Ottawa, Ontario, August 1, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Volodymyr Chala brings this application for judicial review from the decision of an immigration officer that found:
i) Mr. Chala's inadmissibility to Canada under paragraph 36(2)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) (relating to inadmissibility due to criminality) rendered him ineligible for a positive decision as a member of the spouse or common-law partner in Canada class; and
ii) insufficient humanitarian and compassionate factors were present to warrant exempting Mr. Chala from some requirements under the Act so as to allow his application for permanent residence to be processed from within Canada.
[2] Mr. Chala argues that in so deciding the officer erred by:
i) ignoring relevant evidence, relying upon irrelevant considerations and misapprehending the evidence before him;
ii) not considering the best interests of children who would be directly affected by Mr. Chala's removal; and
iii) concluding that Mr. Chala was not sufficiently established in Canada.
[3] For the reasons that follow, I have determined that the officer did not err as alleged and that the application for judicial review should be dismissed.
Did the officer ignore or misapprehend evidence, or rely upon irrelevant considerations?
[4] I have not been persuaded that the officer ignored or misunderstood the evidence. Examples cited by Mr. Chala where the officer is said to have ignored evidence include the officer's failure to reference specifically a document provided by the State Department of Ukraine relating to a criminal conviction in Ukraine having been "discarded from records due to amnesty" and documents relating to the purchase of a home by Mr. Chala and his wife.
[5] With respect to the State Department document, it is argued that by ignoring the document the officer failed to consider whether Mr. Chala was inadmissible to Canada as a result of criminal convictions abroad. It is true that the officer did not specifically reference the document. However, in view of: Mr. Chala's former lawyer’s acknowledgment that Mr. Chala was inadmissible because of criminal convictions in Europe; the absence of evidence with respect to the legal effect of the amnesty; and the fact that the amnesty appears to apply to only one of Mr. Chala's convictions, the document is not so cogent that one should infer from the officer's silence that he ignored the document.
[7] With respect to the home purchased by Mr. Chala and his wife, the officer specifically referenced the property assessment notice and mortgage documents provided, but wrote that Mr. Chala had not provided satisfactory home ownership documents. The officer did not ignore the documents that evidenced the initial purchase of the home because the officer specifically mentioned them in his reasons. Since the income tax documents that Mr. Chala provided for the taxation years 1998 through 2003 disclosed a taxable income ranging from a loss of $2,015.66 to a high of $5,900.00, it was not unreasonable for the officer to note the absence of information evidencing continuing home ownership.
[8] I have reviewed every instance urged by Mr. Chala where evidence was said to be ignored or misapprehended and he has failed to persuade me that the officer ignored evidence.
[9] As to the officer’s alleged reliance upon irrelevant considerations, the officer wrote that:
He stated it would be difficult for his spouse to look after 2 young children. It is noted that his spouse had a child whom she cared for and supported prior to their relationship and now cares for the children while the subject works. There is no reason why she cannot continue caring for the children. I am not satisfied that subject would face any unusual and undeserved or disproportionate hardship to be separated from his family in Canada.
[10] Mr. Chala argues that the officer relied upon an irrelevant and unreasonable consideration in presuming that Mr. Chala’s wife would be able to care for and support two daughters under the burden of a new mortgage they had acquired based simply on the fact that Mr. Chala’s wife had been able to care for one daughter several years before her relationship with Mr. Chala.
[11] Again, I respectfully disagree. Based upon the material and the submissions made to the officer in the humanitarian and compassionate application, the officer did not rely upon an irrelevant consideration in finding that Mr. Chala’s wife could continue caring for the children. The evidence with respect to Mr. Chala's financial contribution to the family unit (described above) is not inconsistent with the officer's conclusion that his wife could care for and support their daughters. In my view, Mr. Chala is simply disputing the manner in which the officer weighed the material before him.
Did the officer err with respect to the best interests of the children?
[12] The officer found that:
Subject has not provided any information to indicate degree to which he is involved in the children’s lives and it is noted that the children’s mother is the primary care giver. Subject claimed he works and supports his family while his spouse cares for the children. It is noted that the children’s mother has a business and there is no indication that the business is no longer operating. I am not satisfied that the children’s mother is not able to care for and support her children.
[13] Mr. Chala argues that the officer ignored evidence of his involvement with the children's lives. Specifically the officer is said to have ignored:
- Mr. Chala's 2003 income tax filing which shows his wife's daughter to be one of his dependents.
- A hospital discharge sheet for Mr. Chala's daughter which showed that she carried his last name.
- A document that gave instructions to Mr. Chala and his wife on registering an agreement for a RESP.
- The documents that showed Mr. Chala's joint ownership of the family home.
[14] The officer mentioned all of the above documents except the document that provided information with respect to the RESP, and so the officer did not ignore the evidence as alleged. Again, I am satisfied that what Mr. Chala complains of is the weight given to the documents by the officer. It is true that they all support the inference of a family relationship. However, neither individually nor collectively do they demonstrate such an involvement by Mr. Chala in the children's lives that the officer's conclusion can be said to be unreasonable.
[15] Mr. Chala also argues that in his reasons the officer spoke of the children in generalities, neither acknowledging their age differences nor the issues each child would face. Mr. Chala also submits that the officer did not address the younger daughter’s "delicate medical state" and the ongoing medical care she will require.
[16] I can find no error in the officer's consideration of the children's best interests. The officer was not dismissive of their interests and was alert, alive and sensitive to those interests in the context of the information and submissions provided to the officer. The officer did not state that the children would each face the same issues in dealing with Mr. Chala's absence. In my view, the medical documents did not support the existence of a "delicate medical state" or the need for ongoing medical treatment of any significance.
Did the officer err in his assessment of Mr. Chala's establishment?
[17] Mr. Chala argues that "it is unclear as to whether [the officer’s] analysis has any relevant connection with a sufficiently probing examination of the Applicant’s degree of establishment. The Applicant submitted ample evidence pertaining to the establishment of his family in Canada, as well as the fact of his joint ownership of property and shared burdens with his wife".
[18] I am satisfied that on the evidence before him it was reasonably open to the officer to find that Mr. Chala's establishment was not so great that his departure from Canada would constitute unusual, undeserved or disproportionate hardship.
Conclusion
[19] I have subjected the officer's reasons as a whole to a somewhat probing examination. I find that the reasons are supported by the material before the officer and that the reasons adequately support the officer's conclusion. It follows that the application for judicial review will be dismissed.
[20] Counsel posed no question for certification and I am satisfied that no question arises on this record.
JUDGMENT
[21] 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-4967-05
STYLE OF CAUSE: VOLODYMYR CHALA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 26, 2006
APPEARANCES:
MARIO D. BELLISSIMO FOR THE APPLICANT
LORNE McCLENAGHAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIO D. BELLISSIMO FOR THE APPLICANT
ORMSTON, BELLISSIMO, ROTENBERG
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA