July 16, 2014

Kippax v. Canada (Minister of Citizenship and Immigration)

Kippax v. Canada (Minister of Citizenship and Immigration)

Decider: Richard G. Mosley J.

Court: Federal Court

Citation: 2014 FC 429

Judgment: 6 May 2014

[15]           In my view, the matters at issue in this proceeding are mixed questions of fact and law. I do not see them as true questions of jurisdiction or matters outside the specialized area of expertise of the administrative decision maker: Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 SCC 9, [2008] 1 SCR 190 at paragraph 55. As discussed by Justice de Montigny at para 44 of Bruzzese, above, in interpreting the relevant criteria governing detention reviews, ID Members are expert tribunals applying their home statute and regulations and are, therefore, deserving of deference. Accordingly, the appropriate standard of review is reasonableness.

(1)    Did the Member err in finding that she had no jurisdiction to reconsider the danger and appearance findings?

[16]           I agree with the applicant that the Member erred by finding that she had no jurisdiction to reconsider the danger and appearance findings. Section 57 of theIRPA requires the Immigration Division to “decide afresh whether continued detention is warranted” at each hearing: Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4 (CanLII), 2004 FCA 4 [Thanabalasingham FCA], at para 8. This is also reflected in the language of s 162 of the IRPA which confirms that all Divisions of the Immigration and Refugee Board have jurisdiction to determine “all questions of law and fact”. Thus, the ID members have jurisdiction to reconsider findings leading to detention and continued detention.

[34]           The Member’s findings with respect to the alternatives to detention were reasonable in the sense that they were justified, transparent and intelligible and within the range of acceptable outcomes. But prior to considering those alternatives, the Member was required to first determine whether there were grounds for detention. As discussed above, the Member erred in finding that she had no jurisdiction to reconsider the prior danger and appearance findings. The application will therefore be granted and remitted to the Immigration Division for reconsideration in accordance with these reasons.