Docket: IMM-1200-14
Citation:
2014 FC 943
Vancouver, British Columbia, October 3, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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IVAN SIMKOVIC
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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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JUDGMENT AND REASONS
[1]
Having been convicted of tax evasion in Slovakia, Ivan Simkovic is inadmissible to Canada due to his serious criminality. Mr. Simkovic
applied for permanent residence on humanitarian and compassionate grounds in 2011.
However an immigration officer concluded that the humanitarian and
compassionate considerations advanced by Mr. Simkovic did not outweigh his
inadmissibility for serious criminality.
[2]
Mr. Simkovic has not persuaded me that the
officer’s decision was unreasonable or that he was denied procedural fairness
in this matter. Consequently, the application will be dismissed.
I.
Background
[3]
Mr. Simkovic came to Canada as a visitor in 1992, but he did not leave the country when his visa expired.
He is married to a Canadian citizen and has a Canadian-born son named Samuel,
who was 13-years-old at the time of the H&C decision in issue.
Mr. Simkovic has been employed since he arrived in Canada, although he has only been working legally since 2007.
[4]
Mr. Simkovic’s wife attempted to sponsor
him in 2008, but that application was refused in 2010 when Mr. Simkovic failed
to provide documentation with respect to his criminal conviction in Slovakia. Although Mr. Simkovic sought leave of this Court to judicially review that
decision, his application for leave was subsequently withdrawn.
[5]
Mr. Simkovic then sought refugee
protection, claiming to have a well-founded fear of persecution in Slovakia based upon his political opinion or perceived political opinion. He further
claimed to face risks contemplated by section 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
[6]
The Minister intervened in Mr. Simkovic’s
refugee claim, and the Refugee Protection Division found him to be excluded
from the protection of the Refugee Convention under Article 1F(b)
of the Convention and section 98 of IRPA by reason of his serious
criminality. An application for judicial review from the Board’s decision
was subsequently dismissed by this Court: Simkovic v. Canada (Minister of Citizenship and Immigration), 2014 FC 113, [2014] F.C.J. No. 152.
[7]
In the meantime, in November of 2011, Mr. Simkovic
filed his application for permanent residence on humanitarian and compassionate
grounds. In support of his application, Mr. Simkovic relied on the best interests
of his son and his establishment in Canada. He also cited unfavourable
conditions in Slovakia, and made submissions with respect to the alleged
unfairness of his criminal trial in that country.
[8]
After considering Mr. Simkovic’s
submissions, an immigration officer determined that Mr. Simkovic would not
suffer unusual and undeserved or disproportionate hardship if he were required
to obtain a permanent resident visa from outside Canada. The officer was
further satisfied that the H&C considerations put forward in support of
Mr. Simkovic’s application did not outweigh his inadmissibility for
serious criminality.
[9]
Mr. Simkovic contends that the immigration
officer made a number of errors in assessing his application. Each of these
alleged errors will be addressed below.
II.
The Assessment of Samuel’s Best Interests
[10]
The primary focus of Mr. Simkovic’s
argument is the alleged deficiencies in the immigration officer’s “best interests of the child” (or BIOC) analysis. In
particular, Mr. Simkovic asserts that the officer failed to apply the
approach to the assessment of the best interests of children described in Williams
v Canada (Citizenship and Immigration), 2012 FC 166, [2012] F.C.J. No. 184.
[11]
In Williams, Justice Russell held that in
assessing the best interests of a child, officers “must
establish first what is in the child’s best interest, second the degree to
which the child’s interests are compromised by one potential decision over
another, and then finally, … determine the weight that this factor should play in
the ultimate balancing of positive and negative factors assessed in the
application”: at para. 63.
[12]
According to Mr. Simkovic, the officer’s failure
to follow the Williams formulation means that her BIOC assessment in this
case was fatally flawed. I disagree.
[13]
The “formula” described
in Williams “need not be mechanically applied in
every case”: Hoyos v. Canada (Minister of Citizenship and
Immigration), 2013 FC 998 at para. 33, [2013] F.C.J. No. 1096. Williams
provides “a useful guideline” for assessing a child’s
best interests, but this guideline is not one mandated by Supreme Court or
Federal Court of Appeal jurisprudence: Webb v. Canada (Citizenship and
Immigration), 2012 FC 1060 at para. 13, 417 F.T.R. 306.
[14]
As noted by the respondent, the Federal Court of
Appeal held in Hawthorne v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 475 at para. 4, [2003] 2 F.C. 555, that the best
interests of a child are to be determined by assessing the benefit that would
accrue to a child if the parent were to remain in Canada, and the hardship that
the child would suffer from the parent’s removal from Canada.
[15]
The Court explained that the officer’s task is
to weigh the likely degree of hardship caused by removal “together
with other factors, including public policy considerations that militate in
favour of or against the removal of the parent”: Hawthorne, at
para. 6. That is precisely what the officer did here.
