𝗛&𝗖 𝗳𝗮𝗰𝘁𝗼𝗿𝘀 𝗮𝗿𝗲 𝗻𝗼𝘁 𝗿𝗲𝗹𝗲𝘃𝗮𝗻𝘁 𝘁𝗼 𝗮 𝗱𝗲𝘁𝗲𝗿𝗺𝗶𝗻𝗮𝘁𝗶𝗼𝗻 𝗼𝗳 𝗻𝗮𝘁𝗶𝗼𝗻𝗮𝗹 𝗶𝗻𝘁𝗲𝗿𝗲𝘀𝘁

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

The appellant applied for ministerial relief from the determination of inadmissibility, but his application was denied.  The Minister of Public Safety and Emergency Preparedness concluded that it was not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations.  

The appellant’s application for permanent residence was accordingly denied and risked deportation. The question raised on the appeal to the Supreme Court was whether the Minister’s decision to deny relief can be successfully challenged.

The case history spanned from the Federal Court, up to the Federal Court of Appeal and the Supreme Court of Canada.

It was decided that H&C factors are not relevant to a determination of the “national interest” under s. 34(2), as they are properly dealt with in H&C applications under s. 25 of the Immigration and Refugee Protection Act.  This interpretation is bolstered by the legislative transfer of responsibility for decisions on applications for relief to the Minister, whose mandate is the protection of public safety.

Section 34 is intended to protect Canada, but from the perspective that Canada is a democratic nation committed to protecting the fundamental values of its Charter and of its history as a parliamentary democracy.  Section 34 cannot be transformed into an alternative form of humanitarian review; however, it does not necessarily exclude the consideration of personal factors that might be relevant to this particular form of review.  

After the Supreme Court decision, the Senate and House of Commons enacted the Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16 which was given royal assent. The act was an amendment of the Immigration and Refugee Protection Act (IRPA).

This enactment amended the IRPA to limit the review mechanisms for certain foreign nationals and permanent residents who are inadmissible on such grounds as serious criminality. 

It also amended the Act to provide for the denial of temporary resident status to foreign nationals based on public policy considerations and provided for the entry into Canada of certain foreign nationals, including family members, who would otherwise be inadmissible. 

The enactment provided for the mandatory imposition of minimum conditions on permanent residents or foreign nationals who are the subject of a report on inadmissibility on grounds of security that is referred to the Immigration Division or a removal order for inadmissibility on grounds of security or who, on grounds of security, are named in a certificate that is referred to the Federal Court.

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