Docket:
IMM-4373-11
Citation:
2011 FC 915
Ottawa,
Ontario, July 21, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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LAI CHEONG SING
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE
MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR ORDER
AND ORDER
I. Overview
[1]
The
detention of an individual in a society and the reasons for such detention
constitute a means by which to analyze the nature of justice or the lack
thereof in that society.
[2]
Just
as a society can be judged by history in its application of the rule of law and
due process, so can it also be judged by the evidence of its prison conditions
and detention facilities.
[3]
The
rule of law and due process are the hallmarks of the values which Canada
cherishes. Although the cost of such are high, they are no higher than the very
values for which Canada strives and holds dear.
[4]
For
Canada, as per the jurisprudence pleaded, democracy is a constant work in
progress for which it strives. Its values, enshrined in its Constitution, with
its Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11,
are a bulwark against a tide of pressure held back mindfully and steadfastly by
the executive and legislative branches of government as policy and legislation,
respectively (as demonstrated in all of the previous proceedings in this case)
and, as nothing more than but simply interpreted by the judicial branch of
government. These are the rudiments or the very leitmotif for which Canada
stands, not as a cosmetic throw-away for public relations purposes, chosen at a
whim as demonstrated in regard to evidence in respect of certain countries, for
certain ends, for which the costs are always calculated but the values of which
are either ignored or forgotten.
[5]
The
evidence before the Court demonstrates that China’s treatment of Tibetan monks
and nuns (whose leader, the Dalai Lama received an honorary Canadian
Citizenship as conceived and presented by the executive and legislative
branches of this government), that of 2010, recent Nobel Peace Prize winner in
detention, Mr. Liu Xiaobo (whose treatment, in his prison cell, in serving an
eleven-year sentence for subversion, has only slightly improved after receiving
the prize), Falun Gong and certain Christian practitioners and those of other
religions, as well as common criminals, are all subject to similar treatment.
They are detained together indiscriminately. All of which is accepted as
emanating from recognized governmental and non-governmental sources.
[6]
It
is for these reasons that Canada requested strict, clear and unequivocal
assurances from the Chinese Government in respect of the Applicant, Lai Cheong
Sing [Mr. Lai], a fugitive from the Chinese justice system, who has been in
Canada since 1999 and who is now under a deportation order. These assurances
have now been received. It is assumed that the assurances of the Chinese
Government, as per its written promises, will be kept, as the Chinese
Government’s honour and face is, and will be, bound and kept respectively, by
the monitoring for the lifetime of the Applicant and, eventually, in time to
come, in the reason for his eventual passing, as to whether it be natural or
otherwise, recognizing fully well, the age and current state of health of the
Applicant (as per medical monitoring measures, also outlined in the
assurances).
[7]
In
regard to the validity of the assurances of the Chinese Government, a proverb
often related in ancient China puts it well.
[8]
A
child, who, once, wanted to outwit his teacher, asked his teacher, “Is the bird
which I have in my hand alive or dead?” The child thought if the teacher
answered, “The bird is alive”, he would crush the bird; and, if the teacher
would say it is dead, he would let it live. The teacher answered with a great understanding
for both the child and the bird, “The life of the bird is in your hands, my
child”.
[9]
So
it is with the Chinese Government’s assurances. The life of the Applicant is in
the Chinese Government’s hands. The outcome remains to be seen as with the
bird. The assurances are present. A new contractual government to government
climate has been created by the assurances. They augur hope for a different way
to be taken, in a newly unfolded path to which the Chinese Government’s
signature has been officially affixed for the commitments undertaken. The
future, yet, to be seen by both countries and others, will stand as witness to
the outcome.
II. Introduction
[10]
The
Applicant is a criminal fugitive from the Chinese justice system and has been in
Canada since August 1999. The Convention Refugee Determination Division [CRDD]
found that the Applicant is excluded from the definition of “Convention
refugee” by Article 1F(b) of the Refugee Convention and is not a
“Convention refugee” (CRDD decision, undisturbed by the Federal Court, Federal
Court of Appeal and leave denied by the Supreme Court of Canada [SCC]). The
Applicant applied for a limited Pre-Removal Risk Assessment [PRRA] as a person
in need of protection on the grounds set out in subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The
first PRRA decision was set aside by this Court and sent back for
re-determination. On July 7, 2011, a Minister’s delegate determined that the
Applicant is not a person in need of protection. The Applicant is now scheduled
to be removal ready from Canada on July 22, 2011. The Applicant seeks an Order
staying his removal from Canada.
