Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al., (2005) 268 F.T.R. 122 (FC)

JudgeRussell, J.
CourtFederal Court (Canada)
Case DateNovember 10, 2004
JurisdictionCanada (Federal)
Citations(2005), 268 F.T.R. 122 (FC);2005 FC 91

Vasquez v. Can. (M.C.I.) (2005), 268 F.T.R. 122 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. FE.015

Gerardo Garcia Vasquez, Nancy Irene Libreros Ochoa, Sergio Gerardo Garcia Libreros and Sofia Alejandra Garcia Libreros (applicants) v. The Minister of Citizenship and Immigration and The Solicitor General of Canada (respondents)

(IMM-1880-04; 2005 FC 91)

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

Federal Court

Russell, J.

January 20, 2005.

Summary:

A pre-removal risk assessment (PRRA) officer denied Vasquez and his family an exemption on humanitarian and compassionate (H&C) grounds for obtaining permanent residence within Canada. Vasquez applied for judicial review of the negative H&C decision. Vasquez argued that the PRRA officer breached procedural fairness by not giving them the opportunity to review a prior PRRA determination, which had been made by the same officer, and to provide comments thereon before rendering the H&C decision. Vasquez also argued that s. 25(1) of the Immigration and Refugee Protection Act (IRPA) imposed a mandatory duty on authorities in an H&C application to take into account the best interests of any child affected by the decision and s. 3(1)(f) of the IRPA, in effect, made the best interests of any such child a primary consideration because it required that IRPA be applied in a manner that complied with international instruments to which Canada was a signatory.

The Federal Court dismissed the application. The court held that there was no breach of procedural fairness and the PRRA officer adequately considered the children's interests in arriving at the negative H&C decision.

Aliens - Topic 4

Definitions and general principles - Children - [See first Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - A pre-removal risk assessment (PRRA) officer denied the applicants an exemption on humanitarian and compassionate (H&C) grounds for seeking permanent residence within Canada - The applicants applied for judicial review, arguing that s. 25(1) of the Immigration and Refugee Protection Act (IRPA) imposed a mandatory duty on authorities in an H&C application to take into account the best interests of any child affected by the decision and s. 3(3)(f) of the IRPA, in effect, made the best interests of any such child a primary consideration because it required that IRPA be applied in a manner that complied with international instruments to which Canada was a signatory - The Federal Court dismissed the application - The PRRA officer had given primary consideration to the child's interests in the sense of being something of first rank or importance - The court did not accept that s. 25(1) and 3(3)(f) established a general rule that the interests of the children must be the "paramount" consideration - See paragraphs 29 to 45.

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - [See Aliens - Topic 1590 ].

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment - Duty of fairness - After issuing an unfavourable pre-removal risk assessment (PRRA) respecting the applicants, the same PRRA officer denied the applicants an exemption on humanitarian and compassionate (H&C) grounds for seeking permanent residence within Canada - The applicants applied for judicial review of the negative H&C decision, arguing that the PRRA officer breached procedural fairness by not giving them the opportunity to review the PRRA determination and to provide comments before rendering the H&C decision - The Federal Court dismissed the application, holding that the decision was not reviewable on this ground - See paragraphs 1 to 28.

Cases Noticed:

Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407; 257 N.R. 139 (F.C.A.), refd to. [para. 18].

Soto v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 950 (T.D.), refd to. [para. 19].

Singh v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 216, refd to. [para. 19].

Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289; 2003 FC 1274, refd to. [para. 23].

Akpataku v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 410; 2004 FC 698, refd to. [para. 23].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 264; 2002 FCT 389, refd to. [para. 23].

Majerbi v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2002] F.T.R. Uned. 591 (T.D.), refd to. [para. 26].

Selliah et al. v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 53; 2004 FC 872, refd to. [para. 27].

Monemi v. Canada (Solicitor General) (2004), 266 F.T.R. 31; 2004 FC 1648, refd to. [para. 27].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 29].

Martinez v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 799; 2003 FC 1341, refd to. [para. 37].

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 288 N.R. 174; 2002 FCA 125, refd to. [para. 44].

Statutes Noticed:

Convention on the Rights of the Child - see United Nations Convention on the Rights of the Child.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3(3)(f), sect. 25(1) [para. 29].

United Nations Convention on the Rights of the Child, art. 3 [para. 29].

