Date: 20110317
Docket:
A-31-10
Citation: 2011 FCA 103
CORAM: BLAIS
C.J.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Appellant
and
MUHSEN AHMED
RAMADAN AGRAIRA
Respondent
REASONS FOR JUDGMENT OF THE
COURT
INTRODUCTION
[1]
Mr.
Agraira is a foreign national who was found to be inadmissible to Canada on security
grounds. He attempted to avoid this finding of inadmissibility through an
application for ministerial relief under the relevant legislation. The
legislative landscape changed significantly during the life of Mr. Agraira’s
application.
[2]
The
Minister refused to grant relief. His application to the Federal Court for
judicial review of that decision was successful. The Minister of Public Safely
and Emergency Preparedness appeals to this Court from the decision of the
Federal Court. While there is abundant jurisprudence on the issue of
ministerial relief in the Federal Court, this appeal is this Court’s first
opportunity to consider the relevant provision.
[3]
For
the reasons which follow, I would allow the appeal and set aside the decision
of the Federal Court.
THE
FACTS
[4]
Mr.
Agraira is a citizen of Libya who, in 1996, left his homeland for Germany where he
made a claim for Convention Refugee status on the basis of his membership in
the Libyan National Salvation Front (LNSF, also referred to in some of the
material as NFSL). His application was unsuccessful because the refugee
determination authority found he lacked credibility.
[5]
In
March 1997, Mr. Agraira entered Canada using an Italian
passport, illegally purchased in Germany. He applied for
Convention Refugee status on March 13, 1997, once again on the basis of his
involvement with the LNSF. In his Personal Information Form, he described the nature
of his activities with the LNSF. As part of an eleven member cell, he delivered
envelopes to members of other cells, raised or attempted to raise funds and
watched and reported on the movements of supporters of the Libyan regime.
Members of his cell were told that they were in training for future activities;
they were taught how to engage people in political discourse and to raise
funds. At the hearing before the Convention Refugee Determination Division, Mr.
Agraira tendered, in support of his application, a letter from the LNSF
attesting to his membership in the organization. Notwithstanding this evidence,
on October 24, 1998, his claim for Convention Refugee status was refused on the
basis of his lack of credibility.
[6]
Meanwhile,
Mr. Agraira met a Canadian woman whom he married in a Muslim ceremony in
December 1997 and subsequently in a civil ceremony on March 7, 1999. Mr.
Agraira’s wife sponsored his application for permanent residence in August
1999. After the Immigration authorities satisfied themselves of the bona
fides of the marriage, they told Mr. Agraira that his application for
permanent residence would be considered.
[7]
On
May 1, 2002, a senior immigration officer wrote to Mr. Agraira to advise him
that “Immigration National Headquarters in Ottawa has received
new information which suggests that your application for landing may have to be
refused.” The letter went on to say that the issue was whether Mr. Agraira was
inadmissible on the grounds that there were reasonable grounds to believe that
he was or had been a member of an organization that is or was engaged in
terrorism, contrary to clause 19(1)(f)(iii)(B) of the Immigration Act,
R.S.C. 1985, c. I-2 [Immigration Act] (Appeal Book at 106). The source
and nature of the new information is not disclosed in the letter.
[8]
According
to Mr. Agraira’s affidavit sworn June 15, 2009 (Appeal Book at 46-49), he was
interviewed by an agent of the Canadian Security Intelligence Service (CSIS)
during the summer of 2000 in the course of which he was asked about his
membership with the LNSF. In his affidavit filed with the Federal Court, Mr.
Agraira suggests that this was the source of the “new” information but this is
purely speculation.
[9]
Mr.
Agraira was interviewed by an immigration officer on May 21, 2002. In the
course of that interview, he admitted that he had been a member of the LNSF.
According to the report prepared by the officer who interviewed him, Mr.
Agraira claimed that he “made up stories regarding the extent of his
involvement” in order to bolster his refugee claim (Appeal Book at 221-223).
[10]
In
her report, the officer identified several inconsistencies in the information
provided to her by Mr. Agraira. Although the latter claimed not to know much
about the LNSF, he was able to name the founder and the current leader of the
organization. Then, having stated that he attended meetings of the LNSF in Libya, he asserted
that he did not attend meetings but only discussed the group with his friends.
Finally, Mr. Agraira said that he had had no contact with the group since
leaving Libya but then acknowledged that he had received newsletters from
chapters of the organization in the United States since arriving in Canada. The officer
indicated to Mr. Agraira that the answers he had given her appeared to contradict
answers given to the CSIS agent.
[11]
At
the conclusion of the interview, the officer advised Mr. Agraira that there
were grounds to believe that he belonged, or had belonged, to an organization
that engaged in terrorism and that he had a right to seek ministerial relief
from a finding of inadmissibility on that ground. Mr. Agraira indicated that he
would retain counsel to seek such relief.
[12]
When
preparing her report on the results of Mr. Agraira’s interview, the immigration
officer had Mr. Agraira’s request for ministerial relief in hand. The report
noted further inconsistencies between Mr. Agraira’s submissions in support of
his request for ministerial relief and his earlier statements. For example, in
his request for ministerial relief, as in his Personal Information Form, Mr.
