Date: 20070920
Docket: IMM-4071-06
Citation: 2007 FC 943
Toronto, Ontario, September 20,
2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
XINZHI
DENG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Xin Zhi Deng is an adult male citizen of the People’s Republic of China. He,
together with another adult male citizen of that country, Zili Cui (whose
application is also under consideration by this Court in proceeding IMM-6745-06)
entered Canada on a valid
visitor’s visa. That visa expired. They sought an extension of the visa and
were refused. As a result they made a claim for refugee protection in August,
2003. On August 21, 2003, the Applicants Cui and Deng were arrested and held
for admissibility hearings on the basis of an allegation that they had
committed crimes of serious criminality, namely major fraud, pursuant to subsection
36(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27
(IRPA).
[2]
In
November 2003, an admissibility hearing was held to determine if Deng was
inadmissible for reasons of serious criminality. On May 13, 2004, the
Immigration Division found that Deng was inadmissible for serious criminality.
Deng’s evidence was found to be unreliable and self-serving.
[3]
On
March 16, 2005 and June 21, 2005, a hearing was held to determine Deng’s claim
for refugee protection. The basis of that claim was Deng’s assertion that he
feared persecution in China because he was a Falun Gong practitioner
and that he gave $20,000 to an illegal church which caused him to be persecuted
and be at risk of persecution by Chinese authorities. That hearing was held
jointly with the refugee claim hearing of Deng’s colleague Cui. The Minister
served notice that he intended to participate in these hearings and he did so
through counsel. Exclusion by reason of Article 1F(b) of the Refugee
Convention was an issue. The Immigration and Refugee Board gave its decision with
respect to Deng on June 13, 2006 in which it was determined:
1. Deng
was excluded from the application of the definition of Convention refugee and
excluded from the status of a person in need of protection pursuant to Article
1F (b) of the Convention and;
2. Deng
was not a Convention Refugee and not a person in need of protection and the
claim does not have a credible basis.
It is this decision of June 13, 2006 that
is under review.
[4]
The
chronology of events concerning Deng’s and Cui’s history including applications
for refugee status is lengthy and complex. I have set out a chronological
summary in an Appendix to these Reasons. I will refer to the most salient
events in the course of these Reasons.
[5]
Deng’s
counsel in his written memorandum and in oral argument argued a number of
grounds as being a basis to set aside the Board’s decision of June 13, 2006.
They were:
1. Constitutionality
of section 98 of IRPA.
Section 98 of IRPA incorporates
by reference Article 1F(b) of the Refugee Convention which excludes a person
from refugee status where there are “serious reasons for considering” that he
has committed “a serious non-political crime.” Are these terms
unconstitutional for vagueness?
2. Translation.
Was the translation provided
to Deng during the March and June 2005 hearing and the earlier January 2004 hearing
adequate?
3. Adjournment.
Was the refusal of the Board
to grant Deng’s Counsel an adjournment of the hearing scheduled for June 21,
2005 proper?
4. Bias.
Was the Board Member actually
or apparently biased as against Deng?
5. Fairness of Hearing.
Was the hearing of March and
June 2005 conducted fairly?
These issues will be considered in turn.
1. Constitutionality
[6]
Section
98 of IRPA simply states:
|
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.
|
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.
|
[7]
The
Refugee Convention referred to includes in Article 1F (b) which is the
provision pertinent to these proceedings. It states:
Article 1. Definition of the
term “refugee”
[…]
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;
[…]
Article premier. – Définition
du terme “réfugié”
[…]
F. Les dispositions de cette
Convention ne seront pas applicable 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;
[8]
Applicant’s
counsel argues that the phrases “serious reasons for considering” and “serious
non-political crime” are vague and are, therefore, invalid as offending the
provisions of section 7 of the Charter of Rights and Freedoms which
requires that there be fundamental justice. Reliance is placed on the Reasons
of the Supreme Court of Canada, delivered by Gonthier J. in R. v. Nova
Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 639 to 640:
A vague provision does not provide an adequate basis
for legal debate, that is for reaching a conclusion as to its meaning by
reasoned analysis applying legal criteria. It does not sufficiently delineate
any area of risk, and thus can provide neither fair notice to the citizen nor a
limitation of enforcement discretion. Such a provision is not intelligible, to
use the terminology of previous decisions of this Court, and therefore it fails
to give sufficient [page640] indications that could fuel a legal debate. It
offers no grasp to the judiciary. This is an exacting standard, going beyond
semantics. The term "legal debate" is used here not to express a new
standard or one departing from that previously outlined by this Court. It is
rather intended to reflect and encompass the same standard and criteria of fair
notice and limitation of enforcement discretion viewed in the fuller context of
an analysis of the quality and limits of human knowledge and understanding in
the operation of the law.
