Sing v. Canada (Citizenship and Immigration)

Sing v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2007-04-05
Neutral citation
2007 FC 361
File numbers
IMM-2669-06
Notes
Reported Decision
Decision Content
Date: 20070405
Docket: IMM-2669-06
Citation: 2007 FC 361
Ottawa, Ontario, April 5, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LAI CHEONG SING and TSANG MING NA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants Lai Cheong Sing and Tsang Ming Na have applied for judicial review of a PRRA officer’s decision rejecting their PRRA application. The Chinese government has accused the Lais of masterminding a massive smuggling and bribery operation. It wants the couple returned home to face prosecution for their alleged crimes. The Lais, for their part, have consistently maintained that China has fabricated all the allegations against them.
[2] Mr. Lai, his ex-wife Ms. Tsang (they are now divorced), and their three children claimed refugee status in June 2000. After a 45-day hearing, the Immigration and Refugee Board’s Refugee Division (the Board) found the parents were excluded from Convention refugee status under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (the Convention). In any case, the Board also found the parents were not Convention refugees, because there was no nexus between their claims and any Convention refugee grounds. The Board described the couple as criminals fleeing from justice, not persecution. The children’s claims were based on their parents’, and failed accordingly.
[3] In their PRRA application, the Lais made submissions alleging bias, Charter violations, and breaches of procedural fairness. Their submissions on risk included a number of challenges to the Chinese legal system. They maintained the same theory they raised at their Board hearing. They argued they could not get a fair trial in China, and that they faced torture and the death penalty despite a diplomatic note from China assuring the contrary. After a probing review of their submissions, the PRRA officer rejected all of their claims.
[4] The Lais are now challenging the PRRA officer’s decision on many different grounds. This is quite a complex case, raising intricate issues of fact and law which I shall address shortly. I wish to make it clear from the outset that in coming to my decision, I have been governed exclusively by the applicable law and jurisprudence. While I am aware of the extensive media coverage this case has generated, it has been of no concern to me and it had no impact whatsoever on my reasoning.
[5] The children have also applied for a review of their PRRA decision, in the separate but related file IMM-2845-06. My reasons and order in that file are also released today, in separate cover.
[6] Before turning to the facts, I need make one last point. Some of the oral and written evidence before the Board was confidential and protected, and therefore not accessible to the public. However, all the oral submissions were made in open court, and the records from both sides were not sealed or protected. Of course, the material that was protected in earlier instances will remain confidential.
FACTS
[7] The Lais are all citizens of the People’s Republic of China. They arrived in Canada August 14, 1999 and claimed refugee status June 8, 2000. Mr. Lai, the main applicant, based his claim for refugee status on the grounds of political opinion and membership in a particular social group – specifically, successful Chinese businessmen.
[8] In 1999, Chinese authorities received information from an undisclosed source that large-scale smuggling was taking place in the city of Xiamen. As a result, they conducted a major investigation called the “4-20 Investigation” and allegedly discovered a massive smuggling operation headed by the Lais, through their Yuan Hua group of companies. The 4-20 Investigation took place over a couple of years. Investigators detained and interrogated employees of the Yuan Hua companies and various public servants. Dozens of people were arrested, charged and convicted. Some were executed as a result of their involvement.
[9] Upon learning Chinese authorities were looking for them, the Lais fled Hong Kong and came to Canada as visitors. They have never been charged with any crimes. That is because, according to the evidentiary record, people suspected of criminal activity in China are not charged until authorities have them in custody. However, the Lais are subject to the equivalent of arrest warrants. Justice Andrew MacKay discussed this point in his reasons for dismissing the Lais’ application for judicial review of the Board’s decision (Lai v. Canada (Minister of Citizenship and Immigration), 2004 FC 179 at paragraph 17).
[10] In early 2000, three investigators from the 4-20 Investigation Team received letters of invitation from two Vancouver companies with Chinese parent companies – Tricell (Canada) Inc. and Top Glory. Employees from both companies testified before the Board, saying they did not realize who they were inviting – they were just responding to their parent companies’ requests for invitations. The visitors included Mr. Lai Shui Qiang, Mr. Lai’s brother. He has since died in prison.
[11] Once in Canada, Mr. Lai met with the 4-20 investigators, who tried to convince him to return home to China voluntarily. He refused their offer, which included promises to let him keep a portion of his assets and allow his relatives to use their identity documents again. It was only after he met with investigators that Mr. Lai apparently decided to claim refugee status.
[12] Before the Board, Mr. Lai claimed all the allegations against him were concocted. He argued the Chinese government was targeting him for refusing to falsely implicate a man named Li Ji Zhou (Mr. Li) of criminal activity. Mr. Li was a central government official who, according to Mr. Lai, had fallen victim to a power struggle. Because of his refusal, Mr. Lai told the Board, he was now being pursued through false charges of avoiding customs duties on imported foreign goods, ranging from cigarettes to cars, televisions and air conditioners. He was also accused of bribing countless people, including various bureaucrats who worked for customs, as well as Mr. Li himself.
[13] Before the Board, the Lais claimed that if charged with criminal offences in China, they would not get a fair trial. They argued that China’s judicial system is highly politicized and controlled by the central government. They alleged the case against them had already been decided. Indeed, the former Chinese Prime Minister was even quoted as saying, in 2001, that Lai Cheong Sing “deserved to die three times”. The Lais also filed expert evidence on the political and judicial systems in China, documentary evidence on the torture of prisoners, and gave oral evidence.
[14] The Board heard from approximately 25 witnesses during the hearing. The Minister introduced a breadth of evidence, including the testimony of Chinese officials, reports from the 4-20 Investigation, and the Chinese conviction records of people who were allegedly involved in the Yuan Hua smuggling operation. Expert witnesses also provided evidence about the Chinese justice system.
[15] In a 294-page decision, the Board found Mr. Lai and Ms. Tsang were “clearly only fugitives from justice, and nothing else.” The Board did not find either of them credible. On the contrary, it determined they were excluded from claiming refugee status under Article 1F(b) of the Convention because there were serious reasons to consider the two had committed a serious non-political crime outside their country of refuge. There was no suggestion, however, that their three children were in any way involved in the alleged criminal activity.
[16] The Board found Mr. Lai had left a lot of very important information out of his Personal Information Form (PIF). Perhaps most importantly, the Board wrote, Mr. Lai did not mention the core of his fear in his PIF – that the Chinese government wanted him to return to China so it could kill him to hide the fact that the entire 4-20 Investigation was a set-up and a fraud.
[17] The Board also found the 10-month delay between Mr. Lai’s arrival in Canada and his refugee claim suspicious. Looking at the timing of his discussions with the 4-20 Investigation team in Canada, it found Mr. Lai was not truly afraid of Chinese authorities. He practically played “host” to them in Canada, and only claimed refugee status once he realized he could not negotiate a satisfactory arrangement to return home.
[18] The Board concluded the crimes were serious and non-political. It drew an adverse inference from the absence of business documentation that would have established whether the Lais were running legitimate businesses. Indeed, several employees of the Yuan Hua Group and lower-level customs bureaucrats gave detailed accounts about how the smuggling operations were carried out. It appears that when customs officials decided which containers to inspect in Mr. Lai’s container yard, they would let the Yuan Hua companies know. The cargo would then be changed the night before the inspection, from goods subject to high tariffs, to those subject to much lower tariffs. Staff at the container yard would also replace the actual commercial seals with fake ones, to agree with the fake documentation for the replacement goods in the inspected containers.
[19] The Board also found that when Mr. Lai decided to give someone a “loan”, he paid little attention to whether he would ever be repaid. He never asked “loan” recipients for business proposals, and did not put any of the agreements into writing. The Board found that sometimes, Mr. Lai did not even know the person receiving his money, and thus concluded the payments looked more like bribes than loans.
