Liu v. Canada (Citizenship and Immigration)

Liu v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2009-09-08
Neutral citation
2009 FC 877
File numbers
IMM-748-09
Decision Content
Date: 20090908
Docket: IMM-748-09
Citation: 2009 FC 877
Ottawa, Ontario, September 8, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
XIAOQUAN LIU
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of Minister’s Delegate Jillan Sadek (Delegate or Minister’s Delegate), dated February 11, 2009, refusing the Applicant’s Pre-Removal Risk Assessment (Decision).
BACKGROUND
[2] Mr. Liu was born in the People’s Republic of China (China or PRC) on December 17, 1970 and is a citizen of that country. He says that on March 2, 2006, a summons was issued by the People’s Court for him to appear in Court on March 27, 2006 regarding an alleged violation of the Family Planning Regulations. The Canadian Embassy in Beijing later verified that this summons was a false document.
[3] On March 8, 2006, Mr. Liu is alleged to have obtained RMB 400,000 ($58,946.92 Cdn) from a PRC citizen through fraud. He left China for the United States the next day. On March 15, 2006, the Public Security Bureau in Zigong, China, began its investigation into the complaint filed by victim Xu Bi Qiang about the missing RMB 400,000.
[4] In April 2006, Mr. Liu claimed asylum in the United States and his claim was recommended for approval pending background checks on May 24, 2006.
[5] On September 18, 2006, Mr. Liu, whose whereabouts were unknown to China, was charged by the Public Security Bureau with contract fraud contrary to Section 224 of the Chinese Criminal Law.
[6] On February 10, 2007, police in Burlingame, California, were called to the scene by two victims of Mr. Liu who alleged that he had stolen jewellery and cash from them. Mr. Liu left the United States for Hong Kong the following day.
[7] On February 16, 2007, the Burlingame Police Department in the United States issued a Statement of Probable Cause alleging that Mr. Liu swindled several people out of hundreds of thousands of dollars of jade and cash, and then fled to Hong Kong.
[8] On March 20, 2007, Mr. Liu came to Canada from Hong Kong, attempting to enter at the Vancouver International Airport as a business visitor. At the interview with a CBSA Officer, he admitted he entered Canada on the basis of false documents. He agreed to leave Canada and a return flight to Hong Kong was booked for March 24, 2007.
[9] On March 24, 2007, Mr. Liu refused to board the return flight and informed a CBSA Officer that he wanted to make a refugee claim. As a result of being an immigrant without a permanent resident visa, a Departure Order was issued against Mr. Liu that day. In addition, Mr. Liu was arrested and detained for being unlikely to appear for removal and has remained in the custody of CBSA, with regular detention reviews before the Immigration Division of the Immigration and Refugee Board (IRB) ever since.
[10] On April 5, 2007, Mr. Liu withdrew his initial claim for refugee status in Canada, but then withdrew his withdrawal on April 12, 2007 upon finding out that he would be removed to China and not Hong Kong, as he had assumed.
[11] On May 30, 2007, the United States declared Mr. Liu’s claim to refugee status abandoned, given that he had left the United States to return to Hong Kong prior to a decision being made on his claim.
[12] On August 7, 2007, the Superior Court of California, San Mateo County, issued a warrant for Mr. Liu’s arrest on two charges under section 532 of the California Penal Code, which is found in the Section “False Personation and Cheats.” The amounts involved are $250,000 worth of jade and $300,000 in cash. A warrant for his arrest was issued in the United States on August 17, 2007. Charges under section 532 of the California Penal Code are equivalent to section 380(1)(a) of the Canadian Criminal Code regarding fraud.
[13] On January 4, 2008, Mr. Liu withdrew his claim for refugee protection in Canada after receiving notice from the Minister of Public Safety and Emergency Preparedness (PSEP) that the Minister would be intervening in the RPD hearing to assert Article 1F(b) of the Refugee Convention. The RPD hearing set for January 8, 2008 was therefore cancelled.
[14] On February 9, 2008, Mr. Liu submitted a PRRA application to the Minister of Citizenship and Immigration (Minister), claiming that, due to his non-compliance with the PRC “one child policy,” he comes within sections 96 and 97 of the Immigration and Refugee Protection Act, 2001, c. 27 (Act), and saying further that, because of that non-compliance, China has accused him of fraud. As well, he also claimed that as a result of the alleged fraud offence in China, general country condition reports indicate the Applicant would be tortured during the PRC judicial process and would not have a fair trial.
[15] On June 26, 2008, PRRA Officer Robert North gave notice to Mr. Liu that he would be considering whether Mr. Liu was a person described in Article 1F(b) of the Refugee Convention and invited him to make submissions on this issue.
[16] On July 8, 2008, at one of his detention reviews, an Immigration Division Member continued the Applicant’s detention on the basis that Mr. Liu would be unlikely to appear for removal and stated: “You are, by all accounts, what one might term a scallywag. You have manipulated a number of systems trying to benefit yourself. Some of that manipulation has ended up bringing you where you are today.”
[17] On July 17, 2008, PRRA Officer North reviewed Mr. Liu’s PRRA Application and prepared a risk assessment. After considering Mr. Liu’s application pursuant to section 113(c) of the IRPA, the PRRA Officer found that Mr. Liu was excluded from refugee consideration under section 98 of the Act and Article 1F(b) of the Refugee Convention (Convention), because there were serious reasons to consider that he had committed a serious non-political crime in the United States prior to his admission to Canada. Consequently, Mr. Liu became a person described in section 112(3)(c) of the Act. Mr. Liu did not seek leave and judicial review from that exclusion decision by the PRRA Officer.
[18] Also, on July 17, 2008, the PRRA Officer formed a section 97 opinion that there were sufficient grounds to find that Mr. Liu would be at risk of cruel and unusual treatment if he were returned to China. The Officer also decided it was unlikely that Mr. Liu would receive a fair trial for fraud.
[19] The case was then forwarded to Ottawa for balancing and further review by the Minister’s Delegate.
[20] On November 20, 2008, further material was disclosed to Mr. Liu for comment regarding his pending PRRA application. That same day, the Chief Justice of this Court issued a ruling to overturn the Immigration Division’s decision to release Mr. Liu and indicated that further litigation could be case-managed and expedited.
[21] Mr. Liu made his final PRRA submission on December 5, 2008.
[22] The Minister’s Delegate, Jillan Sadek, refused Mr. Liu’s PRRA application on February 11, 2009, finding there was insufficient evidence to demonstrate risk under section 97. The Delegate therefore rejected the Applicant’s application and found that Mr. Liu’s removal from Canada should not be stayed.
DECISION UNDER REVIEW
[23] The PRRA Officer concluded that the Applicant is a person described under Article 1F(b) of the Convention based on his analysis of the criminal charges against the Applicant. The charges include: criminal fraud in China; immigration fraud in the United States of America; criminal fraud in the United States of America; and immigration fraud in Canada. However, the PRRA Officer concluded that “if the applicant is returned to China he will more likely than not be at risk of cruel or unusual treatment or punishment due to his being denied his right to a fair trial guaranteed under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
[24] The Minister’s Delegate concluded, however, that “after carefully reviewing all submissions and current condition information on the PRC, I disagree with this assessment and will explain the reasons for this in the following paragraphs.” It was noted by the Minister’s Delegate that the contract fraud in China occurred on March 8, 2006. On March 9, 2006 the Applicant entered the U.S. and made an asylum claim. On February 11, 2007, he departed to Hong Kong and remained there from February 11 to March 23, 2007, without entering China.
[25] There is cooperation between Hong Kong and China in relation to criminal matters and so the Minister’s Delegate was satisfied that Mr. Liu risked being either arrested and/or possibly extradited to mainland China to stand trial for any crimes he may have previously committed in mainland China. The Applicant attempted to justify his return to Hong Kong to Canadian officials by stating that he had urgent business matters to attend to, then changed his story and informed Canadian officials that he had to return to a sick child. The Minister’s Delegate went on to note that the Applicant provided an entirely different story to American officials; he stated that he departed the U.S. because it was the Chinese Spring Festival and he had pressing matters to attend to. The Minister’s Delegate concluded that “[i]rregardless of the reason, the fact remains he returned to Hong Kong to face possible arrest and prosecution. This demonstrates a lack of fear on Mr. Liu’s part of serious repercussions.”
[26] On the topic of torture in China, the Minister’s Delegate reviewed the country documentation and concluded that, while torture continues to exist in the Chinese judicial system, since 1996 Chinese officials have been taking concrete steps to combat this systemic problem. There was no evidence before the Minister’s Delegate that convinced her that the Applicant belongs to any of the vulnerable groups described. The Delegate concluded that, if the Applicant was returned to China, he would not face more than a mere possibility of torture, would not be at risk of cruel and unusual treatment or punishment as a result of the procedural limitations of the judicial system in China, or face more than a mere possibility of torture, cruel or unusual punishment or treatment as a result of prison conditions in China. Overall, the Delegate felt there would be no possibility of torture, cruel and or unusual punishment if the Applicant was returned to China.
[27] The Minister’s Delegate concluded that there were no humanitarian and compassionate grounds to consider in this matter. Therefore, the application was rejected and his removal from Canada was not stayed.
ISSUES
[28] The following issues are raised by the Applicant on this application:
1) Since the Applicant is not a person described in subsection 112(3) of the Act, did the tribunal act without jurisdiction by engaging in an analysis pursuant to paragraph 113(d)(ii) of the Act and purporting to give a final PRRA decision?
2) Was the tribunal’s finding that the Applicant is not a person at serious risk of torture or cruel and unusual punishment or treatment unreasonable?
STATUTORY PROVISIONS
[29] The following provisions of the Act are applicable in these proceedings:
6. (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.
Delegation of powers
(2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.
Exception
(3) Notwithstanding subsection (2), the Minister may not delegate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
Person in need of protection
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
Exclusion — Refugee Convention
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
…
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
…
(3) Refugee protection may not result from an application for protection if the person
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection 77(1).
113. Consideration of an application for protection shall be as follows:
…
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
114. (1) A decision to allow the application for protection has
(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.
6. (1) Le ministre désigne, individuellement ou par catégorie, les personnes qu’il charge, à titre d’agent, de l’application de tout ou partie des dispositions de la présente loi et précise les attributions attachées à leurs fonctions.
Délégation
(2) Le ministre peut déléguer, par écrit, les attributions qui lui sont conférées par la présente loi et il n’est pas nécessaire de prouver l’authenticité de la délégation.
Restriction
(3) Ne peuvent toutefois être déléguées les attributions conférées par le paragraphe 77(1) et la prise de décision au titre des dispositions suivantes : 34(2), 35(2) et 37(2)a).
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
Exclusion par application de la Convention sur les réfugiés
98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
…
112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
…
(3) L’asile ne peut être conféré au demandeur dans les cas suivants :
a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée;
b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés;
d) il est nommé au certificat visé au paragraphe 77(1).
113. Il est disposé de la demande comme il suit :
…
d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire pour grands criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant.
[30] The following Regulations are also applicable in this proceeding:
167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue of the applicant's credibility and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with respect to the application for protection; and
(c) whether the evidence, if accepted, would justify allowing the application for protection.
…
172. (4) Despite subsections (1) to (3), if the Minister decides on the basis of the factors set out in section 97 of the Act that the applicant is not described in that section,
(a) no written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act need be made; and
(b) the application is rejected.
167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience est requise :
a) l’existence d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;
b) l’importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la protection.
…
172. (4) Malgré les paragraphes (1) à (3), si le ministre conclut, sur la base des éléments mentionnés à l’article 97 de la Loi, que le demandeur n’est pas visé par cet article :
a) il n’est pas nécessaire de faire d’évaluation au regard des éléments mentionnés aux sous-alinéas 113d)(i) ou (ii) de la Loi;
b) la demande de protection est rejetée.
[31] The following provision of the Convention is applicable in this proceeding:
1 F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
…
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
…
b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés;
STANDARD OF REVIEW
[32] The Applicant submits that the standard of review on questions of law remains correctness, while other issues are reviewable on a reasonableness standard: Dunsmuir v. New Brunswick 2008 SCC 9 (Dunsmuir). The Applicant says that the question of whether the tribunal acted without jurisdiction, or failed to do what was required by paragraph 113(d)(ii) of the Act, is a question of law and reviewable on a correctness standard. The issue of whether the tribunal’s finding that the Applicant is not a person at risk was open to it on the evidence before it is reviewable on a reasonableness standard.
[33] The Respondents submit that whether the Applicant is described in paragraph 112(3)(c) of the Act and whether the Delegate was authorized to make exclusion findings in relation to the Applicant under Article 1F(b) of the Convention are questions of jurisdiction, and are reviewable on a standard of correctness: Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 (Khosa) at paragraph 42.
[34] The Respondents state that the Delegate’s assessment of the evidence and her administrative fact-finding commands a high degree of deference. These matters are reviewable on a standard of reasonableness provided by section 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, C. f-7. Any decision made in a perverse or capricious manner without regard to the evidence can be said to be unreasonable pursuant to Khosa.
[35] In Dunsmuir, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review”: Dunsmuir at paragraph 44. Consequently, the Supreme Court of Canada held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.
[36] The Supreme Court of Canada in Dunsmuir also held that the standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[37] In light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court, I find the standard of review applicable to issue one, a question of law, is correctness, while the standard of review on issue two is reasonableness. When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
No Jurisdiction to Make a PRRA Decision
[38] The Applicant submits that there is no basis in the Act or the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) that allows a PRRA officer to reject a claim for refugee protection on the basis of Article 1F of the Convention. He says that PRRA officers have been delegated the authority by the Minister to allow or reject an application for protection. The only other authority delegated to PRRA officers is the power to vacate a decision to grant protection where the officer is of the opinion that the applicant has misrepresented material facts on a relevant matter.
[39] The Applicant cites and relies upon the Federal Court of Appeal case of Xie v. Canada (Minister of Citizenship and Immigration) 2004 FCA 250 at paragraph 40:
40 I would therefore answer the certified questions in accordance with this analysis. Specifically, I would say that a claimant can be excluded from refugee protection by the Refugee Protection Division for a purely economic offence. I stress refugee protection because the certified question appears to suggest that the exclusion applies to claims for protection, which is not the case. It applies only to claims for refugee protection. I would also say that in the application of the exclusion, the Refugee Protection Division is neither required nor allowed to balance the claimant's crimes (real or alleged) against the risk of torture upon her return to her country of origin.
[40] The Applicant says that the Minister and his Delegate are proceeding in the present case on the basis that a PRRA officer can reject a claim for refugee protection as part of the consideration of an application for protection. The Applicant contends that, in doing this, they are acting unlawfully and that the Minister’s Delegate does not have jurisdiction to reject an application for protection, even if the Minister’s delegate forms the opinion that the Applicant is a danger to the public.
[41] The Applicant submits that he is not a person described in paragraphs (a) to (d) of section 112(3) of the Act. The PRRA Officer who made the exclusion decision checked “no” in each box corresponding to paragraphs 112(3)(a) to (d) of the Act in the PRRA Results Form that he filled out in his reasons for decision.
[42] The Applicant says that the opinion of the PRRA Officer and the Delegate’s Decision under review are both silent on any authority that the PRRA Officer could rely upon to make a decision to exclude the Applicant from refugee protection as a person described in subsection 112(3) of the Act.
[43] The Act specifically states that a claim for refugee protection may not be made by a person who is subject to a removal order in subsections 99(1) and 99(3) of the Act:
99. (1) A claim for refugee protection may be made in or outside Canada.
…
(3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.
99. (1) La demande d’asile peut être faite à l’étranger ou au Canada.
…
(3) Celle de la personne se trouvant au Canada se fait à l’agent et est régie par la présente partie; toutefois la personne visée par une mesure de renvoi n’est pas admise à la faire.
[44] The Applicant also relies upon subsections 100(1) and 107(1) of the Act :
100. (1) An officer shall, within three working days after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.
…
107. (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.
100. (1) Dans les trois jours ouvrables suivant la réception de la demande, l’agent statue sur sa recevabilité et défère, conformément aux règles de la Commission, celle jugée recevable à la Section de la protection des réfugiés.
…
107. (1) La Section de la protection des réfugiés accepte ou rejette la demande d’asile selon que le demandeur a ou non la qualité de réfugié ou de personne à protéger.
[45] The Applicant notes that no immigration officer is designated in accordance with section 6 of the Act to make determinations with respect to claims for refugee protection, and a PRRA officer is only delegated the authority to consider and allow or reject an application for protection.
[46] The Applicant emphasizes that a claim for refugee protection and an application for protection are two completely different processes and they are dealt with by separate provisions in the Act and the Regulations. A claim for refugee protection is dealt with in sections 99 to 109 of the Act, whereas an application for protection is dealt with in sections 112 to 116 of the Act and sections 160 to 174 of the Regulations.
[47] The Applicant argues that, since the PRRA Officer in this case made a positive risk assessment and the Applicant is not described in subsection 112(3), the effect of his decision is to confer refugee protection on the Applicant:
114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.
114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant.
[48] The Applicant also says that the Minister was well aware that the issue of whether a PRRA officer has the jurisdiction to make an exclusion decision is the subject of a judicial review hearing argued before the Federal Court on December 9, 2008 in the Li decision.
[49] The Applicant notes that the Delegate acknowledged in the Decision that the issue of whether a PRRA Officer has the authority to make an exclusion decision is a legal issue that has not been determined but is one “for the courts to decide.”
[50] The Applicant concludes on this issue that, since the Act grants no authority to a PRRA officer to exclude an individual from refugee protection, the Delegate acted without jurisdiction in making her Decision.
Tribunal’s Finding that Applicant Not at Risk is Unreasonable
[51] The Applicant also submits that the Delegate’s conclusion on the assessment of the risk faced by the Applicant in China is clouded by irrelevant considerations including Mr. Liu’s previous return to China, the “progress” made by the Chinese government to address concerns about torture and other human rights abuses, and the assertion that Mr. Liu does not belong to any defined vulnerable groups.
[52] The Applicant points out that subjective fear is not relevant to a section 97 analysis. The Delegate did not focus on the evidence before her regarding the widespread use of torture, denial of legal rights inconsistent with basic international standards, and prison conditions that create a risk to life and are inherently cruel. He says the Delegate ignored evidence that did not support her findings, and gave “a blithe overview of the progress that has been made in China since 1996.”
[53] The Applicant notes that a considerable amount of documentary evidence was placed before the PRRA Officer who came to the conclusion that the Applicant is at risk. The Applicant says that the country documents before the Delegate establish a continuing pattern of widespread abuse and torture in China, regardless of any improvements made over the past 10 to 15 years. The Applicant points out that the US Department of State’s reports on the issue of “Torture and Cruel Inhumane, or Degrading Treatment or Punishment” have changed very little over the past three years and emphasize the inability of the state to control this “widespread” problem.
[54] The Applicant also says that excerpts from the U.S. Department of State Reports (US DOS Report-China 2007) in the Delegate’s reasons consistently conclude that torture remains “widespread” in China and that the measures employed by the state to control the problem are inadequate:
In March 2006 UN Special Rapporteur Nowak reaffirmed earlier findings that torture, although on a decline-particularly in urban areas-remained widespread, and that procedural and substantive measures were inadequate to prevent torture. Nowak reported that beatings with fists, sticks and electric batons continued to be the most common forms of torture. He also found that prisoners continued to suffer cigarette burns, prolonged periods of solitary confinement, and submersion in water or sewage, and that they were made to hold extreme positions for long periods, were denied medical treatment, and were forced to do hard labor.