[9]
This
part of the Reasons must be tempered by what Gonthier J. said in the
immediately preceding paragraph at page 639:
Indeed no higher requirement as to certainty can be imposed
on law in our modern State. Semantic arguments, based on a perception of
language as an unequivocal medium, are unrealistic. Language is not the exact
tool some may think it is. It cannot be argued that an enactment can and must
provide enough guidance to predict the legal consequences of any given course
of conduct in advance. All it can do is enunciate some boundaries, which create
an area of risk. But it is inherent to our legal system that some conduct will
fall along the boundaries of the area of risk; no definite prediction can then
be made. Guidance, not direction, of conduct is a more realistic objective. The
ECHR has repeatedly warned against a quest for certainty and adopted this "area
of risk" approach in Sunday Times, supra, and especially the case of
Silver and others, judgment of 25 March 1983, Series A No. 61, at pp. 33-34,
and Malone, supra, at pp. 32-33.
[10]
Article
1F(b) of the Refugee Convention has not, apparently, previously been considered
from a constitutional point of view. However, Article 1F(c) was considered by
this Court in Atef v. Canada (Minister of
Citizenship and Immigration), [1995] 3 F.C. 86. In that decision,
Wetston J. of this Court reviewed both the Nova Scotia Pharmaceutical
decision, above, and another case decided by the Supreme Court of Canada in the
same year, R. v. Morales, [1992] 3 S.C.R. 711. He considered that a
provision such as Article 1F(c) cannot be considered as vague simply because it
is framed in general terms; flexibility and vagueness are not synonymous. What
must be considered is whether the provision confers an unfettered discretion.
At pages 107 to 108 of Atef, Wetston J. said:
Article
1F(c) will not be found to violate the doctrine of vagueness simply because it
is framed in general terms which are subject to interpretations. As the Chief
Justice notes in Morales, supra, at page 729, "flexibility and vagueness
are not synonymous". What must be determined is whether Article 1F(c)
confers an unfettered discretion. As was stated in Nova
Scotia Pharmaceutical Society, supra, at page 642, by
Mr. Justice Gonthier:
What
becomes more problematic is not so much general terms conferring broad
discretion, but terms failing to give direction as to how to exercise this
discretion, so that this exercise may be controlled. Once more, an
unpermissibly vague law will not provide a sufficient basis for legal debate;
it will not give a sufficient indication as to how decisions must be reached,
such as factors to be considered or determinative elements. In giving
unfettered discretion, it will deprive the judiciary of means of controlling
the exercise of this discretion.
Once
again, Justice Gonthier, in Morales, supra, at page 754, commented regarding
discretion as follows:
Consequently,
the identification of a measure of discretion conferred by means of a
legislative provision cannot alone provide the basis for a constitutional
evaluation of that provision. Nor can the identification of possible parameters
of that discretion, for a discretion which is referred to as being fettered can
be one which is limited not only by appropriate constraints but also by those
which are inappropriate or unsuitable. The more important issue which remains,
therefore, is what kind of discretion is conferred, and the capacity of the
words of the legislative provision to support the type of reasoning which the
matter under adjudication requires. [Emphasis added.]
[11]
The
jurisprudence, of which there is an abundance, demonstrates that Article 1F(b)
has been judicially construed and applied without apparent difficulty, it does
not confer an unfettered discretion. It is sufficient to refer to the reasons
of the Federal Court of Appeal, delivered by Malone J.A. in Lai v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 125 at paragraphs 22 to
25 which reviews a number of decisions in this respect:
22 This
subsection excludes from the definition of Convention refugee any person to
which section F of Article 1 of the Refugee Convention applies. The relevant
portion of that section reads as follows:
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;
[Emphasis
Added.]
* * *
F. 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;
[Je souligne.]
