Ottawa, Ontario, June 26, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Zlobinski came to Canada with his mother in 1992 when he was 14 years old. He is now a person who is inadmissible to Canada on grounds of serious criminality and he is the subject of a valid deportation order. As a result, Mr. Zlobinski moved before the Immigration Appeal Division of the Immigration Refugee Board (IAD) for an order staying the deportation order.
[2] In order to stay the removal order the IAD was required to be satisfied that "sufficient humanitarian and compassionate considerations warrant special relief in light of all of the circumstances of the case" (see subsection 68(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27). This application for judicial review is brought from the decision of the IAD refusing to stay Mr. Zlobinski's removal because, in its view, there were insufficient humanitarian and compassionate considerations to warrant granting that relief.
[3] In its decision the IAD observed that it was guided by the factors identified to be relevant in Ribic v.Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4, as approved by the Supreme Court of Canada in Chieu v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84. With respect to each factor, the IAD found that:
· Mr. Zlobinski had been convicted of nine offences, including three convictions for break and enter, and two convictions for failure to comply with a probation order. After the first conviction for break and enter, Mr. Zlobinski had been warned in writing that further criminal activity could lead to his deportation. Notwithstanding this warning, he re-offended. Mr. Zlobinski's criminal record was described as "within the range of serious" and as one that "sets out a pattern of [...] criminal activities over time which weighs heavily against him".
· Mr. Zlobinski was not a good candidate for rehabilitation given his past failed attempts to do so. The IAD noted that Mr. Zlobinski had used heroin for ten years and that his criminal record reflected his need to finance his drug habit. The IAD considered that he had not fully disclosed his use of heroin to his fiancée, or fully disclosed his drug use or immigration problems to her family. This was said to evidence that Mr. Zlobinski was in denial with respect to his drug usage.
· Mr. Zlobinski has little establishment in Canada, "other than [having] a young fiancée". He has a spotty work record, little money in the bank, does not own a car and has no financial interest in the family home. Some establishment was found to exist to the extent that he has no relatives in Ukraine, his country of citizenship. All of his family live in Canada, except for two grandparents who live in the United States.
· Mr. Zlobinski would face hardship and dislocation if he was deported. While he would be separated from his family, he did not seek out their support when dealing with his issues. Heroin treatment programs may not exist in Ukraine as they do here, however Mr. Zlobinski "did not avail himself of the programs available to him in Canada anywhere approaching a consistent basis in dealing with his problem. I am persuaded that his difficulties with respect to any available drug treatment in the Ukraine are offset by his track record of not properly using them in Canada". The IAD acknowledged Mr. Zlobinski's family would also experience hardship if he was deported.
[4] The parties agree that the applicable standard of review to be applied to the IAD's assessment of the humanitarian and compassionate grounds is that of reasonableness with respect to the decision as a whole. The standard of review of patent unreasonableness is to be applied to the factual findings of the IAD. I accept those to be the applicable standards of review for the reasons given by my colleague Madam Justice Layden-Stevenson in Rajendran v.Canada (Minister of Citizenship and Immigration), 2005 FC 658 at paragraph 6.
[5] On Mr. Zlobinski's behalf it is argued that the IAD:
· Failed to appreciate the expert evidence of Mr. Zlobinski's doctor in its totality, and hence failed to consider the significant period of time Mr. Zlobinski was off drugs and in treatment;
· Failed to mention in its reasons the testimony of Mr. Zlobinski's father; and
· Misstated the length of time Mr. Zlobinski had lived in Canada, which was relevant to the extent of his establishment.
[6] In sum, it is submitted that Mr. Zlobinski was entitled to a more fulsome analysis in order to show that the IAD properly considered the evidence and all the circumstances before it.
[7] Notwithstanding the able argument of his counsel, and the sympathy Mr. Zlobinski's situation generates, I have concluded that the IAD did not err in its findings of fact or in its assessment of the existence of humanitarian and compassionate considerations.
[8] With respect to the specific asserted errors, as counsel for Mr. Zlobinski conceded, the evidence of Mr. Zlobinski's doctor could have been more positive. The doctor testified that "without further treatment in the drug addiction realm, he would be at high risk to relapse into drug use" and that at the time of the hearing there were no firm plans for Mr. Zlobinski to go into a treatment program. This was a matter to be discussed later. As counsel for the Minister pointed out, at the time of the hearing before the IAD on January 28, 2005 Mr. Zlobinski had used heroin the month before, and had purchased methadone illegally on January 9, 2005. It was open to the IAD to find, based on all the evidence, that Mr. Zlobinski was not a good candidate for rehabilitation.
[9] It is true that the IAD did not specifically refer in its reasons to the evidence of Mr. Zlobinski's father. The IAD did consider the hardship to Mr. Zlobinski and to his family if Mr. Zlobinski were to be deported to Ukraine. These were matters that Mr. Zlobinski's father testified about. Having read the evidence of Mr. Zlobinski's father in its entirety, I am not persuaded that his evidence was of such a nature that the failure of the IAD to mention it specifically gives rise to the inference that material evidence was ignored.
[10] Finally, it is correct that at one point in its reasons the IAD incorrectly wrote that Mr. Zlobinski came to Canada in 1995, when he was 17 years of age. However, in the next paragraph the IAD correctly wrote that Mr. Zlobinski had come to Canada in 1992 and that he then stayed in Canada. The first misstatement was not a material error.
[11] Having subjected the decision of the IAD to a somewhat probing examination I find that it is supported by reasons that are, in turn, properly grounded in the evidence.
[12] The application for judicial review will therefore be dismissed. Counsel posed no question for certification and I am satisfied that no question arises on this record.
JUDGMENT
[13] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6011-05
STYLE OF CAUSE: DMITRI ZLOBINSKI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 12, 2006
APPEARANCES:
LORNE WALDMAN FOR THE APPLICANT
MARY MATTHEWS FOR THE RESPONDENT
SOLICITORS OF RECORD:
LORNE WALDMAN FOR THE APPLICANT
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA