Date: 20061201
Docket: A-486-05
Citation: 2006 FCA 394
CORAM: LINDEN J.A.
EVANS
J.A.
MALONE
J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Appellant
and
FERENC VARGA, MONIKA MESZAROS,
FERENC VARGA
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
[1]
This is an
appeal by the Minister of Citizenship and Immigration from a decision of a Judge
of the Federal Court who granted an application for judicial review by the
respondents, a Hungarian family of father, mother and child. The Applications
Judge set aside a negative decision by a Pre-removal Risk Assessment (“PRRA”)
officer. The Judge’s decision is reported as Varga v. Canada (Minister of Citizenship and
Immigration), 2005
FC 1280.
[2]
In the
decision letter, dated August 24, 2004, the PRRA officer stated that he was not
satisfied that, if the deportation orders issued against the respondents were
executed and they were removed to Hungary,
they would be at risk of torture or persecution, or exposed to a risk to life,
or to cruel and unusual treatment or punishment.
[3]
The adult
respondents also have two Canadian-born children. The Applications Judge held
that the PRRA officer erred in law when he refused to take into account the interests
of those children on the ground that, as Canadian citizens, they could not be
subject to a removal order.
[4]
The Judge
certified the following question pursuant to paragraph 74(d) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”):
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?
[5]
Other
Judges of the Federal Court have considered this question, both before the
decision under appeal was rendered (see, for example, Sherzady v. Canada
(Minister of Citizenship and Immigration) (2005), 273 F.T.R. 11, 2005 FC 516)
and subsequently (see, for example, Alabadleh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 716, and Ammar v. Canada (Minister
of Citizenship and Immigration), 2006 FC 1041). They reached the opposite
conclusion from the Applications Judge in the present case, as have I.
[6]
PRRA
officers’ mandate is carefully defined by IRPA and should not be judicially
expanded to include the interests of any Canadian-born children who may be
adversely affected by a parent’s removal. It is not necessary to read words
into the relevant provisions of IRPA in order for it to comply with the Canadian
Charter of Fundamental Rights and Freedoms, and Canada’s obligations in international law.
[7]
I would allow the appeal for the following
reasons. First, subsection 112(1) of IRPA provides that only those
subject to a removal order may apply to the Minister for protection. As
Canadian citizens, the adult respondents’ Canadian-born children cannot be
subject to removal orders.
|
112.
(1) A person in Canada ... may, in accordance with the regulations,
apply to the Minister for protection if they are subject to a removal
order that is in force … .
|
112.
(1) La personne se trouvant au Canada … peut, conformément aux règlements,
demander la protection au ministre si elle est visée par une mesure de
renvoi ayant pris effet … .
|
[8]
Second,
section 113 sets out the bases on which an application under subsection 112(1)
must be considered:
|
113.
Consideration of an application for protection shall be as follows:
…
(c)
in the case of an applicant not described in subsection 112(3), consideration
shall be on the basis of sections 96 to 98;
|
113.
Il est disposé de la demande comme il suit :
[…]
c) s’agissant du demandeur non visé au
paragraphe 112(3), sur la base des articles 96 à 98;
|
[9]
Sections
96 refers to a well-founded fear of persecution, and section 97 refers to a risk
of torture, and exposure to risks to life and of inhuman or of cruel and
unusual treatment or punishment. Only risks to applicants are relevant. A broad-ranging
consideration of children’s interests is not contemplated by these provisions.
[10]
This
latter exercise is properly conducted in the more open-ended inquiry to be
undertaken in the course of an application under subsection 25(1) to remain in Canada on humanitarian and compassionate grounds (“H&C”).
|
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, examine the circumstances concerning the foreign
national and may grant the foreign national permanent resident status or an
exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
— compte tenu de l’intérêt supérieur de l’enfant directement touché — ou
l’intérêt public le justifient.
|
[11]
In their H&C application, the respondents’ grounds included the interests of their Canadian-born
children. However, the application was rejected, and an application for
judicial review of that decision will be heard on December 12, 2006.
