister’s decision
regarding relief. The Federal Court granted the application for judicial
review. The Federal Court of Appeal allowed the appeal, dismissed the
application for judicial review and concluded the Minister’s decision was
reasonable.
Held: The appeal should be dismissed and the Minister’s decision under
s. 34(2) of the IRPA allowed to stand.
A
court deciding an application for judicial review must engage in a two‑step
process to identify the proper standard of review. First, it must consider
whether the level of deference to be accorded with regard to the type of
question raised on the application has been established satisfactorily in the
jurisprudence. The second inquiry becomes relevant if the first is unfruitful
or if the relevant precedents appear to be inconsistent with recent
developments in the common law principles of judicial review. At this second
stage, the court performs a full analysis in order to determine what the
applicable standard is. The standard of review applicable in the case at bar
has been satisfactorily determined in past decisions to be reasonableness.
The
Minister, in making his decision, did not expressly define the term “national
interest”. Although this Court is not in a position to determine with finality
the actual reasoning of the Minister, it may consider what appears to have been
the ministerial interpretation of “national interest”, based on the Minister’s “express
reasons” and Chapter 10 of CIC’s Inland Processing Operational Manual:
“Refusal of National Security Cases/Processing of National Interest Requests”
(the “Guidelines”), which inform the scope and context of those reasons, and
whether this implied interpretation, and the Minister’s decision as a whole, were
reasonable. Had the Minister expressly provided a definition of the term
“national interest” in support of his decision on the merits, it would have
been one which related predominantly to national security and public safety,
but did not exclude the other important considerations outlined in the Guidelines
or any analogous considerations. The Guidelines did not constitute a fixed and
rigid code. Rather, they contained a set of factors, which appeared to be
relevant and reasonable, for the evaluation of applications for ministerial
relief. The Minister did not have to apply them formulaically, but they guided
the exercise of his discretion and assisted in framing a fair administrative
process for such applications.
The
Minister is entitled to deference as regards this implied interpretation of the
term “national interest”. The Minister’s interpretation of the term “national
interest” is reasonable. The plain words of the provision favour a broader
reading of the term “national interest” rather than one which would limit its
meaning to the protection of public safety and national security. The words of
the statute, the legislative history of the provision, the purpose and context
of the provision, are all consistent with the Minister’s implied interpretation
of this term. Section 34 is intended to protect Canada, but from the
perspective that Canada is a democratic nation committed to protecting the
fundamental values of its Charter and of its history as a parliamentary
democracy. Section 34 should not be transformed into an alternative form
of humanitarian review; however, it does not necessarily exclude the
consideration of personal factors that might be relevant to this particular
form of review. An analysis based on the principles of statutory
interpretation reveals that a broad range of factors may be relevant to the
determination of what is in the “national interest”, for the purposes of s. 34(2)
of the IRPA .
The
Minister’s reasons were justifiable, transparent and intelligible. Although
brief, they made clear the process he had followed in ruling on A’s application
for ministerial relief. He reviewed and considered all the material and
evidence before him. Having done so, he placed particular emphasis on: A’s
contradictory and inconsistent accounts of his involvement with the LNSF, a
group that has engaged in terrorism; the fact that A was most likely aware of
the LNSF’s previous activity; and the fact that A had had sustained contact
with the LNSF. The Minister’s reasons revealed that, on the basis of his
review of the evidence and other submissions as a whole, and of these factors
in particular, he was not satisfied that A’s continued presence in Canada would
not be detrimental to the national interest. The Minister’s reasons allow this
Court to clearly understand why he made the decision he did.
The
Minister’s decision falls within a range of possible acceptable outcomes which
are defensible in light of the facts and the law. The burden was on A to show
that his continued presence in Canada would not be detrimental to the national
interest. The Minister declined to provide discretionary relief to A, as he
was not satisfied that this burden had been discharged. His conclusion was
acceptable in light of the facts which had been submitted to him. Courts
reviewing the reasonableness of a minister’s exercise of discretion are not
entitled to engage in a new weighing process. The Minister reviewed and
considered (i.e. weighed) all the factors set out in A’s application which were
relevant to determining what was in the “national interest” in light of his
reasonable interpretation of that term. Given that the Minister considered and
weighed all the relevant factors as he saw fit, it is not open to the Court to
set the decision aside on the basis that it is unreasonable.
The
Minister’s decision was not unfair, nor was there a failure to meet A’s
legitimate expectations or to discharge the duty of procedural fairness owed to
him. In this case, the Guidelines created a clear, unambiguous and unqualified
procedural framework for the handling of relief applications, and thus a
legitimate expectation that that framework would be followed. The Guidelines
were published by CIC, and, although CIC is not the Minister’s department, it
is clear that they are used by employees of both CIC and the Canada Border Services
Agency for guidance in the exercise of their functions and in applying the
legislation. The Guidelines are and were publicly available, and they
constitute a relatively comprehensive procedural code for dealing with applications
for ministerial relief. Thus, A could reasonably expect that his application
would be dealt with in accordance with the process set out in them. A has not
shown that his application was not dealt with in accordance with this process
outlined in the Guidelines. If A had a legitimate expectation that the
Minister would consider certain factors, including the Guidelines and humanitarian
and compassionate factors, in determining his application for relief, this
expectation was fulfilled.
Cases Cited
Applied:
Alberta (Information and Privacy Commissioner) v. Alberta Teachers’
Association, 2011 SCC 61, [2011] 3 S.C.R. 654; referred to: Abdella
v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC
1199, 355 F.T.R. 86; Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817; Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Telfer v. Canada Revenue
Agency, 2009 FCA 23, 386 N.R. 212; Merck Frosst Canada Ltd. v. Canada
(Health), 2012 SCC 3, [2012] 1 S.C.R. 23; Esmaeili‑Tarki v. Canada
(Minister of Citizenship and Immigration), 2005 FC 509 (CanLII); Miller
v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438; Naeem
v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, [2007] 4
F.C.R. 658; Al Yamani v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 381, 311 F.T.R. 193; Soe v. Canada (Public Safety
and Emergency Preparedness), 2007 FC 461 (CanLII); Kanaan v. Canada
(Minister of Public Safety & Emergency Preparedness), 2008 FC 241, 71
Imm. L.R. (3d) 63; Chogolzadeh v. Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FC 405, 327 F.T.R. 39; Tameh v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 884, 332
F.T.R. 158; Kablawi v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 1011, 333 F.T.R. 300; Ramadan v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1155, 335 F.T.R. 227; Afridi v.
Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC
1192, 75 Imm. L.R. (3d) 291; Ismeal v. Canada (Minister of Public Safety
& Emergency Preparedness), 2008 FC 1366, 77 Imm. L.R. (3d) 310; Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708; Construction Labour Relations v. Driver
Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405; Smith v. Alliance Pipeline
Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Medovarski v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539; Bell
ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Lake
v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Mount
Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001
SCC 41, [2001] 2 S.C.R. 281; Canada (Attorney General) v. Mavi, 2011 SCC
30, [2011] 2 S.C.R. 504; Reference re Canada Assistance Plan (B.C.),
[1991] 2 S.C.R. 525; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC
29, [2003] 1 S.C.R. 539.
Statutes and Regulations Cited
Canada Border Services Agency Act, S.C.
2005, c. 38, s. 5 .
Canadian Charter of Rights and Freedoms .
Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10 .
Immigration Act, R.S.C. 1952, c. 325,
s. 5(l).
Immigration Act, R.S.C. 1985, c. I‑2,
s. 19(1)(f)(iii)(B).
Immigration Act, 1976, S.C. 1976‑77,
c. 52, s. 19(1)(e).
Immigration and Refugee Protection Act,
S.C. 2001, c. 27, ss. 3(1) , 4(2) [repl. 2005, c. 38, s. 118], 4(2)(c),
25, 25.1, 34, 44.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the
assistance of Christine E. Deacon. Judicial Review of Administrative
Action in Canada. Toronto: Canvasback, 1998 (loose‑leaf updated August
2012).
Canada. Citizenship and Immigration. Inland Processing Operational
Manual, Chapter 10, “Refusal of National Security Cases/Processing of
National Interest Requests”, October 24, 2005.
Canada. Senate. Standing Senate Committee on Social Affairs,
Science and Technology. “Ninth Report”, 1st Sess., 37th Parl., October 23,
2001 (online: http://www.parl.gc.ca).
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
APPEAL
from a judgment of the Federal Court of Appeal (Blais C.J. and Noël and Pelletier JJ.A.), 2011 FCA 103, 415 N.R. 121, 96 Imm. L.R. (3d) 20, [2011]
F.C.J. No. 407 (QL), 2011 CarswellNat 639, setting aside a decision of
Mosley J., 2009 FC 1302, 357 F.T.R. 246, 87 Imm. L.R. (3d) 135, [2009]
F.C.J. No. 1664 (QL), 2009 CarswellNat 4438. Appeal dismissed.
Lorne
Waldman, Jacqueline Swaisland and Clare
Crummey, for the appellant.
Urszula
Kaczmarczyk and Marianne Zoric, for the
respondent.
Written
submissions only by Jill Copeland and Colleen Bauman, for the
intervener the British Columbia Civil Liberties Association.
Leigh
Salsberg, for the intervener Ahmad Daud Maqsudi.
John
Norris and Andrew Brouwer, for the
interveners the Canadian Council for Refugees and the Canadian Association of
Refugee Lawyers.
Barbara
Jackman and Hadayt Nazami, for the
interveners the Canadian Arab Federation and the Canadian Tamil Congress.
The
judgment of the Court was delivered by
LeBel J. —
I. Introduction
[1]
The appellant, Muhsen Ahmed Ramadan Agraira, a
citizen of Libya, has been residing in Canada continuously since 1997, despite
having been found to be inadmissible on security grounds in 2002. The finding
of inadmissibility was based on the appellant’s membership in the Libyan
National Salvation Front (“LNSF”) — a terrorist organization according to
Citizenship and Immigration Canada (“CIC”). The appellant applied in 2002
under s. 34(2) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (“IRPA ”), for ministerial relief from the determination of
inadmissibility, but his application was denied in 2009. The Minister of
Public Safety and Emergency Preparedness (“Minister”) concluded that it was not
in the national interest to admit individuals who have had sustained contact
with known terrorist and/or terrorist-connected organizations. The appellant’s
application for permanent residence was accordingly denied, and he is now at
risk of deportation.
[2]
Mr. Agraira appeals to this Court from a
decision in which the Federal Court of Appeal dismissed an application for
judicial review of the Minister’s decision denying relief from the
determination of inadmissibility. He contends that the Minister took an overly
narrow view of the term “national interest” in s. 34(2) of the IRPA by
equating it with national security and public safety. He adds that the
Minister’s decision failed to meet his legitimate expectations that certain
procedures would be followed and certain factors would be taken into account in
determining his application for relief.
