Eluding Relief: Ministerial Discretion and the Impact of Recent Amendments to the Immigration and Refugee Protection Act

Recent amendments to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”) (http://canlii.ca/t/52dg2) will make ministerial relief illusory for some foreign nationals deemed inadmissible to Canada on security grounds. The government created this problem in its response to the Supreme Court of Canada’s (“SCC”) ruling in Agraira v Canada, 2013 SCC 36 (“Agraira”) (http://canlii.ca/t/fz8c4). Agraira challenged the application of IRPA s 34(2) (http://canlii.ca/t/521ff) under which an inadmissible foreign national could apply to the Minister of Public Safety for an exemption if they could prove their presence was not contrary to the “national interest.”

Agraira established that the Minister may refuse relief based on national security and public safety considerations alone. Mr. Agraira argued that the Minister’s decision was unreasonable because he failed to consider other factors which comprise the “national interest.” The Court held that “national interest” relates predominantly to national security and public safety but does not exclude other considerations. The Court reasoned that if “national interest” referred exclusively to security, s 34(2) could not provide relief to any person deemed inadmissible under s 34(1)(d) (“being a danger to the security of Canada”). This interpretation would make relief illusory. The government argued that considerations other than national security and public safety were best left to humanitarian and compassionate applications under IRPA s 25, leaving national security and public safety considerations exclusively to s 34(2). The Court rejected this interpretation but acknowledged that s 25 may be the best hope for those inadmissible on security grounds.

In response to Agraira the government passed the Faster Removal of Foreign Criminals Act (“FRFCA”) which amended IRPA sections 34(2) and 25. Section 34(2) was replaced by s 42.1. This section provides ministerial relief for applicants deemed inadmissible for security concerns, human and international rights violations, or organized criminality. Like its predecessor, s 42.1 allows the Minister to grant an exemption if the applicant’s presence is not contrary to the national interest. However s 42.1(3) holds that in making these determinations “the Minister may only take into account national security and public safety considerations.” This amendment has essentially legislated the government’s position in Agraira.

FRFCA also amended IRPA s 25 to deny humanitarian and compassionate relief to many inadmissible persons. Before this amendment IRPA allowed all inadmissible applicants to apply to the Minister of Citizenship and Immigration for an exemption based on humanitarian and compassionate grounds. The amended section now explicitly exclude applicants found inadmissible on the grounds of security, human and international rights violations, or organized criminality.

Acting in concert, these amendments have essentially eliminated ministerial relief for some applicants. Under the current regime, a person found to be inadmissible under s 34(1)(d) for being a danger to the security of Canada would be barred from seeking relief on humanitarian and compassionate grounds by IRPA s 25. They would have recourse to ministerial relief under s 42.1. But since s 42.1(3) compels the Minister to make their determination based on national security and public safety alone, the Minister would be forced to refuse such relief. This eliminates the purpose of ministerial discretion contemplated by the original s 34(2). In Agraira the SCC warned the government about creating just such an illusory recourse.

While there is yet to be any meaningful judicial consideration of s 42.1, we may infer government policy from its arguments in Agraira. In Agraira the government argued that ministerial relief should only be granted to innocent or coerced members of terrorist organizations. So s 42.1 will likely deprive those found inadmissible under s 34(1)(d) from any meaningful ministerial relief while also restricting the grounds on which other inadmissible persons can seek such relief. Ultimately, these amendments have gutted the important role of ministerial discretion and given many inadmissible persons an avenue of relief in name only.