[11]
The
Respondents oppose this application to stay the execution of the deportation order.
The Court agrees with the position of the Respondents only due to the Chinese
Government’s recent diplomatic assurances to the Canadian executive branch of
government. The Applicant did not, in his particular case, establish the
necessary criteria to obtain a stay of execution of the deportation order.
[12]
In
particular, due to the assurances of the Chinese Government, the Applicant has not
raised a serious issue with respect to the PRRA decision. The Minister’s
delegate reasonably determined that, based on extensive review of country
condition documents, evidence relating specifically to the Applicant, the
diplomatic note and extraordinary written assurances provided by the Government
of China to the Government of Canada (which the Canadian government authorities
also understand as ensuring that the Applicant lives out his lifespan, neither
tortured nor killed; thus, an undertaking for years to come) ensure that the
agreement keeps face with its official promises. According to the assurances,
the Minister’s delegate believes that the Applicant will not be executed or
have his death arranged while detained or imprisoned in China, and is not at
risk of torture, cruel and unusual punishment or treatment.
[13]
With
respect to irreparable harm, the Applicant has failed to demonstrate a risk
based irreparable harm. His allegation of risk of return to China was
extensively considered in his refugee claim before the CRDD, the subsequent
judicial reviews and appeals of the CRDD decision and the PRRA determination.
[14]
The
balance of convenience favours the Minister in view of the statutory mandate to
enforce removal orders as soon as reasonably practicable. The Applicant is a
fugitive from justice who has been in Canada since 1999.
III. Background
[15]
Mr. Lai,
a citizen of the People’s Republic of China, was born on September 15,
1958.
[16]
In
early 1999, Chinese authorities received information that a large-scale
smuggling operation was taking place in the city of Xiamen in Fujian province.
As a result, the Chinese authorities conducted an investigation called the
“4-20 Investigation” and discovered a massive smuggling operation allegedly
headed by Mr. Lai, his wife, Ming Na Tsang, and the Yuan Hua group of
companies.
[17]
On
August 14, 1999, upon learning that the Chinese authorities were looking for
them, the Lai family fled China and travelled to Canada on Hong Kong Special
Administrative Region Passports. The Lai family entered Canada as visitors with
status.
[18]
In
June 2000, Mr. Lai and his family made refugee claims at an in-land Citizenship
and Immigration Canada [CIC] office in Vancouver. Their refugee claims were
referred to the CRDD.
[19]
On
September 18, 2000, a conditional Departure Order was issued against Mr. Lai.
[20]
On
June 21, 2002, the CRDD determined that Mr. Lai and his family were not
Convention refugees under the former Immigration Act, RSC 1985, c I-2,
after a lengthy hearing of the refugee claim over a period of 45 days. The
CRDD found Mr. Lai excluded from the definition of Convention refugee by
Article 1F(b) of the United Nations Convention as there are serious
grounds for believing that he has committed serious non-political crimes in
China of bribery, large scale smuggling, fraud and tax evasion. The CRDD
also considered “inclusion” and determined that Mr. Lai did not meet the
definition of Convention refugee.
[21]
Mr. Lai
filed an application for leave and for judicial review of the CRDD decision. On
February 3, 2004, Justice Andrew MacKay of the Federal Court upheld the CRDD
decision and dismissed Mr. Lai’s application for judicial review (2004 FC 179).
On April 11, 2005, the Federal Court of Appeal dismissed Mr. Lai’s appeal of Justice MacKay’s decision (2004 FCA 125). Mr. Lai’s application for leave to appeal to the
SCC was dismissed on September 1, 2005 (SCC File No. 30988).
[22]
On
November 10, 2005, Mr. Lai made an application for a PRRA under subsection
97(1) of the IRPA.
[23]
On
March 15, 2006, the PRRA Officer rendered a decision. As this was the first
time Mr. Lai had an application for that of a protected person under
subsection 97(1) of the IRPA, the Minister’s delegate considered all of
the evidence before the CRDD and Mr. Lai’s PRRA submissions. The Minister’s
delegate refused the PRRA application and determined that Mr. Lai is not a person in need of protection.
[24]
Mr. Lai
filed an application for leave and for judicial review of the PRRA decision in
Federal Court. On June 1, 2006, Justice Carolyn Layden-Stevenson granted the
stay of removal pending the outcome of the judicial review application of the
PRRA decision (2006 FC 672).
[25]
On
April 5, 2007, Justice Yves de Montigny of the Federal Court allowed Mr. Lai’s application for judicial review of the PRRA decision. The PRRA decision was set aside
and sent back for a re-determination by a new Minister’s delegate (2007 FC
361).
[26]
In
May 2009, Ms. Tsang departed Canada voluntarily and returned to China. All of Mr. Lai’s children, Chun-Chun, Chun Wai and Ming Ming also departed Canada in April
2009 and February 2010 and November 26, 2010 respectively. The PRRA
applications of Chun-Chun and Chun Wai were declared abandoned.
[27]
By
decision, dated July 7, 2011, a Minister’s delegate refused Mr. Lai’s PRRA
application and determined that he was not, on a balance of probabilities a
person in need of protection, and unlikely to be subjected to cruel, unusual
punishment or treatment or torture.
[28]
On
July 8, 2011, Mr. Lai was served with the PRRA decision and reasons and notified
by the Canada Border Services Agency [CBSA] that his removal would take place
shortly.
[29]
Mr.
Lai’s removal was scheduled to take place on Tuesday, July 12, 2011; an interim
stay was granted until July 22, 2011, at noon (Vancouver time), by Order of
Justice Michel Beaudry, dated July 11, 2011.
IV. Issues
[30]
To
obtain a stay of removal, an applicant must establish all three prongs as set
out in Toth v Canada (Minister of Employment and Immigration) (1988), 86
NR 302, 11 ACWS (3d) 440 (FCA):
- whether there is a serious question
to be determined by the Court;
- whether an applicant seeking the
stay would suffer irreparable harm if the stay were not granted; and
- whether, on the balance of
convenience, an applicant seeking the stay will suffer the greater harm
from the refusal to grant the stay.
[31]
The
test for a stay is conjunctive and an applicant must satisfy each branch of
this tri-partite test.
V. Analysis
A. Serious
Issue
[32]
Mr. Lai
has raised the following issues in the underlying judicial review application
of the PRRA decision:
a) An
apprehension of bias;
b) Minister’s
delegate’s findings regarding the diplomatic assurance and compliance
mechanisms were unreasonable.
a) No
Reasonable Apprehension of Bias
[33]
Mr. Lai
argues that the decision-maker is not an officer of the PRRA unit but a
“Minister’s delegate” and, therefore, is not independent from the Minister.
[34]
Pursuant
to section 6 of the IRPA, the Minister of Citizenship and Immigration
has delegated PRRA Officers and certain officials of CIC at National
Headquarters, including the Director of Case Determination, to make PRRA
decisions. The decision-maker in Mr. Lai’s PRRA application is the Director,
Case Determination of the Case Management Branch at the National Headquarters
of the Department of Citizenship and Immigration (CIC – Instrument of
Designation and Delegation, Operational Manual, IL3, Column 52).
[35]
The
Minister’s delegate considered Mr. Lai’s submissions on bias and determined
that she would be assessing and weighing all of the information before her
based on her own independent decision-making with an open mind.
[36]
The
test for a reasonable apprehension of bias, set out in Committee for Justice
and Liberty v National Energy Board, [1978] 1 S.C.R. 369, is whether an
informed person, viewing the matter realistically, and practically – and having
thought the matter through, would conclude, that it is more likely than not,
that the Minister’s delegate decided Mr. Lai’s PRRA fairly.
[37]
An
informed person, after reading the reasons setting out the delegate’s
independent analysis, viewing the matter realistically and practically, and
having thought the matter through, would conclude that the Minister’s delegate
decided Mr. Lai’s PRRA application fairly; the Minister’s delegate considered
Mr. Lai’s submissions, examined and analyzed the evidence, and had arrived at
an independent decision; and, certainly, did not mince words in regard to her
reflections on the Chinese legal system as per the evidence before her.
b) PRRA
Findings Were Reasonable
[38]
The
standard of review for PRRA decisions when considered in their entirety is that
of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339).
[39]
The
nature of the decision of a Minister’s delegate warrants significant deference
on judicial review. Where there is nothing unreasonable in the PRRA decision,
there will be no serious issue for the purposes of a stay application. In this
case, the Minister’s delegate’s decision was reasonable and does not warrant
intervention by this Court (Tharumarasah v Canada (Minister of Citizenship
and Immigration), 2004 FC 211 at para 6; Bhalru v Canada (Minister of
Citizenship and Immigration), 2005 FC 1259 at para 24).
[40]
As
held by Justice Yvon Pinard in Weerasinghe v MCI, (January 22, 2004)
IMM-10240-03, in order for a Court to substitute its assessment of risk for
that of previous decision-makers, an applicant must provide clear and
convincing evidence which would suggest that the Court ought to engage in this
exercise. The same logic applies to a Minister’s delegate. Mr. Lai has not provided clear and convincing evidence of error and, therefore, has not raised a
serious issue. Mr. Lai is ultimately asking this Court to substitute its
opinion on risk for that of the Minister’s delegate. Absent compelling evidence
due to the Chinese Government’s specific assurances accepted by the Minister’s
delegate as valid, the Court will not do so.
[41]
In
assessing the application, the Minister’s delegate has set out how she considered
the evidence and the conclusions that she drew from it. Her reasons are clear
and also indicate that she did not fetter her discretion. She unmitigatedly described
the Chinese legal system in regard to the matter in very clear and unequivocal
terms, excerpts of which are quoted and discussed below.
[42]
Mr. Lai
argues that the serious issue raised in the underlying judicial review
application is whether the Minister’s delegate’s findings are reasonable
regarding the mechanisms to ensure compliance with the diplomatic assurances
that the Applicant will not be tortured and whether those mechanisms are
adequate.
[43]
The
Minister’s delegate considered and weighed all of the evidence before her; she
considered the issue of whether it is more likely than not that Mr. Lai would be subjected to torture or mistreatment in China. The Minister’s delegate referred
to the expert evidence as well as country condition documents. She found that
the Chinese authorities in this case would not find it necessary or
desirable to subject Mr. Lai to torture after his return to China.
[44]
In
her reasons, the Minister’s delegate, herself, specifically, made the
following findings regarding the assurances against torture:
i.
Assurances
against torture contained in March 2011 would not be adequate in circumstances
where authorities would otherwise rely heavily on the practice of torture as
the United Nations Special Rapporteur has indicated that only assurances that
include invasive monitoring and apply to a whole prison population would be sufficient;
however, Mr. Lai does not find himself in circumstances where authorities would
otherwise rely on the practice of torture;
ii. Criminal
Procedure in China is flawed by Canadian and international standards, but has
improved significantly since the changes to criminal procedure of the late
1990s. In Mr. Lai’s case the March 2011 specific assurances provide some
additional safeguards which will help to ensure that Mr. Lai is treated in a
manner that would not shock the conscience of Canadians; (It
is recognized by the Court that Mr. Lai’s brother Lai Shui Quiang, and his
accountant, Chen Zencheng, died in prison of unexplained causes.)
iii. A
life sentence for Mr. Lai would not shock the conscience of Canadians, be
degrading to human dignity or be disproportionate to a valid social aim and
consequently would not amount to cruel and unusual punishment. Reported prison
conditions, in and of themselves, do not amount to cruel and unusual treatment
or punishment; (The Minister’s delegate was reflecting on the
Chinese Government’s assurances in this regard.)
iv. Mr.
Lai is unlikely to be tortured because he does not belong to a vulnerable
group, because disincentives to torture exist in Chinese law, because torture
does not appear to have occurred to other Yuan Hua group accused and because of
the late stage of the investigation of his crimes. Mr. Lai is also unlikely to
have his death “arranged” while detained/incarcerated;
v. Mr. Lai
will not be executed should he be returned to China and is unlikely to have his
death arranged while detained or in prison. On a balance of probabilities, Mr. Lai is unlikely to be subjected to cruel, unusual punishment or treatment, or tortured.
[45]
The
US Department of State - 2010 Human Rights Report: China, is subsequently
quoted in the reasons of the Minister’s delegate at page 59:
Conditions
in penal institutions for both political prisoners and criminal offenders were
generally harsh and often degrading. Prisoners and detainees were regularly
housed in overcrowded conditions with poor sanitation. Inadequate prison
capacity remained a problem in some areas. Food often was inadequate and of
poor quality, and many detainees relied on supplemental food and medicines
provided by relatives. Some prominent dissidents were not allowed to receive
such goods. Adequate, timely medical care for prisoners remained a serious
problem, despite official assurances that prisoners have the right to prompt
medical treatment.
Article
53 of the Prison Law mandates that a prison shall be ventilated, allow for
natural light, and be clean and warm. However, in many cases there were
inadequate provisions for sanitation, ventilation, heating, lighting, basic and
emergency medical care, and access to potable water.
Forced
labor remained a serious problem in penal institutions. Many prisoners and
detainees in penal and RTL [re-education through labour] facilities were
required to work, often with no remuneration. Information about prisons,
including associated labor camps and factories, was considered a state secret.
[46]
There
are no special institutions for political or religious prisoners. Nowhere does
the country condition information suggest otherwise. Political prisoners and those
interned for religious practice and common criminals are all housed in the same
institutions.
[47]
The
sourcing of the US Department of State Report is indicated in the Overview to
the Country Reports. That Overview states:
The
Department of State prepared this report using information from U.S. embassies
and consulates abroad, foreign government officials, nongovernmental and
international organizations, and published reports. The initial drafts of the
individual country reports were prepared by U.S. diplomatic missions abroad,
drawing on information they gathered throughout the year from a variety of
sources, including government officials, jurists, the armed forces,
journalists, human rights monitors, academics, and labor activists. This
information gathering can be hazardous, and U.S. Foreign Service personnel
regularly go to great lengths, under trying and sometimes dangerous conditions,
to investigate reports of human rights abuse, monitor elections, and come to
the aid of individuals at risk, such as political dissidents and human rights
defenders whose rights are threatened by their governments.
Once
the initial drafts of the individual country reports were completed, the Bureau
of Democracy, Human Rights and Labor, in cooperation with other Department of
State offices, worked to corroborate, analyze, and edit the reports, drawing on
their own sources of information. These sources included reports provided by
U.S. and other human rights groups, foreign government officials,
representatives from the United Nations and other international and regional
organizations and institutions, experts from academia, and the media. Bureau
officers also consulted experts on worker rights, refugee issues, military and
police topics, women's issues, and legal matters, among may others. The guiding
principle was to ensure that all information was assessed objectively,
thoroughly, and fairly.
(http://www.state.gov/g/drl/rls/hrrpt/2010/frontmatter/154328.htm).
[48]
The
US Department of State Report then is multi-sourced. The authors of the US Report
would have taken into account the UN Report. The Report of the UN Special
Rapporteur, in contrast, is single-sourced. The UN Special Rapporteur was
reporting only what he saw on his pre-arranged visits to ten facilities. The UN
Special Rapporteur was not reporting on prison conditions generally but only on
that which he was shown; thus, what he specifically “found” at the ten
facilities to which he had made pre-arranged visits. The Minister’s delegate
preferred single source information (Decision at p 58). Yet, nevertheless, the
assurances in themselves are a counterweight on which the Minister’s delegate
reflected in her decision.
[49]
As
is discussed in the written material of the Applicant, the detention facilities
and treatment of prisoners of the following groups are similar to the treatment
of common criminals: Tibetan monks and nuns, the current, 2010, Nobel Peace
Prize winner, Falun Gong practitioners, Christians and other religious
practitioners. External monitoring of Chinese detention facilities is not
permitted except through pre-arranged visits, and China does not publish
information in respect of its detention facilities. Prisoners, once released,
are reticent to speak of prison conditions while in China for fear of
revictimization. No evidence indicates that there are separate detention
facilities for any of the groups listed. All prisoners are housed together
indiscriminately, and, therefore, all, are subject to the same conditions.
[50]
Based
on a review of country condition documents, the Minister’s delegate found that
certain vulnerable groups were disproportionately affected with respect to
incidents of torture in detention which is not uniform across the prison
population. These vulnerable groups or “typology of victims of alleged torture
and ill-treatment” were identified by the Special Rapporteur on torture as Tibetans,
Uighurs, political dissidents, human rights defenders, Falun Gong
practitioners, sex workers, and other persons (HIV/AIDS infected persons and
members of religious groups) (Decision at pp 63-64; Excerpt from Report of the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment,
Decision at p 69-71).
[51]
The
Minister’s delegate also assessed the treatment and torture of “common
criminals”, since Mr. Lai does not fall into one of the “vulnerable groups”.
The Minister’s delegate found that, during times of police crack downs on
crime, there are increased reports of torture to coerce confessions. The
Minister’s delegate also found that the main motivation behind torture of
criminals appears to be at the investigation stage to force a confession
instead of obtaining other types of evidence (Decision at p 67).
Diplomatic
assurances
a)
Torture
[52]
The
Minister’s delegate accepts that the diplomatic assurances, even as
renegotiated, would not be sufficient in themselves to remove the likelihood of
torture. She writes: “these assurances do fall short of a thorough monitoring
mechanism necessary to ensure an inmate is not mistreated in custody where
those in authority are determined to do the inmate harm” (Decision at p 39).
She later writes that it is the access of Canadian officials to the cell of
the Applicant promised in the diplomatic assurances, that “would
mitigate any risk of abuse” [Emphasis added] (Decision at p 51).
[53]
In
regard to
torture, the delegate finds, on a balance of probabilities, it is unlikely to
occur. She makes this finding not based on the assurances alone, but based on
other evidence as well. Nonetheless, assurances form part of the consideration.
The assurances in her view do not ensure that there will be no abuse, but they
do significantly mitigate the risk of abuse.
[54]
The
above issue was raised in a certified question by Justice de Montigny: "If
there is a risk of torture in an individual case, what are the requirements
that an assurance against torture should fulfill to make that risk less likely
than not?" As one can see, one answer the Minister’s delegate gave to that
question was cell visits. Cell visits then do diminish the risk of torture
recognizing the word, honour and face of the Chinese Government is on the line.
b)
The Death Penalty and Fair Trial
The
assurance of Court attendance
[55]
The
Minister’s delegate relied on the assurances for the procedural safeguards
which the Chinese Government provided. She wrote: “these assurances are most
valuable in terms of the procedural safeguards they provide Mr. Lai ... I note
that criminal procedures, similar to the commitment on death penalty, are more easily
verifiable as compared to whether or not torture has taken place” (Decision at
p 40).
[56]
The
notion that criminal procedures or the death penalty are easily verifiable is
difficult to ascertain. The death penalty and criminal procedure assurances
suffer from the fact that the courts in China are not public and Canada cannot
do otherwise but solely rely on these rare exceptional assurances that have the
commitment of the Chinese Government.
[57]
It
is recognized that a judgment by the Supreme Court of China, that a person sentenced
to death, is not issued as a public document; nor is the actual execution of
the sentence. The country condition information shows that death penalty
statistics in China are shrouded in secrecy. Many non-governmental
organizations and governments have called on China to make available death
penalty statistics. Such calls would be unnecessary if Supreme Court death
sentences were issued in public documents. If they were public documents, death
penalty statistics could be calculated simply by tabulating Supreme Court
judgments.
[58]
According
to the Minister’s delegate, the assurances provide “[p]ermission for a Canadian
Embassy or Consular official to be present at his hearing” (Decision at p 50).
What the assurances actually specify is that "[w]hen the court holds open
hearings of LAI Changxing's criminal case of alleged smuggling under the Code
of Criminal Procedure and the Criminal Code of the People's Republic
of China, the Canadian side may send embassy or consular officials resident in
China to attend the hearings” (Decision at p 14).
[59]
The
Minister’s delegate accepts the argument that a monitoring mechanism for
torture is necessary because torture happens behind closed doors.
[60]
The
revised assurances from the Government of China do not say that Canadian
embassy or consular officials will be given permission to attend the trial of Mr. Lai, but only that these officials will be given permission to attend “open hearings”
of the criminal case of Mr. Lai. The Government of China could declare the
trial of Mr. Lai closed, deny access to Canadian officials and respect the
assurances; however, the assurances, received as valid by the Minister’s
delegate are accepted as substantial in that the Chinese Government, according
to the Minister’s delegate’s decision, will allow the necessary monitoring of
Mr. Lai while he is in detention (Decision at p 14).
[61]
The
Minister’s delegates writes: “there is the possibility that Mr. Lai's case
could be characterized as a “state secrets” case” but fails to draw the
consequence from that conclusion that Canadian officials would not be able to
rely on the assurances to sit in on his trial (Decision at p 53).
The
assurance of access to a lawyer
[62]
A
primary challenge Mr. Lai faces in respect of a fair trial in China is finding
a lawyer willing, and able, to take instructions from him. He can find a
lawyer; however, that lawyer will be instructed by the Communist Party and not Mr. Lai. Without the Chinese Government’s assurances, if a lawyer, bold enough to take the
position that Mr. Lai would want him to take, would find himself in a potential
precarious situation; and, again, it is only due to reliance on the specific
assurances that the Minister’s delegate does find adequacy, recognizing the
significant nature of the Chinese Government’s specific commitment to Canadian
Government authorities in this regard.
