Date: 20070405
Docket: IMM-2845-06
Citation: 2007 FC 364
Ottawa, Ontario, April 5,
2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LAI
CHUN WAI, LAI MING MING and LAI CHUN CHUN
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is a judicial review of a PRRA officer’s decision, dated May 11, 2006. The
officer was assessing the risk to the three children of Lai Cheong Sing and
Tsang Ming Na if they returned to China. The same officer also
rejected the parents’ PRRA application, prompting them to seek judicial review
of that decision in this Court. I allowed the parents’ application, in the
file IMM-2669-06. I am also going to allow the children’s application,
for the reasons that follow.
[2]
The
Lai family is at the centre of a major criminal scandal in China. The parents
have been accused of smuggling more than $6 billion worth of goods back home,
as well as bribery, fraud and tax evasion. China wants the
parents back, so it can put them on trial for those crimes. Others have already
been tried and convicted for their roles in the smuggling operation. Some of
them have been executed by the state. The parents, for their part, have always
maintained they have been railroaded by the government, and are victims of a
cover-up and conspiracy. The children have never been accused of playing any
role in their parents’ alleged crimes.
[3]
The
family claimed refugee status in June 2000, and had a 45-day hearing before the
Immigration and Refugee Board’s Refugee Division (the Board). As dependents,
the three children’s claims were based on their parents’. I have discussed the
details of that hearing at length in my decision relating to the parents’
application. Suffice it to say, the Board did not accept the parents’ version
of the story. It found they were criminals fleeing from justice, not victims
fleeing persecution. The Board excluded the parents from claiming refugee
status under Article 1F(b) of the United Nations Convention Relating to the Status of Refugees (the Convention), which says:
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;
[4]
Thereafter,
the Board found none of the family members, including the three children, were
at risk of persecution. Thus, even if it had not excluded the parents from
claiming refugee status, the whole family’s claim would have failed before the
Board.
[5]
After
the family lost their Board hearing, they applied for judicial review of the
Board’s decision. Justice Andrew MacKay rejected that application in Lai v. Canada (Minister of
Citizenship and Immigration), 2004 FC 179. They also lost their appeal
to the Federal Court of Appeal, which decision is recorded as Lai v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 125. The Supreme Court of Canada denied leave
to appeal that decision, in Lai
v. Canada (Minister of Citizenship and
Immigration),
[2005] S.C.C.A. No. 298 (QL).
[6]
Once
they exhausted their appeal options, the family applied for pre-removal risk
assessments (PRRA) under section 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the IRPA). This is significant
because the IRPA came into force in June, 2002 – after the family’s initial
refugee hearing before the Board. Their refugee claims were determined under
the old Immigration Act. That Act did not provide for a PRRA, and so the
officer’s decision was the first time anyone had assessed section 97 risks to
the applicants.
[7]
The
children made several main arguments in their application. First, they argued
they would be at risk of public retaliation, particularly from people whose
family members had already been convicted and executed for playing more minor
roles in the smuggling scheme. Second, as the children of Lai Cheong Sing, they
submitted they would be harassed by the government, and face both employment and
educational discrimination in China.
[8]
Finally,
they made a claim relating to the eldest child, Lai Chun Wai (Kenny). After the
family arrived in Canada, Kenny and some relatives in China coordinated
a money transfer to his parents. The parents apparently used the money to pay
their legal fees relating to this case. Those relatives – Kenny’s grandmother
and his uncle’s girlfriend – were subsequently charged and convicted under
Article 310 of the Criminal Law of the People’s Republic of China, a
provision which reads as follows:
Whoever provides a person who he clearly
knows to be a convict with a hiding place, financial and material support,
assists him to escape, hides, or protects him by falsifying evidence is to be
sentenced to not more than three years of fixed-term imprisonment, criminal
detention, or control; when the circumstances are severe, to not less than
three years but not more than ten years of fixed-term imprisonment.
In his PRRA application, Kenny argued he
would be at risk himself if returned to China, because
authorities there would want to charge him under Article 310 for his role in
the money transfer.
[9]
The
PRRA officer rejected all of the children’s claims. She concluded there was
little evidence to support the first two arguments. With respect to the claim
about vengeance, she noted the only evidence of any threat against the family
could be found in the father’s testimony during his Board hearing. He said his
sister had informed him, after the family moved to Canada, that there
had been an attempt to bomb the family home. Afterwards, China’s Public
Security Bureau had dispatched security to the home. At the time of the
hearing, the father still believed they were guarding the house. This, the
officer claimed, was not sufficient to establish any forward-looking risk to
the children, and she characterized their first argument as speculative.
[10]
Looking
at the second argument, again the officer found there was not enough evidence
to support this claim. Expert evidence from their Board hearing contradicted
their arguments. The children also did not fit into any of the categories of
people typically targeted by the state, according to a 2005 report from the
U.S. Department of State. They were not Falun Gong practitioners, journalists,
unregistered religious figures, former political prisoners, or perceived as
threatening to the government’s authority.