Agraira claimed that he had attended clandestine meetings where he was taught
how to approach potential members and how to solicit donations. In the
interview with the immigration officer, Mr. Agraira said that he did not know how
the LNSF funded itself or how it recruited members.
[13]
The
officer also made the following finding regarding Mr. Agraira’s continued
membership in the LNSF (Appeal Book at 223):
In my opinion Mr. Ramadan
Agraira was and continues to be a member of the NFSL. He declared to the IRB
that he was a member, he declared [redacted] that he was a member and he has
through his own legal counsel stated that he was and still considers himself a
member of this organization.
[14]
The
officer’s report concluded (Appeal Book at 223):
Without evidence that Mr.
Ramadan Agraira was directly linked to any acts of violence, I would accept the
evidence before me, that he was mainly involved in distributing leaflets and
garnering support for the NFSL. Thus I would recommend that Ministerial Relief
be granted.
[15]
At
the same time, on July 22, 2002, the immigration officer prepared a report
under subsection 44(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 [IRPA], which came into effect on June 28, 2002,
indicating that in her opinion, Mr. Agraira was inadmissible to Canada pursuant
to paragraph 34(1)(f) of the IRPA, on the ground that he was a
member of an organization that had engaged, engages, or will engage in
terrorism. The grounds for the immigration officer’s opinion were set out in
the following terms (Appeal Book at 224-225):
Mr. Agraira stated in a
written submission prepared by his legal counsel, that he was an active member
of the National Front for the Salvation of Libya. His duties included
distributing leaflet, seeking potential members and soliciting donations. He
stated he has never taken part in any NFSL meetings since coming to Canada
However, he does [illegible] still a member because he does support the general
goal of seeing Col. Gadaffi removed from power and democratic principles
instated in Libya.
[16]
As
a result of amendments to the IRPA following the passage of the Canada
Border Services Agency Act, S.C. 2005 c. 38 [CBSAA], the next step
in the Ministerial relief process was the preparation of a briefing note for
the consideration of the Minister of Public Safety and Emergency Preparedness
(the Minister of Public Safety). The draft Briefing Note is date stamped August
19, 2005 and recommended that Mr. Agraira be granted ministerial relief. It was
provided to counsel for Mr. Agraira by Citizenship and Immigration Canada on
August 22, 2005. On August 30, 2005, Mr. Agraira’s counsel indicated that he
had nothing to add to the submissions already made on behalf of his client. The
Briefing Note was put before the Minister at a later date, probably March 9,
2006, as indicated by the date stamp.
[17]
After
setting out Mr. Agraira’s procedural history to date, the Briefing Note
observed that, following his interview on May 21, 2002, Mr. Agraira “was found
to be inadmissible to Canada due to his past membership in the LNSF, an
organization described in paragraph 34(1)(f) of IRPA” and that
“he was reported pursuant to section 44 of IRPA on July 22, 2002.”
[18]
The
Briefing Note repeated much of the information already on the record as to
Mr. Agraira’s involvement in the LNSF. Under the heading Considerations,
the Briefing Note summarized the information with respect to Mr. Agraira’s
personal circumstances as well as the submissions made on his behalf by his
counsel.
[19]
The
Briefing Note concluded with a recommendation that ministerial relief be
granted to Mr. Agraira on the basis that “there is not enough evidence to conclude that Mr. Ramadan
Agraira’s continued presence in Canada would be detrimental to the national
interest” (Appeal Book at 43). The basis for this recommendation appears in
the following paragraph:
Mr. Ramadan Agraira admitted
to joining the LNSF but was only a member for approximately 2 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 the
could make a stronger claim to obtain 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.
[20]
The
Minister responded on January 27, 2009, thirty-four months after the Briefing
Note was submitted to his office. The Minister did not accept the Canada Border
Services Agency’s recommendation. His response was relatively brief and is
reproduced in full below (Appeal Book at 45):
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.
“The
Honourable Peter Van Loan” “January
27/09”
Minister
of Public Safety
[21]
On
March 24, 2009, Mr. Agraira was notified by mail by Citizenship and Immigration
Canada that he was inadmissible to Canada based on his membership in an
organization that there are grounds for believing engages, has engaged or will
engage in terrorism (Appeal Book at 48). As a result, his application for
permanent residence was dismissed.
THE DECISION UNDER
APPEAL
[22]
Mr.
Agraira applied for, but was denied, leave to have the decision under
subsection 34(1) of the IRPA that he was inadmissible judicially
reviewed. However, he was granted leave to seek judicial review of the
Minister’s determination under subsection 34(2) that his continued stay in Canada was
detrimental to Canada’s national interest. The application for
judicial review was heard and disposed of by Mr. Justice Mosley (the
application judge) in a decision reported as Agraira v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 1302, [2009] F.C.J. No.
1664 [Reasons for Judgment].
[23]
The
application judge described the issue in the application as whether the
Minister’s decision was reasonable. In his view, significant deference should
be accorded to discretionary ministerial decisions particularly when, as here,
the discretion is non-delegable. He noted that the Minister had acquired
expertise in matters of national security and the national interest in course
of exercising his duties. The application judge then touched upon the role of
the judiciary in reviewing “political” decisions, citing a passage from a
decision of the House of Lords to the effect that political actors should
decide political questions, A & others v. Secretary of State for the
Home Department, [2004] UKHL 56 at para. 29. The application judge noted
that, at first blush, the question of whether or not to grant Ministerial
relief appeared to be closer to the political end of the spectrum and therefore
not a matter for judicial intervention. Nonetheless, he concluded that the
decision was reviewable.
