Date: 20110118
Docket: IMM-2095-10
Citation: 2011 FC 53
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario,
January 18, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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ARTUR KACPRZAK
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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
I. Introduction
[1]
In
view of the decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190, the degree of deference for the findings of fact made by the Immigration
Appeal Division (IAD) has also been noted. The Supreme Court confirmed that
the criteria set out in Ribic v Canada (Minister of
Employment and Immigration), [1985] IABD No 4 (QL/Lexis) were still
applicable and that the deference shown by the Federal Court also applies to
findings of fact concerning the possibility of rehabilitation:
[65] In terms of transparent and intelligible reasons, the majority
considered each of the Ribic factors. It rightly observed that the
factors are not exhaustive and that the weight to be attributed to them will
vary from case to case (para. 12). The majority reviewed the evidence and
decided that, in the circumstances of this case, most of the factors did not
militate strongly for or against relief. Acknowledging the findings of
the criminal courts on the seriousness of the offence and possibility of
rehabilitation (the first and second of the Ribic factors), it found
that the offence of which the respondent was convicted was serious and that the
prospects of rehabilitation were difficult to assess (para. 23).
[66] The weight to be given to the respondent’s evidence of remorse and
his prospects for rehabilitation depended on an assessment of his evidence in
light of all the circumstances of the case. The IAD has a mandate
different from that of the criminal courts. Khosa did not testify at his
criminal trial, but he did before the IAD. The issue before the IAD
was not the potential for rehabilitation for purposes of sentencing, but rather
whether the prospects for rehabilitation were such that, alone or in
combination with other factors, they warranted special relief from a valid
removal order. The IAD was required to reach its own conclusions based on
its own appreciation of the evidence. It did so. [Emphasis added.]
(Canada (Minister of Citizenship and
Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339).
II. Judicial procedure
[2]
The
applicant was found to be inadmissible on grounds of serious criminality by the
Immigration Division (ID) of the Immigration and Refugee Board, under
paragraph 36(1)(a) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA). A removal order was accordingly made.
[3]
The
applicant exercised his right to appeal to the IAD. However, he did not dispute
the validity of the removal order; rather, he asked the IAD to take into
account humanitarian and compassionate considerations that warrant special
relief, under paragraph 67(1)(c) of the IRPA.
[4]
On
March 19, 2010, the IAD dismissed the appeal, concluding that the
humanitarian and compassionate considerations cited by the applicant did not
warrant special relief. That determination regarding humanitarian and
compassionate considerations is the subject of this application for judicial
review.
III. Facts
[5]
The
applicant, Artur Kacprzak, is a citizen of Poland. He arrived
in Canada in 1991 at
the age of 14. He is now 33 years old and has permanent resident status in
Canada.
[6]
The
applicant has no dependants at present: he has no children and is not married.
[7]
On
April 6, 2001, the applicant pleaded guilty to:
a. two counts of
robbery under paragraph 344(1)(b) of the Criminal Code, RSC
1985, c C-46;
b. one count of
conspiracy to commit robbery under paragraph 465(1)(c) of the Criminal
Code; and
c. one count of
using an imitation firearm in the commission of an indictable offence under
paragraph 85(2)(a) of the Criminal Code.
[8]
Also
on that date the applicant was sentenced to imprisonment for two months to be
served concurrently for the three counts of robbery and conspiracy and to
imprisonment for one year, consecutive, for using an imitation firearm in the
commission of an indictable offence, followed by probation for two years.
[9]
On
April 26, 2001, the applicant also pleaded guilty to one count of
possession of cocaine for the purposes of trafficking under paragraph 5(2)(3)(a)
of the Controlled Drugs and Substances Act, SC 1996, c 19 and one count of
possession of methadone under paragraph 4(1)(4)(a) of that Act.
[10]
The
applicant was then sentenced to imprisonment for four months concurrent,
followed by probation for two years.
[11]
On
November 16, 2001, two 27 reports were written under the former Immigration
Act, RSC 1985, c 12, concerning the possibility that the applicant was
inadmissible.
