Ministerial Relief Exemption Requests

Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest.  Such applications are referred to as “Ministerial Relief applications.”

In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”

Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:

A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g. they have been granted permanent resident status). Until recently, approximately 50% of the inventory of applications comprised cases pending a final decision on inadmissibility. This has contributed to a significant backlog of cases, all of which must be personally decided upon by the Minister.

How to Submit a Ministerial Relief Application

As of March 10, 2017 Ministerial Relief applications must be made in writing.  An inadmissible individual can only submit a Ministerial Relief application after their application to travel to Canada is refused / they are issued a removal order, their inadmissibility affirmed and then only when either they have decided to not challenge the decision in court or after they have already lost in court.

The Ministerial Relief application must include:

(a) their place of birth, gender and marital status and the names of any former spouses or common-law partners;

(b) their telephone number and email address, if any;

(c) their former countries of citizenship or former countries of nationality;

(d) their education, including the name and address of all elementary and secondary schools and post-secondary, technical and vocational institutions attended and the start and end dates for the periods during which they attended each school or institution;

(e) their work history, including volunteer work, from the age of 16 years, including start and end dates for each period of work, their job title and job description and the employer’s name and address;

(f) their international travel history from the age of 16 years, including a list of the countries visited, the purpose of the visits, the dates and duration of the visits and any immigration status sought from or granted by any country visited; and

(g) why their application was refused.

Incomplete Ministerial Relief application will be returned.  Interestingly, the Government of Canada when it announced that it would return incomplete applications determined that each returned application saves the taxpayer $25,444.00.

The Canada Border Services Agency assesses requests for Ministerial relief and develops a recommendation for the Minister.

Upon being granted relief by the Minister, the matters which had led to a finding of inadmissibility under the above-listed provisions no longer constitute inadmissibility.

A person who has been granted relief may then make applications for temporary or permanent resident status without the applications being rejected on the basis of the grounds of inadmissibility for which relief was granted.

Processing Times

While the above changes are mostly welcome (there is some controversy in requiring that a permanent residence application be refused before one can apply for Ministerial Relief, especially given how long permanent residence applications can take to process) the fact remains that the biggest issue in Ministerial Relief applications is the processing times.  The biggest obstacle appears to be the requirement that the Minister personally sign off on granting Ministerial Relief.

Previously, the Government of Canada has taken the position that because of the Minister’s many duties and responsibilities, the Minister should not be subject to any timeline whatsoever in rendering determinations in respect of such requests.  In Tameh v. Canada (Public Safety and Emergency Preparedness), however, the Chief Justice of the Federal Court strongly disagreed, and opened his decision by writing that:

Ministers of the Crown are typically very busy people. But they are not so busy that they can take as many years as they see fit to respond to requests made pursuant to validly enacted legislation, by persons seeking determinations that are important to them. At some point, they will have an obligation to provide a response.

He went on to state that the Minister must process Ministerial Relief applications “within a reasonable period of time.” What constitutes a “reasonable amount of time” will depend on the actual matrix of a case.

Even in Tameh, the Federal Court accepted that taking several years to process Ministerial Relief applications could be reasonable.  In light of the fact that people who receive Ministerial Relief essentially need to apply for permanent residency twice, and given that the Government of Canada has now standardized the process, processing times will hopefully come down dramatically.

 


Four Case Comments (Including Agraria)

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

This is a Supreme Court of Canada decision so there is much to take from it, and I will barely be able to begin to scratch the surface in this post.

Mr. Agraria submitted an IRPA s. 34(2) application for ministerial relief in 2002.  The Minister of Public Safety and Emergency Preparedness refused this application in 2009, concluding that it was not in the national interest to admit individuals to Canada who had had sustained contact with known terrorists and/or terrorist-connected organizations.  Mr. Agraria’s role in the organization was apparently to engage people in political discourse, deliver envelops, and raise funds.  The Canada Border Services Agency actually recommended to then Minister that he admit Mr. Agraria, as, in their words:

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 rmeove the current regime in Libya through non-violent means.

The Minister overruled his Department, and determined that it was not in the national interest to admit him.

(The above scenario raises two questions about current policy.  The first is that Mr. Agraria was determined inadmissible to Canada for security reasons in 2002.  Yet, he was allowed to remain in the public while the Minister took seven years to process his application.  If the Canadian government truly believed that this individual was a possible threat to the public, you’d think they would have either detained him or acted sooner.  And, if they didn’t think he was a threat to the public (as their actions imply), then what is the point of declaring him inadmissible?  Is one of the objectives of Canada’s immigration system to punish people for their past?)

In determining that the Minister’s decision was reasonable, the Supreme Court addressed two issues.  The first was what the appropriate standard of review was.  The second was the interpretation of the term “national interest” in s. 34(2) of IRPA.

On the issue of the standard of review, the Supreme Court determined that the appropriate standard was reasonableness.  In my opinion, the Supreme Court of Canada has basically thus indicated that the standard of review for questions of law in immigration matters is reasonableness.  The Supreme Court stated that “because such a decision involves the interpretation of the term “national interest” in s. 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity.”

In my opinion, if the standard of review for questions of law in immigration law becomes reasonableness than applicants are going to find themselves faced with the same uncertainty as with what the residency test for citizenship is.   Different tests for what an IRPA section means are going to arise, and applicants will be left to the mercy of who the officer deciding the application is.  The Federal Court has decried this state of affairs on numerous occasions, and, unfortunately, it looks like it is going to spread to other areas of immigration law.

The Supreme Court also reiterated that “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.  As well, administrative tribunals do not have to consider and comment upon every issue raised by the parties.  The issue is whether the decision is reasonable based on the record.

The Supreme Court then took it a step further, creating an “implied interpretation”  notion.  Hence, even though the Minister argued that his analysis of national interest did not require him to consider humanitarian & compassionate consideration, the Supreme Court said that because the Minister wrote that he determined “all the material” that it could be implied that he interpreted humanitarian & compassionate considerations.  In addition to the Court seeming to tell the Minister that he considered something even though his lawyers argued to the Supreme Court that he didn’t need to consider it (and, thus, presumably, didn’t) the Court appears to have tossed aside the long standing principle that while administrative tribunals need not address every issue raised by a party, the more central the issue is to the decision the greater the requirement on a tribunal to address it.

In light of Bill C-43 receiving Royal Assent, section 34(2) of IRPA no longer exists, so I will not discuss the Supreme Court’s decision on the now non-existent section in much detail.

It is worth noting that the Supreme Court remarked that an applicant who fails a 34(2) test can always apply for H&C.   Of course, this is also not the case any more as a result of Bill C-43 individuals inadmissible to Canada under s. 34(1) of IRPA can no longer request humanitarian & compassionate considerations.

El Werfalli (Citizenship and Immigration), 2013 FC 623

The debate over what constitutes membership in a terrorist organization that results in a IRPA 34(1) inadmissibility continues.  The Respondent drew on the Al Yamani decision, arguing that:

It is also important to note that a foreign national or permanent resident is inadmissible under paragraph 34(1)(f) of the IRPA irrespective of whether to membership in that organization occurred at a different time than the period of time during which the organization engaged in acts of terrorism.

However, in a statement that I’m sure took the Respondent by surprise, the Court faulted the Immigration and Refugee Board for not asking whether there was any nexus between the applicant’s membership in the organization and the organization’s involvement in terrorist activity.

The Court stated:

The question before the Board was whether section 34(1)(f) applied to an individual who had worked for and therefore was a member of an organization that had no association with terrorist activity but became associated with terrorist activity after the membership had ended.

The difficulty arising from the Board’s interpretation of s. 34(1)(f) is to associate individuals with future terrorism  retroactively to the period of their membership, without any regard to honest and lawful participation at the time of the membership. In effect, any permanent resident or foreign national who is a member of any organization, by this interpretation of s. 34(1)(f), has a Sword of Damocles suspended indefinitely over his or her head should the organization they once had been a member become engaged in terrorist activities in the future.