[24]
The
application judge questioned the Minister’s stated conclusion that Mr. Agraira
was a member of a terrorist group. He found that the evidence before the
Minister that the LNSF had engaged in terrorism was minimal at best. In
particular, he noted that Al Qaeda was mentioned only once in the documentation
which was available to the Minister and that reference related to other Libyan
opposition groups generally and not to the LNSF specifically. The application
judge also noted that the LNSF was not mentioned in the list of terrorist
organizations maintained by the Canadian government and that it had appeared to
have received support from western governments in its attempts to overthrow the
Libyan government. That said, the application judge correctly noted that the
question of whether or not the LNSF is, or was, a terrorist organization was
not before him.
[25]
The
application judge then referred to another decision of the Federal Court, Abdella
v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 1199, [2009]
F.C.J. No 1493 [Abdella], in which the Federal Court referred to the
departmental guidelines for the processing of applications for ministerial relief,
IP-10 Refusal of National Security Cases/Processing of National
Interest Requests [IP-10], which set out five questions to be
considered by departmental officials in the processing of applications for
ministerial relief under subsection 34(2). The questions are:
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?
[26]
The
application judge found that while the five questions had been addressed in the
Briefing Note, they had not been considered by the Minister.
[27]
The
application judge further found that the Minister had not balanced the factors
identified in prior decisions of the Federal Court as relevant to the determination
of what is in the national interest. Those factors include: whether the applicant
posed a threat to Canada’s security; whether the applicant posed a danger to
the public; the period of time the applicant had been in Canada; whether it is
consistent with Canada's humanitarian reputation of allowing permanent
residents to settle in Canada; the impact on both the applicant and all other
members of society of the denial of permanent residence; and the adherence to
all of Canada's international obligations, (Reasons for Judgment at para. 25.)
[28]
The
application judge agreed with Mr. Agraira’s counsel that there were concerns
whether the Minister’s decision “turned on the 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 of Canada”,
referring to the Federal Court’s decision in Kanaan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 241, [2008] F.C.J. No. 301 at para.
8. Along the same lines, the application judge noted it could be said that the
Minister’s analysis had rendered the exercise of his discretion meaningless,
referring to the Federal Court’s decision in Soe v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 461, [2007] F.C.J. No.
620 [Soe], where the Court said at paragraph 34: “It is tantamount to
saying that an individual who commits an act described in subsection 34(1)
cannot secure Ministerial discretion because they committed the very act that
confers jurisdiction on the Minister to exercise discretion under subsection
34(2).”
[29]
In
the end result, the application judge allowed the application for judicial
review and certified the following question:
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 IP10?
[30]
In
doing so, the application judge must be taken to have concluded that the
Minister’s exercise of his discretion was unreasonable due to his failure to
consider the five questions identified in the Guidelines or to deal with the
factors identified in the Federal Court jurisprudence.
ISSUES
[31]
This
case raises the following issues:
1- The standard
of review of the Minister’s decision.
2- The burden of
proof.
3- The
interpretation of subsection 34(2) of the IRPA.
a. The
legislative evolution of subsections 34(2) and section 6 of the IRPA.
i.
The
separation of “national interest” and national security from humanitarian and
compassionate considerations.
ii.
The term
“national interest” must be understood within the context of national security
and public safety.
b. The scope of
subsection 34(2) of the IRPA.
4- The
reasonableness of the Minister’s decision.
1. THE
STANDARD OF REVIEW OF THE MINISTER’S DECISION
[32]
This
first question is what standard of review applies to the statutory
interpretation of subsection 34(2) of the IRPA. Specifically, what is
the meaning of “national interest” within the scope of the provision? This is a
question of law that does not involve a review of the Minister’s
decision-making and so should be assessed on the standard of correctness. The
Minister has no relative expertise in the interpretation of these provisions of
the IRPA so there is no reason for the Court to defer to him on these
questions.
[33]
The
second question is what standard should be adopted with respect to the
Minister’s decision that a foreign national’s presence in Canada is
detrimental to the national interest. The application judge concluded, and I
agree, that the standard of review of the Minister’s exercise of his discretion
is reasonableness.
2. THE BURDEN OF
PROOF
[34]
The
jurisprudence of the Federal Court is consistently to the effect that, in a
ministerial relief application, the onus is on the applicant to satisfy the
Minister (see Tameh v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 884, [2008] F.C.J. No. 1111 at
para. 40 [Tameh]; Miller v. Canada (Solicitor General), 2006 FC
912, [2007] 3 F.C.R. 438 at para. 64; Al Yamani v. Canada (Minister of
Public Safety & Emergency Preparedness), 2007 FC 381, 62 Imm. L.R. (3d)
203 at para. 69 [Al Yamani]. I agree with this conclusion as it
represents the unambiguous language of subsection 34(2).
