If you have a s. 34(2) Application for Ministerial Relief being processed then you need to read this. The Federal Court of Appeal (the “Court”) has just released a ruling that has turned this area of the law upside down, and that will likely result in your application being rejected. You need to contact your immigration consultant or lawyer to discuss the implications of this case.
The case, Ramadan Agraira, severely limits the scope of s. 34(2).
Previously, s. 34(2) applicants submitted applications in accordance with the guidelines in IP-10 of the Citizenship and Immigration Canada Manual. The Manual stated that relevant considerations included whether the applicant’s presence in Canada would be offense, whether ties with the regime were severed, and whether the person had adopted the democratic values of Canadian society.
In Ramadan Agraira, however, the Court ruled that the guidelines in IP-10 will no longer apply, and do not bind the Minister of Public Safety and Emergency Preparedness. (The Court found that this portion of the Manual is dated, and does not reflect subsequent statutory changes.)
The Court has ruled that humanitarian and compassionate considerations and the adaptation of democratic values do not have to be considered when the Minister of Public Safety and Emergency Preparedness makes s. 34(2) decisions.
Section 34(2) requires that the Minister only consider “national interest”, and that this analysis only occurs within the context of national security and public safety. Security concerns are forefront.
The test is not a net-detriment test. The Court explicitly stated that 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.
Section 34(2) is essentially to be limited to situations where people innocently joined an organization that they did not know was a terrorist organization, or to situations where someone was coerced into joining.
However, the Court did leave open the possibility that an H&C application could be used to overcome the criminal inadmissibility.
I recently worked with another lawyer to submit a s. 34(2) application for an individual who had once belonged to the FMLN, an organization that the government and courts have concluded engaged in terrorist activity. In light of this decision, thank heavens we also submitted the H&C request.