Agraira v. Canada (Public Safety and Emergency Preparedness)

Agraira v. Canada (Public Safety and Emergency Preparedness)
Collection
Supreme Court Judgments
Date
2013-06-20
Neutral citation
2013 SCC 36
Report
[2013] 2 SCR 559
Case number
34258
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Immigration
Notes
SCC Case Information: 34258
Decision Content
SUPREME COURT OF CANADA
Citation: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559
Date: 20130620
Docket: 34258
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 reasonab