CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Judicial review of Pre-Removal Risk Assessment (PRRA) officer’s decision applicants not at sufficient risk if returned to Hungary—Mother, father, child Hungarian, child and father of Roma ethnicity—Came to Canada in hope of remaining but application denied, removal ordered and pre-removal risk assessment sought—Two more children born in Canada were not subjects of removal order—Officer concluded state protection in Hungary existed for applicants, insufficient objective evidence child at risk if returned, outside mandate to consider situation of two Canadian citizen children—In letter accompanying reasons, officer wrote “You must leave Canada immediately” (1) whether officer erred in not considering interests of Canadian children in risk assessment context; (2) whether officer exceeded jurisdiction or breached natural fairness in writing had to leave “immediately”—Immigration and Refugee Protection Act, s. 112 clearly provides only those subject to removal order may seek pre-removal risk assessment—None of ss. 96, 97, 112, 113 address interests of child not subject to removal order—Under. s. 25(1), best interests of child directly affected to be considered upon humanitarian and compassionate (H&C) admission application —Applicants have made such application separate from PRRA but not yet processed—Applicants suggesting ss. 3(1)(d) (family reunification), 3(1)(h) (health, safety of Canadians), 3(3)(d) (consistency with Canadian Charter of Rights and Freedoms), 3(2)(b) (compliance with international human rights obligations), require contextual approach to statutory interpretation and that interest of Canadian children who may be separated from parents or taken to another country had to be considered—Such argument made in Sherzady v. Canada (Minister of Citizenship and Immigration), 2005 FC 516 but Shore J. held that in PRRA context, issues restricted to harm to applicants—Held in El Ouardi v. Canada (Solicitor General), 2005 FCA 42, PRRA application not appropriate forum to consider child’s H&C interests—Yet in recent decision Munar v. Canada (Minister of Citizenship and Immigration), 2005 FC 1180, at paragraph 38, de Montigny J. wrote 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.”—That Judge added that removals officer ought to consider short-term best interests of child and, if parents to be removed, officer should enquire whether child to remain here will be adequately looked after—Judge also said removals officer had to be “alert, alive and sensitive” to best interests of Canadian-born children—So, in case at bar, PRRA officer erred in law in saying not within mandate to consider applicants’ Canadian citizen children—Their interests, though not determinative, had to be considered, given some weight at PRRA application even more so than when removal officer acts—For this reason, application allowed, matter sent back for re-determination—Applicants argued that sentence in covering letter about leaving immediately indicated bias, was usurpation of enforcement officer’s role—Indeed, departure timing out of PRRA officer’s hands—Question 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 the child?”—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 25, 96, 97, 112, 113.
Varga v. Canada (Minister of Citizenship and Immigration) (IMM-8736-04, 2005 FC 1280, Hughes J., order dated 19/9/05, 8 pp.)