Date: 20050919
Docket: IMM-8736-04
Citation: 2005 FC 1280
BETWEEN:
FERENC VARGA, MONIKA MESZAROS,
FERENC VARGA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HUGHES J.
[1] This is an application for judicial review of a decision of a Pre-Removal Risk Assessment (PRRA) Officer dated August 24, 2004, wherein it was determined that the Applicants do not face sufficient risk if returned to their country of origin, Hungary, and advised that the removal order against them may now be enforced.
[2] The Applicants, a father, mother and one child are all Hungarian, the father and child are of Roma ethnicity. The Applicants came to Canada seeking to remain, their application was ultimately refused and a removal order was issued whereupon the Applicants sought a pre-removal risk assessment. Since arriving in Canada, two more children were born to the family. Having been born in Canada, these two further children did not seek refugee status, they were not the subject of any removal order and they did not seek any pre-removal risk assessment.
[3] The Pre-Removal Risk Assessment (PRRA) Officer considered the application of the Applicants, father, mother and one child, and provided extensive Reasons, concluding at page 9:
It is my finding that the state protection exists for the applicants upon return to Hungary and that there is insufficient objective evidence to indicate that the minor child would be at risk upon return to Hungary. They are not persons described in Section 96 or in subparagraph 97(1)(a) or (b) of the Immigration and Refugee Protection Act.
[4] As to the two children born in Canada, the Officer said at page 7 of the Reasons:
Counsel indicated that the applicants also have two children who were born in Canadain addition to a child born in Hungary. They fear for these children's lives. Counsel also stated the two Canadian children would be in danger.
My mandate is to assess risk for applicants who are subjects to a removal order. The applicants' two Canadian citizen children are not subject to a removal order. Therefore it is not in my mandate to consider the applicants two Canadian citizen children.
[5] In the letter dated August 24, 2004 accompanying the Reasons, the Officer said inter alia:
The removal order against you may now be enforced. You must leave CanadaImmediately and confirm your departure. In order to do so you must:...
[6] At the hearing, Applicants' counsel raised two issues in argument:
1. Did the PRRA Officer err in not considering the interests of the two Canadian-born children in the context of a risk assessment?
2. Did the PRRA Officer exceed his jurisdiction or breach natural fairness in stating that the Applicants must leave Canada "immediately".
ISSUE #1: Interests of the Canadian-born children
[7] Applicants counsel argues that the PRRA officer should have considered not only the risk to the Applicants, which include the father, mother and the Hungarian born child, but also the risk to the two Canadian-born children, before coming to a conclusion as to risk involved in the removal of the Applicants.
[8] It is clear from that portion of the Reasons at page 7 cited above, that the Officer made a determination in law, that he had no mandate to consider risk to the two Canadian-born children. As such, the standard of review is correctness.
[9] Sections 112 and 113 of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27 deal with Pre-Removal Risk Assessment. Section 112 makes it clear that only persons subject to a removal order can apply for such an assessment. Since the two Canadian-born children were not subject to such an order they could not seek such an assessment. The criteria under which such an application is to be assessed are set out in section 113 and, in this case, subsection 113(c) is applicable and refers to sections 96 to 98 of IRPA. Section 96 speaks to a well-founded fear of persecution, section 97 speaks to danger of torture and risk to life or risk of cruel and unusual treatment. None of sections 112, 113, 96 or 97 address the interests of a child that is not subject to a removal order.
[10] Section 25(1) of IRPA requires that "the best interest of a child directly affected" be taken into consideration when the Minister is considering an application for admission into Canada on humanitarian and compassionate grounds. The Applicants here have made such an application separate and apart from the Pre-Removal Risk Assessment under review at this time, but such an application, despite having been made almost one and a half years ago, has not yet been processed.
[11] Applicants' counsel argues that, while there is no specific provision in IRPA requiring the PRRA Officer to take into account the interests of a non-applicant child, the provisions of section 3(1)(d) reunification of the family, 3(1)(h) health and safety of Canadians, 3(3)(d) consistency with the Charter, and 3(2)(b) compliance with international human rights obligations taken in light of Baker v. Canada (MCI) [1999] 2 S.C.R. 817, particularly at paragraphs 65 and 68 to 70, require that a contextual approach to statutory interpretation be taken and that the interest of Canadian children who may be separated from their parents or taken by their parents to another country should the parents be removed, requires consideration.
[12] Such an argument was made in Sherzady v. Canada (MCI), 2005 F.C. 516 where a PRRA application had been joined with a humanitarian and compassionate application. In that case Shore J. made it clear that in PRRA matters, the issues are restricted to harm to the applicants only. At paragraph 20 he said:
20 Under a PRRA based on the factors set out in section 97 of IRPA, the officer only assesses the harm that may occur to the person himself or herself -- not other people - should he or she be removed. [emphasis added]
[13] The Federal Court of Appeal in El Ouardi v. Canada (MCI), 2005 F.C.A. 42 held that a PRRA application was not the appropriate forum in which to consider the humanitarian and compassionate interests of a child. At paragraph 10, Rothstein J.A. for the Court said:
[10] It is argued that the appellant has a child in Canada, that the best interests of the child are relevant and that they were not considered in the appellant's risk assessment by the PRRA officer. I agree that the best interests of a child are to be taken into account under the Act and I assume that they will be taken into account in the appellant's H & C application. But there is no indication that the best interests of her child were raised on her risk assessment and it is not obvious to me that in the circumstances of this case, the risk assessment was the appropriate forum to have done so. For these reasons, I am of the view that the appellant has not made out a case of irreparable harm.
