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September 16, 2003

Keller v. Canada (Minister of Citizenship and Immigration), 2003 FC 1063 (CanLII)

Date: 20030916   Docket: IMM-6833-03   Citation: 2003 FC 1063   Toronto, Ontario, September 16th, 2003   Present:          The Honourable Madam Justice Layden-Stevenson     BETWEEN:   VOLODYMYR KELLER   Applicant and     THE MINISTER OF CITIZENSHIP AND IMMIGRATION   Respondent     REASONS FOR ORDER AND ORDER     [1]                Mr. Keller requests that I stay his deportation to the Ukraine scheduled for September 17, 2003 pending determination of his application for leave for judicial review of a negative decision of a Pre-Removal Risk Assessment (PPRA) officer dated August 20, 2003.   [2]                Mr. Keller, a Ukranian citizen, claimed refugee status on the basis of his Romani ethnicity. His application was refused because he failed to establish his ethnic identity. Leave to apply for judicial review of that decision was refused.   [3]                Mr. Keller then applied for a PRRA and submitted two statutory declarations and further documentary evidence. He takes issue with the "scope of the assessment" of the PRRA officer. He says that the officer failed to consider the statutory declarations that supported his identity as a Roma. Additionally, the officer failed to link his personal situation to the objective evidence. Although not contained in his written submissions, he argued orally that the PRRA officer should have held an oral hearing as set out in subsection 113(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and section 167 of the Immigration and Refugee Protection Regulations SOR/2002-227 (the Regulations).   [4]                I have determined that the motion must be dismissed because no serious issue has been raised. It is important that Mr. Keller recognize that the PRAA officer made two determinations. The first related to identity and the second related to state protection.   [5]                I agree with the respondent that the statutory declarations in issue do not come within the meaning of "new evidence" as set out in subsection 113(a) of IRPA. However, the officer did not rely on that and after reviewing Mr. Keller's application and submissions, she determined that he had not provided sufficient evidence or explanations to persuade her to come to a conclusion different from that of the IRB. Thus, in relation to the issue of ethic identity, the officer found insufficient evidence of it. The weighing of evidence is for the PRRA officer. No serious issue exists in this respect.   [6]                Regarding the second allegation of failure to link the personal situation to the objective evidence, the officer, notwithstanding that she was not persuaded that Mr. Keller was a Rom, approached the matter as if he were and concluded that state protection was available. In that respect, she did consider Mr. Keller's personal situation in light of the documentary evidence. After a cogent and comprehensive review and analysis of the documentary evidence and the applicant's specific allegations, she concluded that state protection was available. I see no serious issue arising from her conclusion.   [7]                Finally, in relation to the failure to hold a hearing, the PRRA officer did not determine that Mr. Keller was not truthful. Rather, she determined that there was insufficient evidence before her to conclude that he was a Rom. In examining the availability of state protection, as stated above, she proceeded on the basis that he was a Rom. The finding with respect to the availability of state protection is determinative.   [8]                Since Mr. Keller has failed to establish the existence of a serious issue and since the tri-partite test enunciated in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 is conjunctive, this deficiency is dispositive.   ORDER THIS COURT ORDERS that the motion is dismissed. "Carolyn Layden-Stevenson" J.F.C.   FEDERAL COURT Names of Counsel and Solicitors of Record DOCKET:                                           IMM-6833-03   STYLE OF CAUSE:                         VOLODYMYR KELLER For the Applicant   and   THE MINISTER OF CITIZENSHIP AND IMMIGRATION For the Respondent   DATE OF HEARING:                        SEPTEMBER 15, 2003   PLACE OF HEARING:                      TORONTO, ONTARIO   REASONS FOR ORDER AND ORDER BY:                               LAYDEN-STEVENSON J.   DATED:                                                SEPTEMBER 16, 2003   APPEARANCES BY:                         Mr. Ricardo Aguirre     For the Applicant Mr. Jeremiah Eastman   For the Respondent   SOLICITORS OF RECORD:          Mr. Ricardo Aguirre Barristers & Solicitors Toronto, Ontario For the Applicant   Morris Rosenberg Deputy Attorney General of Canada   For the Respondent         FEDERAL COURT     Date: 20030916   Docket: IMM-6833-03       BETWEEN:       VOLODYMYR KELLER   Applicant   and       THE MINISTER OF CITIZENSHIP AND IMMIGRATION   Respondent               REASONS FOR ORDER AND ORDER

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