[35]
In
this case, the Briefing Note put before the Minister reversed the onus when it
stated that “there is not enough evidence to conclude that Mr. Ramadan
Agraira’s continued presence in Canada would be detrimental to
the national interest.” This reversal of onus was a sufficient reason for the
Minister to disregard the Briefing Note’s recommendation.
3. THE
INTERPRETATION OF SUBSECTION 34(2) OF THE IRPA
- The legislative
evolution of subsection 34(2) and section 6 of the IRPA
[36]
The
legislative landscape changed significantly between the date when Mr. Agraira
first made his application for permanent resident status and the date the
Minister of Public Safety refused his request for ministerial relief.
[37]
The
legislative evolution of the ministerial exemption provision demonstrates a
significant policy shift in the administration of ministerial relief for
foreign nationals found to be inadmissible on security grounds. Parliament
changed the relevant decision-maker from the Minister of Citizenship and
Immigration to the Minister of Public Safety. With this change in the
responsible Minister, the provision must now be read in light of the objects of
the Department of Public Safety and Emergency Preparedness Act, S.C.
2005, c. 10 [DPSEPA], as the Minister of Public Safety’s enabling
statute, the Canada Border Services Agency Act, supra, as the
statute governing the Agency responsible for assisting the Minister in his
duties, as well as those of the IRPA.
[38]
To
understand subsection 34(2), we must apply the principle of “presumption of
coherence” – that provisions of legislation, or a legislative scheme, are meant
to work together as a functional whole – and consider the objects of the IRPA,
the mandate of the Minister of Public Safety, and goals of the CBSA. In Bell
ExpressVu Limited Partnership v. Rex, [2002] S.C.J. No. 43, [2002] S.C.R.
559 at para. 27, Iaccobucci J. discussed the approach to be taken to the
construction of a statutory scheme whose elements are found in a number of
enactments:
The preferred approach
recognizes the important role that context must inevitably play when a court
construes the written words of a statute: as Professor John Willis incisively
noted in his seminal article “Statute Interpretation in a Nutshell”, “words,
like people, take their colour from their surroundings”. This being the case,
where the provision under consideration is found in an Act that is itself a
component of a larger statutory scheme, the surroundings that colour the words
and the scheme of the Act are more expansive. In such an instance, the
applicant of Driedger’s principle gives rise to what was described in R. v.
Ulybel Enterprises Ltd. as the “principle of interpretation that presumes a
harmony, coherence, and consistency between statutes dealing with the same
subject matter.
[39]
As
we shall see, the changes made to the legislative scheme allow us to draw two
important conclusions:
i)
Parliament
has intentionally separated considerations of national interest from
humanitarian and compassionate considerations;
ii)
Parliament
has placed the consideration of national interest within the context of
national security and public safety
a.
The
separation of “national interest” from humanitarian and compassionate
considerations.
[40]
At
the time of Mr. Agraira’s admissibility interview on May 21, 2002, the Immigration
Act was in force. Following that interview, he was advised that he was
thought to be inadmissible and was advised of his right to apply for a
ministerial exemption. The provisions which applied to Mr. Agraira’s
admissibility at that time were the following:
|
19(1)
No person shall be granted admission who is a member of any of the following
classes:
…
(f)
persons who there are reasonable grounds to believe
…
(iiii)
are or were members of an organization that there are reasonable grounds to
believe is or was engaged in
….
(B)Terrorism
except persons who have satisfied the
Minister that their admission would not be detrimental to the national
interest
|
19(1) Les
personnes suivantes appartiennent à une catégorie non admissible:
[…]
(f) celles
dont il y a des motifs raisonnables de croire qu’elles :
[…]
(iii)
soit sont ou ont été membres d’une organisation dont il y a des motifs
raisonnables de croire qu’elle se livre ou s’est livrée :
[…]
(B) soit à des actes de terrorisme
Le présent alinéa ne visant toutefois pas les personnes
qui convainquent le ministre que leur admission ne serait nullement
préjudiciable à l’intérêt national
|
[41]
At
that time, the Minister of Citizenship and Immigration was responsible for both
the determination of inadmissibility and the decision as to whether a
ministerial exemption was warranted. In addition, the same Minister was also
responsible for applications for exemptions from the provisions of the Immigration
Act based on humanitarian and compassionate [H&C] grounds.
[42]
Effective
June 28, 2002, the Immigration Act was repealed and replaced by the IRPA.
As a proceeding which was pending at the time IRPA came into force, Mr. Agraira’s
application for a ministerial exemption was governed by IRPA (see IRPA,
s. 190). Thus, by the time Mr. Agraira’s counsel forwarded his
submissions with respect to ministerial relief to the Canada Immigration Centre
on July 16, 2002, section 19 of the Immigration Act, as it related to
inadmissibility on security grounds had been carried into section 34 of the IRPA:
|
34. (1) 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) 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.
|
34.(1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
a)
être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute
institution démocratique, au sens où cette expression s’entend au Canada;
b)
être l’instigateur ou l’auteur d’actes visant au renversement d’un
gouvernement par la force;
c)
se livrer au terrorisme;
d)
constituer un danger pour la sécurité du Canada;
e)
être l’auteur de tout acte de violence susceptible de mettre en danger la vie
ou la sécurité d’autrui au Canada;
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
(2)
Ces faits n’emportent pas interdiction de territoire pour le résident
permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne
serait nullement préjudiciable à l’intérêt national.
|
[43]
When
the IRPA first came into force, the Minister responsible for
determinations under subsection 34(2) remained the Minister of Citizenship and
Immigration (see s. 4 of the IRPA as originally enacted). The responsible
Minister changed, however, with the passage of the Canada Border Services
Agency Act. Among the consequential amendments following the passage of the
CBSAA, the IRPA was amended to transfer the non-delegable
responsibility for making the determination under subsection 34(2) from the
Minister of Citizenship and Immigration to, first, “the Minister as defined in
section 2 of the Canada Border Services Agency Act” (see IRPA, s.