[20] Indeed, Mr. Li Ji, the senior bureaucrat to whom I referred at paragraph 12, gave evidence to the Board saying he believed he was receiving bribes from Mr. Lai. He also gave Mr. Lai consideration for the money in two known incidents. First, he helped Mr. Lai get a special licence to travel between mainland China and Hong Kong. Second, he helped one of Mr. Lai’s friends avoid criminal charges when marine police seized a 30,000 tonne diesel shipment.
[21] There was also much discussion at the Board hearing about a diplomatic note from China to Canada. In the note, China wrote that it would not sentence Mr. Lai or Ms. Tsang to death for crimes they committed before their repatriation. Nor would the Chinese government torture them upon their return. John Holmes, Director of the United Nations Criminal and Treaty Law Division in the Department of Foreign Affairs and International Trade, gave expert evidence to the Board about the note. He testified that a diplomatic note, though not binding at international law, is the highest level of agreement between states aside from a treaty. He said it would be extremely unusual for a state to breach such a commitment, because it would undermine its credibility. He added that of dozens he had seen in his career, the Chinese government had never violated the substance of any of its notes. He also was not aware of a situation where the Canadian government had not relied on a note of this type. Based on that evidence, the Board found China would honour its assurances about both torture and the death penalty.
[22] As for Ms. Tsang, the Board found she played a major role in running the Yuan Hua companies. For example, there was evidence she was one of only three people with signing authority. This conflicted with her testimony that she knew nothing about how the Yuan Hua companies were run.
[23] The Board also went through the immigration applications Ms. Tsang had submitted for herself and her children, long before they fled to Canada and claimed refugee status. She had applied as an entrepreneur, and applied on her children’s behalf for visas. The Board said she, at best, was indifferent about whether the information she gave Canadian immigration authorities was true.
[24] On the basis of the foregoing, the Board excluded the Lais from refugee status, pursuant to Article 1F(b) of the Convention. Mr. Lai was excluded for both bribery and smuggling, while Ms. Tsang was only excluded for smuggling. Since this was determinative of their refugee claim, the Board found it unnecessary to consider fraud charges, as well as allegations that the Lais had committed tax evasion. It also bears noting that only the parents were excluded under Article 1F(b) of the Convention.
[25] Though it was not necessary to consider the couple’s other submissions because they had already been excluded from claiming refugee status, the Board also rejected their claims to be Convention refugees based on political opinion and membership in a particular social group. Since the children’s claims were based on their parents’, their claims were rejected as well.
[26] It is important to note that the Board’s decision was based on the old Immigration Act, which is why it only discussed the applicants’ Convention refugee claims. The Pre-Removal Risk Assessment (PRRA) was introduced when the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) came into force in 2002. The PRRA decision was therefore the first time anyone assessed whether the Lais were persons in need of protection, pursuant to section 97 of the IRPA.
[27] Following the Board’s decision, the Lais applied for leave and judicial review. Leave was granted, but Justice MacKay dismissed the application in Lai v. Canada (Minister of Citizenship and Immigration), 2004 FC 179. He nevertheless certified four questions, which the Federal Court of Appeal eventually answered in the following way (Lai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125 at paragraph 95):
Certified Question #1(a)
In a refugee exclusion case based on Article 1F(b) of the Refugee Convention
a) Where the Minister relies upon interrogation statements produced abroad by foreign government agencies, must the Minister establish those statements were voluntary when made, particularly where there is some evidence of a lack of voluntariness of one or more of the statements, and evidence of torture sometimes used in obtaining statements from persons detained is included in information on general country conditions?
Answer
No. The Minister has the onus to provide credible or trustworthy evidence on which the Board can determine whether a claimant should be excluded from the Convention refugee definition. The Board is not bound by any legal or technical rules of evidence and, in any proceedings before it, it may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances of the case. Statements obtained by torture or other cruel, inhumane or degrading treatment or punishment are neither credible nor trustworthy.