[14] Very recently Justice de Montigny of this Court considered the issue as to whether a Removals Officer was required to take into consideration the interests of a Canadian-born child where a non-Canadian parent was subject to a removal order. In Munar v. Canada (MCI), 2005 F.C. 1180 he said at paragraph 38:
38 I tend to agree with my colleague Justice Snider that the consideration of the best interests of the child is not an all or nothing exercise, but should be seen as a continuum. While a full-fledged analysis is required in the context of an H & C application, a less thorough examination may be sufficient when other types of decisions are made. Because of section 48 of the Act and of its overall structure, I would also agree with her that the obligation of a removals officer to consider the interests of Canadian-born children must rest at the lower end of the spectrum (John v. Canada (M.C.I.), [2003] F.C.J. No. 583).
[15] In contrasting an H & C application with the obligations of a PRRA Officer, he said at paragraphs 39 and 40:
39 When assessing an H & C application, the immigration officer must weigh the long term best interests of the child. A useful guide as to the factors that can be taken into consideration is provided in Chapter IP 5 (Immigrant Applications in Canada Made on humanitarian or Compassionate Grounds) of the Immigration Manual, published by Immigration and Citizenship Canada. Factors related to the emotional, social, cultural and physical well-being of the child are to be taken into consideration. Examples of factors that can be taken into account include the age of the child, the level of dependency between the child and the H & C applicant, the degree of the child's establishment in Canada, the child's links to the country in relation to which the H & C decision is being considered, the medical issues or special needs the child may have, the impact to the child's education, and matters related to the child's gender. In a nutshell, to quote from Décary. J.A. in Hawthorne v. Canada (M.C.I.) ([2003] 2 F.C. 555, at par. 6), "...the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent".
40 This is obviously not the kind of assessment that the removals officer is expected to undertake when deciding whether the enforcement of the removal order is "reasonably practicable". What he should be considering, however, are the short term best interests of the child. For example, it is certainly within the removal officer's discretion to defer removal until a child has terminated his or her school year, if he or she is going with his or her parent. Similarly, I cannot bring myself to the conclusion that the removal officer should not satisfy himself that provisions have been made for leaving a child in the care of others in Canadawhen parents are to be removed. This is clearly within his mandate, if section 48 of the IRPA is to be read consistently with the Convention on the Rights of the Child. To make enquiries as to whether a child will be adequately looked after does not amount to a fulsome H & C assessment and in no way duplicates the role of the immigration officer who will eventually deal with such an application (see Boniowski v. Canada (M.C.I), (2004) F.C.J. No. 1397).
[16] At paragraphs 41 and 42, he concluded that a Removals Officer must be "alert, alive and sensitive" to the best interests of Canadian-born children and that the Removals Officer must consider what would happen to them should they remain in Canada.
[17] Therefore it appears that, in law, a Removals Officer is required to be "alert, alive and sensitive" to the condition of Canadian-born children who may be left behind, or taken with a parent who is subject to a removal order. In this case, therefore, the PRRA Officer was wrong, in law, in stating "it is not my mandate to consider the Applicants' two Canadian citizen children". The 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. For this reason, the application will be allowed and the matter sent back for re-determination by a different PRRA Officer.
ISSUE #2 - Immediate Removal
[18] Applicants' counsel argued that, since the covering letter from the PRRA Officer used the words "You must leave Canadaimmediately...", this is an indicator of bias on the part of the Officer and a usurpation of the function of the Enforcement Officer.
[19] The effect of the decision of the PRRA Officer was to end the stay of a removal order that had already been made but stayed because the Applicants had applied for a Pre-Removal Risk Assessment. The Officer's decision simply lifted the stay under the provisions of section 232 of the IRPA Regulations. The timing of the departure of the Applicants who are subject to the removal order, now no longer stayed, is out of the hands of the PRRA Officer. The PRRA Officer's decision simply meant that the removal order is in full force and effect.
[20] I have considered whether a question for certification should be stated. Counsel for the applicant urged such a question and, given the state of jurisprudence, some of it apparently conflicting, as to the obligation of a PRRA Officer to consider the best interests of Canadian-born children, I propose that the following question be certified:
"What obligation, if any, does a PRRA Officer have to consider the interests of a Canadian-born child when assessing the risks involved in removing at least one of the parents of that child?"
[21] The application will be allowed, the matter is to be sent back for re-determination by a different PRRA Officer. There is no Order as to costs.
Toronto, Ontario
September 19, 2005
"Roger T. Hughes"
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