Case information

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Administrative law - Boards and tribunals - Judicial review - Standard of review - Immigration - Inadmissibility and removal - Decision of Immigration Appeal Division declining to exercise its discretionary jurisdiction to stay or overturn a removal order on humanitarian and compassionate grounds - Applicable standard of review - Whether a pragmatic and functional analysis is required where a statutory standard of review is set out in the Federal Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4).

The Respondent, Khosa, immigrated to Canada with his family in 1996, at the age of 14. He left high school after grade 11 to work to help support his family. When he was 18 years of age, he was convicted of criminal negligence causing death and received a conditional sentence of two years less a day, that included house arrest, a driving ban, and community service. The criminal court concluded that Khosa and his co-accused had been “street racing” when Khosa lost control of his vehicle and struck a pedestrian on the sidewalk. He was ordered removed from Canada as he was found to be a permanent resident who was inadmissible for serious criminality, having been convicted of an offence punishable by a maximum term of at least ten years. He had no prior convictions, continued to work and attend temple, abided by the conditions of his sentence, and expressed his remorse to the victim’s family. He married at age 20 and he and his wife lived in an apartment in the basement of his family’s home. He appealed the removal order on the basis of humanitarian and compassionate grounds. The Immigration Appeal Division, in a split decision, declined to exercise its discretionary jurisdiction to grant the relief requested. Of particular concern to the majority was the fact that Khosa denied that he had been street racing and asserted that he had been driving fast and lost control of his vehicle after a tire popped. He applied for judicial review of the removal order. The application was dismissed. On appeal, the majority of the Court of Appeal allowed the appeal.