The Supreme Court of Canada ruled that the definition of the “national interest” is broader than public safety and national security.  As such, it would be absurd for the relief under subsection 34(2) of the IRPA not to be available solely because an individual is inadmissible under 34(1).  In this case, the Court found that the Minister’s decision was reasonable.

 1. Background

The appellant, Mr. Agraira was found inadmissible on the basis of his membership in the Libyan National Salvation Front (LNSF) – a terrorist organization according to the CIC.  In 2002, the appellant applied for ministerial relief under subsection 34(2) of the Immigration and Refugee Protection Act (IRPA). The application was denied in 2009 because the Minister of Public Safety and Emergency Preparedness (MPSEP) concluded that it was not in the national interest to admit a member of a terrorist organization.

When the appellant applied for the ministerial relief, the immigration officer noted that his involvement in the LNSF was limited to distributing leaflets and enlisting support for the organization.  She therefore recommended that the relief be granted.  At the same time, the officer prepared a Report on inadmissibility under subsection 44 (1) of the IRPA, indicating that the appellant was inadmissible as a member of a terrorist organization.  In a briefing note prepared by the CBSA in 2006, it was submitted that there was not enough evidence to conclude that Mr. Agraira’s presence in Canada would be detrimental to the national interest.  In 2009, the Minister denied the relief, concluding that it was not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organization.  The appellant applied to have the decision reviewed in the Federal Court.

 

2. Judicial History

At the Federal Court, Justice Mosley, applying reasonableness, concluded that the Minister had focused on evidence that the LNSF had engaged in terrorism and that evidence was minimal at best.  The Court found it difficult to understand why the Minister had given so much weight to the LNSF’s engagement in terrorism. The Court also noted that the Minister did not rely on the relevant Guidelines (Chapter 10 of the CIC’s Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests”) in the context of the relief, nor had the Minister balanced the factors that the Federal Court had balanced in the past cases that were identified as being relevant to the determination of what is in the national interest, namely: whether the appellant poses a threat to Canada’s security and danger to the public; the period of time of the individual in Canada; whether the determination is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact of the denial of permanent residence on the appellant and all other members of society; and adherence to all Canada’s international obligations.  In the Court’s view, the Minister’s discretion is meaningless if it is never in the national interest to have someone who at some point may have belonged to a terrorist organization.

Justice Pelletier of the Federal Court of Appeal ruled that the onus was on the applicant to satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest.  Because the onus was reversed in the briefing note, it was open to the Minister to disregard the recommendation made in the note.  With respect to the interpretation of subsection 34(2), Justice Pelletier noted that Parliament had transferred the responsibility for exercising the discretion from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness.  As such, subsection 34(2) has to be read in light of the objects of the Department of Public Safety and Emergency Preparedness Act (the Minister’s enabling statute).  Turning to the interpretation of the “national interest”, Justice Pelletier equated the term with national security and public safety, stemming from the responsibilities of the Minister of Public Safety and Emergency Preparedness.  With respect to the Guidelines that define the assessment of “national interest” as involving balancing of all factors pertaining to the applicant’s admission against the state objectives of the IRPA and Canada’s domestic and international interests, Justice Pelletier noted that they are of limited application now that the MPSEP is responsible for the relief.  Justice Pelletier further noted that the relief is only to be applied in exceptional circumstances where an association with a terrorist group was innocent or coerced.  As such, the Court of Appeal found that the Minister’s decision was reasonable.

 

3. Analysis

The Court first evaluates the standard of review, then moves on to the definition of the “national interest” and finally considers the reasonableness of the decision.

 

a. Standard of Review

The Court is tasked with identifying whether the application judge chose the correct standard of review and applied it properly.  The Court determines that the standard of review for this case is that of reasonableness, as cases identified such a standard for applications for 34(2) relief.  Also, because such a decision involves the interpretation of the term “national interest”, it may be said that it involves a decision maker interpreting it own statute, making reasonableness the appropriate standard.

 

b. Meaning of “National Interest” Under Section 34(2) of the IRPA

The Court notes that it is left with no express definition of the “national interest” from an administrative decision maker.  The Court first considers the interpretation of “national interest” based on the Minister’s express reasons and the Guidelines.  The Court then assesses whether this implied interpretation was reasonable.