[12]
The
27 reports were not referred for an inquiry, because the Minister’s
representative made a positive recommendation regarding the applicant, who had
expressed remorse and undertaken to stay away from criminal activities.
[13]
On
November 16, 2001, however, the applicant was informed by letter that any
further offence could be reported under the Immigration Act.
[14]
Notwithstanding
the Minister’s favourable recommendation, and during his periods of probation,
the applicant was nonetheless involved in at least one other incident.
[15]
As
a result of an incident that occurred on September 2, 2002, the applicant
was convicted of possession of heroine for the purposes of trafficking, under
paragraph 5(2)(3)(a) of the Controlled Drugs and Substances Act.
That offence is punishable by imprisonment for life.
[16]
On
October 6, 2004, the applicant was given a conditional sentence of imprisonment
for two years less a day, to be served in the community, followed by probation
for three years.
[17]
As
a result of that same incident of September 2, 2002, the applicant was also
convicted of possession of cocaine, also for the purposes of trafficking, under
the same paragraph of the Controlled Drugs and Substances Act.
[18]
On
October 5, 2005, a 44 report was filed stating that the applicant was
inadmissible on the grounds of serious criminality.
[19]
On
March 16, 2009, an inquiry was held by the ID, which concluded that because of
the offences committed and the sentences imposed, the applicant was in fact
inadmissible on the grounds of serious criminality under paragraph 36(1)(a)
of the IRPA. A deportation order was therefore made by the ID.
[20]
The
applicant appealed the removal order to the IAD under paragraph 36(1)(a)
of the IRPA. A deportation order was therefore made by the ID.
[21]
The
applicant appealed the removal order to the IAD under subsection 63(3) of the
IRPA. The applicant did not dispute the legality of the removal order; rather,
he cited humanitarian and compassionate considerations.
[22]
The
appeal was heard on February 10, 2010, and it was dismissed on March 19, 2010.
The IAD examined the relevant criteria as set out in Ribic, above, and
concluded that the applicant had not shown circumstances to warrant special
relief. It is that decision by the IAD that is now challenged in the
application for judicial review.
IV. Issue
[23]
Is
the decision of the IAD reasonable?
V. Analysis
[24]
The
Court agrees with the respondent that the decision of the IAD is reasonable,
for the reasons that follow.
[25]
Subsection 63(3)
of the IRPA allows for an appeal to the IAD from a removal order made at an
examination or a hearing before the ID.
[26]
Under
paragraph 67(1)(c) of the IRPA, the IAD has discretion to allow an
appeal even if the removal order is valid where the applicant establishes that
there are humanitarian and compassionate considerations that warrant special
relief.
[27]
In
this case, on appeal, the applicant did not challenge the validity of the
removal order; his appeal to the IAD was based solely on humanitarian and
compassionate considerations.
[28]
The
factors to be considered by the IAD in its assessment for the purpose of
determining whether it should exercise its discretion were set out by the
Immigration Appeal Board in Ribic, above, and approved by the Supreme
Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration),
2002 SCC 3, [2002] 1 S.C.R. 84, Al Sagban v Canada (Minister of Citizenship and
Immigration), 2002 SCC 4, [2002] 1 S.C.R. 133 and, more recently, in Khosa,
above. It is settled law that these factors are not exhaustive and the weight
to be given to each of them may vary depending on the circumstances of the
case.
[29]
The
relevant factors set out in Ribic, above, are the following:
a. the
seriousness of the offence leading to the removal order;
b. the
possibility of rehabilitation;
c. the length of
time spent in Canada and the
degree to which the applicant is established;
d. family in Canada and the
dislocation to that family that deportation of the applicant would cause;
e. the support
available for the applicant not only within the family but also within the
community; and
f.
the
degree of hardship that would be caused to the applicant by his return to his
country of nationality.
[30]
In
this case, the IAD said specifically, at paragraph 5 of its decision, that
the factors in Ribic were considered in reaching the final conclusion
that there were no circumstances that warranted special relief. It also said,
in the same paragraph, that it was fully aware that those factors are not
exhaustive and that the weight to be given to each of them may vary depending
on the circumstances of the case.
[31]
There
was no error regarding the test used by the IAD to assess the humanitarian and
compassionate considerations in the case.
[32]
Moreover,
the IAD’s assessment of humanitarian and compassionate considerations is a
discretionary decision that clearly falls within its expertise (Gonzalez v Canada (Minister of
Citizenship and Immigration), 2006 FC 1274, 302 FTR 81, at para 21).
[33]
It
is settled law that this Court must show great deference on judicial review and
ask itself whether the findings of fact are unreasonable:
[12] It is well-settled that the IAD’s decisions based on findings of
fact cannot be set aside unless they meet the criteria set out in section
18.1(4)(d) of the Federal Courts Act, which provides that the Court may
set aside a decision of the tribunal if the decision is based “on an erroneous
finding of fact that it made in a perverse or capricious manner or without
regard for the material before it.” Traditionally,
the standard of patent unreasonableness has been applied to questions of this
kind. In light of Dunsmuir, supra, and the degree of deference
that is to be afforded to the IAD’s credibility findings and findings of fact,
I find that the applicable standard of review of the Decision is reasonableness. As stated by the Court in Dunsmuir, supra, at para.
47, this standard “is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law. Thus,
the Decision should stand unless I find that, with regard to the facts and law,
the Decision falls outside the “range of possible, acceptable outcomes.”
...
[18] The Applicant has made a number of submissions which, in my view,
merely suggest that she disagrees with the findings of the IAD. She has not
established that the IAD ignored or misconstrued evidence before it, thereby
basing its Decision on an erroneous finding of fact or without regard to the
material before it. It is important to remember that the IAD’s Decision whether
or not to grant H&C exemption from the provisions of the Act is a
discretionary one and requires due deference from the Court. [Emphasis added.]
(Barm v Canada (Minister of
Citizenship and Immigration), 2008 FC 893, 169 ACWS (3d) 171).
[34]
For
these reasons, therefore, this Court should not undertake a reassessment of the
evidence in a judicial review application and substitute its opinion for the
opinion of the IAD:
[51] An analysis of his allegations reveals that he wishes the Court to
re-weigh the evidence. The problem with this argument is that courts on
judicial review cannot simply re-weigh the evidence and substitute their
opinions unless the decision does not, according to Dunsmuir, supra,
“falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law”; or, if you wish,
constitutes perverse and capricious findings under paragraph 18.1(4)(d)
of the Federal Courts Act (Sahil v. Minister of Citizenship and
Immigration, 2008 FC 772, at paragraphs 9 and 10; Matsko
v. Minister of Citizenship and Immigration, 2008
FC 691, at paragraph 8; and Barm v. Minister of Citizenship and Immigration
2008 FC 893, at paragraph 12). [Emphasis added.]
(Sharma v Canada (Minister of
Citizenship and Immigration), 2009 FC 277, 2009 FCJ 339 (QL/Lexis); see
also Barm, above; Wang v Canada (Minister of
Citizenship and Immigration), 2005 FC 1059, 277 FTR 216).
[35]
With
respect to the assessment of the facts or the evidence in this case, it is clearly
apparent from the reasons for decision that the IAD assessed the oral and
written testimony and the other evidence presented. The IAD considered all the
relevant factors and gave them the appropriate weight. The detailed reasons
indicate an exhaustive analysis of the evidence presented and do not disclose
any error.
Possibility
of rehabilitation
[36]
Counsel
for the applicant alleged (Applicant’s Memorandum, at paras. 15-27), that the
IAD had to take the possibility of rehabilitation into account and did not do
so. He alleged (Applicant’s Memorandum, at paras. 19-22) that the IAD made
no reference in the decision to the subject of heroin and that the IAD had an
obligation to take into account the applicant’s dependence on that strong drug.
[37]
Those
allegations are not correct; the IAD took the specific offence of possession of
heroin for the purpose of trafficking into account and if we read the decision
as a whole it is clear that the member was aware of the applicant’s addiction
problems.
[38]
Those
factors were considered by the IAD (Decision, at paras. 7-9 and 14-21). The
IAD referred to the applicant’s various offences, the circumstances surrounding
the offences, and even the fact that, in the IAD’s opinion, the applicant had
been treated with considerable indulgence by Citizenship and Immigration Canada
(CIC). The IAD also referred to the various treatments the applicant had
undergone, the efforts he had made and the consequences of his drug use for the
people close to him.
[39]
The
fact is that in April 2001, the applicant was convicted of two counts of
robbery, one count of conspiracy to commit robbery and another count of using
an imitation firearm in the commission of an indictable offence.
[40]
The
circumstances of those crimes indicate that the robbery victims were preparing
to make a commercial deposit at the bank when they were robbed of several
thousand dollars and threatened by the applicant and his co-conspirator (Decision,
at para. 14).
[41]
The
applicant was then given concurrent sentences of imprisonment for four months
followed by probation for two years.
[42]
Following
those first offences, CIC wrote a report, but did not refer the applicant for
an inquiry; it gave him a chance because he undertook to stay away from
criminal activities, he showed remorse, and he was going to enter an addiction
treatment program.
[43]
The
applicant was also informed in November 2001 of the consequences for his
permanent resident status if he were to go back to criminal activities, because
any further offence would be reported under the Immigration Act then in
force (Decision, at paras. 10-11).
[44]
Notwithstanding
the privilege he was given, the applicant fell back into criminal activities
almost immediately.
[45]
In
fact, as a result of an incident that occurred on September 2, 2002, he was
convicted of possession of heroin for the purposes of trafficking (Decision, at
paras. 7-8).
[46]
At
the time of that crime, (1) the applicant had already been informed by CIC that
any further offence would be reported under the Immigration Act; (2) he
was on probation for the crimes committed in 2001; and (3) he was also
awaiting trial for possession of cocaine for the purposes of trafficking in
connection with another incident that occurred before September 2, 2002.
[47]
The
applicant then entered an eight-month residential program at Addington House that
ended in 2003.
[48]
On
October 6, 2004, the Court of Québec sentenced him in connection with the
incidents that had preceded the residential treatment program. The Court was
informed of the eight-month treatment program at that time, and of the fact
that the applicant did not then seem to be a danger to the community.
[49]
The
applicant was then given a conditional sentence of imprisonment for two years
less a day to be served in the community, followed by probation for three years.
[50]
The
IAD said in its decision that that sentence should have been the end of the
applicant’s criminal activities. It also said that when an immigration officer
called him in for interview and for a 44 report to be written in October 2005
based on inadmissibility on the grounds of serious criminality, this should
have been an incentive to stay away from drug use and other criminal
activities. Unfortunately, that is not what happened (Decision, at para. 16).
[51]
First,
the applicant did not stay away from drug use, and second, he was arrested
again for possession of cocaine and heroin in March 2009. Although those charges
had not yet been dealt with by the Court of Québec, Criminal Division, at the
time of the hearing before the IAD, the applicant admitted to the IAD that he
had committed them (Decision, at paras. 17-18).
[52]
The
applicant also entered four more treatment programs, in 2007, 2008, April 2009 and
December 2009 (Decision, at para. 17).
[53]
As
the IAD noted, at paragraphs 20 and 21 of its decision, even the
applicant’s mother stated, in April 2009 and January 2010, that she was afraid
of the applicant and no longer wanted her son to live with her as long as he
was using drugs.
[54]
Accordingly,
the IAD was not unreasonable in finding that the applicant had had several
opportunities and incentives to rehabilitate himself in the last five years and
had made no progress.
[55]
Having
regard to the number of offences and the fact that they were virtually
continuous, and having regard to the number of treatment programs
unsuccessfully completed, the IAD’s conclusion is certainly not unreasonable:
the applicant did not establish the possibility of rehabilitation.