[3]
The question raised by this appeal is whether
the Minister’s decision to deny relief can be successfully challenged. Two
central issues are raised. First, what is the appropriate standard of review
to apply to the Minister’s decision? Second, in light of this standard, should
the Minister’s decision be set aside? This appeal also raises two other issues
incidental to these central issues, namely the interpretation of the term
“national interest” in s. 34(2) of the IRPA and the impact of any
legitimate expectations created by Chapter 10 of CIC’s Inland Processing Operational
Manual: “Refusal of National Security Cases/Processing of National Interest
Requests” (the “Guidelines”).
[4]
I agree with the Federal Court of Appeal, but
for reasons differing in part, that the Minister’s decision was reasonable and
that the application for judicial review should be dismissed.
II. Background
[5]
The appellant left Libya in 1996. He first
sought refugee status in Germany on the basis of his connection with the LNSF,
but his application was denied. He entered Canada in 1997, at Toronto, using a
fake Italian passport. He applied for Convention Refugee status in this
country on the basis of his affiliation with the LNSF. On his personal
information form, he described his activities with that organization as
follows: as a member of an 11-person cell, he had delivered envelopes to
members of other cells, raised funds, and watched the movements of supporters
of the regime then in power. As part of his training, he was taught how to
engage people in political discourse and how to raise funds.
[6]
The appellant was heard by the Convention
Refugee Determination Division of the Immigration and Refugee Board. At the
hearing, he provided a letter from the LNSF confirming his membership in that
organization. On October 24, 1998, he was denied Convention Refugee
status on the basis that he lacked credibility.
[7]
While his application for refugee status was
pending, the appellant married a Canadian woman in a religious ceremony in
December 1997. He later married her in a civil ceremony in March 1999. His
wife sponsored his application for permanent residence in August 1999.
[8]
In May 2002, the appellant was advised by CIC
that his application for permanent residence might be refused, because there
were grounds to believe that he was or had been a member of an organization
that was or had been engaged in terrorism, contrary to s. 19(1)(f)(iii)(B)
of the Immigration Act, R.S.C. 1985, c. I-2 (“IA”), which was then in force.
[9]
Later in May 2002, the appellant was interviewed
by an immigration officer. In the course of that interview, he confirmed that
he had been a member of the LNSF, but claimed that he had previously
exaggerated the extent of his involvement in order to bolster his refugee
claim. Although he now claimed that he did not know very much about the LNSF,
he was able to name its founder and its current leader. Also, after stating
that he had attended LNSF meetings in Libya, he said that he had only discussed
the group with friends. Finally, he stated that he had had no contact with the
LNSF after leaving Libya, but then acknowledged having received newsletters
from chapters in the United States since that time. These contradictions led
the immigration officer to conclude that the appellant was or had been a member
of an organization that engaged in terrorism. He was found to be inadmissible
on that basis.
[10]
On May 22, 2002, CIC sent the appellant a letter
advising him of the possibility of requesting ministerial relief. In July of
that year, the appellant applied for that relief. The immigration officer
noted, while preparing her report on the interview, that, once again, there
were statements in the appellant’s application for relief that contradicted
earlier statements he had made. For example, the appellant indicated in this
application that he had attended meetings of the LNSF at which he had been
trained to approach potential members and raise funds. However, in his
interview with the immigration officer, the appellant said that he was unaware
how the LNSF funded itself or how it recruited members. The officer concluded
that the appellant had been and continued to be a member of the LNSF, but that
his involvement had been limited to distributing leaflets and enlisting support
for the organization. She therefore recommended that he be granted relief.
[11]
At the same time (July 2002), the officer
prepared a Report on Inadmissibility regarding the appellant under s. 44(1) of
the IRPA . Her report indicated that he was inadmissible to Canada
pursuant to s. 34(1) (f) of the IRPA because he was a member of a
terrorist organization.
[12]
Next, in August 2005, a briefing note for the
Minister was prepared by the Canada Border Services Agency (“CBSA”). After
having been reviewed by counsel for the appellant, who made no further comment,
the note was submitted to the Minister on March 9, 2006. It contained a
recommendation that the appellant be granted relief, as there was “not enough
evidence to conclude that Mr. Ramadan Agraira’s continued presence in
Canada would be detrimental to the national interest” (A.R., vol. I, at p. 9).
This recommendation was based on the following considerations:
Mr. Ramadan Agraira admitted
to joining the LNSF but was only a member for approximately two years. There is
some information to suggest that he became a member at a time when the
organization was not in its most active phase and well after it was involved in
an operation to overthrow the Libyan regime. He initially stated that he had
participated in a number of activities on behalf of the organization but later
indicated that he had exaggerated the extent of his involvement so that he
could make a stronger claim to refugee status in Canada. This is supported to
some extent by the fact that his attempts to obtain refugee status in Germany
and Canada were rejected on the basis of credibility. Mr. Ramadan Agraira
denied having been involved in any acts of violence or terrorism and there is
no evidence to the contrary. He appears to have been a regular member who did
not occupy a position of trust or authority within the LNSF. He does not appear
to have been totally committed to the LNSF specifically as he indicated to the
immigration officer at CIC Oshawa that he would support anyone who tried to
remove the current regime in Libya through non-violent means. [A.R., vol. I, at
p. 9]
[13]
On January 27, 2009, the Minister rejected the
recommendation in the briefing note. The response he gave was as follows:
After having reviewed and
considered the material and evidence submitted in its entirety as well as
specifically considering these issues:
•
The applicant offered contradictory and
inconsistent accounts of his involvement with the Libyan National Salvation
Front (LNSF).
•
There is clear evidence that the LNSF is a group
that has engaged in terrorism and has used terrorist violence in attempts to
overthrow a government.
•
There is evidence that LNSF has been aligned at
various times with Libyan Islamic opposition groups that have links to
Al-Qaeda.
•
It is difficult to believe that the applicant,
who in interviews with officials indicated at one point that he belonged to a
“cell” of the LNSF which operated to recruit and raise funds for LNSF, was
unaware of the LNSF’s previous activity.
It is not in the national
interest to admit individuals who have had sustained contact with known
terrorist and/or terrorist-connected organizations. Ministerial relief is
denied. [A.R., vol. I, at p. 11]
[14]
On March 24, 2009, the appellant received notice
that his application for permanent residence was denied. He then applied to
the Federal Court for judicial review of the Minister’s decision regarding
relief.
III. Judicial History
A. Federal Court, 2009 FC 1302, 357 F.T.R. 246
[15]
Mosley J. began his analysis by ruling on the
standard of review. He held that the appropriate standard was reasonableness,
citing the discretionary nature of the decision, the fact that it was not
delegable, and the Minister’s expertise in matters of national security and the
national interest. He added that the political nature of the decision and the
Minister’s special knowledge involving sensitivity to the imperatives of public
policy and the nuances of the legislative scheme also weighed in favour of
deference.
[16]
In applying the reasonableness standard, Mosley
J. considered the fact that the Minister had focused on evidence that the LNSF
had engaged in terrorism and been aligned with Libyan Islamic groups that had
links to Al-Qaeda. He found, on the contrary, that the evidence of the LNSF’s
engagement in terrorism was minimal at best. In particular, the LNSF did not
appear on the lists of terrorist organizations of the United Nations, Canada
and the United States. Although several Libyan opposition groups had direct
links with Al-Qaeda, there was no evidence in the record that LNSF was one of
them. Because it had been previously determined that the LNSF was a terrorist
group for the purposes of s. 34(1) (f) of the IRPA , the court
could not review that finding. However, Mosley J. found it difficult to
understand why the Minister had given so much weight to the LNSF’s engagement
in terrorism and its alignment with Libyan Islamic groups that had links to
Al-Qaeda.
[17]
Mosley J. then referred to the Federal Court’s
decision in Abdella v. Canada (Minister of Public Safety and Emergency
Preparedness), 2009 FC 1199, 355 F.T.R. 86, in
which Gibson J. had relied on the Guidelines to set aside the Minister’s
decision to deny relief under s. 34(2) . Appendix D to the Guidelines contains
five questions to be addressed in the context of an application for such
relief:
1. Will the applicant’s
presence in Canada be offensive to the Canadian public?
2. Have all ties with the
regime/organization been completely severed?
3. Is there any indication
that the applicant might be benefiting from assets obtained while a member of
the organization?
4. Is there any indication
that the applicant might be benefiting from previous membership in the
regime/organization?
5. Has the person adopted the
democratic values of Canadian society?
[18]
Mosley J. noted that in the instant case, the
Minister had not addressed these questions in the reasons he gave for his
decision, nor had he balanced the factors the Federal Court had in past cases
identified as being relevant to the determination of what is in the national
interest, namely: whether the appellant posed a threat to Canada’s security;
whether the appellant posed a danger to the public; the period of time the
appellant had been in Canada; whether the determination is consistent with
Canada’s humanitarian reputation of allowing permanent residents to settle in
Canada; the impact on both the appellant and all other members of society of
the denial of permanent residence; and adherence to all Canada’s international
obligations. He criticized the Minister for not considering in his decision
the facts that the appellant had been residing in Canada since 1997 and had
been a productive member of society, that he had no criminal record, and that
he owned a business earning over $100,000 a year. In Mosley J.’s view,
the exercise of the Minister’s discretion seemed to have been rendered
meaningless by the Minister’s “simplistic view that the presence in Canada of
someone who at some time in the past may have belonged to a terrorist
organization abroad can never be in the national interest” (para. 27).
[19]
Mosley J. granted the application for judicial
review and certified the following questions for consideration by the Federal
Court of Appeal:
When determining a ss. 34(2)
application, must the Minister of Public Safety consider any specific factors
in assessing whether a foreign national’s presence in Canada would be contrary
to the national interest? Specifically, must the Minister consider the five
factors listed in the Appendix D of IP 10? [para. 32]
B. Federal Court of Appeal, 2011 FCA 103, 415 N.R. 121
[20]
In the Federal Court of Appeal, Pelletier J.A.
(Blais C.J. and Noël J.A. concurring) considered the issues separately in
ruling on the standard of review. He held that establishing the meaning of the
term “national interest” for the purposes of s. 34(2) is a question of law in
respect of which the Minister has no particular expertise and for which the
appropriate standard is therefore correctness. The appropriate standard for
reviewing the exercise of the Minister’s discretion, on the other hand, is
reasonableness.
[21]
Pelletier J.A. confirmed that, in an application
for ministerial relief, the onus is on the applicant to satisfy the Minister
that his or her presence in Canada would not be detrimental to the national
interest. Because this onus was reversed in the briefing note, he held that it
was open to the Minister to disregard the recommendation made in the note.
[22]
Pelletier J.A. next turned to the interpretation
of s. 34(2) of the IRPA . He tracked the legislative evolution of s.
