CANADA (CITIZENSHIP AND IMMIGRATION) v. KHOSA, 2009 SCC 1

For Judicial Review, “Reasonableness” test requires that if the decision falls within “a range of pos¬sible, acceptable outcomes which are defensible in respect of the facts and law”, then it is sufficient to uphold administrative body’s decision.

‘A’ was an Indian Citizen who had migrated to Canada and was found guilty of criminal negligence (“street racing”) which caused death. He was sentenced to a conditional sentence of two years and later his removal order to return back to India was issued by the immigration division. He filed an appeal before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board and without challenging the validity of the order, claimed for “special relief” on the humanitarian and compassionate ground which was rejected. Federal Court adopted “patent unreasonableness” standard and rejected the appeal and the Federal Court of Appeal adopting “reasonableness simpliciter” standard allowed the appeal.

As ‘A’ had challenged the IAD decision before the Court by way of judicial review, the first question before the Court was about the standard of judicial review applicable. The Court noted that IAD, being a federal tribunal comes under the purview of codified grounds of judicial review in S. 18.1(4) of the Federal Court Act and S. 162(1) of the Immigration and Refugee Protection Act provides a finality to its decisions. The Court also took note of precedent in Dunsmuir v. New Brunswick, 2008 SCC 9, where SCC had set two common law judicial review standards, first, “correctness” in which the reviewing court without showing any deference to the administrative decision-maker has to undertake its own analysis and check whether the decision was correct and second, “reasonableness” in which the review has to be approached with respect and giving due deference to the administrative authority and this reasonableness standard is applicable in the questions of fact, discretion and matters of policy where legal and factual issues are intertwined.

Reconciling both, SCC in case at hand held that the legislature through the Federal Court Act had not excluded common law standard of judicial review analysis as held in Dunsmuir. It then proceeded to apply “reasonableness” standard to the decision of the IAD, as parliament had given authority to the IAD and not to the Courts to examine whether ‘A’ was entitled to relief on the humanitarian and compassionate ground. Here the IAD had taken into consideration six factors enumerated in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) famously known as Ribic factors while considering the case of ‘A’ which gave sufficient indication that the IAD had arrived at a reasoned order.

Hence showing deference to the IAD, the SCC held that the Courts have to strike a balance between rule of law and avoiding any interference with the administrative function especially when the matter is solely delegated to an administrative body by the legislature. It went on to rule that it was possible to give multiple-valid interpretations to statutory provisions while answering the legal query, but the reviewing Court should refrain from substituting its finding with that of such bodies if the decision of the body is rationally supported and fits with the principles of justification, transparency and intelligibility.