In this case the Minister adduced evidence to show that the foreign statements were credible or trustworthy, including evidence that the statements were given willingly and in accordance with the procedural requirements of Chinese law. There was also before the Board evidence of general country conditions indicating that torture occurs and is not always controlled by the authorities, as well as vague hearsay statements. Based on the entire body of evidence presented, and in the absence of specific evidence that the foreign statements offered by the Minister were obtained by torture, the Board was entitled to admit those statements and conclude that they were obtained voluntarily.
Certified Question #1(b)
In a refugee exclusion case based on Article 1F(b) of the Refugee Convention
b) Is the Minister required to give notice in advance of a hearing, of specific criminal acts alleged against the claimant, or is it sufficient if evidence at the subsequent hearing reveals specifics of criminal acts allegedly committed by the claimant?
Answer
No. The Minister is not required to provide notice of the specific criminal acts alleged against a claimant. Pursuant to section 9 of the former Rules, the Minister is required to specify the parts of Article 1F that are relevant to the claim and to set out briefly the law and facts on which he relies. The Minister is not obliged to provide particulars at the standard that might be required, for example, in a criminal indictment. The notice in this case contained sufficient information to [the] meet the statutory requirement.
The Minister is required to adduce credible or trustworthy evidence at the hearing that is relevant to the questions raised by the exclusionary ground, which is whether there are serious reasons for considering whether a claimant has committed a serious non-political crime outside Canada prior to arrival in this country.
Under the new Act, the Minister is now required to give notice in advance of a hearing in accordance with section 25 of the new Rules. He must also comply with section 29 of the new Rules, which generally require[s] that a claimant be provided with the documents to be relied on by the Minister not later than 20 days before the hearing.
Certified Question # 1(c)
In a refugee exclusion case based on Article 1F(b) of the Refugee Convention
c) Is the Refugee Division required to state in its decision the specifics of criminal acts committed by the claimant?
Answer
No. The Board is not required to state in its decision the specifics of the criminal acts committed by a claimant.
Certified Question # 1(d)
Does the decision of the Supreme Court in Suresh v. M.C.I., [2002] 1 S.C.R. 3, providing for separate assessment of a foreign state’s assurance to avoid torture of returned nationals, apply where there is some evidence of generalized resort to torture in the foreign state, or only where there is evidence reasonably indicating resort to torture in similar cases?
Answer
The Panel declines to answer this question on the basis of the analysis earlier articulated in these reasons for judgment.
[28] The Supreme Court of Canada denied leave to appeal the Federal Court of Appeal’s decision on September 1, 2005 (Lai v. Canada (Minister of Citizenship and Immigration), [2005] S.C.C.A. No. 298 (QL)).
[29] On October 12, 2005, an enforcement officer from the Canada Border Services Agency met with the Lais and their counsel. The officer provided each applicant with an amended application for a PRRA, an amended notification regarding the PRRA, and a guide to applying for a PRRA. As I mentioned earlier, this was the first time the alleged risks were assessed under subsection 97(1) of the IRPA, since their refugee claim was determined under the former Immigration Act. Their PRRA application was limited only to the question of whether they were persons in need of protection under subsection 97(1), however, because the Board had excluded them from Convention refugee status under Article 1F(b) of the Convention. According to paragraph 112(3)(c) of the IRPA, an applicant cannot claim refugee status if he or she is excluded under Article 1F.
[30] The Lais accepted the opportunity to apply for a PRRA, but submitted their PRRA should be determined by someone other than a PRRA officer, who acts as a delegate of the Minister of Citizenship and Immigration. They argued the PRRA decision-making process would be inherently fettered, because the Minister had already taken a position on the diplomatic note from China during their Board hearing, arguing in favour of the note’s reliability. Bearing this in mind, the Lais claimed no PRRA officer, as a delegate of the Minister, could decide their application fairly. The officer would be bound to find that the Lais would not be at risk if returned to China, in order to conform with the Minister’s submissions to the Board. The Lais nevertheless submitted their PRRA application on November 10, 2005.