34(2) to find what, in his view, was the correct interpretation of this
subsection. He noted that Parliament had transferred the responsibility for
exercising the discretion from the Minister of Citizenship and Immigration
(“MCI”) to the Minister. As a result of this change, s. 34(2) has to be read in
light of the objects of the Department of Public Safety and Emergency
Preparedness Act, S.C. 2005, c. 10 (“DPSEPA ”) (the Minister’s
enabling statute), the Canada Border Services Agency Act, S.C. 2005, c.
38 (“CBSAA ”) (the statute governing the CBSA, the organization that
assists the Minister in his or her duties), and the IRPA . These
statutes work together as part of a statutory scheme to which the presumption
of coherence must be applied.
[23]
In May 2002, when the appellant’s admissibility
interview took place, the IA was in force. Under the IA, the MCI
was responsible both for the determination of inadmissibility and for the
decision on granting relief. He or she was also responsible for deciding
whether to grant exemptions from the IA on humanitarian and
compassionate (“H&C”) grounds.
[24]
On June 28, 2002, the IRPA replaced the IA.
Under the transitional provisions of the IRPA , the appellant’s
application for relief would now be governed by the IRPA , and more
specifically by s. 34 of that Act. At that time, the MCI was still responsible
for deciding whether to grant relief under s. 34(2) . After the CBSAA
was passed in 2005, the responsible minister became “[t]he Minister as defined
in section 2 ” of the CBSAA (IRPA, s. 4(2) , repl. by S.C. 2005, c.
38, s. 118 ). In 2008, the Minister was specifically identified as the
responsible minister. The MCI retained the ability to grant exemptions from
the IRPA on H&C grounds.
[25]
This review led Pelletier J.A. to conclude that
under the statutory scheme, the Minister was responsible for deciding whether
to grant relief, whereas the MCI continued to be responsible for deciding
whether to grant exemptions on the basis of H&C considerations. Hence, Parliament
intended that ministerial relief would be granted or denied on the basis of
considerations other than those that could support an application for H&C
relief. The proper procedure for making an application based on H&C
considerations is that under s. 25 of the IRPA , not that of an
application for ministerial relief under s. 34(2) .
[26]
Pelletier J.A. then equated the “national
interest”, for the purposes of s. 34(2) , with national security and public
safety. He found support for this proposition in the DPSEPA and the CBSAA .
The DPSEPA emphasizes the Minister’s responsibility for public safety
and emergency preparedness. Under the CBSAA , the Minister is also
responsible for the CBSA, whose purpose is, inter alia, to provide
“integrated border services that support national security and public safety
priorities” (CBSAA, s. 5 ). Pelletier J.A. found that this statutory
scheme supports the view that the exercise of the Minister’s discretion under
s. 34(2) must be primarily, if not exclusively, guided by his or her
national security and public safety role.
[27]
Pelletier J.A. next considered the effect of the
Guidelines, in which the following definition of the term “national interest”
appears: “The consideration of national interest involves the assessment and balancing
of all factors pertaining to the applicant’s admission against the stated
objectives of the Act as well as Canada’s domestic and international interests
and obligations” (s. 6).
[28]
Pelletier J.A. noted that the Guidelines cannot
alter the law as enacted by Parliament and found that they are of limited
application now that the Minister, as opposed to the MCI, has become
responsible for decisions on granting ministerial relief under s. 34(2) . This
conclusion was based on s. 4(2) (c) of the IRPA , which provides
that the Minister is responsible for the establishment of policies regarding
“inadmissibility on grounds of security”. As a consequence, the five factors
set out in the Guidelines need not be considered in disposing of relief
applications. For Pelletier J.A., this Court’s dictum in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para.
72, to the effect that guidelines are “a useful indicator of what constitutes a
reasonable interpretation of the power conferred by the section” does not apply
in the case of the Guidelines. This is because the Guidelines serve to
identify foreign nationals whose presence in Canada would be detrimental to the
national interest, and thus to eliminate unsuitable candidates for relief. They
do not serve, as was the case in Baker, to identify suitable candidates
for relief.
[29]
Pelletier J.A. then went on to hold that the
fact that a finding of inadmissibility under s. 34(1) might negate the
possibility of relief under s. 34(2) does not render that relief illusory.
Rather, on the basis of Suresh v. Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, the
relief under s. 34(2) was meant to apply only in exceptional cases in
which the applicant’s association with a terrorist group was innocent or
coerced.
[30]
Finally, Pelletier J.A. concluded that the
Minister’s decision was reasonable. The Minister had addressed the appellant’s
submission that his involvement with the LNSF was either non-existent, innocent
or trivial and had found the appellant’s account of his involvement to be
“contradictory and inconsistent” (para. 69). Ultimately, because the appellant
lacked credibility as a result of these contradictions and inconsistencies, the
Minister had had no faith in any of his representations. Accordingly, the
Minister had not acted unreasonably in reaching the conclusion he had. The
application for judicial review was dismissed, and the certified questions were
answered as follows:
1- When determining a ss.
34(2) application, must the Minister of Public Safety consider any specific
factors in assessing whether a foreign national’s presence in Canada would be
contrary to the national interest?
Answer: National security and
public safety, as set out in para. 50 of these reasons.
2- Specifically, must the
Minister consider the five factors listed in the Appendix D of IP10?
Answer: No. [para. 74]
IV. Analysis
A. Issues
[31]
The issues to be resolved in this appeal are as
follows:
(1)
Is the standard of review for the Minister’s decision
reasonableness or correctness?
(2)
Is the Minister’s decision valid?
(3)
Was the decision unfair, and did it fail to meet
the appellant’s legitimate expectations?
[32]
As I mentioned above, a corollary issue related
to the first and second issues is the meaning of the term “national interest”
in s. 34(2) of the IRPA .
B. Positions of the Parties
(1) Position
of the Appellant
[33]
The appellant submits that the standard of
review applicable to all the issues before this Court is correctness, because
they all constitute questions of pure law and natural justice. The Minister’s
decision was incorrect in that it was based on an erroneous view of the meaning
of the term “national interest” in s. 34(2) of the IRPA and it failed to
meet the appellant’s legitimate expectations as to what factors would be
considered in assessing his application for relief.
[34]
The appellant contends that the Federal Court of
Appeal relied too heavily on the legislative transfer of ministerial
responsibility in interpreting the term “national interest” for the purposes of
s. 34(2) . This shift in responsibility between governmental departments does
not indicate a concomitant legislative intent to change the interpretation of
the IRPA . He also argues that the term “national interest” should be
given a broader meaning than the one ascribed to it by the Federal Court of
Appeal. Although public security and national defence should both be taken
into account as relevant factors in the Minister’s exercise of discretion, they
should not be the only factors considered in applying the “national interest”
test. In taking an unduly narrow view of the term “national interest” by
equating it with one aspect of that interest (national security and public
safety), the Federal Court of Appeal set a precedent which unlawfully fetters
the Minister’s discretion by requiring that he or she consider only that one
aspect when dealing with future applications for relief.
[35]
Finally, the appellant submits that the
Minister’s decision was unfair in that it failed to meet legitimate
expectations created by the Guidelines. The Guidelines were clear and
unambiguous representations made by the government to the public inasmuch as
they were publicly available, had been routinely used by the Minister, and had
been issued to ensure consistency. They created an expectation that certain
factors extrinsic to national security would be considered in assessing s.
34(2) applications by instructing applicants to address, inter alia, the
following factors in their submissions: the reason why the applicant is seeking
admission to Canada, any special circumstances related to the application, and
any current activities in which the applicant is involved. The appellant
further contends that a letter he received from CIC in May 2002 created a
legitimate expectation that H&C factors would be considered in assessing
his application for relief. It stated that a decision under s. 34(2)
would require the Minister to assess both the detriment the appellant posed to
the national interest of Canada and any H&C circumstances pertinent to his
situation. According to the appellant, this legitimate expectation was not met,
because the Minister did not, in assessing his application, consider the
factors he had been told were relevant.
(2) Position
of the Respondent
[36]
The respondent submits that the standard of
review is reasonableness and that the Minister’s decision was reasonable. The
Minister’s interpretation of the term “national interest” is entitled to
deference, as the IRPA does not specify any factors that must be
considered in this regard, and the term is found in the Minister’s enabling
statute, with which the Minister has particular familiarity. A decision on an
application for relief under s. 34(2) falls at the political end of the
spectrum, is discretionary, and concerns matters in which the Minister has
expertise.
[37]
According to the respondent, the legislative history
of the IRPA and the related legislation supports the view that the
national security and public safety aspects of the national interest are to be
the predominant considerations in determining whether to grant s. 34(2) relief,
but these remain subject to any other considerations the Minister deems
appropriate, except for H&C factors. The purpose of s. 34 is to ensure the
safety and security of Canadians, while s. 34(2) provides for relief for
innocent or coerced members of terrorist organizations who would otherwise be
inadmissible. Section 34(2) must be seen as complementary to s. 34(1) . Since
s. 34(1) deals with inadmissibility on security grounds, the dominant
considerations under s. 34(2) must be national security and public safety.
H&C factors are not relevant to a determination of the “national interest”
under s. 34(2) , as they are properly dealt with in H&C applications under
s. 25 of the IRPA . This interpretation of s. 34(2) is bolstered by the
legislative transfer of responsibility for decisions on applications for relief
to the Minister, whose mandate is the protection of public safety.
[38]
Ultimately, the respondent argues, the
Minister’s decision in this case was reasonable. It was transparent,
intelligible and justifiable. It also fell within the range of possible
acceptable outcomes that meet the standard of reasonableness in accordance with
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The
appellant had offered self-serving and contradictory explanations of his role
in, and activities for, the LNSF, and therefore lacked credibility. It was
also clear that he had had sustained contact with a group that had committed
terrorist acts.
[39]
The respondent also contends that there was no
failure to meet legitimate expectations in this case. The Guidelines emphasize
the exceptional and discretionary nature of ministerial relief, and their
stated objectives emphasize national security and public safety. They created
expectations with respect to procedures, but not to substantive rights. They
could not alter the law as laid down by Parliament and so could not mandate the
consideration of factors not relevant to the national interest analysis. In
any event, immigration officials did follow the procedures they were expected
to follow in this case. A letter sent from CIC to the appellant in May 2002
stated that the ministerial relief process would require an assessment of the
detriment he posed to the national interest, and of any relevant H&C
circumstances. The appellant had a sufficient opportunity to present evidence
and submissions in support of his case. He was then provided with a further
opportunity to respond to information officials had obtained and provided to
the Minister. The Minister reviewed the application and the briefing note, and
exercised his statutory discretion as he saw fit. He provided sufficient
reasons for his decision, in which he indicated that he had “reviewed and considered
the material and evidence submitted in its entirety”.