[12]
Although
the same officer may sometimes make a PRAA and determine an H&C
application, the two decision-making processes should be neither confused, nor
duplicated: Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) at
paras. 16-17; Rasiah v. Canada (Minister of Citizenship and Immigration), 2005 FC 583 at para. 16.
[13]
Neither
the Charter nor the Convention on the Rights of the Child requires that
the interests of affected children be considered under every provision of IRPA:
de Guzman v. Canada (Minister of Citizenship and
Immigration), [2006]
3 F.C.R. 655, 2005 FCA 436 at para. 105. If a statutory scheme provides
an effective opportunity for considering the interests of any affected
children, including those born Canada, such as is provided by subsection
25(1), they do not also have to be considered before the making of every decision
which may adversely affect them. Hence, it was an error for the Applications
Judge to read into the statutory provisions defining the scope of the PRRA
officer’s task a duty also to consider the interests of the adult respondents’
Canadian-born children.
[14]
The
Applications Judge relied on Munar v. Canada (Minister of Citizenship and
Immigration), [2006] 2 F.C.R. 664, 2005 FC 1180, a stay decision, where
Justice de Montigny held that a removals officer has a limited duty to give
consideration to the short-term interests of Canadian-born children prior to a
parent’s removal. This view was adopted when the application for judicial
review was heard: Munar v. Canada (Minister of Citizenship and Immigration), 2006 FC 761.
[15]
Thus, for
example, if a Canadian-born child is leaving with his or her parent, the
officer should consider whether the parent’s removal ought to be temporarily delayed
to enable the child to complete the school year. Or, if the child is remaining in
Canada after the parent’s removal, the
officer should enquire whether adequate care arrangements have been made for
the child.
[16]
However,
there is no analogy between the statutorily defined functions of a PRRA officer
and the role of a removals officer. The latter has a limited but undefined
discretion under section 48 with respect to the travel arrangements for removal,
including its timing (“as soon as reasonably practicable”). Within the narrow
scope of removals officers’ duties, their obligation, if any, to consider
the interests of affected children is at the low end of the spectrum, as
contrasted with the full assessment which must be made on an H&C
application under subsection 25(1).
[17]
In oral
argument, counsel for the respondents argued that the PRRA officer failed to
consider the possibility that, if their two Canadian-born children went to Hungary, the respondents would themselves
be exposed to a greater risk of persecution. I agree that this is a matter
within the PRRA officer’s jurisdiction. However, since counsel did not make
this submission to the officer, he cannot complain that the officer was at fault
in not considering it.
[18]
Counsel
also argued that PRRA officers ought, at the very least, to consider
allegations of the most serious kinds of risk because the remedy under
subsection 25(1) is illusory: H&C determinations are often not made before
applicants are removed. However, as I have already noted, the respondents have
in fact received an H&C determination, for which they did not apply until 2004,
two years after the birth of their second Canadian-born child and the dismissal
by the Refugee Protection Division of the Immigration and Refugee Board of
their claims to be recognized in Canada
as refugees. Applications for H&C under subsection 25(1) should be made at
the earliest practicable opportunity.
[19]
Counsel
for the Minister conceded that, if the respondents’ H&C application had not
been completed, they could have requested the removals officer to defer their
removal pending the H&C consideration of any risks that their Canadian-born
children would face in Hungary, assuming that leaving them in Canada was not a viable option.
Thus, although the respondents were not entitled to have this issue taken into
account by the PRRA officer, they would not be removed without some further
consideration of the situation by the removals officer.
[20]
For these
reasons, I would allow the Minister’s appeal, set aside the decision of the Applications
Judge, restore the decision of the PRRA officer, and dismiss the respondents’
application for judicial review. I would answer the certified question as
follows:
A PRRA officer has no
obligation to consider, in the context of the PRRA, the interests of a
Canadian-born child when assessing the risks involved in removing at least one
of the parents of that child.
“John
M. Evans”
“I
agree
A.M.
Linden J.A.”
“I
agree
B.
Malone J.A.”
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