Counsel:

Warren Puddicombe, for the applicants;

Benton Mischuk, for the respondent.

Solicitors of Record:

Embarkation Law Group, Vancouver, British Columbia, for the applicant;

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

This application was heard at Vancouver, British Columbia, on November 10, 2004, before Russell, J., of the Federal Court, who delivered the following decision on January 20, 2005.

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22 practice notes
  • The Federal Courts and Immigration and Refugee Law
    • Canada
    • Irwin Books The Federal Court of Appeal and the Federal Court. 50 Years of History
    • 4 Octubre 2021
    ...of Citizenship and Immigration) , 2003 FC 1192 at paras 15 and 18 and Vasquez v Canada (Minister of Citizenship and Immigration) , 2005 FC 91 at para 44. [ 336 ] tion law. he Federal Courts’ role in this area of law is critical, because they represent a bulwark for the protection of the fun......
  • Jaramillo et al. v. Canada (Minister of Citizenship and Immigration), (2014) 460 F.T.R. 208 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 22 Julio 2014
    ...et al. v. Canada (Minister of Citizenship and Immigration). Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2005), 268 F.T.R. 122; 2005 FC 91, refd to. [para. Hawthorne v. Canada (Minister of Citizenship and Immigration) (2002), 297 N.R. 187; 2002 FCA 475, refd to......
  • Lalane v. Canada (Minister of Citizenship and Immigration), 2009 FC 6
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 17 Diciembre 2008
    ...139 A.C.W.S.(3d) 112; 2005 FC 583, refd to. [para. 33]. Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2005), 268 F.T.R. 122; 2005 FC 91, refd to. [para. Akpataku v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 410; 131 A.C.W.S.(3d) 496; ......
  • Celise v. Canada (Minister of Citizenship and Immigration), 2015 FC 642
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 13 Mayo 2015
    ......the fact that Canada is a more desirable place to live is not determinative on an H & C application ( Vasquez v. Canada (M.C.I.) , 2005 FC 91; Dreta v. Canada (M.C.I.) , 2005 FC 1239); if it were otherwise, the huge majority of people living illegally in Canada would have to be grant......
  • Request a trial to view additional results
21 cases
  • Jaramillo et al. v. Canada (Minister of Citizenship and Immigration), (2014) 460 F.T.R. 208 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 22 Julio 2014
    ...et al. v. Canada (Minister of Citizenship and Immigration). Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2005), 268 F.T.R. 122; 2005 FC 91, refd to. [para. Hawthorne v. Canada (Minister of Citizenship and Immigration) (2002), 297 N.R. 187; 2002 FCA 475, refd to......
  • Lalane v. Canada (Minister of Citizenship and Immigration), 2009 FC 6
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 17 Diciembre 2008
    ...139 A.C.W.S.(3d) 112; 2005 FC 583, refd to. [para. 33]. Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2005), 268 F.T.R. 122; 2005 FC 91, refd to. [para. Akpataku v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 410; 131 A.C.W.S.(3d) 496; ......
  • Celise v. Canada (Minister of Citizenship and Immigration), 2015 FC 642
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • 13 Mayo 2015
    ......the fact that Canada is a more desirable place to live is not determinative on an H & C application ( Vasquez v. Canada (M.C.I.) , 2005 FC 91; Dreta v. Canada (M.C.I.) , 2005 FC 1239); if it were otherwise, the huge majority of people living illegally in Canada would have to be grant......
  • Celise c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • 19 Mayo 2015
    ...fact that Canada is a more desirable place to live is not determinative on an H & C application (Vasquez v. Canada (M.C.I.), 2005 FC 91; Dreta v. Canada (M.C.I.), 2005 FC 1239); if it were otherwise, the huge majority of people living illegally in Canada would have to be granted permane......
  • Request a trial to view additional results
1 books & journal articles
  • The Federal Courts and Immigration and Refugee Law
    • Canada
    • Irwin Books The Federal Court of Appeal and the Federal Court. 50 Years of History
    • 4 Octubre 2021
    ...of Citizenship and Immigration) , 2003 FC 1192 at paras 15 and 18 and Vasquez v Canada (Minister of Citizenship and Immigration) , 2005 FC 91 at para 44. [ 336 ] tion law. he Federal Courts’ role in this area of law is critical, because they represent a bulwark for the protection of the fun......

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