[56]
In
fact, as the IAD noted, he has made no progress in this regard. It is apparent
that it was not established to the IAD, on a balance of probabilities, that the
applicant was being rehabilitated.
[57]
In
fact, the applicant’s most recent treatment was in December 2009 and the
hearing before the IAD was in February 2010. The two months away from drug
use were plainly not sufficient to establish the beginnings of rehabilitation,
having regard, in particular, to the applicant’s history of drug use, treatment
and relapse.
[58]
This
is clearly a matter of assessment of the facts. The IAD heard the applicant. It
is a specialized tribunal, one of whose primary tasks is precisely to assess
the possibility of rehabilitation after the commission of crimes. In this case,
it was plainly in a better position than this Court to assess the seriousness
of the offences and the possibility of rehabilitation in the applicant’s case,
having regard to the other circumstances of the case.
[59]
It
was up to the applicant or his former counsel to establish that he was in the
process of being rehabilitated or that he was well integrated into Canadian
society.
[60]
As
counsel for the applicant said, the offences that the applicant committed were
connected with his drug problems.
[61]
Insofar
as those drug problems had continued up to two months before the hearing before
the IAD, there is nothing to indicate that the criminal activities connected
with the drug problems were completely at an end. The IAD’s conclusion is not
unreasonable.
Time spent in
Canada and degree
to which the applicant is established
[62]
Counsel
for the applicant alleged that the IAD did not consider the applicant’s curriculum
vitae, showing his employment from 1996 to 2009, other than the employment for
which he introduced documentary evidence.
[63]
It
should be noted that the applicant has no dependants, neither a wife nor
children, and to date he seems to have held only precarious employment.
[64]
In
fact, the IAD noted the following in relation to the applicant’s degree of
establishment:
[4] The appellant was born in Poland on September 2, 1977, and he
was landed with his mother on September 25, 1991. The appellant was never
married and he has no children.
…
[12] … Upon their arrival in Canada, the family, minus the
stepfather who remained in Germany, lived with the appellant’s
maternal grandparents in Trois-Rivières where he went to high school. He
continued his high school studies in Montreal and finished them in Ontario. His English is excellent and
he speaks French well.
[13] Upon his return from Ontario, he worked as a courier and
eventually delivered drugs. He also started using them which explains his
convictions. The robbery was committed to help pay off his drug debts.
…
[19] The appellant testified that
since April 2009, he has been benefiting, for the first time in his life, from
social assistance. The documentary proof of the appellant’s work record shows
that in 2008 he earned $5,539.28 and that he made $1,713.49 in 2009.
[65]
The
IAD also stated, in footnote 34 to the decision, that the applicant’s curriculum
vitae also showed other employment.
[66]
It
is therefore incorrect to say that the IAD did not consider the applicant’s
employment, since, on the contrary, it referred to it more than once.
Unfortunately, the applicant’s evidence on this point does not show that, at
his age, he is able to support himself or is becoming able to do so.
[67]
Apart
from his curriculum vitae and the evidence of employment income, the applicant
submitted nothing else relating to his integration into Canadian society,
although he had the burden of proof. The case law is very clear on this point:
[29] With regard to the burden of proof, as this Court recently pointed
out in Bhalru v. Minister of Citizenship and Immigration,
2005 FC 777, the person relying on paragraph 67(1)(c) is seeking
a discretionary privilege and has the burden of establishing that there are
exceptional grounds justifying that he be allowed to remain in Canada:
[16] In
Prata v. Canada (Minister of Manpower and Immigration) [[1976] 1 S.C.R. 376
at page 380], the Supreme Court of Canada stated that a removal order
"establishes that, in the absence of some special privilege existing, [an
individual subject to a lawful removal order] has no right whatever to remain
in Canada. [An individual appealing a lawful removal order]
does not, therefore, attempt to assert a right, but, rather, attempts to obtain
a discretionary privilege."
