Varga et al. v. Canada (Minister of Citizenship and Immigration), (2006) 357 N.R. 333 (FCA)

• Judge: Linden, Evans and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 30, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 357 N.R. 333 (FCA);2006 FCA 394

Varga v. Can. (M.C.I.) (2006), 357 N.R. 333 (FCA)

MLB headnote and full text

Temp. Cite: [2006] N.R. TBEd. DE.025

The Minister of Citizenship and Immigration (appellant) v. Ferenc Varga, Monika Meszaros, Ferenc Varga (respondents)

(A-486-05; 2006 FCA 394)

Indexed As: Varga et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Linden, Evans and Malone, JJ.A.

December 1, 2006.

Summary:

A Pre-Removal Risk Assessment (PRRA) Officer determined that the applicants (a mother, father and child) did not face sufficient risk if returned to their country of origin, Hungary, and advised them that a removal order made against them would be enforced. The PRRA officer noted that the applicants' two other Canadian born children were not subject to a removal order and that it was not the officer's mandate to consider these children. The applicants applied for judicial review.

The Federal Court, in a decision reported [2005] F.T.R. Uned. 798, allowed the application, holding that the PRRA officer erred in law when he refused to take into account the interests of the Canadian born children. The following question was certified and the Minister of Citizenship and Immigration appealed:

"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?"

The Federal Court of Appeal allowed the Minister's appeal. The court answered 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."

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. considerations) - A Pre-Removal Risk Assessment (PRRA) Officer determined that the applicants (a mother, father and child) did not face sufficient risk if returned to their country of origin, Hungary, and advised them that a removal order made against them would be enforced - The PRRA officer noted that the applicants' two other Canadian born children were not subject to a removal order and that it was not the officer's mandate to consider these children in dealing with the applicants' situation - The applicants applied for judicial review - An applications judge allowed the application, holding that the PRRA officer erred in law when he refused to take into account the interests of the Canadian born children - The Minister of Citizenship and Immigration appealed - The Federal Court of Appeal allowed the appeal - The court held that a PRRA Officer had no obligation to consider, in the context of the pre-removal risk assessment, the interests of a Canadian-born child when assessing the risks involved in removing at least one of the parents of that child - The PRRA officer's mandate was "carefully defined by IRPA [the Immigration and Refugee Protection Act] 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" - The interests of the children could be considered in an application based on humanitarian and compassionate grounds under s. 25(1).

Cases Noticed:

Sherzady v. Canada (Minister of Citizenship and Immigration) et al. (2005), 273 F.T.R. 11; 2005 FC 516, refd to. [para. 5].

Alabadleh v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 422; 2006 FC 716, refd to. [para. 5].

Anmar v. Canada (Minister of Citizenship and Immigration), 2006 FC 1041, refd to. [para. 5].

Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164; 266 N.R. 380 (F.C.A.), refd to. [para. 12].

Rasiah v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 365; 2005 FC 583, refd to. [para. 12].

De Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 F.C.R. 655; 345 N.R. 73; 2005 FCA 436, refd to. [para. 13].

Munar v. Canada (Minister of Citizenship and Immigration) et al., [2006] 2 F.C.R. 664; 279 F.T.R. 90; 2005 FC 1180, refd to. [para. 14].

Munar v. Canada (Minister of Citizenship and Immigration) et al., [2006] F.T.R. Uned. 453; 2006 FC 761, refd to. [para. 14].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 10]; sect. 112(1) [para. 7]; sect. 113 [para. 8].

Counsel:

Sally Thomas and Janet Chisholm, for the appellant;

George J. Kubes, for the respondents.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

George J. Kubes, Toronto, Ontario, for the respondents.

This appeal was heard in Toronto, Ontario, on November 30, 2006, before Linden, Evans and Malone, JJ.A., of the Federal Court of Appeal. The following decision was delivered for the court by Evans, J.A., in Ottawa, Ontario, on December 1, 2006.