Last updated on March 2nd, 2019
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.Read more ›
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),Read more ›
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.Read more ›