C. Forms of Ministerial Relief
(1) Sections
25 and 25.1 of the IRPA
[40]
Before I turn to the Minister’s decision, it
will be helpful to explain the two forms of ministerial relief currently
available to foreign nationals in Canada who are deemed to be inadmissible.
The first form, H&C relief, is provided for in ss. 25 and 25.1 of the IRPA :
25.
(1) Subject to subsection (1.2), the [MCI] must, on
request of a foreign national in Canada who applies for permanent resident
status and who is inadmissible or does not meet the requirements of this Act,
and may, on request of a foreign national outside Canada who applies for a
permanent resident visa, examine the circumstances concerning the foreign
national and may grant the foreign national permanent resident status or an
exemption from any applicable criteria or obligations of this Act if the [MCI]
is of the opinion that it is justified by humanitarian and compassionate
considerations relating to the foreign national, taking into account the best
interests of a child directly affected.
. . .
25.1 (1) The [MCI] may, on the [MCI’s] own initiative, examine the
circumstances concerning a foreign national who is inadmissible or who does not
meet the requirements of this Act and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations of
this Act if the [MCI] is of the opinion that it is justified by humanitarian
and compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
[41]
These provisions contemplate the granting of
ministerial relief to foreign nationals seeking permanent resident status who
are inadmissible or otherwise do not meet the requirements of the IRPA .
Under them, the MCI may, either upon request or of his own accord, “grant the
foreign national permanent resident status or an exemption from any applicable
criteria or obligations of” the IRPA . However, relief of this nature
will only be granted if the MCI “is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national”. H&C considerations include such matters as children’s rights,
needs, and best interests; maintaining connections between family members; and
averting the hardship a person would suffer on being sent to a place where he
or she has no connections (see Baker, at paras. 67 and 72).
(2) Section
34(2) of the IRPA
[42]
Section 34(2) of the IRPA contemplates a
different form of ministerial relief based upon the “national interest”.
Section 34 reads as follows:
34.
(1) [Security] A permanent resident or a foreign
national is inadmissible on security grounds for
(a) engaging
in an act of espionage or an act of subversion against a democratic government,
institution or process as they are understood in Canada;
(b) engaging
in or instigating the subversion by force of any government;
(c) engaging
in terrorism;
(d) being
a danger to the security of Canada;
(e) engaging
in acts of violence that would or might endanger the lives or safety of persons
in Canada; or
(f) being
a member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph (a),
(b) or (c).
(2)
[Exception] The matters referred to in subsection (1) do not constitute
inadmissibility in respect of a permanent resident or a foreign national who
satisfies the Minister that their presence in Canada would not be detrimental
to the national interest.
[43]
As I mentioned above, the appellant was found to
be inadmissible on security grounds for having been, in the words of s. 34(1)(f),
“a member of an organization that there are reasonable grounds to believe
engages, has engaged or will engage in acts referred to in paragraph . . . (c)”,
namely acts of terrorism. He sought relief under s. 34(2) , which provides
that the Minister may make an exception where a person has been found to be
inadmissible, on being satisfied that the person’s continued “presence in
Canada would not be detrimental to the national interest”. As the wording of
the section (“who satisfies the Minister”) implies, the onus is on the person
who applies for relief to prove that his or her continued presence in Canada
would not be detrimental to the national interest.
[44]
In short, s. 34(2) of the IRPA
establishes a pathway for relief which is conceptually and procedurally
distinct from the relief available under s. 25 or s. 25.1 . It should be borne
in mind that an applicant who fails to satisfy the Minister that his or her
continued presence in Canada would not be detrimental to the national interest
under s. 34(2) may still bring an application for H&C relief. Whether such
an application would be successful is another matter.
D. Standard of Review
(1) Relationship
Between the Administrative Law Standards of Review and the Appellate Standards
of Review
[45]
The first issue in this appeal concerns the
standard of review applicable to the Minister’s decision. But, before I discuss
the appropriate standard of review, it will be helpful to consider once more
the interplay between (1) the appellate standards of correctness and palpable
and overriding error and (2) the administrative law standards of correctness
and reasonableness. These standards should not be confused with one another in
an appeal to a court of appeal from a judgment of a superior court on an
application for judicial review of an administrative decision. The proper
approach to this issue was set out by the Federal Court of Appeal in Telfer
v. Canada Revenue Agency, 2009 FCA 23, 386 N.R. 212, at para. 18:
Despite some
earlier confusion, there is now ample authority for the proposition that, on an
appeal from a decision disposing of an application for judicial review, the question
for the appellate court to decide is simply whether the court below identified
the appropriate standard of review and applied it correctly. The appellate
court is not restricted to asking whether the first-level court committed a
palpable and overriding error in its application of the appropriate standard.
[46]
In Merck Frosst Canada Ltd. v. Canada
(Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J.
aptly described this process as “‘step[ping] into the shoes’ of the lower
court” such that the “appellate court’s focus is, in effect, on the
administrative decision” (emphasis deleted).
[47]
The issue for our consideration can thus be
summarized as follows: Did the application judge choose the correct standard of
review and apply it properly?
(2) What Is the Standard of Review?
[48]
As this Court held in Dunsmuir, a court
deciding an application for judicial review must engage in a two-step process
to identify the proper standard of review. First, it must consider whether the
level of deference to be accorded with regard to the type of question raised on
the application has been established satisfactorily in the jurisprudence. The
second inquiry becomes relevant if the first is unfruitful or if the relevant
precedents appear to be inconsistent with recent developments in the common law
principles of judicial review. At this second stage, the court performs a full
analysis in order to determine what the applicable standard is.
Determination of the Standard in Light of the
Jurisprudence
[49]
In my view, the standard of review applicable in
the case at bar has been satisfactorily determined in past decisions to be
reasonableness. A host of cases from the Federal Court indicate that
reasonableness is the standard for reviewing decisions on applications for
ministerial relief under s. 34(2) of the IRPA : Esmaeili-Tarki v.
Canada (Minister of Citizenship and Immigration), 2005 FC 509 (CanLII); Miller
v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438; Naeem
v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, [2007] 4
F.C.R. 658; Al Yamani v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 381, 311 F.T.R. 193; Soe v. Canada (Public Safety
and Emergency Preparedness), 2007 FC 461 (CanLII); Kanaan v. Canada
(Minister of Public Safety & Emergency Preparedness), 2008 FC 241, 71
Imm. L.R. (3d) 63; Chogolzadeh v. Canada (Minister of Public Safety and
Emergency Preparedness), 2008 FC 405, 327 F.T.R. 39; Tameh v. Canada
(Minister of Public Safety and Emergency Preparedness), 2008 FC 884, 332
F.T.R. 158; Kablawi v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 1011, 333 F.T.R. 300; Ramadan v. Canada (Minister
of Citizenship and Immigration), 2008 FC 1155, 335 F.T.R. 227; Afridi v.
Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC
1192, 75 Imm. L.R. (3d) 291; Ismeal v. Canada (Minister of Public Safety
& Emergency Preparedness), 2008 FC 1366, 77 Imm. L.R. (3d) 310; Abdella.
This jurisprudence is well established, and the appellant has not shown why it
should not be relied on in this appeal.
[50]
The applicability of the reasonableness standard
can be confirmed by following the approach discussed in Dunsmuir. As
this Court noted in that case, at para. 53, “[w]here the question is one of
fact, discretion or policy, deference will usually apply automatically”. Since
a decision by the Minister under s. 34(2) is discretionary, the deferential
standard of reasonableness applies. Also, because such a decision involves the
interpretation of the term “national interest” in s. 34(2) , it may be said that
it involves a decision maker “interpreting its own statute or statutes closely
connected to its function, with which it will have particular familiarity” (Dunsmuir,
at para. 54). This factor, too, confirms that the applicable standard is
reasonableness.
(3) Meaning of Reasonableness
[51]
In Dunsmuir, the Court defined
reasonableness as follows:
. . . a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law. [para. 47]
[52]
In Newfoundland and Labrador Nurses’ Union v.
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R.
708, Abella J., for a unanimous Court, returned to the meaning of
reasonableness and deference. She stated:
This,
I think, is the context for understanding what the Court meant in Dunsmuir
when it called for “justification, transparency and intelligibility”. To me,
it represents a respectful appreciation that a wide range of specialized
decision-makers routinely render decisions in their respective spheres of
expertise, using concepts and language often unique to their areas and
rendering decisions that are often counter-intuitive to a generalist. . . .
Read
as a whole, I do not see Dunsmuir as standing for the proposition that
the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as
advocating that a reviewing court undertake two discrete analyses — one for the
reasons and a separate one for the result (Donald J. M. Brown and John M.
Evans, Judicial Review of Administrative Action in Canada (loose-leaf),
at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be
read together with the outcome and serve the purpose of showing whether the
result falls within a range of possible outcomes. This, it seems to me, is
what the Court was saying in Dunsmuir when it told reviewing courts to
look at “the qualities that make a decision reasonable, referring both to the
process of articulating the reasons and to outcomes” (para. 47).
In
assessing whether the decision is reasonable in light of the outcome and the
reasons, courts must show “respect for the decision-making process of
adjudicative bodies with regard to both the facts and the law” (Dunsmuir,
at para. 48). This means that courts should not substitute their own reasons,
but they may, if they find it necessary, look to the record for the purpose of
assessing the reasonableness of the outcome.
. .
. if the reasons allow the reviewing court to understand why the tribunal made
its decision and permit it to determine whether the conclusion is within the
range of acceptable outcomes, the Dunsmuir criteria are met. [paras.
13-16]
[53]
In one of its most recent comments on this
point, in Construction Labour Relations v. Driver Iron Inc., 2012 SCC
65, [2012] 3 S.C.R. 405, the Court emphasized that the reviewing court must
consider the tribunal’s decision as a whole, in the context of the underlying
record, to determine whether it was reasonable:
. . . administrative tribunals do not
have to consider and comment upon every issue raised by the parties in their
reasons. For reviewing courts, the issue remains whether the decision, viewed
as a whole in the context of the record, is reasonable (Newfoundland and
Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708). [para. 3]
[54]
I will now consider whether the Minister’s
decision was reasonable. The remainder of my reasons will focus on this issue.
E. Meaning of “National Interest” Under Section 34(2) of the
IRPA
[55]
The meaning of the term “national interest” in
s. 34(2) of the IRPA was central to the Minister’s exercise of
discretion in this case. As is plain from the statute, the Minister exercises
this discretion by determining whether he or she is satisfied by the applicant
that the applicant’s presence in Canada would not be detrimental to the
national interest. The meaning of “national interest” in the context of this
section is accordingly key, as it defines the standard the Minister must apply
to assess the effect of the applicant’s presence in Canada in order to exercise
his or her discretion.
