Iranian Applicants, Security Screening and Section 34

The June 2024 IRGC listing and section 34

Public Safety Canada's list of listed terrorist entities gives 19 June 2024 as the date the Islamic Revolutionary Guard Corps was added.

The listing is a separate list kept by Public Safety Canada. The text of section 34 of the Immigration and Refugee Protection Act, as saved for this guide, shows its last amendment in 2013. Where a person's history includes military service, in particular compulsory service, a lawyer would typically want the following facts documented:

• someone who was conscripted and had no say in whether or where to serve
• service in a support role such as clerical, logistics, medical or engineering work
• service long ago, sometimes for a short period
• no ideological link to the organisation

How any particular officer treats these facts depends on the file, and nothing here predicts an outcome.

How section 34 actually works

Section 34(1) lists security grounds of inadmissibility, including engaging in espionage or terrorism. Paragraph 34(1)(f) ties inadmissibility to belonging to a group which, on reasonable grounds, is believed to be involved in terrorism or the other acts listed in that section, whether in the past, now or in future.

Two features of the wording are worth understanding:

• "Reasonable grounds to believe" is the threshold the Act uses. Section 33 adds that the facts behind sections 34 to 37 can include events believed, on reasonable grounds, to have happened, to be happening or to be possible later.
• "Member" is the key word in paragraph (f). Whether the facts of a person's service amount to membership is the point a lawyer would examine closely.

Compulsory service and the membership question

Where a refusal is based on mandatory military service, a lawyer would typically look at:

• Whether service was compulsory: the legal framework, the age at which it began, and whether any choice existed
• Which body the applicant served in: assignments can be spread across several branches, so the records matter
• The role and its length: for example, clerical work in a supply depot for a limited period
• What the applicant knew about the acts said to ground the listing
• What the organisation was doing at the time of service

If an officer's reasons do not address these points, that may be raised on judicial review. Whether the Court agrees depends on the reasons and the evidence.

Ministerial relief

Section 42.1 allows the Minister to declare that section 34 does not make a foreign national inadmissible, if satisfied that this would not go against the national interest. The Act assigns declarations of this kind to the Minister of Public Safety and Emergency Preparedness (s. 4(2)).

Some points about this route:

• It is discretionary, and the Act says the Minister may only take national security and public safety considerations into account (s. 42.1(3))
• Timing is not set out in the statute, and a lawyer can advise on how long it is taking at present
• It asks the Minister to declare that the matters referred to do not amount to inadmissibility, which is a different question from whether the finding itself was right

Where the membership finding itself is the problem, judicial review is a separate route. A lawyer can advise whether one or both suit the circumstances.

Extended screening and delay

Some applicants are not refused but wait, with a file in security screening for a long time and little explanation.

Silence is not a decision, and it raises a different legal question from a refusal. Where the delay is long and unexplained, a mandamus application asks the Federal Court to require IRCC to decide. Our article on suing IRCC for unreasonable delay explains how that works.

Whether a particular wait is legally unreasonable depends on the evidence about the file, and a lawyer can assess it.

Sanctions and financial evidence

An application can also raise evidence questions that are of a different kind from an inadmissibility finding, for example:

• Proof of funds can be hard to show when banking routes are limited
• Document verification can be slow, and a document that cannot be verified is not the same thing as a false one
• Property and asset evidence may be difficult to obtain in a usable form

These are evidence problems, and they are usually addressed with documents and explanation. Which documents suit a given application is a question for a lawyer.

What a person affected may want to look at

1. The officer's actual reasons. A refusal letter may not show what a membership finding rests on, while the officer's file notes, obtained through an access-to-information request, may add detail.
2. The court deadline. Under s. 72(2)(b) of the Act, an application for judicial review must be filed within 15 days for a matter arising in Canada and within 60 days for a matter arising outside Canada, counted from the day the person is notified of the matter or otherwise learns of it. How that applies to a particular decision should be confirmed with a lawyer straight away.
3. Records of the conscription: service records, discharge papers, the legal framework, age and assignment.
4. Any procedural fairness letter. A response made before a finding is made is a separate opportunity; a related guide covers responding to a procedural fairness letter in more detail.
5. The effect of reapplying. Whether a fresh application helps or repeats the same issue depends on the file, and a lawyer should advise before one is made.