4, as am. by S.C. 2005, c. 38, s. 118) and later the Minister of Public Safety
(IRPA, s. 4, as am. by S.C. 2008, c. 3, s.1) At the time the Minister of Public
Safety made his decision, on January 27, 2009, the relevant portions of the
IRPA read as follows:
|
4.(1) Except as otherwise
provided in this section, the Minister of Citizenship and Immigration is
responsible for the administration of this Act.
…
(2) The Minister of Public Safety and Emergency
Preparedness is responsible for the administration of this Act as it relates
to
(a) examinations at ports of entry;
(b) the enforcement of this Act, including arrest,
detention and removal;
(c) the establishment of policies respecting the
enforcement of this Act and inadmissibility on grounds of security, organized
criminality or violating human or international rights; or
(d) determinations under any of subsections 34(2), 35(2)
and 37(2).
…
6.(1) The Minister may
designate any persons or class of persons as officers to carry out any purpose
of any provision of this Act, and shall specify the powers and duties of the
officers so designated.
(2) Anything that may be done by the Minister under
this Act may be done by a person that the Minister authorizes in writing,
without proof of the authenticity of the authorization.
(3) Notwithstanding subsection (2), the Minister may not
delegate the power conferred by subsection 77(1) or the ability to make
determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a)
|
4.(1) Sauf disposition
contraire du présent article, le ministre de la Citoyenneté et de
l’Immigration est chargé de l’application de la présente loi.
[…]
(2)
Le ministre de la Sécurité publique et de la Protection civile est chargé de
l’application de la présente loi relativement :
a)
au contrôle des personnes aux points d’entrée;
b)
aux mesures d’exécution de la présente loi, notamment en matière
d’arrestation, de détention et de renvoi;
c)
à l’établissement des orientations en matière d’exécution de la présente loi
et d’interdiction de territoire pour raison de sécurité ou pour atteinte aux
droits humains ou internationaux ou pour activités de criminalité organisée;
d)
à la prise des décisions au titre des paragraphes 34(2), 35(2) ou 37(2).
[…]
6. (1)
Le ministre désigne, individuellement ou par catégorie, les personnes qu’il
charge, à titre d’agent, de l’application de tout ou partie des dispositions
de la présente loi et précise les attributions attachées à leurs fonctions.
(2) Le
ministre peut déléguer, par écrit, les attributions qui lui sont conférées
par la présente loi et il n’est pas nécessaire de prouver l’authenticité de
la délégation.
(3) Ne
peuvent toutefois être déléguées les attributions conférées par le paragraphe
77(1) et la prise de décision au titre des dispositions suivantes : 34(2),
35(2) et 37(2)a).
|
[44]
The
Minister of Citizenship and Immigration may still grant exemptions from the
requirements of the Act based on H & C grounds pursuant to subsection 25(1)
of the IRPA. At the time the Minister made his decision, section 25(1)
read: [emphasis added]:
|
25. (1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet
the requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
25. (1)
Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et
peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors
du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[45]
Thus,
while Parliament transferred the responsibility for deciding whether
ministerial relief ought to be granted to the Minister of Public Safety, it
left the discretion to waive the provisions of the IRPA on the basis of H
& C considerations with the Minister of Citizenship and Immigration. It is
significant that this discretion can be exercised in favour of persons who have
been found to be inadmissible. It is clear that Parliament intended ministerial
relief to be granted or withheld on the basis of considerations other than
those that could support an application for H & C relief. The proper forum
in which to advance an application based on H & C considerations is under
section 25 of IRPA, not in an application for ministerial relief under
subsection 34(2).
b.
The
term “national interest” must be understood within the context of national
security and public safety.
[46]
The
grant of decision-making authority to the Minister of Public Safety brings into
consideration his enabling statute, the Department of Public Safety and
Emergency Preparedness Act, [DPSEPA] and the mandate of the Canada Border
Services Agency.
[47]
The
Minister of Public Safety must act within the terms of reference provided to
him in the DPSEPA. Section 4 of the DPSEPA, supra, which sets out
the powers, duties and functions of the Minister, emphasizes his responsibility
for public safety and emergency preparedness at a national level [emphasis
added]:
|
4.(1) The powers, duties and
functions of the Minister extend to and include all matters over which
Parliament has jurisdiction — and that have not been assigned by law to
another department, board or agency of the Government of Canada — relating to
public safety and emergency preparedness.
