Issasi v. Rosenzweig, 2011 ONCA 302

In this case a thirteen year old girl made a successful refugee claim in Canada based on abuse by her mother.  Her mother in Mexico made an application under the Hague Convention on the Civil Aspects of International Child Abduction.  The application for the child to be returned to Mexico was granted, but the child’s father appealed.

The Court of Appeal determined that section 115 of the Immigration and Refugee Protection Act can be interpreted harmoniously with the Hague Convention. Section 115 of the Immigration and Refugee Protection Act states:

115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.

The court stated that when applying the Hague Convention a court must conduct an appropriate risk assessment when dealing with a child who has status as a refugee.  In this case; the Court of Appeal determined that no meaningful risk assessment had been performed by the judge who granted the initial order to return the child. Since there was no risk assessment, the Court of Appeal could stand in the place of the court and issue a new order.  The Court set aside the original order and directed that the child be returned to Canada so a new Hague Convention hearing could be undertaken.  These were shorter reasons; due to the immense importance to the individuals involved.  The Court of Appeal stated it will release a comprehensive judgment on the salient points of law in a few months.

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