[31] It is worth mentioning that the Minister of Citizenship and Immigration no longer intervenes in refugee hearings before the Board. That role has been transferred to a portfolio agency called the Canada Border Services Agency, which reports to the Minister of Public Safety and Emergency Preparedness. PRRA decisions are still done by officers within the Department of Citizenship and Immigration.
[32] The Lais then sought leave and judicial review of the decision that they had to submit their PRRA application to the Minister. They asked this Court to quash the decision, and declare they had to submit their PRRA application to the Federal Court. They also argued that the requirement under the IRPA of having the Minister determine PRRA applications should be found constitutionally inoperative, or of no force or effect under section 52 of the Charter as a violation of section 7 of the Charter.
[33] My colleague Justice Eleanor Dawson decided the Lais’ application was premature and dismissed it on April 11, 2006 (Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 473). She held, inter alia, that this Court could only supervise the Minister’s decision on the PRRA. It had no jurisdiction to pre-empt the decision itself. In and of itself, section 24 of the Charter does not confer jurisdiction on any court to grant a remedy, if it does not already have that power. She also found that a Charter breach would not exist until a decision adverse to the applicants was made. If they received a negative PRRA decision, then it could be reviewable. At that stage, the Court could canvass the bias allegations with the benefit of the PRRA officer’s reasons. She therefore refrained from making any comment on the strength of the applicants’ case, and dismissed the application.
[34] The PRRA decision was eventually released on May 11, 2006. The officer concluded the Lais were unlikely to face a risk to life, a risk of torture, or a risk of cruel and unusual treatment or punishment if returned to the People’s Republic of China. They were set to be removed June 2, 2006. Mr. Lai then sought a stay of his removal before this Court, which was granted by my colleague Justice Carolyn Layden-Stevenson on June 1, 2006 (Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 672). She found the certified question about torture and diplomatic assurances, which the Federal Court of Appeal had declined to answer, was a serious issue. In coming to that conclusion, she relied on paragraph 94 of the Federal Court of Appeal’s reasons, above, in which Justice Brian Malone stated:
This, of course, is not the end of the review process for the appellants. The next proceeding is the "Pre-Removal Risk Assessment" under section 112 of the new Act, where the question of torture and diplomatic assurances can be fully canvassed along with any new and relevant evidence that may become available. It is also noteworthy that the appellants may also apply to the Minister to stay in Canada on humanitarian and compassionate grounds pursuant to the principles set out in subsection 25(1) of the new Act. The Board’s decision in the present appeal does not fetter the Minister’s discretion in any way when he considers an application under section 112 or on humanitarian and compassionate grounds.
[35] Justice Layden-Stevenson also found that irreparable harm was established, as removal would cause Mr. Lai to face the risk that he alleged was present and that he argued had not been adequately assessed by the PRRA officer. She therefore ordered that Mr. Lai’s removal be stayed pending determination of his application for leave for judicial review and, if leave was granted, pending determination of the judicial review.
IMPUGNED DECISION
[36] The PRRA officer started her 40-page decision by assessing the Lais’ allegations of bias. After reviewing their arguments, she concluded the PRRA decision-making process did not give rise to a reasonable apprehension of institutional bias. Having no predetermined opinions on any of the evidence before her, she also found no personal reason to withdraw from the application.
[37] The PRRA officer wrote that to accept the Lais’ arguments about bias would be tantamount to concluding there could not be more than one mandate within the Department of Citizenship and Immigration. In her opinion, such a view would reduce a PRRA officer’s role to that of automatically concurring with previous decisions. She refused to recuse herself and opined that she was able to assess all the information before her and weigh the information based on her own analysis, without being influenced by representations that different Minister’s delegates had made in other proceedings. She also noted that she had no authority to establish a commission of inquiry, for which the Lais had asked. In any event, to do so would be to accept the argument that a reasonable apprehension of bias existed, which, in her opinion, was not the case.
[38] She then reviewed the facts and summarized the allegations, before proceeding to her analysis. Starting with the diplomatic note, she considered all the witnesses’ evidence. She gave weight to expert John Holmes’ testimony, characterizing the note as a formal, political commitment. While the note was not binding at international law, she wrote, it reflected China’s intention to fulfill a specific commitment. She also cited other experts who testified why it would be in China’s interests to honour its assurances, and stressed that China – not Canada – had initiated the discussions which led to the note. She accepted that there is no remedy at international law for violating a diplomatic note. However, since there was insufficient evidence that China had violated previous diplomatic promises, she was not convinced it was likely to renege on its promises regarding the Lais.
[39] The officer also dismissed counsel’s argument that it would be inconsistent to conclude the assurances could be trusted, and at the same time find that China’s courts are independent from the government. The Lais submitted that if the assurances were reliable, it could only be because the Chinese government had effective control over the judiciary. Instead, however, the officer adopted the opinion of expert Dr. Jerome Cohen, writing the following at page 15 of her decision:
…what counsel for the applicants sees as inconsistency, Cohen notes is the ‘other side of the coin of the widely-condemned absence of judicial independence in the PRC’, that is that PRC courts, in his words, “have an impeccable record in doing what they are told to do by the nation’s highest government and Communist Party institutions.”
[40] The officer also rejected counsel’s argument that the note did not preclude a conditional death sentence. According to the Lais, this opening would enable the Chinese government to execute them for crimes committed after their repatriation, without technically violating the terms of the note. The officer found this argument speculative, concluding there was no evidence Chinese authorities had left that possibility open. In the same vein, she was of the view that the assurances applied equally to both Mr. Lai and Ms. Tsang, contrary to what they had argued.
[41] In the end, the officer concluded it was unlikely, on the balance of probabilities, that the Chinese government would “take the extraordinary step” of providing the note after high-level negotiations, documented in national and international media, and then renege on its promises, thereby damaging its international reputation (PRRA Reasons, page 16). I believe the gist of her reasoning with respect to the note can be found in the following two paragraphs at page 35 of her decision:
I find that the applicants’ case is unique in the sense that the diplomatic assurance in question was proffered voluntarily by the Chinese government to the Canadian government. I find this action one that has been widely publicized, both in the PRC and internationally. Regarding the death penalty, notwithstanding country condition reports about the use of the death penalty in China, execution of other individuals convicted in the ‘Xiamen smuggling scandal’ and a politicized judicial system and a media that is often used as a tool by the government to report its intents and targets, what I have before me is the case of two individuals whose cases have been very well-publicized both in Canada and internationally, as well as a diplomatic document that purports to ensure that the death penalty and torture will not be imposed upon Lai Cheong Sing nor Tsang Ming Na.
[…]
Counsel appears to be conflating his view of the noted deficiencies in Chinese law and practice with his opinion that the diplomatic note will not be sufficient to protect the applicants from either the death penalty or torture. I find, based on my consideration of the evidence, that the Government has the ability to ensure that the full terms of the diplomatic note will be abided by, in other words, that neither of the applicants will face either the death penalty, or a suspended death sentence, or be subjected to torture, or cruel and unusual mistreatment or punishment. I do not agree that the absence of a mechanism to monitor the compliance of the Chinese government with the terms of the note is to be interpreted as rendering the note itself unreliable. Having regard to the nature and format of the diplomatic assurance, the correspondence that took place between Canadian and Chinese representatives to establish the terms of the assurance, and the identity of the applicants, I do not accept counsel’s argument that I should dismiss this diplomatic assurance on the basis that its terms cannot be guaranteed without some kind of diplomatic sanction behind it or a mechanism to monitor its compliance.
