Meurrens LawImmigration Trends

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.