While
various purposes for Article 1F have been identified by this Court, the primary
purpose of this Article is to ensure that perpetrators of serious non-political
crimes are not entitled to international protection in the country in which
they are seeking asylum (see Décary J.A. in Zrig v. Canada (Minister of
Citizenship and Immigration), [2003] 3 F.C. 761, 2003 FCA 178 at paragraphs 118 and 119). The effect of a
board finding that this Article is applicable to a claimant is that the
claimant is excluded from accessing the Canadian refugee determination process
and cannot therefore be found to be a Convention refugee.
23 In
the recent decision of this Court in Xie v. Canada (Minister of Citizenship and
Immigration) (2004), 243 D.L.R. (4th) 385, 2004 FCA 250 at paragraph 23, leave to appeal to S.C.C.
refused, [2004] S.C.C.A. No. 418, S.C.C. Bulletin, 2005, p. 444, it
was established that an 'exclusion' hearing under Article 1F(b) is not in the
nature of a criminal trial where guilt or innocence must be proven by the
Minister beyond a reasonable doubt. Rather, the onus upon the Minister is to
establish, based on the evidence presented to the Board, that there are
"serious reasons for considering" that Mr. Lai and Ms. Tsang
committed serious non-political crimes in China prior to their arrival in
Canada.
24 Furthermore,
pursuant to subsection 68(3) of the former Act, the Board is not bound by any
legal or technical rules of evidence. However, in order to receive and base a
decision on evidence adduced before it, that subsection requires that the Board
receive and consider evidence that is credible or trustworthy in the circumstances
of the case. It reads as follows:
(3)
The Refugee Division is not bound by any legal or technical rules of evidence
and, in any proceedings before it, it may receive and base a decision on
evidence adduced in the proceedings and considered credible or trustworthy in
the circumstances of the case.
* * *
(3) La section du statut n'est pas liée par les règles légales ou
techniques de présentation de la preuve. Elle peut recevoir les éléments
qu'elle juge crédibles ou dignes de foi en l'occurrence et fonder sur eux sa
décision.
The
requirements of subsection 68(3) of the former Act continue essentially
unchanged in the new Act at paragraphs 170(g) and (h).
25 Overall,
the Board must assess and weigh the evidence that it has accepted as credible
or trustworthy in the circumstances and determine whether or not the threshold
test of "serious reasons for considering" has been met with regard to
the serious non-political crimes alleged (see Moreno v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 298 at 309, 311 (C.A.)). The standard of
evidence to be applied to this threshold test is higher than a mere suspicion
but lower than proof on the civil balance of probabilities standard (see Zrig
at paragraph 174; and Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306 at 312-14 (C.A.)).
[12]
There
is no vagueness in the wording of Article 1F(b) such as to confer an unfettered
discretion. I find that section 98 of IRPA which incorporates by reference
Article 1F(b) of the Refugee Convention does not violate the principles of fundamental
justice provided for in section 7 of the Charter. It is not
unconstitutional for vagueness.
2. Translation
[13]
Deng
objects not only to the quality of the translation offered by the Board at the
hearing held in March and June 2005 but also raises an issue with respect to
the hearing that preceded it in respect of a decision not at issue here which
hearing was held in November 2003 and January, 2004. His counsel cites the
decision of the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R.
951 where Lamer C.J. for the Court said at page 996:
In
other words, it is simply beyond the bounds of a civilized society such as ours
to permit a person charged with a criminal offence and facing deprivation of
liberty who genuinely cannot speak and/or understand the language of the
proceedings to dispense either wittingly or unwittingly with the services of an
interpreter.
Where
waiver of the right to interpreter assistance is possible, the threshold will
be very high.
[14]
This
decision dealt with the right to an interpreter in the first place and waiver
of that right. It did not deal with issues as to the adequacy of the
translation or interpretation where such facilities were provided.
[15]
The
Federal Court of Appeal dealt with the quality of interpretation in Mohammadian
v. Canada (Minister of
Citizenship and Immigration), [2001] 4 F.C. 85. Stone J.A. for the
Court at paragraphs 18 and 19 said:
18 As
Pelletier J. observed, if the appellant's argument is correct a claimant
experiencing difficulty with the quality of the interpretation at a hearing
could do nothing throughout the entire hearing and yet be able to successfully
attack the determination at some later date. Indeed, where a claimant chooses to
do nothing despite his or her concern with the quality of the interpretation,
the Refugee Division would itself have no way of knowing that the
interpretation was in any respect deficient. The claimant is always in the best
position to know whether the interpretation is accurate and to make any concern
with respect to accuracy known to the Refugee Division during the course of the
hearing, unless there are exceptional circumstances for not doing so.
19 As
I have indicated, in light of his experience at the very first sitting of the
Refugee Division the appellant appears to have been well aware of his right to
the assistance of a qualified interpreter. When his conduct during the whole of
the third sitting and for some time afterward is weighed with his undoubted
knowledge of his right, it is difficult to construe that conduct as other than
a clear indication that the quality of interpretation was satisfactory to him
during the hearing itself. In my view, therefore, Pelletier J. did not err in
determining that the appellant had waived his right under section 14 of the
Charter by failing to object to the quality of the interpretation at the first
opportunity during the hearing into his claim for refugee status.
[16]
In
the circumstances of the hearings in question, even the earlier hearings put in
issue by Deng, there was no objection raised by Deng or his counsel, an
experienced counsel, at the time of the hearings to the Board Member. Deng
apparently speaks some English. There is some evidence, equivocal at best,
that Deng and the interpreter may have had discussions between themselves as to
the quality of the interpretation. Whatever was said, the matter does not
appear to have been sufficiently important for Deng or his counsel to raise the
matter before the Board.
[17]
The
issues respecting translation of interpretation now raised even if accurate do
not appear to rise to a level that would lead this Court to conclude that they
had a material effect on the proceedings or decisions of the Board in either
decision. In the latter decision, the one at issue here, there was some
confusion as to when a person was imprisoned and when that person died. That
confusion was ultimately cleared up and nothing turns upon it.
3. ADJOURNMENT
[18]
The
chronology of events as set out in the Appendix shows that the Minister
disclosed to Deng in July 2004, September 2004 and February 2005 the materials
in its possession relevant to the hearing to be held later in 2005. The
hearing began March 16, 2005 at which time Deng’s counsel sought an adjournment
until June 2005 to permit Deng to gather evidence respecting the allegations as
to serious crimes.
[19]
At
pages 1478 and 1479 of the Tribunal Record, which are pages 7 and 8 of the
transcript of the March 16 2005 hearing, Deng’s counsel explains that he should
have requested an extension in February but, due to illness, he was unable to
do so. He sought leave to request an extension until June 2005. He said, in
part:
So, what is the outcome here?
Instead of making the submission in writing I’ve made the submission today, to
put it on the record. So, instead of – I don’t know how much I was going to
ask for, but let us say I’d been asking until July to see if we could
controvert this material, give us to June, because of my fault. I still would
have requested the adjournment on this section of exclusion, because it’s
simply not fair.
[20]
As
a result, the matter was put over until June as requested. On June 9, 2007,
Deng’s counsel made a further request for an adjournment which was denied.
This was addressed in the Board’s reasons at page 10:
Prior to the resumption of the
hearing on June 21, 2005, counsel made an application, on June 9, 2005,
requesting a postponement of the hearing to sometime in September 2005.
Counsel wrote that his clients needed more time to obtain evidence to rebut the
allegations of the MC. The application was denied considering that the
claimants had had enough time to procure the documentary evidence to rebut the
MC’s evidence. MC had made his first documentary disclosure as far back as
July 12, 2004 with the latest disclosure on February 7, 2005, more than a month
ahead of the first sitting on March 16, 2005. Furthermore, the claimants had
more than three months since the first sitting, at the end of which MC had
completed his examination of Mr. Deng. Given the above, notwithstanding that
the claimants were familiar with the allegations levelled against them at the
admissibility hearings, it was therefore reasonable to conclude that the
claimants had more than ample time to procure the rebuttal evidence.
Furthermore, postponement of the hearing would not have been fair and would not
have served the interests of the judicial system. The RPD is obliged to
conduct hearings expeditiously with efficiency, but fair to the claimants.
[21]
The
hearing concluded on June 21, 2005 and the parties were given an opportunity to
provide written submissions which the Refugee Protection Officer and Minister
did on June 29 and July 15 respectively. Deng changed counsel in July 2005.