[42] With respect to torture and cruel and unusual treatment or punishment, the officer quoted a passage from the Supreme Court’s decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs 124 and 125, to the effect that we should distinguish a state’s assurances regarding the death penalty from those regarding torture. She then referred to a press release issued by the United Nations on December 2, 2005, discussing a visit the UN’s Special Rapporteur on Torture had made to China. The Special Rapporteur noted that some government authorities tried to obstruct or restrict his attempts at fact-finding, kept him and his team under surveillance, and intimidated alleged victims. According to the report, the Special Rapporteur concluded that the practice of torture, although on the decline, remains widespread in China, and outlined measures the Chinese government had taken to deal with the problem. He also noted the absence of procedural safeguards in China necessary to make prohibition against torture effective, like excluding evidence if statements were made under torture, and an independent judiciary.
[43] The PRRA officer then considered evidence the Lais submitted regarding the deaths of Lai Shui Qiang, Mr. Lai’s brother, and Chen Zan Cheng, Mr. Lai’s former accountant. Despite the suspicious nature of their deaths while in prison, she concluded there was no objective evidence linking the deaths to a forward-looking risk to either of the applicants. She found there was insufficient probative evidence that the deaths could be imputed to mistreatment or torture, and that autopsies were either requested and/or refused.
[44] Again, she noted Dr. Cohen’s position that because the Lais’ case was so well-known, China would probably not engage in torture, although, as Dr. Cohen said, he could not be “a guarantor of the indefinite future”. The lead investigator in the Xiamen smuggling case also testified before the Board that no coercive techniques were used in their interrogation sessions. The PRRA officer did not find this determinative, because no investigators would likely admit to coercion. However, she noted, there was no evidence to the contrary.
[45] The officer concluded the Lais would be protected by their own notoriety. She reviewed testimony from a defence lawyer who assisted two defendants in the Yuan Hua cases in China, an affidavit from Ms. Tsang’s sister and the videotaped interview of Mr. Li, the senior bureaucrat who said he had received bribes from Mr. Lai. Despite the “troubling existence of torture used by Ministry of Public Security officials”, and “public source information about the use of torture to coerce confessions out of suspects”, the officer decided to put her confidence in the diplomatic assurances against invoking the death penalty and resorting to torture.
[46] With respect to the right to a fair trial and the rule of law, the PRRA officer acknowledged the problems with China’s justice system. Many aspects of its procedures fall short of international standards, including the fact that a prosecutor can decide to arrest a suspect pending investigation without hearing the suspect, and the fact that under Article 306 of the Chinese Criminal Law, lawyers can be imprisoned for coercing a witness or enticing him to change testimony in defiance of the “facts”, as determined by the state. On the other hand, there is documentary evidence showing the Chinese government has permitted and even encouraged public critiques of its legal system.
[47] The officer also looked at the records from Mr. Li’s trial in China, and noted that while he confessed to taking money from Mr. Lai, the court did not accept a second charge of bribery, finding insufficient evidence to prove this allegation. In other cases, people who were originally sentenced to death or to death with a two-year postponement had their sentences commuted to a lesser punishment. Mr. Li also testified that he had been given an open trial, was entitled to a defence lawyer, and was able to meet with his lawyer several times before trial. All of this evidence led the PRRA officer to conclude the Lais would receive a fair trial in China. As she stated at page 41 of her reasons:
Counsel lists all the factors that he says cumulatively lead one to the conclusion that the applicants cannot get a fair trial in China. Among the factors he states are lacking in China’s judicial system: right to a public hearing, competent, independent and impartial tribunal, the entrenchment of the presumption of innocence, adequate time and facilities for defence, the right to counsel and to have counsel of choice, the right of an accused to be tried in his or her presence, the right to examine witnesses, the right to silence. I find that counsel for the applicant overstates and draws unreasonable inferences from the evidence he presents, in a bid to demonstrate that the applicants will face conviction without doubt, in a predetermined verdict. Without negating the indeed serious shortcomings in the Chinese judicial system, I find, on a balance of probabilities, that the applicants have not demonstrated that return to China to face possible charges of smuggling, bribery, and tax evasion, will put them at a risk to life, a risk of torture, or a risk of cruel and unusual treatment or punishment. Counsel for the applicant indicts the entire judicial system of China, noting its flaws in process, the constraints on judicial independence, the potential for threats to be made on any counsel who take on the defence of cases adjudged to be serious or politically tinged, the high conviction rate and the use of capital punishment on economic crimes. However, the specific and fact-based evidence before me does not suggest that others charged in the smuggling case were not afforded, in the main, due process, and a fair trial, nor do I have any probative evidence before me to find that those convicted in the Yuan Hua smuggling case were convicted unfairly, or were coerced into confessing, or were denied legal counsel.
