Klais v. Canada (Minister of Citizenship and Immigration), 2004 FC 783

Date: 20040528

Docket: IMM-9756-03

Citation: 2004 FC 783

OTTAWA, Ontario, this 28^th day of May 2004

PRESENT:      THE HONOURABLE MR. JUSTICE PHELAN

BETWEEN:

                                                                  UUDO KLAIS

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]         This judicial review is related to the judicial review in file number IMM-4899-03 and is based on a challenge to the Pre-Removal Risk Assessment ("PRRA") dated March 3, 2003 denying the application on the basis that the Applicant would not be at risk if he were returned to Estonia.

Background

[2]                The Applicant is a citizen of Estonia who arrived in Canada as a visitor in 1998.

[3]                Two months after his arrival he applied for refugee status which was denied. On July 24, 2001 the judicial review was also denied by Mr. Justice McKeown.

[4]                The Applicant's refugee claim was based on his fear of persecution because he was the son of a former German World War II soldier. He alleged that he would be persecuted by members of the Estonian Nazi Party in order to force him to join the Party and donate money.

[5]                The Convention Refugee Determination Division ("CRDD"), in rejecting his refugee claim, found his actions of not seeking refugee status on his repeated trips to Convention countries to be inconsistent with those of a person having a well-founded fear of persecution. The CRDD also found his evidence of harassment not to be credible.

[6]                On April 21, 2001 the Applicant filed an Humanitarian & Compassionate Application based on his degree of establishment in Canada arising from the creation of his fashion studio. He also claimed hardship arising from his same sex relationship which would lead to persecution in Estonia where there is less tolerance of such relationships. That application was denied and judicial review of that decision was dismissed.

[7]                The PRRA Officer relied on the CRDD's reasons for refusing to accept the Applicant's explanation for his lacking corroborating documents and for the finding that he was not credible. The Officer also relied on more recent documentary evidence of "in country" conditions.

Issues

[8]                The Applicant challenges the PRRA decision on two basis:

1.          The failure to properly address the Applicant's true fears and the lack of state protection.

2.         The judicial review raises the issue whether there are different burdens of proof in sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("the Act").

[9]                For reasons herein I find that this judicial review can be disposed of on the first issue without having to consider the issue of burdens of proof.

Analysis

[10]            The basic finding of the PRRA Officer was that the Applicant had provided nothing to be considered that had not already been considered by the CRDD:

I have reviewed all the evidence before me and note the applicant has not provided evidence to address the concerns of the IRB. I am not persuaded to arrive at a different conclusion on the basis of the evidence presented.

[11]            The evidence before the Officer was substantially the same as that which was before the CRDD. It was therefore reasonably open to the Officer to reach the same conclusion.

[12]            The Applicant failed to provide new or supplementary evidence in accordance with section 113 of the Act.

[13]            The PRRA process cannot be turned into a second refugee hearing. The Applicant is merely attempting to reargue before the PRRA Officer the case which he previously had lost.

[14]            I concur with the reasoning in Kaybaki v. Canada (Solicitor General of Canada), [2004] F.C.J. No. 27, 2004 F.C. 32 that the PRRA process is to assess new risk developments between the time of the CRDD hearing and the anticipated removal date.

[15]            Therefore I conclude that there was no reviewable error and consequently the judicial review is dismissed.

                                               ORDER

THIS COURT HEREBY ORDERS THAT:

1.          The application for judicial review is dismissed.

2.          No question will be certified.     

                                                                         (s) "Michael L. Phelan"          

J.F.C.

                                     FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

DOCKET:                                    IMM-9756-03

STYLE OF CAUSE:                    Uudo Klais v. M.C.I.

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:                April 19, 2004

REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Phelan

DATED:                                       May 28, 2004

APPEARANCES:

Mr. Lorne WaldmanFOR THE APPLICANT

Mr. Marcel LaroucheFOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Waldman & AssociatesFOR THE APPLICANT

Toronto, Ontario

Mr. Morris RosenbergFOR THE RESPONDENT

Deputy Attorney General of Canada