[11]
Finally,
the PRRA officer determined, Chinese authorities were not interested in
charging Kenny under Article 310. Unlike his parents, for example, there was no
evidence of an arrest warrant for Kenny. Despite this, the officer still
analyzed whether a conviction under Article 310 would put Kenny at risk, and
found it would not. She considered Article 310 to be a “law of general
application”, analogous to Canadian provisions about harbouring fugitives. She
concluded the 18-month prison sentences handed down to his relatives were not
disproportionate to the law’s objective. She also found the provision was not
inherently persecutory, and decided there was less than a mere possibility
Kenny would be at risk of cruel and unusual treatment if he went back to China.
[12]
The
children submit the officer erred on all three bases of her decision. Before
analyzing her decision, the Court must determine the appropriate standard of
review for each question raised in the application.
[13]
In
my view, the questions about vengeance, harassment and discrimination are
purely factual. Following Justice Richard Mosley’s conclusions from Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437 at paragraph 19, those issues
are reviewable on the standard of patent unreasonableness.
[14]
As
I explained at paragraph 86 of my decision in the parents’ application,
interpreting foreign law is also a question of fact. I rely on the Federal
Court of Appeal’s findings in Canada (Minister of
Citizenship and Immigration) v. Saini, [2002] 1 F.C. 200
(F.C.A.) at paragraph 26:
Foreign
law is a question of fact, which must be proved to the satisfaction of the
Court. Judicial findings about foreign law, therefore, have always been
considered on appeal as questions of fact (see J.-G. Castel, Canadian Conflict
of Laws, 4th ed. (Toronto: Butterworths, 1997), at page 155).
Moreover, it is well settled that this Court will only interfere with a finding
of fact, including a finding of fact with regard to expert evidence, if there
has been a palpable and overriding error (See for example N.V. Bocimar S.A.
v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Stein
et al. v. “Kathy K” et al. (The Ship), [1976] 2 S.C.R. 802).
See also: Magtibay v. Canada
(Minister of Citizenship and Immigration), 2005 FC 397 at paragraph 15;
Aung v. Canada (Minister of Citizenship and Immigration), 2006 FC 82 at
paragraph 13; Buttar v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1281 at paragraph 9; Nur v. Canada
(Minister of Citizenship and Immigration, 2005 FC 636 at paragraph 30;
Canada (Minister of Citizenship and Immigration) v. Choubak, 2006 FC
521. Therefore, the Court should only interfere with the PRRA officer’s
conclusions on Article 310 of the Criminal Law of the People’s Republic of
China if they were patently unreasonable.
[15]
I
can dispose of the children’s first two arguments quite quickly. The
evidentiary record is simply barren of evidence to indicate the children would
be at risk from vigilante members of the public, beyond their own assertions
that this is so. Nor does the record demonstrate any likelihood that the
Chinese government would subject the children to discrimination or harassment
in the areas of education and employment. As the expert witnesses informed the
Board, this may have been true in China in the late 1970s, but
it is no longer so today. The children have brought forth no evidence to
counter that conclusion. The PRRA officer’s conclusions were therefore
perfectly sound.
[16]
That
leads me to the PRRA officer’s analysis of Article 310. Counsel for the
children claims the officer erred by employing the notion of a “law of general
application”, because that concept is only meant to deal with the question of
nexus when assessing Convention refugee claims under section 96 of the IRPA.
The lead case on this issue is Zolfagharkhani v. Canada (Minister of
Employment and Immigration), [1993] 3 F.C. 540 (F.C.A.). Because the issue of
nexus is irrelevant under section 97, counsel argues, the officer erred.
Instead, the officer should have analyzed Article 310 according to the
language in paragraph 97(1)(b)(iii) of the IRPA, which says:
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
(b) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
(iii) the risk is not inherent or
incidental to lawful sanctions, unless imposed in disregard of accepted
international standards…
[17]
I
respectfully disagree with counsel. While the “law of general application”
concept has evolved through cases involving Convention refugee claims under
section 96 of the IRPA that does not mean using the concept in the context of a
PRRA decision undermined the officer’s analysis. The PRRA officer had the
discretion to assess risk as she saw fit. She looked at the purpose of Article
310, how it was applied generally, and how it had affected Kenny’s relatives in
this case. Furthermore, she only conducted this analysis as a matter of obiter,
because she initially found there was less than a mere possibility that Kenny
would be charged under Article 310 in the first place. I do not think her
conclusions on this issue were patently unreasonable.
[18]
Ordinarily,
this would be the end of the matter and I would dismiss the application for
judicial review. However, this is not an ordinary situation, because I have
granted the parents’ application for judicial review. This means that, for now,
the parents will not be going back to China, which raises the
question of whether the children would be at risk if sent there on their own.
Amongst other things, the children claim the government could use them as
leverage, to persuade their parents to return. The PRRA officer did not address
this possibility, because the applicants never made the argument to her.
However, given the circumstances, I think the issue is sufficiently important
to warrant consideration. Because of this, I am granting the children’s
application for judicial review. The PRRA officer’s decision should therefore
be quashed, and the matter sent to a different officer for redetermination.
[19]
Counsel
for the applicants submitted two questions for certification, none of which
raises an issue of general application or has the potential to impact on the
final determination of this case. As a result, no question will be certified.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that:
This
application is granted. The PRRA officer’s decision should be quashed, and the
matter sent to a different officer for redetermination. There is no certified
question.
“Yves
de Montigny”
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