[55] The Applicant submits that the Delegate’s reliance on procedural improvements is irrelevant in light of the overall pattern. Likewise, the Delegate erred in finding that the Applicant would not be at risk because he does not belong to any of the “vulnerable groups” mentioned in the reports. There was clear evidence that the use of torture is widespread and is not restricted to any particular group.
[56] The Applicant also highlights an excerpt from the 2007 U.S. Department of State report which was referred to in the PRRA opinion:
The law forbids prison guards from extracting confessions by torture, insulting prisoners’ dignity, and beating or encouraging others to beat prisoners. However, in November 2006 the Supreme People’s Protectorate (SPP) Deputy Secretary Wang Zhenchuan acknowledged that illegal interrogation by “atrocious torture” existed in local judicial practice throughout China and that most all mishandled criminal cases in the previous year involved the “shadow of illegal interrogation.” Wang estimated that at least 30 wrongful convictions were issued each year because of torture. In addition there continued to be reports that police and other elements of the security apparatus employed widespread torture and degrading treatment when dealing with detainees and prisoners.
[57] The Applicant contends that the thirty cases of torture per year that the Chinese authorities admit resulted in wrongful convictions are “only the tip of the iceberg.”
[58] The Applicant does not disagree with the Delegate’s opinion that “the fact that cases of wrongful convictions are coming to light at all is promising.” However, he says this is irrelevant as an analysis of risk and is an “entirely unreasonable and inappropriate summation of the newspaper…article that sets out in detail the cruel and unusual punishment doled out to just one of many wrongfully convicted individuals on the basis of confessions elicited through torture” which reads as follows:
The Supreme People Procuratorate, China’s Justice Department, said in July that 4, 645 criminal suspects had suffered human rights violations, including torture during inquisitions in the past 12 months.
Top officials are pushing to improve criminal procedures…But such changes if they come, will take time. China’s Communist Party-run legislature has been urged to consider many new protections, like a right to remain silent. But such proposals have gone nowhere because the police steadfastly oppose them.
[59] The Applicant submits that the overturning of a handful of wrongful convictions resulting from confessions elicited by torture (despite the significant resistance and lack of concern of state authorities) does not redress the torture resulting in the wrongful convictions, nor the years spent in an inhumane prison system. The Delegate should have addressed the prevalence of torture as a means of interrogation and the fact that such problems run deep. The Applicant relies upon the New York Times articles before the Delegate which illustrate the cruelties of the Chinese judicial system. The PRRA Officer made this obvious correlation, while the Delegate drew the blinds shut and ignored and misconstrued the evidence before her on the real risks posed by the deprivation of basic legal rights.
[60] The Applicant also submits that the Delegate focused on the wrong issue and should have focused on the same question considered by the PRRA Officer: Is the Applicant likely to be denied the basic legal rights enumerated in numerous human rights documents and, if so, will the deprivation of those rights put him at risk of torture or cruel and unusual punishment? The evidence indicates that the Applicant does face such a risk.
[61] The Applicant cites and relies upon Lai v. Canada (Minister of Citizenship and Immigration) 2007 FC 361 (Lai) at paragraphs 136-138:
136 Yet, the officer did not address two major flaws the applicants raised on the basis of the same reports she cited in her decision. First, there appears to be a growing consensus that diplomatic assurances should not be sought when the practice of torture is sufficiently systematic or widespread. In his report to the UN General Assembly of September 1, 2004, the UN Special Rapporteur on Torture looked at the non-refoulement obligations inherent in the absolute and non-derogable prohibition against torture and other forms of ill-treatment. Noting that all relevant considerations must be taken into account