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.” In Thomas v. Canada (Citizenship and Immigration), 2022 FC 1169, Madam Justice Heneghan affirmed that tthe Minister is required to consider whether someone is a danger to 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.
Internal Operational Bulletin 639 – Amendments to the Immigration and Refugee Protection Regulations – Ministerial Relief Applications elaborates on the above, and states:
OB639Processing 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.
Jurisprudence
Most of the jurisprudence involving Ministerial Relief applications have been around the parameters of the “national interest” test.
Some of the principles that have arisen include:
- The burden of proof does not rest with the Minister or with the Canada Border Services Agency, but rather with the individual who is applying for Ministerial Relief.
- The Minister’s decisions should be given a high level of deference.
- Ministerial Relief is not meantto review the original inadmissibility finding.
- While there is a national interest in preventing foreign nationals who are inadmissible on the most serious grounds from being in Canada, the Minister cannot deny Ministerial Relief solely on the grounds that the individual committed the act that made them inadmissible.
In Agraira v. Canada, the Supreme Court of Canada stated that Ministerial Relief is not intended to be an alternative form of a humanitarian & compassionate review. It did say, however, that there is “a broad range” of “personal factors” that can be relevant to determining whether someone’s presence in Canada would be detrimental to the national interest.
Data
The Federal Court released a decision which contains the following useful information on Ministerial Relief applications. As you can see, these applications are not processed particularly fast, and their chance of success is increasingly diminishing.
| Request – Documents relating to: | Section 34(2) of the IRPA and comparable Section 19(1)(f) (iii)(B) of the former Immigration Act, R.S.C. 1985 | Section 35(2) of the IRPA and comparable section 19(1)(l) of the former Immigration Act, R.S.C. 1985 | Section 37(2) of the IRPA and comparable section 19(1)(c.2) of the former Immigration Act, R.S.C. 1985 | |
|
1 |
The number of Ministerial Relief applications that have been submitted to date since the Immigration and Refugee Protection Act (IRPA) was enacted |
247 |
18 |
11 |
|
2 |
The number of Ministerial relief applications that have been granted to date |
24 |
3 |
0 |
|
3. |
The number of Ministerial relief applications that have been submitted from 1992 up until when the IRPA was enacted
(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted) |
37 |
3 |
1 |
|
4 |
The number of IRPA Ministerial relief applications that have been granted in this time frame
(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted) |
115 |
0 |
0 |
|
5 |
The number of IRPA Ministerial relief applications that have been submitted in this time frame
(Information on record with the CBSA includes the timeframe from 1996 until IRPA was enacted) |
2002 – 20 2003 – 34 2004 – 32 2005 – 25 2006 – 20 2007 – 15 2008 – 16 2009 – 37 2010 – 37 2011 – 11 |
2002 – 0 2003 – 3 2004 – 1 2005 – 1 2006 – 2 2007 – 0 2008 – 4 2009 – 2 2010 – 5 2011 – 0 |
2002 – 0 2003 – 1 2004 – 1 2005 – 0 2006 – 0 2007 – 0 2008 – 1 2009 – 4 2010 – 2 2011 – 2 |
|
6 |
The number of Ministerial relief requests granted by the Minster PER year since the IRPA was enacted up to the present day |
2002 – 0 2003 – 0 2004 – 0 2005 – 2 2006 – 5 2007 – 8 2008 – 7 2009 – 0 2010 – 1 2011 – 1 |
2002 – 0 2003 – 0 2004 – 1 2005 – 0 2006 – 0 2007 – 0 2008 – 1 2009 – 0 2010 – 0 2011 – 1 |
0 |
|
7 |
The number of Ministerial relief claims currently pending |
223 |
15 |
12 |
The following chart shows the results for the following Access to Information Act request.
“Statistics regarding Ministerial Relief applications decided between January 1, 2019 to October 5, 2022, under sections 34(2), 35 (2), 37(2) or 42.1 of the Immigration and Refugee Protection Act; broken down by year, the number of applications decided, and the number that remained pending. In addition, for each application that was decided during the period list which provision the application was decided, the year of decision, the year of application, the length of time between submission of the applications and the decision, and the outcome of the application. Disposition: All disclosed, Number of Pages: 4″
A42 ATIP