[17] As
a person seeking "special relief" or a discretionary privilege, the
onus was on Mr. Bhalru to establish exceptional reasons why he should be
allowed to remain in Canada (Chieu v. Canada (M.C.I.) [[2002] 1 S.C.R.
84].
(Camara v Canada (Minister of
Citizenship and Immigration), 2006 FC 169, [2006] FCJ No 222 (QL/Lexis); see
also Bhalru v Canada (Minister of
Citizenship and Immigration), 2005 FC 777, 139 ACWS (3d) 920, at para
17; Arthur v Canada (Minister of
Citizenship and Immigration) (2000), 105 ACWS (3d) 927, [2000] FCJ No
1286 (QL/Lexis)).
[68]
The
IAD cannot be criticized for failing to consider evidence that was not
submitted to it. Having regard to the little evidence provided by the applicant
concerning his integration into Canadian society, the IAD’s conclusion is not
unreasonable, in particular if we take into account all the circumstances of
the case.
Family in Canada and the dislocation to that family that
deportation of the applicant would cause, and the degree of hardship that would
be caused to the applicant by his return to his country of nationality
[69]
Counsel
for the applicant addressed the foregoing two factors as a unit. He cited
various facts found in the record and alleged that the IAD should not have
concluded that separation of the applicant from his family would be without
consequences, in particular because speaking several languages would not be
sufficient in Poland and because the IAD acknowledged that the applicant would
likely be alone in Poland. He argued that the IAD had not had sufficient
regard to the dislocation to the applicant’s family.
[70]
First,
all of the facts cited by the applicant and referred to by the IAD were
relevant for assessment of the criteria set out in Ribic, above. What
the applicant is challenging is solely the weight given to them by the IAD.
[71]
The
weight to be given to the various factors was up to the IAD and it was up to
the applicant to establish that certain factors should be given more weight
than others, which the applicant did not do. In the circumstances, the IAD did
its own assessment of the facts and gave weight to the various factors as it
considered appropriate. As noted earlier, that approach was approved by the
Supreme Court of Canada in Khosa, above.
[72]
When
the decision is read in its entirety, it must be concluded that it is not
unreasonable and falls within the range of acceptable outcomes of the case.
[73]
In
fact, it is clear from this decision that the applicant has no spouse or
children. He lived with his mother in Canada but has not lived with
her since April 2009. His mother is afraid of her son when he takes drugs. Of
course, it is admitted that she is also afraid for him. As the IAD said in its
decision, she is afraid that her son will die while using drugs.
[74]
The
applicant now lives with his grandmother, who is 71 years old. She
testified on his behalf and said she is not afraid of him and he is not
aggressive. She also reported what was said by her daughter, the applicant’s
mother, who is afraid of her son and also afraid for him.
[75]
The
applicant has a 16-year-old brother who was born in Canada. He wrote a
letter that was submitted to the IAD. In it, he stated that he loves his
brother and needs him.
[76]
The
IAD said in its reasons that the 16-year-old brother lives with the applicant’s
mother and her spouse and the spouse is doing an excellent job of being an
example for the younger brother.
[77]
The
applicant’s sister gave birth to a daughter in February 2010 and her life
goes on in the applicant’s absence.
[78]
It
is clear from the evidence that the family members who do associate with the
applicant have not been able to supervise him to prevent him from committing
offences or falling back into drug use.
[79]
As
well, the IAD said in its reasons that according to the addiction worker’s
report, it could be beneficial for the applicant to gain autonomy by living
alone and making his own decisions.
[80]
The
applicant testified before the IAD that he did not want to be sent back to Poland, because he
does not read or write Polish.
[81]
The
IAD noted, however, that he had said in his curriculum vitae that he spoke
Polish, German, English and French, and that he described himself in it as a
person with numerous resources who enjoys challenges and finds solutions to all
problems.
[82]
The
IAD admitted that the applicant would be alone in Poland since he had
only a few family members still there, and thus acknowledged that there would
be a degree of hardship for the applicant if he went to Poland.