(2) The Minister is
responsible for exercising leadership at the national level relating to
public safety and emergency preparedness.
|
4.(1) Les attributions du
ministre s’étendent d’une façon générale à tous les domaines de compétence du
Parlement liés à la sécurité publique et à la protection civile qui ne sont
pas attribués de droit à d’autres ministères ou organismes fédéraux.
(2) À l’échelon national, le ministre est chargé d’assumer un rôle de
premier plan en matière de sécurité publique et de protection civile.
|
[48]
The
Minister of Public Safety is also responsible for the CBSA, pursuant to section
6 of the CBSAA, supra; the Agency’s mandate is defined in section
5 of that Act [emphasis added]:
|
5. (1) The Agency is responsible for
providing integrated border services that support national security and
public safety priorities and facilitate the free flow of persons and
goods, including animals and plants, that meet all requirements under the
program legislation, by
(a) supporting the administration or
enforcement, or both, as the case may be, of the program legislation;
…
|
5. (1) L’Agence est chargée de fournir des services
frontaliers intégrés contribuant à la mise en oeuvre des priorités en
matière de sécurité nationale et de sécurité publique et facilitant le
libre mouvement des personnes et des biens — notamment les animaux et les
végétaux — qui respectent toutes les exigences imposées sous le régime de la
législation frontalière. À cette fin, elle :
a) fournit l’appui nécessaire à l’application ou au contrôle
d’application, ou aux deux, de la législation frontalière;
[…]
|
[49]
The
legislative mandate of the Minister of Public Safety makes it clear that
national security and public safety are at the heart of his mission. Such
considerations are also present in the objectives of the IRPA which have
remained unchanged throughout its evolution [emphasis added]:
|
3. (1) The objectives of this Act with
respect to immigration are
…
(h) to protect the health and
safety of Canadians and to maintain the security of Canadian society;
(i) 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; and
….
|
3. (1) En matière d’immigration, la présente loi a pour
objet :
[…]
h) de protéger la santé des Canadiens et de garantir
leur sécurité;
i) de promouvoir, à l’échelle internationale, la justice
et la sécurité par le respect des droits de la personne et l’interdiction
de territoire aux personnes qui sont des criminels ou constituent un danger
pour la sécurité;
[…]
|
[50]
The
Minister of Public Safety exercises his discretion under subsection 34(2) of
the IRPA in the context of the entire legislative scheme. When that
scheme is taken as a whole, it is clear that the transfer of responsibility of
the processing of applications for ministerial relief to the Minister of Public
Safety was intended to bring security concerns to the forefront in the
treatment of those applications. As a result, the notion of “national interest”
in the context of subsection 34(2) must be understood in terms of the Minister
of Public Safety’s mandate. In my view, this means that the principal, if not
the only, consideration in the processing of applications for ministerial relief
is national security and public safety, subject only to the Minister’s
obligation to act in accordance with the law and the Constitution. As a finding
of inadmissibility does not necessarily result in the removal of the foreign
national from Canada, the exercise of the Minister’s discretion does not raise
any issue of Canada’s
international obligations.
[51]
The
test whether a foreign national’s presence in Canada is
detrimental to the national interest is not a net-detriment test. The Minister
of Public Safety is not required to balance the possible contribution to the
national interest by an applicant against the possible detriment to the
national interest and to refuse only those applications that result in a net
detriment to the national interest. There is nothing in the statutory language
which mandates such a balancing and the very specific mandate of the Minister
of Public Security militates against such a balancing requirement.
[52]
The
idea that the processing of requests for ministerial relief involves a balancing
of various factors is drawn from the Department of Citizenship and
Immigration’s departmental guidelines dealing with the processing of requests
for ministerial relief, IP-10, supra, where the following definition of
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.
[53]
It
is trite law that a departmental document cannot alter the law as laid down by
Parliament. While this definition may have had some utility for departmental
staff at a time when the Minister of Citizenship and Immigration was
responsible for applications for ministerial relief as well as applications
based on humanitarian and compassionate considerations, it has, in my view,
been overtaken by events. Given that the responsibility for deciding
applications for ministerial relief now lies with the Minister of Public Safety,
the Department of Citizenship and Immigration’s department guidelines have
limited application to the latter’s exercise of his non-delegable discretion.
This is particularly true when one considers that the responsibility for
establishing policies respecting “inadmissibility on grounds of security,
organized criminality or violating human or international rights” has been
assigned to the Minister of Public Safety (see IRPA, s. 4(2)(c)
as am. by. S.C. 2008, c. 3, s.1). If guidelines are to be promulgated with
respect to the treatment of ministerial relief applications, they will have to
be promulgated by the Minister of Public Safety. To my knowledge, no such
guidelines exist.
[54]
It
follows from this that the five factors which are referred to in the certified
question are not, simply by virtue of being found in IP-10, factors the
Minister of Public Safety must take into account in disposing of applications
for ministerial relief.
[55]
The
jurisprudence of the Federal Court has generally taken the view that
departmental guidelines, in this case IP-10, can be taken as an
indication of the reasonableness of the Minister’s decision. This reasoning is
based on the decision of the Supreme Court of Canada in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39
where the following appears at paragraph 72:
The guidelines are a useful
indicator of what constitutes a reasonable interpretation of the power conferred
by the section, and the fact that this decision was contrary to their
directives is of great help in assessing whether the decision was an
unreasonable exercise of the H & C power.