The Court further held that if an individual joins an organization that is not engaged in terrorism or has not engaged in terrorism in the past, then there cannot be any adverse implication that can be drawn from the individual’s membership in the organization, and (to paraphrase) Parliament could not have intended that a person who joins a group which at that time had never committed terrorism, and did not commit terrorism during that individual’s membership, would be inadmissible to Canada.

As well, the Court affirmed that the renunciation of terrorism by an organization before an individual joins is considered to transform the organization, and not give rise to a 34(1) inadmissibility.

Ghaffari v. Canada (Citizenship and Immigration), 2013 FC 674

This case is a reminder of why I always read (and sometimes blog about) Supreme Court of Canada decisions in criminal law.  In this case the Court ruled that the visa officer improperly applied the Ryan test for duress (which I blogged about here) in determining that an individual was inadmissible to Canada for security grounds.

Iqbal v. Canada (Citizenship and Immigration), 2013 FC 630

This decision is a reminder of how important it is to have clear reference letters which state job duties even if the job title obviously implies what the duties are.  The relevant paragraphs are:

The applicant submitted the following to demonstrate his work experience as a cook:

  • an “Apprenticeship Certificate” from the Days Inn Karachi stating that from October 15, 2003 to October 14, 2005 he completed an apprenticeship program as a cook for Pakistani and Indian food and that at the end of his apprenticeship, the executive chef found him to be fully qualified in the preparation of a variety of Pakistani and Indian snacks, dishes, breads, and desserts;
  • a letter from the Days Inn Karachi restaurant dated October 18, 2007, attesting to his employment as a cook from November 2005 to September 2007;
  • documentation from the Creek-Inn dated November 16, 2010 attesting to the fact that he was employed as a cook in the restaurant since November 2007 and prepared a variety of Pakistani and Indian cuisines, different types of desserts, etc.;
  •  photographs of himself at work.

The applicant submits the evidence before the officer showed that he performed eight out of the nine main duties listed under NOC 6242. In addition to the letters from the Days Inn and Creek-Inn, the applicant bases this assertion on the photographs he says were before the officer, as well as his statements in his application form and assumptions that can be made about the tasks of a cook. However, I agree with the following statement by Justice Marie-Josée Bédard in Ismaili v The Minister of Citizenship and Immigration, 2012 FC 351, at paragraph 23:

The applicant argues that the duties of a pilot are obvious and that the immigration officer is expected to know what they are. This argument requires that the immigration officer assume that a pilot for Gulf Air performs the duties as described in NOC 2271. With respect, an immigration officer should not determine whether an applicant’s work experience corresponds to the lead statement and main duties set out in the NOC for an occupation based on his personal knowledge of an occupation or on the personal knowledge that an applicant imputes to the immigration officer. Immigration officers must assess applications based on the evidence that applicants put forward and not on their own personal knowledge or assumptions. In my view, this is the only rigorous, fair, cohesive and coherent approach to assessing whether an applicant has performed the main duties of any position described in the NOC.

The relevant documentary evidence the applicant put forward in the present case only mentioned work experience for one of the main duties listed in the occupational description for NOC 6242: the preparation and cooking of “complete meals or individual dishes and foods”. I cannot agree with the applicant that it was unreasonable based on the minimal evidence submitted that the officer found the applicant had not established that he had work experience in some or all of the duties listed in the occupational description. As noted by the respondent, subsection 16(1) of the Act requires that when making an application, an applicant must produce all relevant evidence and documents that the officer reasonably requires.

 


Ministerial Relief for Security Inadmissibility

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.
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A Two Year Delay Will not Necessarily Result in an Order Mandamus

In Sencio Hechavarria v. Canada (Public Safety and Emergency Preparedness), 2010 FC 767, the applicant, a Cuban citizen, made an application for an inadmissibility resulting from his service in the Ministry of the Revolution Armed Forces. After 15 months without a decision, he went to court to seek an order mandamus compelling the Minister to make a decision on his application.
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