Docket: IMM-2934-11
IMM-2938-11
Citation:
2012 FC 90
Ottawa, Ontario, January 23, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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DARIUSZ SLIWA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Dariusz
Sliwa is a 36 year old Polish citizen who has been in Canada since he was 15. During his time in Canada, Mr. Sliwa accumulated a significant
criminal record which led to the loss of his permanent resident status. He now
seeks judicial review of decisions refusing his applications for a humanitarian
and compassionate [H&C] exemption and for a Temporary Residence Permit
[TRP].
[2]
For
the reasons that follow, I am satisfied that the decisions made in relation to
Mr. Sliwa’s H&C and TRP applications were reasonable. As a result, his
applications for judicial review will be dismissed.
The H&C Application
[3]
The
reasons provided by the H&C officer in this case are lengthy, detailed and
thoughtful. The officer carefully balanced Mr. Sliwa’s lengthy criminal record
(which includes two convictions for violent crimes) against factors including
his long-time residence in Canada, his family support in this country, his
mental health problems and his efforts to overcome his addictions. The officer
also considered the best interests of Mr. Sliwa’s two children.
[4]
Mr.
Sliwa says that his family support in Canada is essential to his recovery from
both his mental illness and his addictions to drugs and alcohol. According to
Mr. Sliwa, the H&C officer misunderstood the scope of the support network
available to him in Canada, and the role that family support plays in his
recovery.
[5]
Mr.
Sliwa also argues that the officer ignored correctional reports prepared in
relation to his release from prison. Mr. Sliwa says that these reports
demonstrate that the decision to release him from prison was based upon the support
that he has from his family.
[6]
I
agree that the correctional reports identify Mr. Sliwa’s family support as a
positive factor which was important to his release plan. However, these
documents also show that the reason that Mr. Sliwa was released from prison was
because he reached his statutory release date. It is also evident from the
reports that correctional officials understood that Mr. Sliwa was under a valid
deportation order and that he might well be sent back to Poland.
[7]
However,
a review of the reasons discloses that the officer was well aware of the
benefits of having the support of a family network for those fighting
addictions or living with mental illness. Indeed, the officer’s reasons make specific
reference to the evidence in this regard.
[8]
Moreover,
the importance of this aspect of Mr. Sliwa’s H&C application was clearly
recognized by the officer, who commenced the analysis of this aspect of the
application with the words “[a]bove all” before proceeding to examine the issue
of family support and rehabilitation.
[9]
The
officer further erred, Mr. Sliwa says, by focusing only on the support offered
to him by his wife and ignoring the support provided by Mr. Sliwa’s parents,
siblings and 14 year old daughter, all of whom are here in Canada.
[10]
While
it was reasonable to focus on the support provided to Mr. Sliwa by his wife,
the officer did not ignore the support provided by other members of his family.
The officer acknowledged that Mr. Sliwa has extended family in Canada who are prepared to support him in his recovery. Indeed, these individuals were
identified in the reasons by name, and reference was made to letters of support
provided by family members.
[11]
The
officer noted that Mr. Sliwa could continue to have frequent contact with, and
receive support from his extended family from Poland. The officer also
recognized that this would not be a complete substitute for direct, in-person
contact and stated that he or she took this factor into account in assessing
Mr. Sliwa’s application.
[12]
Mr.
Sliwa also argues that it was unreasonable for the officer to expect Mr. Sliwa’s
wife, who is a Canadian citizen, to have to move to Poland to support him in
his recovery. The officer notes that Mr. Sliwa’s wife was born in Poland and that she could likely return there if she wanted to do so. The officer further
observed that insufficient information had been provided to demonstrate that
the family could not relocate to Poland, should Mr. Sliwa be required to leave Canada.
[13]
The
officer did not conclude that Mr. Sliwa’s wife would have
to move to Poland. Instead, the officer found that this was an option that was
open to her, and that there was not enough evidence before him or her to show
that Mr.
Sliwa’s
wife could not relocate with her husband if she wanted to do so. Mr. Sliwa has
not demonstrated that the officer disregarded any important information in
coming to this conclusion or that the officer’s observations were unreasonable.
[14]
I
also do not accept Mr. Sliwa’s argument that the officer erred by ignoring his
ongoing need for prescription medication to treat his bipolar disorder. The
officer explicitly addressed this point, observing that “[i]nsufficient
evidence was provided t[o] demonstrate that the medications that the client
requires to treat his medical conditions would not be readily available in Poland and that his removal would negatively impact his ability to acquire the proper
medications if needed”. Mr. Sliwa has not identified any evidence that was
overlooked by the officer in this regard.
[15]
I
am not persuaded that the
officer ignored evidence or otherwise erred in finding that there was no
evidence that Mr. Sliwa would be unable to find employment in Poland, considering his skills and experience. Mr. Sliwa has worked for many years installing
dry-wall, and there was no evidence before the officer that he could not
practice his trade in Poland.
[16]
Mr.
Sliwa has also not persuaded me that the officer failed to conduct a proper
assessment of the best interests of his 14 year old daughter, or that the
officer was not “alert, alive and sensitive” to the child’s need for physical
contact and affection from her father.
[17]
The
officer specifically referenced a letter written by the child, in which she
discusses her relationship with her father and her desire to have him stay in Canada. The officer discussed the child’s circumstances in detail, including the fact that
the child lived with her mother, and that her visits with her father had been
limited since her parents had separated several years before.
[18]
The
officer acknowledged that it is generally in a child’s best interests to have
access to both of her biological parents, noting that “significant weight” was
being given to the fact that Mr. Sliwa’s daughter was in Canada. The officer also explicitly recognized that Mr. Sliwa’s ability to spend time with his daughter
“would be greatly reduced should he relocate to Europe”. However,
the officer observed that there were alternative ways in which Mr. Sliwa could
maintain his relationship with his daughter, including communications via
Skype.
[19]
What
Mr. Sliwa really takes issue with is the relative weight that the officer
attached to the positive and negative factors in his case. However, that is a
matter for the officer to decide. As was noted earlier, the officer’s reasons
in this case were thorough and comprehensive and were responsive to the submissions
made by Mr. Sliwa.
[20]
The
officer acknowledged the factors militating against the granting of an H&C
exemption, as well as those in favour of granting such relief. The officer
carefully weighed the competing factors and came to what was clearly a
reasonable conclusion.
[21]
The
officer also turned his or her mind to Mr. Sliwa’s alternate request for a
Temporary Residence Permit. In addition to the factors already discussed, the
officer noted the seriousness of Mr. Sliwa’s most recent crimes, and the
relatively short period of his rehabilitation compared to his lengthy history
of problems with addictions and the law. The officer concluded that the
circumstances did not warrant a TRP to overcome Mr. Sliwa’s criminal
inadmissibility. Mr. Sliwa has not demonstrated the existence of a reviewable
error in this regard.
Conclusion
[22]
For
these reasons, the application for judicial review is dismissed.
Certification
[23]
Mr.
Sliwa suggested that if my decision turns on the ability of Mr. Sliwa’s wife to
accompany him to Poland, a question may arise as to “whether it was
discriminatory to ask a Canadian citizen not born in Canada to relocate to
avoid the hardship her husband would suffer”.
[24]
In
my view, this is not an appropriate question for certification. Not only does
my decision not turn on the issue, the officer did not ask Mr. Sliwa’s wife to
relocate to Poland, but simply acknowledged that this might be a possibility.
[25]
The
respondent suggested that a question may arise as to what being “alert, alive
and sensitive” to a child’s needs should entail. I am also not persuaded that
this is an appropriate question for certification.
[26]
There
is ample Federal Court of Appeal jurisprudence addressing the general
principles governing what is required in assessing the best interests of
children: see, for example, Hawthorne v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 475, [2003] 2 F.C. 555, and Legault v. Canada
(Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 212 D.L.R.
(4th) 139. The respondent has not identified any new issue raised by this case
that requires further consideration by the Federal Court of Appeal.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES that:
1. This application for
judicial review is dismissed; and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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