[56]
This
passage has been relied upon by the Federal Court in several cases to justify
reference to these questions, and to IP-10 generally, to determine
whether the Minister’s decision is reasonable, see: Abdella, supra at
para. 19 and following; Alfridi v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 1192, [2008]
F.C.J. No. 1471 para. 45; Ismeal v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 1366, [2008]
F.C.J. No. 1728 at para. 15 and following; Naeem v. Canada (Minister of
Citizenship and Immigration), 2007 FC 123, [2007] 4 F.C.R. 658 at para.
56 and following; Soe, supra at para. 24 and following; Tameh,
supra at para. 41 and following; Al Yamani, supra at para. 70 and
following.
[57]
In
my view, even if one sets aside the fact that the guidelines were not issued by
the minister whose decision is under review, the Federal Court’s reliance upon Baker
in connection with IP-10 is problematic. The guidelines in issue in Baker
provided instances of circumstances where the granting of an H&C
application was warranted. As summarized in Baker, the guidelines
provided that:
Guideline 9.07 states that
humanitarian and compassionate grounds will exist if "unusual, undeserved
or disproportionate hardship would be caused to the person seeking consideration
if he or she had to leave Canada". The guidelines also
directly address situations involving family dependency, and emphasize that the
requirement that a person leave Canada to apply from abroad may result in
hardship for close family members of a Canadian resident, whether parents,
children, or others who are close to the claimant, but not related by blood.
They note that in such cases, the reasons why the person did not apply from
abroad and the existence of family or other support in the person's home
country should also be considered.
[58]
Where
the guidelines specifically direct an officer to consider whether certain
identified conditions will result in “unusual, undeserved or disproportionate
hardship”, it is appropriate to conclude that the failure to consider those
conditions or the failure to consider their effects upon the applicant is an indication
of an unreasonable decision.
[59]
That
is not the case with respect to the five questions raised in IP-10, supra,
which I reproduce below for ease of reference:
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?
[60]
In
Baker, it was possible to reason that the inclusion of certain
conditions in the guidelines meant that departmental officials considered those
conditions to be indicators of unusual, undeserved or disproportionate
hardship. In ministerial relief cases, the questions appear to be designed to
identify foreign nationals whose presence in Canada would be detrimental
to the national interest e.g. applicants who maintain contact with terrorist
organizations, who benefit from assets obtained while a member of a terrorist
organization, etc. To that extent, the reasoning in Baker would apply
only to eliminate unsuitable applicants. It would not assist in identifying
suitable applicants, even if an applicant answered all the questions
“correctly” because the list is not exhaustive, nor could it ever be, of all
the possible reasons for which a person’s presence in Canada would be
detrimental to the national interest. As a result, the Baker reasoning
does not justify the use of IP-10 in the way suggested by the Federal
Court jurisprudence.
[61]
To
summarize, the transfer of responsibility for disposing of applications for
ministerial relief to the Minister of Public Safety is intended to bring
security and public safety issues to the forefront in the assessment of those
applications. Thus the aspect of the national interest which is in issue in
these applications is national security and public safety. The assessment of such
applications does not require the Minister to engage in a balancing exercise
because the test is not a net-detriment test. The Department of Citizenship and
Immigration’s departmental guidelines, in particular IP-10, are not
relevant to the Minister of Public Safety’s exercise of his discretion since
the Minister is the one responsible for setting policy in this area and, in any
event, recourse to them is not justified under the authority of the Supreme
Court’s decision in Baker.
- The scope of
subsection 34(2) of the IRPA
[62]
The
question which arises at this point is the one raised in Soe, supra:
does the emphasis on national security and public safety mean that individuals
who commit an act described in subsection 34(1) cannot obtain ministerial
relief because they committed the very act that confers jurisdiction on the
Minister to exercise the discretion conferred by subsection 34(2)? Such a
result would deprive the provision 34(2) of any effect, an absurd result.
[63]
A
partial answer to this question is provided by the decision of the Supreme
Court in Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh].
The Supreme Court dealt with section 19 of the Immigration Act, supra,
which, as set out above, contained substantially the same inadmissibility and
ministerial relief provisions as are now found in section 34. Given the broad sweep of section 19, Mr. Suresh argued it could
be applied to persons who innocently joined or supported organizations that,
unbeknownst to them, were terrorist organizations and thus lead to their
deportation to places where they faced the risk of inhumane treatment. The
Supreme Court dealt with this argument by invoking the ministerial relief
provision, as follows, Suresh, supra at para. 110:
We believe
that it was not the intention of Parliament to include in the s. 19 class of
suspect persons those who innocently contribute to or become members of
terrorist organizations. This is supported by the provision found at the end of
s. 19, which exempts from the s. 19 classes "persons who have satisfied
the Minister that their admission would not be detrimental to the national
interest". Section 19 must therefore be read as permitting a refugee to
establish that his or her continued residence in Canada will not
be detrimental to Canada, notwithstanding proof that
the person is associated with or is a member of a terrorist organization. This
permits a refugee to establish that the alleged association with the terrorist
group was innocent. In such case, the Minister, exercising her discretion
constitutionally, would find that the refugee does not fall within the targeted
s. 19 class of persons eligible for deportation on national security grounds.
