IMMIGRATION: REFUGEES; PROCESS RE STANDARD OF REVIEW; “NATIONAL INTEREST”

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Agraira v. Canada (Public Safety and Emergency Preparedness) (Fed. C.A., March 17, 2011)(34258)

“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.”

The S.C.C. (unanimously) dismissed the appeal.

Justice LeBel wrote as follows (at paragraphs 3, 43-46, 60-65, 75, 86-89, 100-101):

“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 the CIC’s Inland Processing Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”).

… the appellant was found to be inadmissible on security grounds for having been, in the words of s. 34(1)(f), “a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph . . . (c)”, namely acts of terrorism.  He sought relief under s. 34(2), which provides that the Minister may make an exception where a person has been found to be inadmissible, on being satisfied that the person’s continued “presence in Canada would not be detrimental to the national interest”.  As the wording of the section (“who satisfies the Minister”) implies, the onus is on the person who applies for relief to prove that his or her continued presence in Canada would not be detrimental to the national interest.

In short, s. 34(2) of the IRPA establishes a pathway for relief which is conceptually and procedurally distinct from the relief available under s. 25 or s. 25.1.  It should be borne in mind that an applicant who fails to satisfy the Minister that his or her continued presence in Canada would not be detrimental to the national interest under s. 34(2) may still bring an application for H&C relief. Whether such an application would be successful is another matter.

The first issue in this appeal concerns the standard of review applicable to the Minister’s decision. But, before I discuss the appropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency, 2009 FCA 23, 386 N.R. 212, at para. 18:

Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly.  The appellate court is not restricted to asking whether the first-level court committed palpable and overriding error in its application of the appropriate standard.

In Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted).

The Guidelines did not constitute a fixed and rigid code. Rather, they contained a set of factors, which appeared to be relevant and reasonable, for the evaluation of applications for ministerial relief. The Minister did not have to apply them formulaically, but they guided the exercise of his discretion and assisted in framing a fair administrative process for such applications.  As a result, the Guidelines can be of assistance to the Court in understanding the Minister’s implied interpretation of the “national interest”.

Moreover, the Minister placed particular emphasis on matters related to national security and public safety in the reasons he gave for his decision.  These included: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF.

Taking all the above into account, had the Minister expressly provided a definition of the term “national interest” in support of his decision on the merits, it would have been one which related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations (see Appendix 1 (the relevant portions of the Guidelines)).

As a result of my comments above on the standard of review, I am of the view that the Minister is entitled to deference as regards this implied interpretation of the term “national interest”.  As Rothstein J. stated, “[w]here the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear” (Alberta Teachers’ Association, at para. 50).

In my view, the Minister’s interpretation of the term “national interest”, namely that it is focused on matters related to national security and public safety, but also encompasses the other important considerations outlined in the Guidelines and any analogous considerations, is reasonable…

There is no dispute between the parties that the term “national interest” refers to matters which are of concern to Canada and to Canadians.  There is no doubt that public safety and national security are matters which are of concern to Canada and to Canadians.  It is equally clear, however, that more than just public safety and national security are of concern to Canada and to Canadians. For example, the plain meaning of the term “national interest” would also include the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply.  The plain words of the provision therefore favour a broader reading of the term “national interest” than the one suggested by the respondent and by the Federal Court of Appeal, which would limit its meaning to the protection of public safety and national security.  The words of the statute are consistent with the Minister’s implied interpretation of this term, which relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations.  The legislative history of the provision is also relevant to an understanding of the range of values and interests underlying the concept of the national interest.

In summary, this review demonstrates that the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with the legislative history of the provision.

Thus, the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with all these contextual indications of the meaning of this term.

In summary, an analysis based on the principles of statutory interpretation reveals that a broad range of factors may be relevant to the determination of what is in the “national interest”, for the purposes of s. 34(2). Even excluding H&C considerations, which are more appropriately considered in the context of a s. 25 application, although the factors the Minister may validly consider are certainly not limitless, there are many of them.  Perhaps the best illustration of the wide variety of factors which may validly be considered under s. 34(2) can be seen in the ones set out in the Guidelines (with the exception of the H&C considerations included in the Guidelines).  Ultimately, which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister (Soe, at para. 27; Tameh, at para. 43).

This interpretation is compatible with the interpretation of the term “national interest” the Minister might have given in support of his decision on the appellant’s application for relief.  It is consistent with that decision.  The Minister’s implied interpretation of the term related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations.  In light of my discussion of the principles of statutory interpretation, this interpretation was eminently reasonable.

Having concluded that the Minister’s implied interpretation of the term “national interest” is reasonable, I should also confirm that the decision as a whole is valid.  The Minister’s reasons were justifiable, transparent and intelligible.  Although brief, they made clear the process he had followed in ruling on the appellant’s application.  He reviewed and considered all the material and evidence before him.  Having done so, he placed particular emphasis on: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF.  The Minister’s reasons revealed that, on the basis of his review of the evidence and other submissions as a whole, and of these factors in particular, he was not satisfied that the appellant’s continued presence in Canada would not be detrimental to the national interest.  In short, his reasons allow this Court to clearly understand why he made the decision he did.

The appellant raises a further argument to the effect that he had a legitimate expectation that the Minister would consider certain factors in determining his relief application.  The source of this alleged expectation is twofold.  First, the appellant argues that the Guidelines created an expectation that the pertinent factors set out in Appendix 1 to these reasons would be considered.  Second, he alleges that he had a legitimate expectation that H&C factors would be considered in determining his application as a result of a letter CIC had sent him on May 22, 2002.  That letter read, in part, as follows:

The Minister will consider whether granting you permanent residence to Canada would be contrary to the National Interest to Canada.  This will require an assessment of the detriment that you pose to the National Interest of Canada, as well as any humanitarian and compassionate circumstances pertinent to your situation. [Emphasis added.] (A.R., vol. III, at p. 287)

Even were I to assume that the Guidelines and the letter unambiguously promised the appellant that certain factors would be considered in assessing his application for relief and that, at law, someone in his position might in fact have a legitimate expectation that certain factors would be considered in making a discretionary decision, his argument would nevertheless fail.  As I mentioned above, the Minister’s implied interpretation of the term “national interest” encompasses all the factors referred to in the Guidelines.  Also as I mentioned above, and as the appellant acknowledges, these factors include H&C factors (A.F., at para. 122).  In a manner consistent with this interpretation of the term “national interest”, the Minister “reviewed and considered the material and evidence submitted in its entirety”.  Therefore, if the appellant had a legitimate expectation that the Minister would consider certain factors, including H&C factors, in determining his application for relief, this expectation was fulfilled.”

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