[48] The officer also commented on the imbroglio surrounding an unsigned affidavit that was allegedly based on comments that Ms. Tao Mi, one of Mr. Lai’s former employees, made to a Canadian lawyer and his secretary in China several days before the Board hearing closed. The document was a recantation of Tao Mi’s previous statements implicating Mr. Lai in the smuggling and bribery scheme for which he is now sought. Tao Mi was supposed to sign the unsworn affidavit, but that never occurred. The Board admitted the document as an exhibit to the Canadian lawyer’s affidavit, but declined to have the lawyer testify himself.
[49] After the Board’s hearing, however, an RCMP officer arranged to interview Tao Mi at the Canadian Consulate in Shanghai. A Chinese security officer, from an agency which might have detained and interrogated Tao Mi earlier, was present. Absent was counsel for the Lais, who were not notified about the interview. When asked if she spoke with a Canadian lawyer in China about Lai Cheong Sing, Tao Mi said no. She also said that when investigated by the 4-20 Investigation Team, she was treated with respect and never threatened. Commenting on this incident, Justice MacKay described it as “…an extraordinary undertaking, unfair in its process, and ultimately unnecessary…” (Lai v. Canada (Minister of Citizenship and Immigration), 2004 FC 179 at paragraph 21).
[50] The PRRA officer decided this evidence was inconclusive. She found it problematic that Tao Mi would dictate the statement to the Canadian lawyer but not sign it. She also noted that neither the lawyer nor his secretary could testify that the person they interviewed was actually Tao Mi. There was simply no proof of her identity.
[51] Finally, the PRRA officer considered counsel’s submission that Ms. Tsang would be at risk in China because of her mental problems. The officer cited an article published in the Yale-China Health Journal, claiming China’s standard of psychiatric treatment was adequate compared to other developing countries, and was showing signs of improvement. She also referred to the U.S. Department of State’s 2005 Country Report on Human Rights Practices, which reported incidents where patients were forcibly given medicine and subjected to electric shock treatment. She reviewed two hospital reports and a doctor’s letter indicating Ms. Tsang suffered from generalized anxiety disorder. On the basis of that evidence, the officer concluded Ms. Tsang did suffer from anxiety, but would not be singled out for mistreatment because of her psychological condition. Nor did she fit into a particular social group, i.e. those with mental illnesses.
[52] On the basis of all the foregoing, the PRRA officer concluded the Lais were not at risk if returned to the People’s Republic of China. She wrote, in the last paragraph of her reasons:
I have reviewed all of the evidence before me, listed below in the Sources Consulted section. I do not find that the applicants are being sought by the Chinese authorities due to political motivations, but rather that the government’s interest in the applicants arises out of allegations and evidence that they are suspected of engaging in criminal activity. It is my finding that the return of the applicants to China is neither an act that would shock the conscience of Canadians nor be a breach of fundamental justice nor bring them within any of the risks encapsulated in either section 97(1)(a) or (b) of the Immigration and Refugee Protection Act.
ISSUES
[53] The applicants have raised a number of issues. Some are of a substantive nature and therefore subject to the appropriate standard of review. Other issues are of a procedural character. In addition, counsel for the applicants has filed a notice of constitutional questions, whereby he raised two issues closely related to some of his administrative law arguments. He did not, however, deal with any of the constitutional issues in either his oral or written submissions, and so I will not a