The Court notes that the Minister stated that he considered all of the materials in their entirety for the exercise of the discretion.  The materials included many aspects of the issues presented in the Guidelines, including some factors that overlapped with Humanitarian and Compassionate grounds.  While the Guidelines offered relevant and reasonable factors for the evaluation of the ministerial relief, the Minister placed particular emphasis on the matters related to public safety and national security.  As such, the Court concludes that the definition of the national interest relates predominantly to national security and public safety but includes other important considerations outlined in the Guidelines or any analogous considerations.  The Court finds that such a definition of the “national interest”, as implied by the reasons of the Minister, is reasonable.  It is reasonable because it complies with Driedger’s modern approach to statutory interpretation.  The Court then uses tools of statutory interpretation to analyze the “national interest” term.

With respect to the plain words of the provision, it is clear that the “national interest” would include matters of public safety and national security as well as other factors, including the preservation of the values that underlie the Charter and the democratic character of the Canadian federation.

The Minister’s interpretation of the term is also consistent with the legislative history.  According to the reading of s. 5(l) of the Immigraiton Act, 1952, when the relief from inadmissibility came about in 1952, those who sought such relief had to satisfy that “their admission would not be detrimental to the security of Canada.” As such, Parliament made national security the focus of the relief.  In 1977 words of the relief in subsection 19(1) of the Immigration Act changed the focus to admission that “would not be detrimental to the national interest.”  As such, the test no longer focused solely on the national security.  With post 9/11 Bill C-11 it became clear that IRPA’s role was to serve the public interest with respect to security concerns, but not to limit the national interest to security concerns alone.  The Court notes that the transfer of the ministerial responsibility under subsection 34(2) to the MPSEP does not change the substantive law.  Parliament did not amend the working of subsection 34(2) to accompany the transfer of the relief responsibility.

The objectives of the IRPA include security concerns and other immigration matters.  Out of the 11 objectives of the Act, only two are related to public safety and national security.  As such the diverse objectives of the Act suggest that the term “national interest” is not limited to public safety and national security.

In terms of the context, the Court stated that if Parliament had intended national security or public safety to be the only considerations under subsection 34(2), it could have said so using the type of language found in subsection 34(1), but it did not do so.  As such, the term “national interest” implies a broader reading.  Moreover, if subsection 34(2) only concerned national security and public safety, it would have been impossible for a person found inadmissible under 34(1) to obtain relief under subsection 34(2).  This absurd interpretation must be avoided.  Although the relief under subsection 34(2) is not the same as under section 25, section 34 does not exclude the considerations of personal factors.  For example, personal characteristics can be pertinent to the assessment of whether someone is a threat to national security.  The Court concludes by stating that perhaps the best illustration of the wide variety of factors which may be validly considered under subsection 34(2) can be seen in the Guidelines.

Because the Minister’s implied interpretation of the term related predominantly to national security and public safety but did not exclude other important considerations, the interpretation was eminently reasonable.

 

c. Is the Minister’s Decision Valid?

The Minister’s decision is found justifiable, transparent and intelligible.  The appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, the fact that he was most likely aware of the LNSF’s previous activities and the sustained contact with the organization were found to be detrimental to the national interest.  The reasons allow the Court to clearly understand why he made the decision that he did.  Given that the Minister considered and weighed all the relevant evidence as he saw fit, it is not open to the Court to set the decision aside on the basis that it is unreasonable.

 

d. Was the Decision Unfair, and Did it Fail to Meet the Appellant’s Legitimate Expectations?

 With respect to the doctrine of Legitimate Expectations, 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 appellant has not shown that his application was not dealt with in accordance with the process outlined in the Guidelines.  As such his legitimate expectation in this regard was fulfilled.

The appellant argued that he had legitimate expectations that H&C factors and other pertinent factors would be considered.  A letter that he received from the CIC stated that the Minister will consider national interest by examining assessment of the detriment that the appellant poses to the national interest as well as any humanitarian and compassionate circumstances pertinent to the case.  The Court stated that even if the appellant had legitimate expectations that such factors would be considered, the Minister’s implied interpretation of the term “national interest” encompasses all the factors referred to in the Guidelines, including H&C factors.  As such, the appellant expectations were fulfilled.

 

4.  Conclusion

 The appeal is dismissed and the decision of the Minister is allwed to stand.

