Canada (Minister of Citizenship and Immigration) v. XXXX, (2010) 362 F.T.R. 178 (FC)

• Judge: Barnes, J.
• Court: Federal Court (Canada)
• Case Date: January 14, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 362 F.T.R. 178 (FC);2010 FC 243;2010 FC 112

Can. (M.C.I.) v. XXXX (2010), 362 F.T.R. 178 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JA.050

The Minister of Citizenship and Immigration (applicant) v. XXXX (respondent)

(IMM-6267-09; 2010 FC 112; 2010 FC 243)

Indexed As: Canada (Minister of Citizenship and Immigration) v. XXXX

Federal Court

Barnes, J.

February 2, 2010 and March 2, 2010.

Summary:

The respondent was one of 76 Sri Lankan migrants who arrived on a vessel. On October 17, 2009, all aboard the vessel were detained under the Immigration and Refugee Protection Act (IRPA) so that the Minister could determine if any were members of the Liberation Tigers of Tamil Eelam (LTTE), a terrorist organization. On December 9, 2009, at a detention review hearing, the Minister asserted that the respondent's continued detention was justified under ss. 58(1)(c) and 58(1)(d) of the IRPA as the Minister was taking the necessary steps to inquire into a reasonable suspicion that the respondent was inadmissible to Canada. The Immigration and Refugee Protection Board ordered the respondent's release. The Minister sought judicial review.

The Federal Court allowed the application for judicial review, setting aside the board's decision. The court certified two questions as proposed by the respondent.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - The Federal Court held that, in a detention review hearing where the Minister relied on ss. 58(1)(c) and 58(1)(d) of the Immigration and Refugee Protection Act (IRPA) to justify a continued detention, the Immigration and Refugee Protection Board was required to extend deference to the Minister in the exercise of his mandate - Both ss. 58(1)(c) and 58(1)(d) involved situations of ongoing investigation and referred, respectively, to the Minister's "suspicion" and "opinion", unlike ss. 58(1)(a) and 58(1)(b), both of which provided for an independent assessment of the evidence by the board - If Parliament had intended the board to carry out a de novo assessment of evidence under s. 58(1)(c), no purpose was served by referring to the Minister - This interpretation was consistent with the presumption against surplusage - Although the board was required to pay deference to the Minister's view of the evidence, this did not mean that the Minister was entitled to form a suspicion on the strength of bare intuition or pure speculation - A reasonable suspicion under s. 58(1)(c) was one that was supported by objectively ascertainable facts that were capable of judicial assessment - The question to be answered by the board was not whether the evidence relied on by the Minister was true or compelling, but whether that evidence, considered globally, reasonably supported the Minister's suspicion of potential inadmissibility - Under s. 58(1)(d), the board's jurisdiction was limited to examining whether the Minister's proposed investigatory steps had the potential to uncover relevant evidence bearing on the Minister's suspicion and to ensuring that the Minister was conducting an ongoing investigation in good faith - See paragraphs 13 to 20.

Aliens - Topic 1795

Exclusion and expulsion - Deportation and exclusion of persons in Canada - Detention (incl. review or release) (incl. IRPA, ss. 54-61) - The respondent was one of 76 Sri Lankan migrants who arrived on a vessel - On October 17, 2009, all aboard the vessel were detained under the Immigration and Refugee Protection Act (IRPA) so that the Minister could determine if any were members of the Liberation Tigers of Tamil Eelam (LTTE), a terrorist organization - On December 9, 2009, at a detention review hearing, the Minister asserted that the respondent's continued detention was justified under ss. 58(1)(c) and 58(1)(d) of the IRPA as the Minister was taking the necessary steps to inquire into a reasonable suspicion that the respondent was inadmissible to Canada - The Immigration and Refugee Protection Board ordered the respondent's release - The Federal Court allowed the Minister's application for judicial review, setting aside the board's decision - The board misconstrued the scope of its authority under ss. 58(1)(c) and 58(1)(d), losing sight of the proper focus of its enquiry which was to consider whether the Minister was taking necessary steps to verify a reasonable suspicion of inadmissibility - The question was not whether the vessel was actually controlled by the LTTE or whether the respondent was actually a past or present member of the LTTE, but rather, whether there was sufficient evidence to support the Minister's suspicion that the respondent was inadmissible on security grounds and whether the Minister was still undertaking the necessary investigation in support of that suspicion - Having found that the vessel was possibly an LTTE-controlled ship, that several of those on board were likely LTTE members and that traces of explosives had been detected, the board, had it applied the correct test, could not reasonably have concluded that a reasonable suspicion of the respondent could not have been held by the Minister - The board committed the same error in its treatment of the evidence surrounding the Minister's ongoing investigation - The board's role was not to dictate the steps that were necessary, but to examine whether the proposed steps had the potential to uncover relevant evidence - Here, the Minister's investigation was clearly incomplete - See paragraphs 9 to 22.

Aliens - Topic 1844

Exclusion and expulsion - Immigration and Refugee Board (incl. Immigration Division and Immigration Appeal Division) - Jurisdiction - [See first Aliens - Topic 1795 ].

Aliens - Topic 4066.1

Practice - Judicial review and appeals - Bars - The respondent was detained under the Immigration and Refugee Protection Act (IRPA) - At a detention review hearing, the Minister asserted that the respondent's continued detention was justified under ss. 58(1)(c) and 58(1)(d) of the IRPA as the Minister was taking the necessary steps to inquire into a reasonable suspicion that the respondent was inadmissible to Canada - The Immigration and Refugee Protection Board ordered the respondent's release - The Minister's application for judicial review was allowed - Subsequent to the judgment's release, the respondent proposed two certified questions involving the interpretation of s. 58(1)(c) - The Minister opposed the request for certification on the basis of mootness (the respondent had been released from custody) - The Federal Court certified the questions proposed - The issue of statutory interpretation met the threshold for certification and was worthy of consideration by the Court of Appeal - Mootness was not necessarily a bar to hearing a case on appeal - It was more prudent to allow the Court of Appeal to decide the question of mootness than to block an otherwise meritorious appeal on that basis before the issue had been fully argued - See paragraphs 25 to 28.

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - [See Aliens - Topic 4066.1 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - [See Aliens - Topic 4066.1 ].

Courts - Topic 4087

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - "Academic" or moot matters - [See Aliens - Topic 4066.1 ].

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See Aliens - Topic 4066.1 ].

Statutes - Topic 2280

Interpretation - Presumptions and rules in aid - Against surplusage - [See first Aliens - Topic 1795 ].

Cases Noticed:

Cha v. Canada (Minister of Citizenship and Immigration), [2007] 1 F.C.R. 409; 349 N.R. 233; 2006 FCA 126, refd to. [para. 9].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 9].

Canada (Minister of Citizenship and Immigration) v. Bains, [1999] F.T.R. Uned. 255; 85 A.C.W.S.(3d) 391 (T.D.), refd to. [para. 13, footnote 1].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 14, footnote 2].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 15].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 16].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 58(1) [para. 12].

Counsel:

Banafsheh Sokhansanj, for the applicant;

Larry W.O. Smeets, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Vancouver, British Columbia, for the applicant;

Smeets Law Corporation, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on January 14, 2010, by Barnes, J., of the Federal Court, who delivered the following reasons for judgment on February 2, 2010 and March 2, 2010.