Date: 20060918
Docket: IMM-1293-06
Citation: 2006 FC 1103
Ottawa, Ontario, September 18,
2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RAJESH
NAIDU
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In this
proceeding, the Applicant, Rajesh Naidu, challenges a pre-removal risk
assessment (PRRA) rendered on February 21, 2006. In that decision, the PRRA
Officer concluded that Mr. Naidu would not be at risk if he was obliged to
return to his native Fiji.
[2]
The sole
basis for challenging the PRRA decision is that the PRRA Officer ostensibly
failed to assess the best interests of Mr. Naidu’s young Canadian-born child.
Background
[3]
Mr. Naidu
was admitted to Canada as a permanent resident in
1983. Because of a criminal conviction for trafficking in cocaine in 2001, he
was the subject of an admissibility hearing carried out by the Immigration and
Refugee Board (IRB) at Edmonton, on September 11, 2002. The
IRB declared Mr. Naidu inadmissible on the basis of serious criminality and he
was ordered deported.
[4]
Mr. Naidu
exercised his right of appeal from the deportation decision and succeeded in
obtaining a three-year stay of deportation in a decision rendered by the
Immigration Appeal Division (IAD) on August 15, 2003.
[5]
The IAD
decision was based, in part, upon humanitarian and compassionate considerations
with a particular focus on the needs of Mr. Naidu’s wife and young son.
However, it was a condition of the stay of deportation that Mr. Naidu keep the
peace and be of good behaviour and that he not commit any further offences.
[6]
The IAD’s
stay of deportation was a generous accommodation to Mr. Naidu because, up to
that point, he had run up a lengthy list of criminal convictions. The Record
discloses that, between 1992 and early 2003, he was convicted on fifteen
criminal charges including thefts, spousal assault, trafficking, obstruction,
impaired driving, and driving while disqualified.
[7]
Notwithstanding
the conditions of the stay of deportation, Mr. Naidu did not abstain from
further criminal behaviour. Because of an outstanding warrant for Mr. Naidu’s
arrest issued by the Provincial Court of Alberta, a hearing officer applied for
a review of the stay decision. Mr. Naidu failed to appear for the scheduled
IAD hearing on May 18, 2004, and on April 21, 2005, his stay of deportation was
cancelled.
[8]
Mr. Naidu has deposed in an affidavit that his
failure to appear for the IAD review hearing was inadvertent. Notwithstanding
the fact that the Record clearly discloses convictions at Edmonton in 2005 for driving while
disqualified and failing to appear, he has also deposed in his affidavit that
he “did not commit further criminal activities”.
[9]
Because he was scheduled for removal from Canada on March 13, 2006, Mr. Naidu applied
for a stay of deportation. That motion was dismissed by order of Justice Sean
Harrington on March 10, 2006, and Mr. Naidu is now in Fiji. There is no indication in the Record
that Mr. Naidu has ever applied to remain in Canada or to return here on humanitarian and compassionate grounds.
[10]
Mr. Naidu applied for a PRRA on January 28,
2006, but his application contained very little useful information. His claim for
protection was limited to the following brief statement:
The reason I
like to stay in Canada is
because I have been here for over 20 years. I have a wife which I married in
1990 in Fiji. I have a son who
is thirteen years old. He was born in Edmonton.
The PRRA Decision
[11]
With respect to the question of risk, the PRRA Officer
examined the country condition evidence and reasonably concluded that Mr. Naidu
had no reason to fear a return to Fiji. Indeed, he pointed out that Mr. Naidu had not asserted any personal risk
awaiting him in Fiji from
any other person or group. It is also evident from the PRRA Officer’s decision
that he did not accept that the humanitarian and compassionate issues asserted
by Mr. Naidu were appropriate or necessary considerations in a PRRA; he cited
as authority for this proposition Covarrubias v. Canada (Minister of
Citizenship and Immigration) [2005] F.C.J. No. 1470, 2005 FC 1193; and Thambirajah
v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 91,
2004 FC 77.
Issues
1. What is the appropriate standard of review?
2. When, if at all, must a PRRA Officer consider
the best interests of a child as a necessary element of the assessment?
Analysis
[12]
Whether or not a PRRA Officer has a legal obligation to
consider the best interests of a child affected by the deportation of a parent
is a question of law or jurisdiction and the applicable standard of review is
correctness. The question of whether an applicant has presented a sufficient
case to engage such an obligation typically raises an issue of mixed fact and
law for which the standard of review is reasonableness: see Kim v. Canada (Minister of Citizenship and
Immigration) (2005), 272 FTR 62, 2005 FC 437.
[13]
Mr. Naidu relies heavily upon the decision of Justice Roger
Hughes in Varga v. Canada (Minister of Citizenship and Immigration)
[2005] F.C.J. No. 1570, 2005 FC 1280 where it was held that the interests of
affected children must be considered in the context of a PRRA involving a
parent. There is no question that the Varga decision supports Mr.
Naidu’s argument. Justice Hughes held that “[t]he interests of these children,
though not determinative, must be considered and given some weight in a PRRA
application even more so than when the Removal Officer acts” (see paragraph
17). Although an appeal is pending from the Varga decision, no decision
has been rendered by the Court of Appeal.
[14]
Counsel for the Respondent argues that the Varga
decision was wrongly decided and, in any event, he says that I should apply
other authorities which have held that humanitarian and compassionate
considerations have no place in a PRRA. The Respondent relies upon Covarrubias,
above, Thambirajah, above, Sherzady v. Canada (Minister of Citizenship and
Immigration) [2005] F.C.J. No. 638, 2005 FC 516; El
Ouardi v. Canada (Minister of Citizenship and Immigration) 2005
F.C.A. 42; and the recent decision by Justice Richard Mosley in Alabadleh v.
Canada (Minister of Citizenship and Immigration) [2006] F.C.J. No. 913,
2006 FC 716.
Of the above
authorities, Alabadleh and Sherzady offer the clearest statements in
opposition to Varga. The other authorities are less compelling. Covarrubias
raised a health care issue and did not involve the best interests of a child. Thambirajah
was a decision made by Justice Michel Shore in the context of a
motion to stay a removal order. There can be a danger in applying statements
made in the exercise of that unique discretion to other proceedings. In the
result, I do not consider Thambirajah to be a particularly strong
authority in opposition to Varga. Similarly, the Federal Court of Appeal
decision in El Ouardi, above, suggests that weighing the interests of
affected children is not generally appropriate to a PRRA; but the language of
that decision leaves some room for doubt on the point by stating that “…it is
not obvious to me that, in the circumstances of this case, the risk
assessment was the appropriate forum to have [considered the interests of the
child]” [emphasis added]: (see paragraph 10).
[15]
Very recently, this issue came before Justice Eleanor
Dawson in Ammar v. Canada (Minister of Citizenship and Immigration),
2006 FC 1041. After a thorough review of the authorities and the applicable
statutory provisions, Justice Dawson held that “the best interests of Canadian
children are not to be assessed within a PRRA application”: (see paragraph 16).
[16]
The reasoning in the Alabadleh, Ammar and Sherzady
decisions, above, seems to me to be more persuasive and I would, therefore,
respectfully decline to apply Varga. The risk assessment contemplated
by s. 12 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 is
just that - an assessment of risk concerning the person facing removal. There
are other avenues for considering the interests of dependent children affected
by the deportation of a parent or guardian or, as was stated by Justice John
Evans in De Guzman v. Canada (Minister of Citizenship and
Immigration) 2005 F.C.A. 436 at paragraph 105, “…not every statutory
provision must be able to pass the ‘best interests of the child’ test, if
another provision requires their careful consideration”.
[17]
Notwithstanding the differing views on this issue, the
authorities make it clear that an applicant must present sufficient evidence to
engage the humanitarian and compassionate discretion. In this case, Mr. Naidu
manifestly failed to meet that burden. It is not sufficient to state that a
child’s interests will be affected by a deportation because it will rarely be
otherwise. What is required is clear and convincing evidence of the likely
effect of a deportation upon an affected child. This would typically include
evidence of unique personal or economic vulnerabilities or bonds between the
parent and child or, where the child is also leaving Canada, evidence of resulting and material disadvantage or risk to the child.
[18]
Here, the PRRA Officer had nothing to go on beyond “the
bare recital of basic information” (see Alabadleh at paragraph 18). It
is not the obligation of a PRRA Officer to make further inquires or to
essentially make the case for an applicant. This point has been conclusively
determined in Alabadleh, above, and in Owusu v. Canada (Minister of Citizenship and
Immigration) [2004] F.C.J. No. 158, 2004 F.C.A. 38,
where Justice Evans held at paragraph 8:
H & C applicants
have no right or legitimate expectation that they will be interviewed. And,
since applicants have the onus of establishing the facts on which their claim
rests, they omit pertinent information from their written submissions at their
peril. In our view, Mr. Owusu’s H & C application did not adequately raise
the impact of his potential deportation on the best interests of his children
so as to require the officer to consider them.
[19]
On the basis of the foregoing, Mr. Naidu’s application for
judicial review cannot succeed.
[20]
The parties agreed that unless the Varga appeal
would be determinative of the outcome of this case no certified question would
arise. Because I have determined that Mr. Naidu’s case cannot succeed for a
reason other than the holding in the Varga case, I confirm that no
question of general importance arises from this case.
JUDGMENT
THIS
COURT ADJUDGES that the Applicant’s claim is dismissed.
"R.
L. Barnes"
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