 

 

 

 

 

 

 

 

Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36

 

The Supreme Court of Canada ruled that the definition of the “national interest” is broader than public safety and national security.  As such, it would be absurd for the relief under subsection 34(2) of the IRPA not to be available solely because an individual is inadmissible under 34(1).  In this case, the Court found that the Minister’s decision was reasonable.

 

1. Background

 

The appellant, Mr. Agraira was found inadmissible on the basis of his membership in the Libyan National Salvation Front (LNSF) – a terrorist organization according to the CIC.  In 2002, the appellant applied for ministerial relief under subsection 34(2) of the Immigration and Refugee Protection Act (IRPA). The application was denied in 2009 because the Minister of Public Safety and Emergency Preparedness (MPSEP) concluded that it was not in the national interest to admit a member of a terrorist organization.

 

When the appellant applied for the ministerial relief, the immigration officer noted that his involvement in the LNSF was limited to distributing leaflets and enlisting support for the organization.  She therefore recommended that the relief be granted.  At the same time, the officer prepared a Report on inadmissibility under subsection 44 (1) of the IRPA, indicating that the appellant was inadmissible as a member of a terrorist organization.  In a briefing note prepared by the CBSA in 2006, it was submitted that there was not enough evidence to conclude that Mr. Agraira’s presence in Canada would be detrimental to the national interest.  In 2009, the Minister denied the relief, concluding that it was not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organization.  The appellant applied to have the decision reviewed in the Federal Court.

 

2. Judicial History

 

At the Federal Court, Justice Mosley, applying reasonableness, concluded that the Minister had focused on evidence that the LNSF had engaged in terrorism and that evidence was minimal at best.  The Court found it difficult to understand why the Minister had given so much weight to the LNSF’s engagement in terrorism. The Court also noted that the Minister did not rely on the relevant Guidelines (Chapter 10 of the CIC’s Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests”) in the context of the relief, nor had the Minister balanced the factors that the Federal Court had balanced in the past cases that were identified as being relevant to the determination of what is in the national interest, namely: whether the appellant poses a threat to Canada’s security and danger to the public; the period of time of the individual in Canada; whether the determination is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact of the denial of permanent residence on the appellant and all other members of society; and adherence to all Canada’s international obligations.  In the Court’s view, the Minister’s discretion is meaningless if it is never in the national interest to have someone who at some point may have belonged to a terrorist organization.

 

Justice Pelletier of the Federal Court of Appeal ruled that the onus was on the applicant to satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest.  Because the onus was reversed in the briefing note, it was open to the Minister to disregard the recommendation made in the note.  With respect to the interpretation of subsection 34(2), Justice Pelletier noted that Parliament had transferred the responsibility for exercising the discretion from the Minister of Citizenship and Immigration to the Minister of Public Safety and Emergency Preparedness.  As such, subsection 34(2) has to be read in light of the objects of the Department of Public Safety and Emergency Preparedness Act (the Minister’s enabling statute).  Turning to the interpretation of the “national interest”, Justice Pelletier equated the term with national security and public safety, stemming from the responsibilities of the Minister of Public Safety and Emergency Preparedness.  With respect to the Guidelines that define the assessment of “national interest” as involving balancing of all factors pertaining to the applicant’s admission against the state objectives of the IRPA and Canada’s domestic and international interests, Justice Pelletier noted that they are of limited application now that the MPSEP is responsible for the relief.  Justice Pelletier further noted that the relief is only to be applied in exceptional circumstances where an association with a terrorist group was innocent or coerced.  As such, the Court of Appeal found that the Minister’s decision was reasonable.

 

3. Analysis

 

The Court first evaluates the standard of review, then moves on to the definition of the “national interest” and finally considers the reasonableness of the decision.

 

a. Standard of Review

 

The Court is tasked with identifying whether the application judge chose the correct standard of review and applied it properly.  The Court determines that the standard of review for this case is that of reasonableness, as cases identified such a standard for applications for 34(2) relief.  Also, because such a decision involves the interpretation of the term “national interest”, it may be said that it involves a decision maker interpreting it own statute, making reasonableness the appropriate standard.

 

b. Meaning of “National Interest” Under Section 34(2) of the IRPA

 

The Court notes that it is left with no express definition of the “national interest” from an administrative decision maker.  The Court first considers the interpretation of “national interest” based on the Minister’s express reasons and the Guidelines.  The Court then assesses whether this implied interpretation was reasonable.