[16]
Officers are “presumed to
know that living in Canada can offer a child many opportunities and that, as a
general rule, a child living in Canada with [his] parent is better off than a
child living in Canada without [his] parent”. The Federal Court of
Appeal was clear that absent exceptional circumstances, the officer need not expressly
state “that the ‘child’s best interests’ factor will play
in favour of the non-removal of the parent”: both quotes from Hawthorne, above at para. 5.
[17]
Mr. Simkovic’s H&C submissions
addressed the impact his removal would have on Samuel. It was thus reasonable
for the officer to focus on this eventuality. The officer did not, however,
limit her analysis in this way, but also considered the impact on Samuel if the
family were to relocate to Slovakia.
[18]
Mr. Simkovic also takes issue with the
officer’s treatment of a 2010 psycho-educational report regarding Samuel’s
learning challenges. This report indicated that although Samuel was very bright,
his ability to express knowledge in written applications showed relative
weakness. While he was “not considered to present
significant risk of failing to meet required learning outcomes”, he did
qualify for adaptations “such as use of a calculator and
spellchecker”.
[19]
The officer was concerned that no information regarding
the qualifications of the author of the report had been provided.
Mr. Simkovic says that this concern was unreasonable, given that the
author is identified in the report as a “school
psychologist”. Even if I were to accept Mr. Simkovic’s submission
on this point, the officer had a second, independent basis for according little
weight to the report: namely that it was prepared in 2010, and did not reflect
Samuel’s situation at the time Mr. Simkovic’s H&C application was assessed
in 2014. This was an entirely reasonable observation.
[20]
Mr. Simkovic also says that it was unfair
for the officer to question the credibility of the psycho-educational report
without giving him an opportunity to respond. To the extent that the officer
was concerned the report was out of date, the onus is on an applicant for
H&C relief to ensure that his submissions are kept up to date. The
officer was not obligated to ask Mr. Simkovic for an updated report
regarding Samuel’s progress. No breach of procedural fairness has thus been
established.
[21]
The officer was, moreover, not satisfied that
Samuel would be unable to obtain whatever learning support that he may require
in Slovakia. Mr. Simkovic has not directed me to any evidence in the
record that would undermine that finding.
[22]
Mr. Simkovic submits that the officer’s
observation that he had left his young son from his first marriage behind when
he left Slovakia was something of a “gratuitous shot”
at him. I do not disagree that the comment could be interpreted in
that way, but read in context, the officer seems to be observing that
Mr. Simkovic was nevertheless able to maintain a relationship with that
son despite the geographical distance between them.
[23]
Finally, Mr. Simkovic contends that the
officer did not pay sufficient attention to the financial hardship that his
wife and son would experience, were he required to leave Canada. The officer found that there was insufficient evidence to show that
Mr. Simkovic would be unable to obtain alternate employment in Slovakia. Mr. Simkovic says this finding was unreasonable, given that the Slovakian Court had barred him from performing business activities for a period of five
years.
[24]
There are two difficulties with this submission.
The first is that it was not made to the officer. While a copy of the Slovakian Court judgment was in the material filed in support of Mr. Simkovic’s application,
these materials were voluminous, and the officer could not be expected to scour
the documents to see if they revealed an argument that had not been advanced by
Mr. Simkovic himself. The more fundamental problem with
Mr. Simkovic’s argument is that even if he were barred from performing
business activities for five years, it does not mean he could not accept
employment during that period.
III.
Assessment of H&C Factors Relating to
Mr. Simkovic’s Conviction
[25]
Mr. Simkovic submits that the officer further
erred in failing to consider that his criminal conviction was his first
offence, that it did not involve a crime of violence, and that the sum involved
in the tax fraud was only $180,000 in Canadian money. Mr. Simkovic
acknowledges that he did not make these submissions to the officer. He says,
however, that the officer had a copy of the Refugee Protection Division’s
decision in his case, and that these facts were disclosed in that decision.
[26]
Insofar as his serious criminality was
concerned, Mr. Simkovic’s H&C submissions all focussed on the
alleged unfairness of his Slovakian trial. These submissions were squarely
addressed by the officer, who held that it was not her role to sit as a court
of appeal from a judgment of a Slovakian court. Mr. Simkovic does not
allege that the officer erred in this regard. Given that the Refugee Protection
Division had already found that Mr. Simkovic had committed a serious
non-political crime, I am not persuaded that the officer’s treatment of
Mr. Simkovic’s conviction was unreasonable.
[27]
Once again, it was incumbent on
Mr. Simkovic to put forward the H&C factors that he wished to
have considered. Applicants have no right or legitimate expectation that they
will be afforded a hearing in order to advance their claims, with the result
that they omit pertinent information from their applications at their peril: Owusu
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para. 8,
[2004] 2 F.C.R. 635. The officer can hardly be faulted for failing to consider
submissions that were not made to her.
IV.
Conclusion
[28]
At the end of the day, we are left with the
weight that the officer ascribed to the factors favouring the positive exercise
of her discretion and the weight ascribed to Mr. Simkovic’s serious
criminality. In the absence of a reviewable error on the part of the officer,
it is not the task of this Court to reweigh the evidence on judicial review. The
application for judicial review is thus dismissed. I agree with the parties
that the case does not raise a question for certification.
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