[56]
The Minister, in making his decision with
respect to the appellant, did not expressly define the term “national
interest”. The first attempt at expressly defining it was by Mosley J. in the
Federal Court, and he also certified a question concerning this definition for
the Federal Court of Appeal’s consideration. We are therefore left in the
position, on this issue, of having no express decision of an
administrative decision maker to review.
[57]
This Court has already encountered and addressed
this situation, albeit in a different context, in Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 S.C.R. 654. In that case, Rothstein J. held that a decision maker’s decision
on the merits may imply a particular interpretation of the statutory provision
at issue even if the decision maker has not expressed an opinion on that
provision’s meaning.
[58]
The reasoning from Alberta Teachers’
Association can be applied to the case at bar. It is evident from the
Minister’s holding that “[i]t is not in the national interest to admit
individuals who have had sustained contact with known terrorist and/or terrorist-connected
organizations” that the Minister made a determination of the meaning of
“national interest”. An interpretative decision as to that term is necessarily
implied within his ultimate decision on ministerial relief, although this Court
is not in a position to determine with finality the actual reasoning of the
Minister. In these circumstances, we may “consider the reasons that could be
offered for the [Minister’s] decision when conducting a reasonableness review”
of that decision (Alberta Teachers’ Association, at para. 54). Accordingly,
I now turn to consider what appears to have been the ministerial interpretation
of “national interest”, based on the Minister’s “express reasons” and the
Guidelines, which inform the scope and context of those reasons. I will then
assess whether this implied interpretation, and the Minister’s decision as a
whole, were reasonable.
[59]
The Minister stated in his reasons that he had
“reviewed and considered the material and evidence submitted in its entirety”.
This material included the following information set out in the CBSA’s briefing
note, which addressed many of the questions presented in the Guidelines:
1. The extent of the appellant’s
membership in, and activities on behalf of, the LNSF are in question.
2. At most, the appellant was a
“passive member” of the LNSF who carried out “basic functions”. He was never
involved in violent acts.
3. The appellant joined the LNSF in
1994 to support democracy, freedom of speech, and human rights in Libya. At
that time, the organization was, by and large, no longer engaged in violence.
In any event, the appellant claimed to have no knowledge of the LNSF’s
involvement in violence and would not have supported the LNSF had it espoused
the use of violence to achieve political change.
4. There is evidence to suggest that
the appellant severed all ties with the LNSF when he came to Canada in 1997.
5. Throughout, the appellant’s goal
has been to support the establishment of a democratic system of government in
Libya.
6. The appellant has two children,
attended English as a second language classes, and owns his own transport
business.
(A.R., vol. I, at pp. 5-9)
[60]
The Guidelines did not constitute a fixed and
rigid code. Rather, they contained a set of factors, which appeared to be relevant
and reasonable, for the evaluation of applications for ministerial relief. The
Minister did not have to apply them formulaically, but they guided the exercise
of his discretion and assisted in framing a fair administrative process for
such applications. As a result, the Guidelines can be of assistance to the
Court in understanding the Minister’s implied interpretation of the “national
interest”.
[61]
Moreover, the Minister placed particular
emphasis on matters related to national security and public safety in the
reasons he gave for his decision. These included: the appellant’s
contradictory and inconsistent accounts of his involvement with the LNSF, a
group that has engaged in terrorism; the fact that the appellant was most
likely aware of the LNSF’s previous activity; and the fact that the appellant
had had sustained contact with the LNSF.
[62]
Taking all the above into account, had the
Minister expressly provided a definition of the term “national interest” in
support of his decision on the merits, it would have been one which related
predominantly to national security and public safety, but did not exclude the
other important considerations outlined in the Guidelines or any analogous
considerations (see Appendix 1 (the relevant portions of the Guidelines)).
[63]
As a result of my comments above on the standard
of review, I am of the view that the Minister is entitled to deference as
regards this implied interpretation of the term “national interest”. As
Rothstein J. stated, “[w]here the reviewing court finds that the tribunal has
made an implicit decision on a critical issue, the deference due to the
tribunal does not disappear” (Alberta Teachers’ Association, at
para. 50).
[64]
In my view, the Minister’s interpretation of the
term “national interest”, namely that it is focused on matters related to
national security and public safety, but also encompasses the other important
considerations outlined in the Guidelines and any analogous considerations, is
reasonable. It is reasonable because, to quote the words of Fish J. from Smith
v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, it “accords . .
. with the plain words of the provision, its legislative history, its evident
purpose, and its statutory context” (para. 46). That is to say, the
interpretation is consistent with Driedger’s modern approach to statutory
interpretation:
Today
there is only one principle or approach, namely, the words of an Act are to be
read in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament.
(Construction
of Statutes (2nd ed. 1983), at p. 87)
(1) Plain Words of the Provision
[65]
There is no dispute between the parties that the
term “national interest” refers to matters which are of concern to Canada and
to Canadians. There is no doubt that public safety and national security are
matters which are of concern to Canada and to Canadians. It is equally clear,
however, that more than just public safety and national security are of concern
to Canada and to Canadians. For example, the plain meaning of the term
“national interest” would also include the preservation of the values that underlie
the Canadian Charter of Rights and Freedoms and the democratic character
of the Canadian federation, and in particular the protection of the equal
rights of every person to whom its laws and its Constitution apply. The plain
words of the provision therefore favour a broader reading of the term “national
interest” than the one suggested by the respondent and by the Federal Court of
Appeal, which would limit its meaning to the protection of public safety and
national security. The words of the statute are consistent with the Minister’s
implied interpretation of this term, which relates predominantly to national
security and public safety, but does not exclude the other important
considerations outlined in the Guidelines or any analogous considerations. The
legislative history of the provision is also relevant to an understanding of
the range of values and interests underlying the concept of the national
interest.
(2) Legislative History of the
Provision
[66]
The legislative history of s. 34(2) is a long one.
In these reasons, I will only discuss the salient points of this history, those
which serve to demonstrate that the Minister’s implied interpretation of the
term “national interest” is consistent with it.
[67]
Ministerial relief from a finding of inadmissibility
first became available in 1952. Relief was available to persons who were
members of or associated with any organization, group or body that was or had
been involved in the subversion by force or other means of democratic
government, institutions or processes. Those who sought such relief had to
satisfy the minister that they had ceased to be members of or associated with
the organization, group or body in question and that their admission “would
not be detrimental to the security of Canada” (Immigration Act,
R.S.C. 1952, c. 325, s. 5(l)). Parliament made it clear at the time
that it intended the focus of an application for ministerial relief to be
national security.
[68]
In 1977, the provisions of the Immigration
Act on inadmissibility were revised to read, in part, as follows:
19. (1) No person shall be granted admission if he is a member of any
of the following classes:
. . .
(e)
persons who have engaged in or who there are reasonable grounds to believe will
engage in acts of espionage or subversion against democratic government,
institutions or processes, as they are understood in Canada, except persons
who, having engaged in such acts, have satisfied the Minister that their
admission would not be detrimental to the national interest;
(Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(e))
[69]
Thus, in 1977, Parliament made a clear decision
to change the approach to ministerial relief. The test would no longer focus
solely on national security, as access to relief would instead be premised on a
broader array of domestic and international considerations constituting the
“national interest”. Since then, the provisions on ministerial relief in both
the IA and the IRPA have at all times referred to the “national
interest”.
[70]
Parliament was (or at least must be taken to
have been) aware of the previous “detrimental to the security of Canada” test
when it decided to enact, and later to keep, the “national interest” test for
ministerial relief. The fact that, at all material times, the wording of s.
34(2) referred to the applicant’s not being detrimental to the “national
interest”, as opposed to not being detrimental to the “security of Canada”,
strongly suggests that Parliament did not intend the term “national interest”
to relate exclusively to national security and public safety. Had that been
the case, Parliament could have returned to the expression “security of Canada”
in enacting s. 34(2) .
[71]
The IRPA replaced the IA in 2002.
As it was enacted in a post-9/11 world, the IRPA was clearly in part a
response to the threats of the complex and dangerous environment which had been
developing internationally. In support of his contention that the
interpretation of the term “national interest” should focus on national
security and public safety, the respondent quotes the following passage from a
Senate Committee report in his factum:
The Committee recognizes that
Bill C-11 represents a major overhaul of Canada’s immigration and refugee
protection legislation, and it will thus likely set the standard for many years
to come. The Committee also fully appreciates that the current context in
which the Bill is being considered is one of heightened security concerns
following the profoundly tragic events of 11 September 2001 in the United
States. In this context the Committee realizes that the Bill must embody a
balance that will respect the needs and rights of individuals while
simultaneously serving the public interest particularly with respect to
security concerns and meeting Canada’s international obligations. [Emphasis
added.]
(Standing
Senate Committee on Social Affairs, Science and Technology, “Ninth Report”, 1st
Sess., 37th Parl., October 23, 2001 (online))
[72]
This passage certainly highlights the IRPA ’s
role in “serving the public interest . . . with respect to security concerns”.
However, it does not limit the national interest to security concerns. It also
highlights the fact that meeting Canada’s international obligations (including,
presumably, obligations stemming from rules of customary and conventional
international human rights law) is an important part of the national interest.
[73]
In 2005, the DPSEPA formally established
both the Department of Public Safety and Emergency Preparedness and the
Minister’s post. The respondent submits that the creation of this new
department and of the CBSA, as well as the transfer of ministerial
responsibility for decisions under s. 34(2) , formed part of a new national
security policy instituted by Parliament in response to the events of
September 11, 2001. In particular, he argues that the legislative
transfer of the responsibility for making such decisions from the MCI to the
Minister, occurring as it did in the broader context of national security and
public safety, supports the Federal Court of Appeal’s interpretation of the
term “national interest”.
[74]
I am not persuaded that the transfer of
ministerial responsibility for s. 34(2) applications serves as a
sufficient basis for upholding the Federal Court of Appeal’s interpretation of
the term “national interest”. On its own, this transfer should not be read as
changing, nor does it change, the substantive law governing relief applications
under s. 34(2) . Ministerial responsibilities may be reassigned for a wide
variety of reasons. If this argument was valid, it would imply that the meaning
of a law might change whenever ministerial responsibilities are reassigned.
This would be a new and perplexing principle of interpretation. There is a
presumption against the implicit alteration of the law according to which,
absent an explicit change in the wording of a provision, it is presumed that
Parliament did not intend to amend its meaning. Although the ministerial
responsibility for deciding relief applications under s. 34(2) was transferred
in 2005, Parliament did not amend the wording of this provision. Therefore,
the presumption against implicit alteration applies, and there was no intent to
amend the meaning of the term “national interest”. As the appellant points out
in his factum, this presumption is not rebutted by a mere transfer of
ministerial responsibility:
It does not make sense that every time
Parliament decides to change the responsibilities of particular Ministers for
administrative purposes, or without indicating that there is a substantive
reason for a change, the words of a statute should be given different
meanings. A mere transfer in Ministerial responsibility is not sufficient to
establish that the change is meant to have a substantive effect on the rights
of persons who are affected by legislation administered by the various
ministers. The Court of Appeal’s interpretation of national interest
effectively amends section 34(2) . Amending legislation is a legislative
function, and falls outside of the judicial function. [para. 76]
[75]
In summary, this review demonstrates that the
Minister’s implied interpretation of the term “national interest” — that it
relates predominantly to national security and public safety, but does not
exclude the other important considerations outlined in the Guidelines or any
analogous considerations — is consistent with the legislative history of the
provision.
(3) Purpose of the Provision
[76]
The respondent argues that the IRPA is
concerned with public safety and national security. More specifically, he
argues that the purpose of s. 34(1) (c) and (f) is to ensure the
safety and security of Canadians, while s. 34(2) provides for relief only for
innocent or coerced members of terrorist organizations who would otherwise be
inadmissible.
[77]
The respondent is correct in saying that the IRPA
is concerned with national security and public safety. In fact, the Court
recognized this in Medovarski v. Canada (Minister of Citizenship and Immigration),
2005 SCC 51, [2005] 2 S.C.R. 539:
The
objectives as expressed in the IRPA indicate an intent to prioritize
security. . . . Viewed collectively, the objectives of the IRPA and its
provisions concerning permanent residents, communicate a strong desire to treat
criminals and security threats less leniently than under the former Act. [para.
10]
[78]
That said, the respondent’s argument that s.
34(2) is focused exclusively on national security and public safety, and that
it provides for relief only for innocent or coerced members of terrorist
organizations, fails to give adequate consideration to the other objectives of
the IRPA . Section 3(1) of the IRPA sets out 11 objectives of the
Act with respect to immigration. Only two of these are related to public
safety and national security: to protect public health and safety and to
maintain the security of Canadian society (s. 3(1) (h)), and to promote
international justice and security by fostering respect for human rights and by
denying access to Canadian territory to persons who are criminals or security
risks (s. 3(1) (i)). The other nine objectives relate to other factors
that properly inform the interpretation of the term “national interest” (e.g.,
“to permit Canada to pursue the maximum social, cultural and economic benefits
of immigration” (s. 3(1) (a))). The explicit presence of these other
objectives in the IRPA strongly suggests that this term is not limited
to public safety and national security, but that the Parliament of Canada also
intended that it be interpreted in the context of the values of a democratic
state. Section 34 is intended to protect Canada, but from the perspective that
Canada is a democratic nation committed to protecting the fundamental values of
its Charter and of its history as a parliamentary democracy.
[79]
Accordingly, the Minister’s broad implied
interpretation of the term “national interest” is also consistent with the
purpose of the provision.
(4) Context of the Provision
[80]
As the Court noted in Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, “[t]he preferred
approach [to statutory interpretation] recognizes the important role that
context must inevitably play when a court construes the written words of a
statute” (para. 27). The context of s. 34(2) provides much guidance for the
interpretation of the term “national interest”.
[81]
First, according to the presumption of
consistent expression, when different terms are used in a single piece of
legislation, they must be understood to have different meanings. If Parliament
has chosen to use different terms, it must have done so intentionally in order
to indicate different meanings. The term “national interest” is used in s.
34(2) , which suggests that what is to be considered by the Minister under that
provision is broader than the considerations of whether the individual is “a
danger to the security of Canada” (s. 34(1)(d)) or whether he or she
“might endanger the lives or safety of persons in Canada” (s. 34(1)(e)),
both of which appear in s. 34(1). If Parliament had intended national security
and public safety to be the only considerations under s. 34(2) , it could have
said so using the type of language found in s. 34(1). It did not do so,
however.
[82]
In a similar vein, the terms “national security”,
“danger to the public” and “endanger the safety of any person” each appear
several times elsewhere in the IRPA . In light of the presumption of
consistent expression, “national interest” cannot be synonymous with any of
these terms. Rather, the use of the term “national interest” implies that the
Minister is to carry out a broader analysis under s. 34(2) . Contrary to what
the Federal Court of Appeal held in the case at bar, in determining whether a
person’s continued presence in Canada would not be detrimental to the national
interest, the Minister must consider more than just national security and
whether the applicant is a danger to the public or to the safety of any person.
[83]
Second, if s. 34(2) were concerned solely with
the danger an applicant poses to the security of Canada, it would be impossible
for a person found to be inadmissible under s. 34(1)(d) (“being a danger
to the security of Canada”) to obtain relief under s. 34(2) . This is an absurd
interpretation which must be avoided.
[84]
Third, the respondent argues that, because of
the possibility of H&C relief under s. 25 of the IRPA , the principle
of consistent expression dictates that H&C factors should not be relevant
to a determination of what is in the national interest under s. 34(2) . I agree,
but with some qualifications. H&C considerations are more properly
considered in the context of a s. 25 application, and s. 34 should not be
transformed into an alternative form of humanitarian review. But s. 34 does not
necessarily exclude the consideration of personal factors that might be
relevant to this particular form of review. For example, such considerations
may have an impact on the assessment of the applicant’s personal
characteristics for the purpose of determining whether he or she can be viewed
as a threat to the security of Canada. Of the considerations in the Guidelines
unrelated to national security and public safety which formed part of the
Minister’s implied interpretation, only very few are H&C factors. The fact
that the Minister considered such factors did not render his interpretation of
the term “national interest” unreasonable.
[85]
Finally, the broader context of s. 34(2) of the IRPA
also includes the Guidelines. Although not law in the strict sense, and
although they are liable to evolve over time as the context changes, thus
giving rise to new requirements adapted to different contexts, guidelines are
“a useful indicator of what constitutes a reasonable interpretation of the . .
. section” (Baker, at para. 72). The Guidelines were published in
2005, and they applied to applications for ministerial relief under
s. 34(2) at the time the Minister reached his decision on the appellant’s
application. As is evident from the numerous considerations contained in
Appendix 1, the Guidelines represent a broad approach to the concept of the
“national interest”. They do not simply equate the “national interest” with
national security and public safety, as the Federal Court of Appeal did.
Rather, they suggest that the national interest analysis is broader than that,
although its focus may properly be on national security and public safety.
[86]
Thus, the Minister’s implied interpretation of
the term “national interest” — that it relates predominantly to national
security and public safety, but does not exclude the other important
considerations outlined in the Guidelines or any analogous considerations — is
consistent with all these contextual indications of the meaning of this term.
[87]
In summary, an analysis based on the principles
of statutory interpretation reveals that a broad range of factors may be
relevant to the determination of what is in the “national interest”, for the
purposes of s. 34(2) . Even excluding H&C considerations, which are more
appropriately considered in the context of a s. 25 application, although the
factors the Minister may validly consider are certainly not limitless, there
are many of them. Perhaps the best illustration of the wide variety of factors
which may validly be considered under s. 34(2) can be seen in the ones set out
in the Guidelines (with the exception of the H&C considerations included in
the Guidelines). Ultimately, which factors are relevant to the analysis in any
given case will depend on the particulars of the application before the
Minister (Soe, at para. 27; Tameh, at para. 43).
[88]
This interpretation is compatible with the
interpretation of the term “national interest” the Minister might have given in
support of his decision on the appellant’s application for relief. It is
consistent with that decision. The Minister’s implied interpretation of the
term related predominantly to national security and public safety, but did not
exclude the other important considerations outlined in the Guidelines or any
analogous considerations. In light of my discussion of the principles of
statutory interpretation, this interpretation was eminently reasonable.
F. Is the Minister’s Decision Valid?
[89]
Having concluded that the Minister’s implied
interpretation of the term “national interest” is reasonable, I should also
confirm that the decision as a whole is valid. The Minister’s reasons were
justifiable, transparent and intelligible. Although brief, they made clear the
process he had followed in ruling on the appellant’s application. He reviewed
and considered all the material and evidence before him. Having done so, he
placed particular emphasis on: the appellant’s contradictory and inconsistent
accounts of his involvement with the LNSF, a group that has engaged in
terrorism; the fact that the appellant was most likely aware of the LNSF’s
previous activity; and the fact that the appellant had had sustained contact
with the LNSF. The Minister’s reasons revealed that, on the basis of his
review of the evidence and other submissions as a whole, and of these factors
in particular, he was not satisfied that the appellant’s continued presence in
Canada would not be detrimental to the national interest. In short, his
reasons allow this Court to clearly understand why he made the decision he did.
[90]
Furthermore, the Minister’s decision falls
within a range of possible acceptable outcomes which are defensible in light of
the facts and the law. The burden was on the appellant to show that his
continued presence in Canada would not be detrimental to the national
interest. The Minister declined to provide discretionary relief to the
appellant, as he was not satisfied that this burden had been discharged. His
conclusion was acceptable in light of the facts which had been submitted to
him.
[91]
As this Court held in Suresh, a court
reviewing the reasonableness of a minister’s exercise of discretion is not
entitled to engage in a new weighing process (para. 37; see also Lake v.
Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para.
39). As the Minister stated in his reasons, he had “reviewed and considered”
(i.e. weighed) all the factors set out in the appellant’s application which
were relevant to determining what was in the “national interest” in light of
his reasonable interpretation of that term. He gave particular weight to
certain factors pertaining to national security and public safety and
emphasized them in his reasons, namely: the appellant’s contradictory and
inconsistent accounts of his involvement with the LNSF; the fact that the
appellant was most likely aware of the LNSF’s previous activity; and the fact
that the appellant had had sustained contact with the LNSF. Given that the
Minister considered and weighed all the relevant factors as he saw fit, it is
not open to the Court to set the decision aside on the basis that it is
unreasonable.
[92]
In all the circumstances, it cannot be said that
either the result or the Minister’s decision as a whole was unreasonable. But a
final issue remains: it relates to an allegation of a failure to meet the
requirements of procedural fairness.
G. Was the Decision Unfair, and Did It Fail to Meet the
Appellant’s Legitimate Expectations?
[93]
As this Court noted in Dunsmuir, at para.
79, “[p]rocedural fairness is a cornerstone of modern Canadian administrative
law. Public decision makers are required to act fairly in coming to decisions
that affect the rights, privileges or interests of an individual.” The Court’s
comment that “[p]rocedural fairness has many faces” (Dunsmuir, at para.
77) is also relevant to this case.
[94]
The particular face of procedural fairness at
issue in this appeal is the doctrine of legitimate expectations. This doctrine
was given a strong foundation in Canadian administrative law in Baker,
in which it was held to be a factor to be applied in determining what is
required by the common law duty of fairness. If a public authority has made
representations about the procedure it will follow in making a particular
decision, or if it has consistently adhered to certain procedural practices in
the past in making such a decision, the scope of the duty of procedural
fairness owed to the affected person will be broader than it otherwise would
have been. Likewise, if representations with respect to a substantive result
have been made to an individual, the duty owed to him by the public authority
in terms of the procedures it must follow before making a contrary decision
will be more onerous.
[95]
The specific conditions which must be satisfied
in order for the doctrine of legitimate expectations to apply are summarized
succinctly in a leading authority entitled Judicial Review of Administrative
Action in Canada:
The
distinguishing characteristic of a legitimate expectation is that it arises
from some conduct of the decision-maker, or some other relevant actor. Thus, a
legitimate expectation may result from an official practice or assurance that
certain procedures will be followed as part of the decision-making process, or
that a positive decision can be anticipated. As well, the existence of
administrative rules of procedure, or a procedure on which the agency had
voluntarily embarked in a particular instance, may give rise to a legitimate
expectation that such procedures will be followed. Of course, the practice
or conduct said to give rise to the reasonable expectation must be clear,
unambiguous and unqualified. [Emphasis added.]
(D. J.
M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada
(loose-leaf), at §7:1710; see also Mount Sinai Hospital Center v. Quebec
(Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281,
at para. 29; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2
S.C.R. 504, at para. 68.)
[96]
In Mavi, Binnie J. recently explained
what is meant by “clear, unambiguous and unqualified” representations by
drawing an analogy with the law of contract (at para. 69):
Generally speaking, government
representations will be considered sufficiently precise for purposes of the
doctrine of legitimate expectations if, had they been made in the context of a
private law contract, they would be sufficiently certain to be capable of
enforcement.
[97]
An important limit on the doctrine of legitimate
expectations is that it cannot give rise to substantive rights (Baker,
at para. 26; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R.
525, at p. 557). In other words, “[w]here the conditions for its application
are satisfied, the Court may [only] grant appropriate procedural
remedies to respond to the ‘legitimate’ expectation” (C.U.P.E. v. Ontario
(Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131
(emphasis added)).
[98]
In the case at bar, the Guidelines created a
clear, unambiguous and unqualified procedural framework for the handling of
relief applications, and thus a legitimate expectation that that framework
would be followed. The Guidelines were published by CIC, and, although CIC is
not the Minister’s department, it is clear that they are “used by employees of
[both] CIC and the CBSA for guidance in the exercise of their functions and in
applying the legislation” (R.F., at para. 108). The Guidelines are and were
publicly available, and, as Appendix 2 to these reasons illustrates, they
constitute a relatively comprehensive procedural code for dealing with
applications for ministerial relief. Thus, the appellant could reasonably
expect that his application would be dealt with in accordance with the process
set out in them. In brief, this process is as follows:
1. Following the receipt of an
application for relief, the CIC officer provides the applicant with a copy of
the “National Interest Information Sheet”. The applicant is given 15 days to
send his or her submission to the local CIC office.
2. Upon receipt of the applicant’s
submission, the CIC officer prepares a report which discusses the current
situation regarding the applicant’s ground for inadmissibility, the details of
the applicant’s application for relief, and any personal or exceptional
circumstances of the applicant that should be considered.
3. The CIC report is forwarded to
the National Security Division, Intelligence Directorate, CBSA, along with the
applicant’s submission and all supporting documents. The CBSA may conduct
further investigations at this stage.
4. The CBSA analyst prepares a
recommendation to the Minister, which includes all supporting documentation.
5. A copy of the recommendation to
the Minister is disclosed to the applicant, who may then make additional
submissions or provide additional documents in response.
6. The applicant’s original
submission and its supporting documentation, the CIC officer’s report, the
CBSA’s recommendation, and any additional submissions or documents received
from the applicant in response to that recommendation are all forwarded to the
Minister.
7. The Minister renders a decision
on the application. The decision is entirely within the Minister’s discretion.
8. If the decision is negative, CIC
issues a refusal letter to the applicant.
[99]
The appellant has not shown that his application
was not dealt with in accordance with this process outlined in the Guidelines.
In May 2002, he was advised of the ministerial relief process by way of a
letter akin to the National Interest Information Sheet. He responded to this
letter by making submissions through his counsel, and CIC then prepared its
report. The CBSA prepared a briefing note for the Minister, which contained
its recommendation, and this note was disclosed to the appellant. The
appellant declined to make additional submissions or provide additional
documents in response to the recommendation. The appellant’s submission and
its supporting documentation, the CIC officer’s report, and the CBSA’s
recommendation were all forwarded to the Minister, and the Minister rendered a
decision on the application. As counsel for the appellant rightly
acknowledges, “[i]n the Appellant’s case, the Ministerial relief process
followed the process set out in the IP 10 guidelines” (A.F., at para. 53). His
legitimate expectation in this regard was therefore fulfilled.
[100]
The appellant raises a further argument to the
effect that he had a legitimate expectation that the Minister would consider
certain factors in determining his relief application. The source of this
alleged expectation is twofold. First, the appellant argues that the
Guidelines created an expectation that the pertinent factors set out in
Appendix 1 to these reasons would be considered. Second, he alleges that he
had a legitimate expectation that H&C factors would be considered in
determining his application as a result of a letter CIC had sent him on May 22,
2002. That letter read, in part, as follows:
The Minister will consider whether
granting you permanent residence to Canada would be contrary to the National Interest
to Canada. This will require an assessment of the detriment that you pose to
the National Interest of Canada, as well as any humanitarian and
compassionate circumstances pertinent to your situation. [Emphasis added; A.R.,
vol. III, at p. 287.]
[101]
Even were I to assume that the Guidelines and
the letter unambiguously promised the appellant that certain factors would be
considered in assessing his application for relief and that, at law, someone in
his position might in fact have a legitimate expectation that certain factors
would be considered in making a discretionary decision, his argument would
nevertheless fail. As I mentioned above, the Minister’s implied interpretation
of the term “national interest” encompasses all the factors referred to in the
Guidelines. Also as I mentioned above, and as the appellant acknowledges,
these factors include H&C factors (A.F., at para. 122). In a manner
consistent with this interpretation of the term “national interest”, the
Minister “reviewed and considered the material and evidence submitted in its
entirety”. Therefore, if the appellant had a legitimate expectation that the
Minister would consider certain factors, including H&C factors, in
determining his application for relief, this expectation was fulfilled.
[102]
In my opinion, there was no failure to meet the
appellant’s legitimate expectations or to discharge the duty of procedural
fairness owed to him. The Minister’s decision cannot therefore be set aside on
this basis.
V. Conclusion
[103]
As a result, I would dismiss the appeal and
allow the Minister’s decision under s. 34(2) of the IRPA to stand. In
the circumstances, and taking particular account of the Minister’s inordinate
delay in rendering a decision that was of the utmost importance to Mr. Agraira,
I would make no order as to costs.
Appendix 1 — Relevant Portions of the Guidelines re: “National
Interest”
9.2. Processing
the request
. . .
Upon
receipt of the applicant’s submission, the officer should prepare a report,
which consists of the following:
•
the applicant’s current situation regarding the
ground of inadmissibility (refer to Appendix D for an outline of the questions
and considerations that must be addressed in preparing this information);
•
the details of the application and any personal
or exceptional circumstances to be taken into consideration; this would
include:
•
details of immigration application;
•
basis for refugee protection, if applicable;
•
other grounds of inadmissibility, if applicable;
•
activities while in Canada;
•
details of family in Canada or abroad;
•
any Canadian interest.
. . .
Appendix
B National interest information sheet
. . .
You
may be exempted from this ground of inadmissibility if the Minister decides
that your presence in Canada would not be detrimental to Canada’s national
interest. The consideration of national interest involves the assessment and
balancing of all factors pertaining to your admission to Canada against the
stated objectives in Canada’s Immigration and Refugee Protection Act , as
well as Canada’s domestic and international interests and obligations.
If
you wish to be considered for this exemption, you must prepare a submission
along with any supporting documentation that you deem relevant. To assist you
in preparing your submission, it is suggested that you address the following:
• Why
are you seeking admission to Canada?
• Are
there any special circumstances surrounding your application?
• Provide
evidence that you do not constitute a danger to the public.
• Explain
current activities you are involved in (employment, education, family
situation, involvement in the community, etc.).
If
the ground of inadmissibility involves membership in a regime or organization,
explain the purpose of the organization, your role in the organization and
activities in which you were involved. You must provide extensive detail and be
very thorough in explaining this, including dates, locations and impact of
these activities. When and for how long were you a member? Did these activities
involve violence? If you are claiming to no longer be a member of this regime
or organization, you must provide evidence. Explain when and why you
disassociated yourself from the regime/organization and whether you are still
involved with persons who are members of the regime/organization.
Lastly,
explain your current attitude towards this regime/organization, its goals and
objectives and how you feel about the means it has chosen to achieve its
objectives.
Your
submission need not be restricted to the above. You may provide any information
and documents that you think may strengthen your request for an
exemption. . . .
Appendix
D Preparing the request for relief report
A
request to the Minister should consist of three parts:
1.
The client’s submission and all supporting documentation;
2.
A report prepared by the officer addressing the applicant’s current situation
with respect to the ground of inadmissibility and any exceptional circumstances
to be taken into account. This includes:
• details
of the immigration application;
• basis
for refugee protection, if applicable;
• other
grounds of inadmissibility, if applicable;
• activities
while in Canada;
• details
of family in Canada or abroad;
• any
Canadian interest;
• any
personal or exceptional circumstances to be considered.
3.
A recommendation to the Minister prepared by the CBSA, NHQ. In order to assess
the current situation regarding the ground of inadmissibility, evidence must be
produced to address the questions stated in the following table:
Question
|
Details
|
Will the applicant’s presence in Canada be
offensive to the Canadian public?
|
•
Is there satisfactory evidence that the person
does not represent a danger to the public?
•
Was the activity an isolated event? If not,
over what period of time did it occur?
•
When did the activity occur?
•
Was violence involved?
•
Was the person personally involved or
complicit in the activities of the regime/organization?
•
Is the regime/organization internationally
recognized as one that uses violence to achieve its goals? If so, what is the
degree of violence shown by the organization?
•
What was the length of time that the applicant
was a member of the regime/organization?
•
Is the organization still involved in criminal
or violent activities?
•
What was the role or position of the person within
the regime/organization?
•
Did the person benefit from their membership
or from the activities of the organization?
•
Is there evidence to indicate that the person
was not aware of the atrocities/criminal/terrorist activities committed by
the regime/organization?
|
Have all ties with the regime/organization
been completely severed?
|
•
Has the applicant been credible, forthright,
and candid concerning the activities/membership that have barred admission or
has the applicant tried to minimize their role?
•
What evidence exists to demonstrate that ties
have been severed?
•
What are the details concerning disassociation
from the regime/organization? Did the applicant disassociate from the
regime/organization at the first opportunity? Why?
•
Is the applicant currently associated with any
individuals still involved in the regime/organization?