[83]
The
IAD concluded, however, that this hardship was far from sufficient to attract
the IAD’s compassion and grant him an additional stay of removal since had had
already had clemency from CIC and had never used it to rehabilitate himself. It
reiterated that the applicant had had numerous chances to rehabilitate himself
and incentives to do so, but had made no progress.
[84]
It
should be noted that the burden of proof rested on the applicant, and that
having regard to the evidence he submitted, the IAD’s conclusion is not unreasonable
in itself. In fact, it is clear from the record that the applicant is not
supporting anyone, either financially or otherwise. It is clear from the record
that although he is 33 years old, the only thing he creates around him at
present is concern on the part of the people who love him, such as his mother
and grandmother. No one relies on him, and accordingly it seems that the only
hardship that will be caused for the applicant’s family is to be separated from
him by a greater distance.
The support available for the applicant
not only within the family but also within the community
[85]
The
applicant has always had support available from his family, including his
mother. He argues that the fact that she has refused to lend him money is, in
the circumstances of the case, an indication of a degree of support.
[86]
The
support of the applicant’s mother and grandmother was considered at length by
the IAD in its decision.
[87]
It
is admitted that there is a degree of support available for the applicant from
his mother and support available from his grandmother.
[88]
However,
the IAD assessed all of the circumstances of the case, including the fact that
the applicant is in his thirties, his numerous chances for rehabilitation that
he did not avail himself of, his numerous treatment programs, the report of the
addiction worker saying it would be good for the applicant to start looking
after himself, and his ability to speak several languages, including Polish.
[89]
The
IAD therefore concluded that all the circumstances of the case did not warrant
special relief to allow him to remain in Canada. In the
circumstances, that final conclusion is certainly not unreasonable.
[90]
In
his memorandum, counsel for the applicant also made a general argument that
does not specifically address the factors assessed by the IAD. Counsel for the
applicant alleged, first, that the IAD exhibited [TRANSLATION] “bias” and did
not act in good faith.
[91]
That
argument is without basis. An allegation of bias or bad faith is a very serious
assertion that must be supported by the evidence and cannot be based on mere
suspicion or insinuations:
[15] With
respect to the concept of reasonable apprehension of bias, I refer to the
comments of my colleague Mr. Justice Beaudry in Fenanir v. Canada (Minister of Citizenship and
Immigration) 2005 FC 150, at paragraphs 10, 11, 12 and 14 of his decision:
...
[12] In Arthur v. Canada (Attorney General), [2001] F.C.J. No. 1091
(F.C.A.) (QL), 2001 FCA 223, we read the following at paragraph 8:
... An allegation of bias, especially
actual and not simply apprehended bias, against a tribunal is a serious
allegation. It challenges the integrity of the tribunal and of its members who
participated in the impugned decision. It cannot be done lightly. It cannot
rest on mere suspicion, pure conjecture, insinuations or mere impressions of an
applicant or his counsel. It must be supported by material evidence
demonstrating conduct that derogates from the standard. ...
(Acuna v Canada (Minister of
Citizenship and Immigration), 2006 FC 1222, 303 FTR 40).
[92]
The
applicant did not provide any concrete or specific example in his affidavit of
any inappropriate conduct or comment on the part of the IAD that would have
suggested that it was biased. This is a speculative allegation that is unfounded
and for which there is no support.
[93]
Because
the applicant did not see fit to introduce the transcript of the hearing held
before the IAD, there is nothing in the record to suggest that the decision was
made on the basis of prejudice, bias or bad faith.
[94]
Accordingly,
since the applicant has provided no evidence to support the allegation of bias
and prejudice, that argument is unfounded and must be ignored by this Court.
[95]
Plainly,
the applicant has stated his disagreement with the decision of the IAD but has
presented no sound argument showing any error. The intervention of the Court is
therefore not warranted.
VI. Conclusion
[96]
For
all of the foregoing reasons, the applicant’s application for judicial review
is dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that the application for judicial review is dismissed. There
is no question to be certified.
“Michel M.J. Shore”
Certified
true translation
Susan
Deichert, Reviser
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