Ottawa, Ontario, September 18, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
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.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1293-06
STYLE OF CAUSE: RAJESH NAIDU
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 5, 2006
AND JUDGMENT BY: Justice Barnes
APPEARANCES:
MR. KEVIN E. MOORE FOR APPLICANT
MR. RICK GARVIN FOR RESPONDENT
SOLICITORS OF RECORD:
Kevin E. Moore Law Office FOR APPLICANT
Edmonton, AB
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON