Date: 20080125
Docket: IMM-2287-07
Citation: 2008
FC 101
Ottawa, Ontario, January 25, 2008
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
PAVEL
KRAVCHOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Be he Mark
Vaisman or be he Pavel Kravchov; be he born in 1965 or in 1967; be he from Azerbaijan or from Armenia; the Immigration and Refugee
Board determined in 1994 that he was a refugee within the meaning of the United
Nations Convention.
[2]
Since then,
he has run up some 26 criminal convictions. They set in motion a process which
might ultimately lead to his deportation. It began with an officer preparing a
report to the Minister pursuant to section 44 of the Immigration and Refugee
Protection Act (IRPA) in which the opinion was voiced that Mr. Kravchov is
inadmissible. The Minister, being of the opinion that the report was
well-founded, referred it to the Immigration Division of the Immigration and
Refugee Board for an admissibility hearing. At that hearing he was found
inadmissible on the grounds of serious criminality as set out in section 36 of
IRPA and ordered deported. Serious criminality includes being convicted in Canada of an offence punishable by a
maximum term of imprisonment of at least ten years, as is the case here.
[3]
Fortunately
for Mr. Kravchov, he was never punished by a term of imprisonment of at least
two years, and so was able to appeal to the Immigration Appeal Division (IRPA,
s. 64, s. 67). The Member of the Immigration Appeal Division who heard his
appeal dismissed it. This is a judicial review thereof.
BACKGROUND
[4]
In his
personal information form (PIF) delivered to the Board in 1993, he said his
name was Mark Vaisman, born in 1967, a citizen of the U.S.S.R. at birth and at
that time a citizen of Azerbaijan. The form also noted that he
used the name Pavel Kravchov. Indeed, the tribunal record indicates that he usually
goes by that name; although he has used other names as well. More recently he
claims also to be a citizen of Armenia. Although this may be
attributable to the fact that he was born in Najorno-Karabkh (a region of
considerable contention and tension between Azerbaijan and Armenia). He attributes his
inability to obtain proper identification papers and thus to have applied in
the past to become a Canadian permanent resident to this tension.
[5]
He says
that for some years after his arrival in Canada he worked but was always paid in cash.
He then learned he had Hepatitis B and C and turned to a life of crime in order
to fund his treatment. However, there is no evidence in the record that he has Hepatitis
B and C, that our health care system would not respond or that he ever received
treatment, including when he was in prison.
[6]
His
criminal activities include organized auto theft, leasing automobiles with
fraudulent documents to resell or send them overseas. He was in possession of
forged instruments including Immigration and Citizenship Canada stamps and
seals.
[7]
He was
last convicted in 2005. He was in pre-sentence custody for 15 months and then
received a suspended sentence with three years probation. He says that he has
repented. He first met a woman in 2002 and, after coming out of jail in 2005,
obtained a job with her help and has moved in with her. He has been respecting
his probation conditions and provided a psychological assessment.
THE DECISION UNDER REVIEW
[8]
Mr.
Kravchov did not contest that he had been convicted of serious crimes and did
not seek that the deportation order be quashed. Rather he asked that its
enforcement be stayed on conditions such as keeping the peace and avoiding criminal
elements.
[9]
The Board
carried an analysis pursuant to section 67(1) (c) of IRPA which provides:
|
67. (1) To allow an appeal, the Immigration Appeal
Division must be satisfied that, at the time that the appeal is disposed of,
[…]
(c) other than in the case of an appeal by the Minister,
taking into account the best interests of a child directly affected by the
decision, sufficient humanitarian and compassionate considerations warrant special
relief in light of all the circumstances of the case.
|
67. (1) Il
est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
[…]
c) sauf dans le
cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de
l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu
les autres circonstances de l’affaire, la prise de mesures spéciales.
|
[10]
Mr
Kravchov has no children and apparently no family left in Azerbaijan. He does have a romantic
relationship here.
[11]
The Member
set out the non-exhaustive H&C criteria identified in Ribic v. Canada (Minister of Employment and
Immigration) (T84-9623),
[1985] I.A.B.D. No.4, approved by the Supreme Court in Chieu v. Canada (Minister of Citizenship and
Immigration),
2002 SCC 3, [2002] 1 S.C.R. 84. They are:
a)
the
seriousness of the offences leading to the deportation;
b)
the
possibility of rehabilitation;
c)
the length
of time spent in Canada and the degree to which the
appellant is established here;
d)
family in Canada and the dislocation that
deportation of the appellant would cause to that family;
e)
the
support available for the appellant not only within the family but also within
the community;
f)
the degree
of hardship that would be caused to the appellant by returning to his country
of nationality.
[12]
The Member
was of the view that the offences were very serious because of their organized
and repetitive aspects, and because they victimized many individuals and
organizations. He had no difficulty changing his identity when it suited him,
indicative of criminal sophistication.
[13]
A
psychological assessment concluded that Mr. Kravchov is suffering from a major depressive
episode and from panic disorder from his past ordeals, his problems with the
law and his ongoing immigration worries. However, the Member was of the opinion
that because of Mr. Kravchov’s lack of credibility, probative value could not
be given to the psychological assessment which was based “…solely on what the
appellant has told him”. This was not quite accurate as he had also been
subjected to testing. His lack of forthrightness with respect to his medical
condition was also a negative factor.
[14]
The Member
was of the view that he had minimal establishment in Canada, and only first filed a tax return for
2006. The fact that he began to live with a woman, whom he calls his common-law
wife, in February 2006, did not constitute a sufficient ground to grant a stay.
[15]
In terms
of the degree of hardship that would be caused if he were returned to his
country of nationality, doubt was continuously expressed as to who he really
is, and where he is from, as he has an expertise in creating or obtaining
fraudulent documents.
STANDARD OF REVIEW
[16]
The overall
standard of review in humanitarian and compassionate situations is that of
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J.
No. 39. The
Federal Court of Appeal recently applied that standard in this particular
context (Khosa v. Canada (Minister of Citizenship and
Immigration),
2007 FCA 24, [2007] 4 F.C.R. 332). A decision to grant a stay is discretionary.
Although there can only be one correct decision, there may be more than one
reasonable decision, and so the Member is owed deference.
MR. KRAVCHOV’S SUBMISSIONS
[17]
Mr. Kravchov
alleges breach of procedural fairness, errors in law and in fact. On the
procedural fairness point he complains that the Member permitted documents to
be introduced as evidence without sufficient notice.
[18]
The error
in law is that the Member referred to two criminal charges which were
withdrawn. The Member should not have taken those charges into consideration.
[19]
As to
findings of fact, Mr. Kravchov submitted that it was patently unreasonable for
the Member to question is identity and his inability to obtain documentation
from Azerbaijanian authorities. The dismissal of the psychologist’s report was unjustified.
There was other relevant evidence which was ignored, such as that of his
common-law wife that he is now toeing the line.
ANALYSIS
[20]
Having
reviewed the record, and the submissions of counsel, I have come to the
conclusion that procedural fairness is not in issue, and no error in law was
made and that the decision was not unreasonable. A reasonable decision is one that
can stand up to a somewhat probing examination (Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, [1996]
S.C.J. No. 116 at paragraph 56 and 57). Mr. Justice Iacobucci went on to say
at paragraph 80:
I
wish to observe, by way of concluding my discussion of this issue, that a
reviewer, and even one who has embarked upon review on a standard of
reasonableness simpliciter, will often be tempted to find some way to
intervene when the reviewer him- or herself would have come to a conclusion
opposite to the tribunal’s. Appellate courts must resist such
temptations. My statement that I might not have come to the same
conclusion as the Tribunal should not be taken as an invitation to appellate
courts to intervene in cases such as this one but rather as a caution against
such intervention and a call for restraint. Judicial restraint is needed
if a cohesive, rational, and, I believe, sensible system of judicial review is
to be fashioned.
[21]
In my
opinion such blemishes as there may have been in the reasons for the decision
were taken out of context. I am mindful of what Mr. Justice Joyal said
in Miranda v. Canada (Minister of Employment
and Immigration), 63 F.T.R. 81 (Fed. T.D.), [1993] F.C.J. No. 437:
It is true
that artful pleaders can find any number of errors when dealing with decisions
of administrative tribunals. Yet we must always remind ourselves of what the
Supreme Court of Canada said on a criminal appeal where the grounds for appeal
were some 12 errors in the judge's charge to the jury. In rendering judgment,
the Court stated that it had found 18 errors in the judge's charge, but that in
the absence of any miscarriage of justice, the appeal could not succeed.
This is
the point I am trying to establish here. One may look at the decision of the
Board, then one may balance it off against the evidence found in the transcript
and the evidence of the claimant himself in trying to justify his objective as
well as subjective fears of persecution.
On the
basis of that analysis, I find that the conclusions reached by the Refugee
Board are well-founded on the evidence. There can always be conflict on the
evidence. There is always the possibility of an opposite decision from a
differently constituted Board. Anyone might have reached a different
conclusion. Different conclusions may often be reached if one perhaps
subscribes to different value systems. But in spite of counsel for the
applicant's thorough exposition, I have failed to grasp forcefully the kind of
error in the Board's decision which would justify my intervention. The Board's
decision, in my view, is fully consistent with the evidence.
[22]
As to
procedural unfairness, the rules require that documents proposed to be entered
as exhibits be disclosed at least 20 days before the hearing. In this case, a
list of Mr. Kravchov’s criminal record was disclosed within time, but some of
the police reports were only presented the Friday afternoon before the Monday
hearing. As master of its procedure, the Tribunal has discretion to allow in
documents on short notice.
[23]
The essence
of the complaint is that during the Monday hearing Mr. Kravchov’s counsel was
only allowed a further a 20-minute postponement. However given that the
documents had been provided three days earlier, that they were merely
supplemental to what had already been disclosed, and that Mr. Kravchov’s
counsel examined in chief and led him through his criminal past, late
disclosure does not serve as a ground for judicial review. Furthermore, counsel
did not ask to file post-hearing commentary on these documents. Mr. Kravchov
was not denied a fair hearing. Cases such as Cardinal
v. Director of Kent Institution, [1985] 2 S.C.R. 643,
[1985] S.C.J. No. 78, and C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1
S.C.R. 539 have no application.
[24]
As to reference
to the withdrawn charges, if they were material to the decision, then they
would be cause for concern (Bertold v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 1492, 175 F.T.R. 195, at paragraph 49 and Bakchiev
v. Canada (Minister of Citizenship and
Immigration, [2000]
F.C.J. No. 1881, 196 F.T.R. 306, and Veerasingam v. Canada (Minister of
Citizenship and Immigration, 2004 FC 1661, [2004] F.C.J. No. 2014). The
shoplifting incident, however, was relevant in questioning Mr. Kravchov’s
identity. He says that he gave that name to the police officers who apprehended
him rather than his real name, Mark Vaisman. The concealed weapons charge was
simply part of Mr. Kravchov’s history. With 26 convictions and the Member’s
analysis limited to fraud related charges, it cannot possibly be said that the
recital of these incidents entitle Mr. Kravchov to a new hearing.
[25]
The Member
did not ignore the psychologist report or the girlfriend’s testimony. Rather
she gave little weight to them. It was her duty to determine whether or not Mr.
Kravchov was credible, not the psychologist’s, and not the girlfriend’s.
Despite his claim to have accepted responsibility for his actions and his claim
that he has reformed, she was entitled to form the view that he was still
weaving a web of deceit. For instance, she found that notwithstanding that he
has been here since 1993, he only filed one tax return, and that for the year
2006, after he realized he was at risk of being deported. He said that he had
not filed earlier returns because he had always been paid in cash. When told
that one is obliged to file returns whether one has paid in cash or not, he
quickly changed his story and said he had indeed filed three or four tax
returns in the past.
[26]
Mr.
Kravchov may well be depressed at the prospect of being deported. However that
is no reason to let him stay. Depression and anxiety are inevitable aspects of
deportation (Melo v. Canada (Minister of Citizenship and
Immigration,
2000 F.C.J. 403, 188 F.T.R. 39).
[27]
As pointed
out by the Member, there is uncertainty as to who Mr. Kravchov really is, where
he is from, (and indeed when he was born) as he was determined to be a refugee
under both names. He remains a protected person notwithstanding that he is
inadmissible on grounds of serious criminality. He can only be removed pursuant
to section 115 of IRPA if in the Minister’s opinion he constitutes a danger to
the public in Canada.
ORDER
THIS COURT ORDERS that:
1.
The application
for judicial review is dismissed.
2.
There is no
serious question of general importance to certify.
“Sean Harrington”
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