[63]
This
case has been highly politicized, generating many statements over the years by
Chinese political leaders. These statements have assumed the guilt of Mr. Lai. The political leaders of China consider Mr. Lai to be the country's number one fugitive
and, it is assumed that all the evidence will be brought forward due to the
assurances given to the Canadian executive branch which is deemed acceptable to
the Minister’s delegate.
[64]
The
reasoning of the Minister's delegate that Mr. Lai would get a fair trial is
predicated on a conclusion of his guilt. The Minister’s delegate reasons: “I
acknowledge that politically-directed verdicts can be a problem in China but in
Mr. Lai's case there would appear to be no need for the government/the “Party”
to direct a verdict. The evidence of criminality, as accumulated by the 4-20
investigators is significant” [Emphasis added] (Decision at p 52).
[65]
The
response of the Minister’s delegate to the submissions of counsel, that a
lawyer for Mr. Lai in China will not be able, at trial, for political reasons,
to raise the defenses Mr. Lai wishes to raise, is the following. She writes:
“if Mr. Lai is returned to China he will most likely be convicted of bribery
and smuggling” (Decision at p 52). Although the notion that only the innocent
need fair trials is untenable, it is again, due to the extraordinary assurances
in this specific case that it is acceptable to the Minister’s delegate, on
account of the Chinese Government’s commitments on this core issue.
[66]
This
Court did review the Minister’s delegate’s reasons in their entirety with a
view to understanding what the Minister’s delegate decided. The Federal Court of
Appeal emphasized this point recently in Canada (Minister of Citizenship and
Immigration) v Ragupathy, 2006 FCA 151, [2007] FCR 490:
[15] Although
trite, it is also important to emphasize that a reviewing court should be
realistic in determining if a tribunal's reasons meet the legal standard of
adequacy. Reasons should be read in their entirety, not parsed closely, clause
by clause, for possible errors or omissions; they should be read with a view to
understanding, not to puzzling over every possible inconsistency, ambiguity or
infelicity of expression.
B. Irreparable Harm
[67]
In
order to satisfy the second branch of the Toth test, the onus is on an applicant
to establish the existence of risk of harm that is not speculative or based on
a series of possibilities. An applicant must satisfy the Court that the harm
will occur if the relief sought is not granted (Molnar v Canada
(Minister of Citizenship and Immigration), 2001 FCT 325 at para 15; Akyol
v Canada (Minister of Citizenship and Immigration), 2003 FC 931 at para 7).
[68]
Mr. Lai
has failed to establish that he will suffer irreparable harm if he were
returned to China. He argues the following irreparable harm:
a) The
serious issues raised in the underlying PRRA judicial review application is
linked to the irreparable harm; and
b) The
same allegations of risk of harm put forth in his PRRA application.
a) No
Serious Issue to Establish Irreparable Harm
[69]
Mr. Lai
links his “irreparable harm” argument to having established a serious issue in
regard to risk, and as he has not established a serious issue, his
irreparable harm argument fails due to the specific assurances which, to the
Minister’s delegate, are assurance enough as they are interpreted as safeguards.
[70]
Irreparable
harm does not automatically follow that of a serious issue, if a serious issue
is established in the case of a PRRA judicial review application. In Onojaefe,
the Court held that the simple presence of a serious issue arising out of a
risk assessment in a PRRA is not automatically determinative of the issue of
irreparable harm. The serious issue identified may not necessarily meet the
test for irreparable harm, and deference is owed to the Minister’s delegate,
trier of fact, with respect to risk (Onojaefe v MCI (May 10, 2006)
IMM-2294-06 at paras 13-16).
[71]
Even
if this Court were to find there is a serious issue to be tried, the Court
would then have to consider whether that serious issue raises clear and
convincing evidence (not speculative based on a series of possibilities) that Mr. Lai would suffer irreparable harm if removed to China at this time. None of the issues, due
to the Chinese Government assurances, raised by Mr. Lai, amount to clear and
convincing proof of risk necessary to support the “irreparable harm” portion of
the tri-partite test for a stay.
b) Alleged
Risk of Return to China
[72]
With
respect to the alleged risk of return to China, Mr. Lai has made the same
allegations of risk in his refugee claim before the CRDD and PRRA application.
The CRDD finding was upheld by the Federal Court and the Federal Court of
Appeal. The SCC denied Mr. Lai’s application for leave. This Court has
held that an applicant’s narrative that the CRDD has found to be not credible,
cannot then serve as the basis for an argument supporting irreparable harm. Mr.
