Date: 20031118
Docket: IMM-7634-03
Citation: 2003 FC 1359
BETWEEN:
ELEMER BURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
von FINCKENSTEIN J.
[1] The applicant claims to face the risk of cruel and unusual punishment or torture if returned to Hungary. He was denied Convention Refugee status on February 19th, 2001 on the basis that he had failed to establish that he was of Romany descent as he claimed. The Minister refused his application for a humanitarian and compassionate exemption in July 2003.
[2] In June 2003, a Pre-Removal Risk Assessment (PRRA) Officer considered the applicant's case. In a decision dated June 5th, 2003, the officer found that the applicant had failed to provide sufficient credible and trustworthy evidence to rebut the finding reached by the Convention Refugee Protection Division (CRDD) that he was not Rom. As a result, the PRRA application was refused and a removal order was issued. On October 1st, 2003 the applicant filed an application with this Court for leave to commence judicial review of the officer's decision. In this motion, the applicant seeks a stay of the removal order pending the outcome of his leave application.
[3] The applicant takes issue with the officer's finding that he is not a Rom. He argues that, in reaching this decision, the officer failed to consider relevant evidence, took into account irrelevant considerations, improperly relied upon the decision of the CRDD and erred in his interpretation of section 97 of the Immigration and Refugee Protection Act, R.S.C. 2001, c.27. In addition, the applicant submits that the officer failed to grant him an oral hearing when obliged to do so.
[4] In Toth v. Canada (M.E.I.) (1989), 6 Imm. L.R. (2d) 123, the Federal Court of Appeal set out three requirements that an applicant must meet in order to be granted a stay. The applicant must successfully demonstrate that his application raises a serious issue, that he will suffer irreparable harm if the stay is not granted and that the balance of convenience favours the granting of the stay.
[5] The applicant has failed to provide this Court with evidence that there is a serious issue to be tried. Having considered the relevant evidence before her, including the decisions of the CRDD and the Minister, the PRRA officer reasonably concluded that the applicant had failed to establish his identity as a Rom. The issue of the applicant's identity has now been considered three times. It is not the role of this court to re-weigh evidence that was before the CRDD, the Minister and the PRRA Officer.
[6] As to the need for an oral hearing, the case of Olah v. Canada (M.C.I.) 2003 FC 1125 makes it quite clear that the need for an oral hearing depends on the particulars of each case. In my view this is not a case where an oral hearing was required in light of the PRAA officer's other findings.
[7] As the applicant has failed to establish that there is a serious issue to be tried, this application is dismissed.
"K. von Finckenstein"
J.F.C.
Toronto, Ontario
November 18, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7634-03
STYLE OF CAUSE: ELEMER BURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 17, 2003
REASONS FOR ORDER BY : von FINCKENSTEIN J.
DATED: NOVEMBER 18, 2003
APPEARANCES:
Mr. Rocco Galati FOR THE APPLICANT
Mrs. Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Galati, Rodrigues & Associates FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT
Date: 20031118
Docket: IMM-7634-03
BETWEEN:
ELEMER BURAI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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