[64]
As
I read the Supreme Court’s decision, it concluded that the saving provision of
section 19 of the Immigration Act would apply to protect persons who
innocently joined or contributed to organizations that, unbeknownst to them,
were terrorist organizations. There may be other cases in which persons who
would otherwise be caught by subsection 34(1) of the IRPA may justify
their conduct in such a way as to escape the consequence of inadmissibility.
For example, those who could persuade the Minister that their participation in
a terrorist organization was coerced might well benefit from ministerial
relief.
[65]
There
is thus an area in which subsection 34(2) of the IRPA operates to
provide ministerial relief to persons who would otherwise be found inadmissible
as a result of activities described in subsection 34(1). I agree with Shore J.
who wrote at paragraph 54 of his reasons in Chogolzadeh v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FC 405, [2008]
F.C.J. No. 544: “The relief, in subsection 34(2), is not illusory, but it is
clearly intended to be exceptional.”
4. THE
REASONABLENESS OF THE MINISTER’S DECISION
[66]
The
argument made before us was that the Minister failed to consider relevant
evidence and that his reasons were inadequate. As indicated earlier in these
reasons, the Department of Citizenship and Immigration’s guidelines, including IP-10,
are neither exhaustive nor determinative of what evidence is relevant or must
be considered. The relevant question is whether Mr. Agraira’s submissions were
addressed.
[67]
Setting
aside Mr. Agraira’s arguments regarding humanitarian and compassionate
considerations that, as set out above, are not relevant to the Minister’s
decision, the primary argument raised by Mr. Agraira was that his involvement
in the LNSF was either innocent or trivial. Mr. Agraira on his own behalf, and
through counsel, raised several contradictory arguments on this point. In his
initial application for relief dated July 16, 2002, counsel for Mr. Agraira set
out the statements made by Mr. Agraira as to his membership in the LNSF and
concluded (Appeal Book at 110):
Therefore, it is respectfully
submitted that, when assessing this request for Ministerial Relief, that the
Minister take into account the low level, ordinary nature of Mr. Agraira’s
activities on behalf of the NFSL. The facts reveal that he was only active in
this low-level capacity from 1994-1996 and that Mr. Agraira has not engaged in
any actual activities since 1996.
[68]
Mr.
Agraira sought to distance himself from this admission and explain his
inconsistent claims in his affidavit of June 15, 2009, filed with the Federal
Court, where he stated (Appeal Book at 48):
The truth in this matter is
that I have never been a member of the LNSF and have never been involved with
the organization in any way. I was ill-advised when I arrived in Canada and that stating this would
help my refugee claim. After I made the claim in my [Personal Information Form]
I was afraid of contradicting my statements and continued to state that I was a
member of the organization under pressure from the immigration officer at my
interview in 2000. I have never been a member of the LNSF and have never
engaged in any of their activities. I stated this at my interview in May of
2002. I further stated that I had no knowledge of their violence and would no have
been involved with a group that supported violence.
[69]
The
Minister directly addressed this argument in his dismissal of Mr. Agraira’s
application for ministerial relief. The Minister found Mr. Agraira’s account of
his involvement with the LNSF to be “contradictory and inconsistent” and that his
claims that he was unaware of the LNSF’s violent activities were “difficult to
believe”.
[70]
Whether
Mr. Agraira had renounced his ties to the LNSF was not in issue as Mr. Agraira admitted his on-going sympathy with the organization.
Further, the denials of his continuing involvement in Canada also lack
credibility as, in his interview with the immigration officer, he admitted that
he continued to receive newsletters from chapters of the LNSF in the United
States.
[71]
The
Minister found that Mr. Agraira was not credible, a conclusion which is amply
supported by the various conflicting versions of his story offered by Mr.
Agraira at various points in his dealings with the immigration system and the
courts. This lack of credibility is fatal to Mr. Agraira’s application as
the Minister can have no faith in any of his representations. In the result,
the Minister cannot be said to have acted unreasonably in concluding that Mr.
Agraira’s presence in Canada is detrimental to the national interest.
[72]
I
am aware of the apparent absurdity of the position in which Mr. Agraira finds
himself. Twice, his application for refugee status on the basis of his
membership in the LNSF was refused for lack of credibility. Then, when he
applied for permanent residence, his previously discounted assertions of
membership in the LNSF are raised against him and his application for
ministerial relief is dismissed, once again on grounds of lack of credibility.
From Mr. Agraira’s point of view, it is difficult to see how he could be lying
about both being, and not being, a member of the LNSF.
[73]
The
absurdity is more apparent than real. Mr. Agraira claimed to be a member of the
LNSF when it suited his purposes and denied being a member when it suited his
purposes. The findings of the various decision-makers before whom he has
pleaded his cause are only as inconsistent as Mr. Agraira, by his lack of
candour, has allowed them to be.
CONCLUSION
[74]
For
these reasons, I would allow the appeal, set aside the judgment of the Federal
Court, and giving the judgment which the Federal Court should have given, I
would dismiss Mr. Agraira’s application for judicial review. I would answer the
certified question 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.
"J.D. Denis Pelletier"
“I agree
Pierre
Blais C.J.”
“I agree
Marc Noël
J.A.
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