Agraira v Canada (Public Safety and Emergency Preparedness) Caselaw

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

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.

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