•
Does the applicant’s lifestyle demonstrate
stability or is there a pattern of activity likely associated with a criminal
lifestyle?
|
Is there any indication that the applicant
might be benefiting from assets obtained while a member of the organization?
|
•
Is the applicant’s lifestyle consistent with
Personal Net Worth (PNW) and current employment?
•
If not, provide evidence to establish that the
applicant’s PNW did not come from criminal activities.
|
Is there any indication that the applicant
may be benefiting from previous membership in the regime/organization?
|
•
Does the applicant’s lifestyle demonstrate any
possible benefits from former membership in the regime/organization?
•
Does the applicant’s status in the community
demonstrate any special treatment due to former membership in the
regime/organization?
|
Has the person adopted the democratic
values of Canadian society?
|
•
What is the applicant’s current attitude
towards the regime/organization, their membership, and their activities on
behalf of the regime/organization?
•
Does the applicant still share the values and
lifestyle known to be associated with the organization?
•
Does the applicant show any remorse for their
membership or activities?
•
What is the applicant’s current attitude
towards violence to achieve political change?
•
What is the applicant’s attitude towards the
rule of law and democratic institutions, as they are understood in Canada?
|
Appendix 2 — Relevant Portions of the Guidelines
re: Legitimate Expectations
1. What
this chapter is about
In
addition to the general procedures for processing applications for permanent
residence in Canada this chapter outlines procedures to be applied in cases
involving possible inadmissibility on grounds of national security. It
describes the process to be followed when an applicant requests relief under
the national interest provisions. These guidelines are issued to ensure
consistency in the application of procedural fairness requirements.
7.2. Specific
requirements
The
procedural fairness requirements when assessing inadmissibility and processing
requests for ministerial relief are as follows:
•
The decision-maker must make the decision on
complete information. All documents provided by the applicant must be
considered by the decision-maker. It is not acceptable that the contents of
such documentation be summarized for the decision-maker without attaching the
primary documentation.
•
The applicant is entitled to be provided with
all the relevant information that will be considered by the decision-maker to
challenge the information and to present evidence and submissions. This
entitlement is limited where disclosure of the information would be injurious
to national security or to the safety of any person.
•
The applicant is entitled to be made aware of
concerns raised by the officer and to respond to those concerns.
9. Procedure
– Requests for relief
At
the interview with CIC, the applicant may request information about the
national interest provision or apply for ministerial relief. The officer should
be guided by the following principles and guidelines.
9.1. Principles
The
national interest provisions are intended to be exceptional. A6(3) precludes
any delegation from the Minister. The following principles apply:
•
The decision to grant relief is entirely within
the discretion of the Minister. The role of the officer is primarily to ensure
that accurate and complete information is placed before the Minister so that
the Minister can make an informed decision.
•
The officer should not encourage or discourage
the applicant from applying for relief, nor should the officer provide an
opinion regarding the merits of the application.
The
request for relief under the national interest provisions must be initiated by
the applicant. The request for relief is usually made after the applicant has
been informed that they may be inadmissible to Canada on grounds of national
security. Officers are not required to notify or advise the applicant of the
possibility of requesting ministerial relief.
9.2. Processing
the request
. . .
Following
the receipt of an application for relief, the officer should provide the
applicant with a copy of the National Interest Information Sheet
(Appendix B). The applicant should normally be given 15 days (excluding mailing
time) to send their submission to the local CIC office.
Upon
receipt of the applicant’s submission, the officer should prepare a report,
which consists of the following:
•
the applicant’s current situation regarding the
ground of inadmissibility (refer to Appendix D for an outline of the questions
and considerations that must be addressed in preparing this information);
•
the details of the application and any personal
or exceptional circumstances to be taken into consideration; this would
include:
•
details of immigration application;
•
basis for refugee protection, if applicable;
•
other grounds of inadmissibility, if applicable;
•
activities while in Canada;
•
details of family in Canada or abroad;
•
any Canadian interest.
This
report should be signed by the officer and forwarded to the National Security
Division, Intelligence Directorate, CBSA, with the applicant’s submission and
all supporting documents. A recommendation should not be provided at this stage
as the CBSA NHQ may conduct further investigations and acquire additional
information before the matter is put before the Minister. For this reason, the
recommendation to the Minister will be made by the National Security Division, Intelligence
Directorate, CBSA at that time.
9.3. Disclosure
to client
The
CBSA NHQ analyst will conduct any further inquiries that may be necessary and
then prepare a recommendation to the Minister. The recommendation will include
all supporting documentation. At this juncture, a copy of the recommendation to
the Minister and all the supporting documentation (except classified
information) will be returned to the CIC for disclosure to the client.
The
CIC will deliver these documents by courier with a covering letter as provided
in Appendix E. The person must sign the acknowledgment of receipt.
9.4. After
disclosure
The
CIC should return the following documents to the National Security Division,
Intelligence Directorate, CBSA:
•
a copy of the letter sent to the client;
•
any additional submissions or documents received
from the client.
9.5. After
issuance of Minister’s decision
A
faxed copy of the Minister’s decision will be forwarded to the CIC. Where the
decision is positive, the client should be informed that they are not
inadmissible on grounds of national security and processing of the application
for permanent residence should continue.
Where
the decision is negative, the client should be issued a refusal letter and
action taken pursuant to section 8.8 above. The refusal letter (see Appendix F)
should indicate that the application for permanent residence is refused as the
applicant was determined to be inadmissible and the Minister did not grant
relief.
Appendix
B National interest information sheet
You
have asked to be considered by the Minister of Public Safety and Emergency
Preparedness for relief under paragraph __________ of Canada’s Immigration
and Refugee Protection Act which reads as follows: (Insert appropriate
paragraph)
You
may be exempted from this ground of inadmissibility if the Minister decides
that your presence in Canada would not be detrimental to Canada’s national
interest. The consideration of national interest involves the assessment and
balancing of all factors pertaining to your admission to Canada against the
stated objectives in Canada’s Immigration and Refugee Protection Act , as
well as Canada’s domestic and international interests and obligations.
If
you wish to be considered for this exemption, you must prepare a submission
along with any supporting documentation that you deem relevant. To assist you
in preparing your submission, it is suggested that you address the following:
• Why
are you seeking admission to Canada?
• Are
there any special circumstances surrounding your application?
• Provide
evidence that you do not constitute a danger to the public.
• Explain
current activities you are involved in (employment, education, family
situation, involvement in the community, etc.).
If
the ground of inadmissibility involves membership in a regime or organization,
explain the purpose of the organization, your role in the organization and
activities in which you were involved. You must provide extensive detail and be
very thorough in explaining this, including dates, locations and impact of
these activities. When and for how long were you a member? Did these activities
involve violence? If you are claiming to no longer be a member of this regime
or organization, you must provide evidence.
Explain
when and why you disassociated yourself from the regime/organization and
whether you are still involved with persons who are members of the
regime/organization. Lastly, explain your current attitude towards this
regime/organization, its goals and objectives and how you feel about the means
it has chosen to achieve its objectives.
Your
submission need not be restricted to the above. You may provide any information
and documents that you think may strengthen your request for an exemption.
Your
submission, in English or French, should be provided to the local immigration
office within 15 days. If we do not receive your submissions, your request for
relief may be considered abandoned.
An
officer will review your request, seek any required clarification and forward
it to our National Headquarters with a report. National Headquarters will
review the matter and make a recommendation to the Minister. You will be
provided an opportunity to review the recommendation for any errors or
omissions prior to it being referred to the Minister.
Appendix
D Preparing the request for relief report
A
request to the Minister should consist of three parts:
1.
The client’s submission and all supporting documentation;
2.
A report prepared by the officer addressing the applicant’s current situation
with respect to the ground of inadmissibility and any exceptional circumstances
to be taken into account. This includes:
• details
of the immigration application;
• basis
for refugee protection, if applicable;
• other
grounds of inadmissibility, if applicable;
• activities
while in Canada;
• details
of family in Canada or abroad;
• any
Canadian interest;
• any
personal or exceptional circumstances to be considered.
3.
A recommendation to the Minister prepared by the CBSA, NHQ. . . .
Appendix
E Final disclosure letter
(Insert letterhead)
Our
ref:
(Insert address)
Dear:
This
is further [to] your request to seek relief under the national interest
provisions of Canada’s immigration legislation.
You
will find attached a copy of releasable information* on this matter that will
be presented to the Minister. This consists of:
• a
report with relevant documents from the immigration office handling your file;
• a
recommendation from the President, Canada Border Services Agency, to the
Minister of Public Safety and Emergency Preparedness;
• (other
documents as applicable).
Your
original submission and supporting documentation, which are not attached to
this letter, will also be presented to the Minister.
The
Canada Border Services Agency is prepared to present this matter to the
Minister for a decision. However, before doing so, we invite you to review
these documents and provide us with any further comments you deem necessary.
These comments will be included for consideration by the Minister.
We
would request that your comments be provided to this office within 15 days.
Should we not receive any comments from you by that time, we will proceed to
put the matter before the Minister.
Sincerely,
*
Confidential information cannot be disclosed if the disclosure would be
injurious to national security or to the safety of any person.
Appendix
F Refusal letter (Application for permanent
residence refused based on A34, A35 or A37; request for ministerial relief
denied)
(Insert letterhead)
Our
ref:
(Insert address)
Dear:
This
refers to your application for permanent residence. A letter dated (insert
date) was sent to you inviting you to respond to concerns about your
admissibility. The information you provided (in your letter of ___ or at the
interview on ____) has been carefully reviewed together with all other
information in your application.
It
appears that you are a person described in section (34, 35 or 37) of the
Immigration and Refugee Protection Act . I have come to the conclusion
that you are inadmissible to Canada based on (provide details concerning
individual circumstances as they relate to the finding of inadmissibility.
Exact content may be developed in consultation with NHQ).
When client has requested ministerial relief and the Minister has
not granted relief, officers should insert the following paragraph:
Furthermore,
you have not satisfied the Minister of Public Safety and Emergency Preparedness
that your presence in Canada would not be detrimental to the national interest.
As a result, your application for permanent residence is refused.
Sincerely,
[Text
in italics in original.]
Appeal
dismissed.
Solicitors for the
appellant: Waldman & Associates, Toronto.
Solicitor for the
respondent: Attorney General of Canada, Toronto.
Solicitors for the
intervener the British Columbia Civil Liberties Association: Sack
Goldblatt Mitchell, Toronto.
Solicitor for the
intervener Ahmad Daud Maqsudi: Leigh Salsberg, Toronto.
Solicitors for the
interveners the Canadian Council for Refugees and the Canadian Association of
Refugee Lawyers: Simcoe Chambers, Toronto; Refugee Law Office,
Toronto.
Solicitors for the
interveners the Canadian Arab Federation and the Canadian Tamil Congress: Jackman
Nazami & Associates, Toronto.