Samoylenko v. Canada ( Minister of Citizenship and Immigration )
IMM-1340-95 / IMM-1341-95 / IMM-1342-95 / IMM-1344-95
Gibson J.
5/7/96
9 pp.
Judicial review of decision applicants not members of post-claim determination refugee claimants in Canada class (PDRCC)-Applicants Israeli citizens under law of return-Former residents of Ukraine, but renounced Soviet citizenship before Ukraine gaining independence-Israeli citizenship obtained on basis of misrepresentation; principal applicant facing serious criminal charges arising out of former service in KGB in Ukraine-Convention refugee status claims rejected-Applying for leave to apply for landing from within Canada as members of PDRCC class-Membership therein defined as immigrant who, if removed, would be subjected to objectively identifiable risk to life, extreme sanctions against immigrant, or of inhumane treatment-Tribunal accepting CRDD's expert assessment, noting insufficient evidence to support assertions, no evidence removal from Israel will occur-Applicants alleging tribunal exercising discretion in patently unreasonable manner as failed to respond to counsel's offer to provide further documentation to support applicants' fears that, if returned to Israel, would be stripped of citizenship, deported to Ukraine where principal applicant would face extreme sanctions, possibly inhumane treatment-Application dismissed-Onus on applicants to make out case-No onus on tribunal to request further documentation-No reviewable error in failing to respond to counsel's let ter-Open to tribunal to consider CRDD's decision in reaching own decision-Applicants submitting five questions with multiple subquestions for certification-General principle established by Immigration Act, s. 83(1) that Trial Division decisions on applications for judicial review of decisions or orders made under Immigration Act not subject to appeal to Federal Court of Appeal-Certification process exception-Should not be used to circumvent general rule-Use should be restricted to circumstances where specific question that is both serious and of general importance, and that will be determinative of appeal identified-Here counsel recommending certification of questions covering whole range of issues pleaded before Trial Division-At least some of issues case specific, not transcending interests of litigants-Many not contemplating issues of broad significance or general application-Some raising issues well settled in law-Essentially counsel seeking to circumvent general rule established by s. 83(1), reopen whole of matter heard herein as if unfettered right of appeal, virtually in nature of trial de novo-No question certified-Immigration Regulations, 1978, SOR/78-172, s. 2 (as am. by SOR/93-44, s. 1)-Immigration Act, R.S.C., 1985, c. I-2, s. 83 (as am. by S.C. 1992, c. 49, s. 73).