Lai has provided no evidence in support of his stay motion that he would now be
at risk upon return to China, due to the specific assurances provided (Molnar,
above, at para 15; Akyol, above, at para 7; Nalliah v Canada
(Solicitor General), 2004 FC 1649, [2005] 3 FCR 210 at para 27).
[73]
Furthermore,
it is apparent that Mr. Lai has been negotiating his return to China with the
Chinese authorities. This willingness to engage in negotiations to return to
China belies the alleged risk of return to China.
C. Balance of
Convenience
[74]
The
balance of convenience in this case favours the Respondents. The Minister of
Public Safety and Emergency Preparedness is mandated by statute to enforce the
removal order as soon as reasonably practicable. Mr. Lai is also under a
statutory obligation to leave Canada immediately once the removal is
enforceable (subsection 48(2) of the IRPA).
[75]
The
IRPA (s 48) requires that the Minister of the Public Safety and
Emergency Preparedness enforce a removal order as soon as is reasonably
practicable (Akyol,
above, at para 12). Only in exceptional circumstances will a person’s
interests outweigh the public interest. As the Federal Court of Appeal in Tesoro
v Canada (Minister of Citizenship and Immigration), 2005 FCA 148, [2005] 4
FCR 210, recently explained: “[i]f the administration of immigration law
is to be credible, the prompt removal of those ordered deported must be the
rule, and the grant of a stay pending the disposition of legal proceedings, the
exception” (Decision at para 47).
[76]
Mr. Lai
arrived in Canada in August 1999 and has remained here since. He has had full
access to Canada’s immigration processes and has been found to be excluded from
the definition of “Convention refugee” and is “not a person in need of
protection”. The CRDD conducted an extensive hearing into his refugee claim and
concluded on June 21, 2001 that he was excluded from the definition of
“Convention refugee” by Article 1F(b) of the Refugee Convention for there
are serious reasons for considering that he committed the serious non-political
crimes of large scale bribery and smuggling outside Canada before he was
admitted to Canada. The CRDD decision was upheld by the Federal Court on
March 19, 2004 and the Federal Court of Appeal on April 11, 2005, with leave to
appeal dismissed by the SCC on September 1, 2005. Mr. Lai submitted his PRRA
application to the Minister of Citizenship and Immigration. The Minister’s
delegate carefully considered his application and provided a thorough,
well-reasoned PRRA decision on July 7, 2011.
[77]
In
Mr. Lai’s situation, his family members, who accompanied him to Canada, have
already returned to China voluntarily.
[78]
A
stay of removal is an “exceptional remedy”. In Tesoro, above, Justice
John Maxwell Evans heard a stay of removal in the Federal Court of Appeal and
held that if he had determined that the removal of this serious criminal would
cause “irreparable harm” for reason of family separation (which he did not
find), then he would have dismissed the stay for having failed the arm of the
“balance of convenience test” for prompt removal must be the rule, and the
granting of a stay, the exception. Justice Evans held:
[47] … if I had determined that Mr. Tesoro's
removal would cause irreparable harm, on the ground that the effects of family
separation were more than mere inconveniences, I would have located the harm at
the less serious end of the range, and concluded that, on the balance of convenience,
it was outweighed by the public interest in the prompt removal from Canada of
those found to be inadmissible for serious criminality. If the administration
of immigration law is to be credible, the prompt removal of those ordered
deported must be the rule, and the grant of a stay pending the disposition of
legal proceedings, the exception.
[79]
Mr.
Lai is a common criminal fugitive from the Chinese justice system who has had
full access to Canada’s immigration processes over the last eleven years and
has been found not to be at risk if removed to China on the basis of
extraordinary assurances received and held as valid by the Minister’s delegate;
therefore, the balance of convenience does not favour further delaying his
removal, but favours removing him at this time (Selliah v Canada (Minister
of Citizenship and Immigration), 2004 FCA 261 at paras 21-22).
VI. Conclusion
[80]
Due
to the Chinese Government’s assurances and the reasons for acceptance of those
assurances by the Minister’s delegate, Mr. Lai has failed to satisfy any of the
three criteria of the Toth test required for an order to stay the
execution of a valid deportation order issued against him, the stay is
dismissed.
ORDER
THIS
COURT ORDERS that the
Applicant’s motion for a stay be dismissed.
“Michel
M.J. Shore”
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