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Summary

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Immigration law Judicial review Inadmissibility and removal Appellant granted leave to seek judicial review of the Minister’s determination under s. 34(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 that his continued stay in Canada was detrimental to Canada’s national interest Federal Court of Appeal allowed appeal, set aside Federal Court decision and dismissed application for judicial review Whether the Federal Court of Appeal erred by finding that a transfer in ministerial responsibility was the determinative factor in interpreting s. 34(2) of the IRPA Whether the Federal Court of Appeal unlawfully fettered the discretion of the respondent by limiting the interpretation of “national interest” to issues of national security and public danger.

The appellant, Mr. Agraira is a citizen of Libya who, in 1996, left his homeland for Germany where he made a claim for Convention Refugee status on the basis of his membership in the Libyan National Salvation Front (LNSF). His application was unsuccessful. In March 1997, Mr. Agraira entered Canada using an Italian passport, illegally purchased in Germany. He applied for Convention Refugee status, once again on the basis of his involvement with the LNSF. On October 24, 1998, his claim for Convention Refugee status was refused on the basis of his lack of credibility. Mr. Agraira married a Canadian woman and his wife sponsored his application for permanent residence in August 1999. He was found to be inadmissible to Canada on security grounds. He attempted to avoid this finding of inadmissibility through an application for ministerial relief under the relevant legislation. The legislative landscape changed significantly during the life of Mr. Agraira’s application changing the minister responsible for such decisions from the Minister of Immigration and Citizenship to the Minister of Public Safety and Emergency Preparedness. The Minister refused to grant relief. Mr. Agraira applied for, but was denied, leave to have the decision under s. 34(1) of the IRPA that he was inadmissible, judicially reviewed. However, he was granted leave to seek judicial review of the Minister’s determination under s. 34(2) that his continued stay in Canada was detrimental to Canada’s national interest. Mr. Agraira’s application to the Federal Court for judicial review of that decision was successful. However, the Federal Court of Appeal allowed the appeal, set aside the decision of the Federal Court and dismissed the application for judicial review.

Lower Court Rulings