 

The Court notes that the Minister stated that he considered all of the materials in their entirety for the exercise of the discretion.  The materials included many aspects of the issues presented in the Guidelines, including some factors that overlapped with Humanitarian and Compassionate grounds.  While the Guidelines offered relevant and reasonable factors for the evaluation of the ministerial relief, the Minister placed particular emphasis on the matters related to public safety and national security.  As such, the Court concludes that the definition of the national interest relates predominantly to national security and public safety but includes other important considerations outlined in the Guidelines or any analogous considerations.  The Court finds that such a definition of the “national interest”, as implied by the reasons of the Minister, is reasonable.  It is reasonable because it complies with Driedger’s modern approach to statutory interpretation.  The Court then uses tools of statutory interpretation to analyze the “national interest” term.

 

With respect to the plain words of the provision, it is clear that the “national interest” would include matters of public safety and national security as well as other factors, including the preservation of the values that underlie the Charter and the democratic character of the Canadian federation.

 

The Minister’s interpretation of the term is also consistent with the legislative history.  According to the reading of s. 5(l) of the Immigraiton Act, 1952, when the relief from inadmissibility came about in 1952, those who sought such relief had to satisfy that “their admission would not be detrimental to the security of Canada.” As such, Parliament made national security the focus of the relief.  In 1977 words of the relief in subsection 19(1) of the Immigration Act changed the focus to admission that “would not be detrimental to the national interest.”  As such, the test no longer focused solely on the national security.  With post 9/11 Bill C-11 it became clear that IRPA’s role was to serve the public interest with respect to security concerns, but not to limit the national interest to security concerns alone.  The Court notes that the transfer of the ministerial responsibility under subsection 34(2) to the MPSEP does not change the substantive law.  Parliament did not amend the working of subsection 34(2) to accompany the transfer of the relief responsibility.

 

The objectives of the IRPA include security concerns and other immigration matters.  Out of the 11 objectives of the Act, only two are related to public safety and national security.  As such the diverse objectives of the Act suggest that the term “national interest” is not limited to public safety and national security.

 

In terms of the context, the Court stated that if Parliament had intended national security or public safety to be the only considerations under subsection 34(2), it could have said so using the type of language found in subsection 34(1), but it did not do so.  As such, the term “national interest” implies a broader reading.  Moreover, if subsection 34(2) only concerned national security and public safety, it would have been impossible for a person found inadmissible under 34(1) to obtain relief under subsection 34(2).  This absurd interpretation must be avoided.  Although the relief under subsection 34(2) is not the same as under section 25, section 34 does not exclude the considerations of personal factors.  For example, personal characteristics can be pertinent to the assessment of whether someone is a threat to national security.  The Court concludes by stating that perhaps the best illustration of the wide variety of factors which may be validly considered under subsection 34(2) can be seen in the Guidelines.

 

Because the Minister’s implied interpretation of the term related predominantly to national security and public safety but did not exclude other important considerations, the interpretation was eminently reasonable.

 

c. Is the Minister’s Decision Valid?

 

The Minister’s decision is found justifiable, transparent and intelligible.  The appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, the fact that he was most likely aware of the LNSF’s previous activities and the sustained contact with the organization were found to be detrimental to the national interest.  The reasons allow the Court to clearly understand why he made the decision that he did.  Given that the Minister considered and weighed all the relevant evidence as he saw fit, it is not open to the Court to set the decision aside on the basis that it is unreasonable.

 

d. Was the Decision Unfair, and Did it Fail to Meet the Appellant’s Legitimate Expectations?

 

With respect to the doctrine of Legitimate Expectations, 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 appellant has not shown that his application was not dealt with in accordance with the process outlined in the Guidelines.  As such his legitimate expectation in this regard was fulfilled.

 

The appellant argued that he had legitimate expectations that H&C factors and other pertinent factors would be considered.  A letter that he received from the CIC stated that the Minister will consider national interest by examining assessment of the detriment that the appellant poses to the national interest as well as any humanitarian and compassionate circumstances pertinent to the case.  The Court stated that even if the appellant had legitimate expectations that such factors would be considered, the Minister’s implied interpretation of the term “national interest” encompasses all the factors referred to in the Guidelines, including H&C factors.  As such, the appellant expectations were fulfilled.

 

4.  Conclusion

 

The appeal is dismissed and the decision of the Minister is allwed to stand.