[22]
On
July 28, 2005, Deng’s new counsel made an application under Rule 44 of the
Refugee Protection Division Rules for a variety of relief including a request
for provision of tapes and transcripts. The Notice requested among other
things:
4. That, after the
tape recordings and transcripts have been made available to the applicant’s
counsel, a date be set for resumption or continuation of the herein proceeding,
as the case may be, when the applicant be permitted, to present evidence in
full, oral and/or documentary, to support his claim;
[23]
The
application was supported by an affidavit of Deng which, among other matters,
addressed the issue of documents expected to come from China at paragraph
9:
I have never been in jail for
any crime in China and I did not defraud anyone
by posing as agents of China Life Insurance Company. This is the absolute
truth. I am expecting official documents from China which will support my position and prove
that some of the documents provided by the Chinese government to the Minister
are false. For instance, I expect to receive an authentic document from China which refutes the Verdict on
page 59 to 63 (Chinese), to 64 to 68 (English translation) of the Minister’s
materials (M-4). Attached hereto as Exhibit A is the Verdict and its
translation. I expect the new document to be identical to the judgment in
almost all material respects except for the fact that my name was not on it. I
must indicate that, although I made the above assertion based on reliable
sources, I have not seen this document which is now on its way to Canada.
[24]
It
appears that some documents did come. They were not filed with the Board in
any proper way. Instead, they were attached to a Reply filed by Deng’s counsel
in the course of the Rule 44 application. Those documents do not address the
“serious crime” matter at issue which was an alleged insurance fraud scheme
commencing in about 1998 but rather an earlier matter in which Deng was alleged
to be implicated in 1988. The documents provided by Deng are alleged to
address his assertions that the 1988 documents coming from China had been
altered to insert his name improperly in Court related documents whereas,
according to Deng, the true documents named someone else.
[25]
The
Board considered the Rule 44 application and rejected it finding that Deng had
not exercised due diligence and his application failed to demonstrate why the
material could not have been submitted earlier. At pages 19 and 20 of its
Reasons, the Board said:
New counsel submitted several
unsolicited documents in support of the claim of Mr. Deng as part of his reply
to the MC’s submissions concerning the issues raised in his application of July
28, 2005, pursuant to Rule 44 of the RPD Rules. The said “Reply” ring binder
document was received by the RPD on August 12, 2005. As the aforesaid
documents were submitted post-hearing and considering that the hearing
concluded on June 21, 2005, the submission did not comply with Rule 37 of the
RPD Rules. According to this Rule, the claimant must file an application
explaining why these documents could not have been submitted earlier, before
the commencement of the hearing, as required by Rule 29, and their relevance.
These documents, purportedly originated in July 2003, and earlier, going back
to the year 1988 (excluding the dates of certification issued by certain
individuals in China at the request of the
claimant). As stated, the claimant arrived in Canada on January 24, 2004 and sought refugee
protection on August 12, 2003. MC has disclosed all of the evidence that he
was relying upon, to argue exclusion by February 7, 2005 and on three different
occasions starting in July 2004. This was notwithstanding that the claimant
was already familiar with the main thrust of the adverse evidence that he was
up against, because of the admissibility hearing in the year 2004. The
claimant had legal representation right from the day of his PIF preparation to
the end of the refugee hearing on June 21, 2005. His first legal counsel
sought and obtained a postponement of the hearing scheduled on July 16, 2004,
citing lack of sufficient time to prepare. As such, the claimant had ample
time to procure the documents much earlier than he did. The claimant had not
provided any credible proof that he made diligent efforts to obtain the
documents. Further, as the documents are submitted after the hearing, the
panel is not in a position to examine and adduce evidence on these documents to
determine their relevance and probative value. Neither is the post-hearing disclosure
fair to the other party to the proceeding. Given the above, the panel makes a
finding that the claimant has not exercised due diligence. The panel, for all
of the aforesaid reasons, determines that the claimant has failed to comply
with Rule 37(1) and, therefore, the new documents are not entered into
evidence.
[26]
The
Court, upon a judicial review, must have respect for decisions made by a Board
in respect of its own procedure. As set out in Prassad v. Canada (Minister of
Employment and Immigration), [1989] 1 S.C.R. 560 at 568-69, a court
should only intervene where there has been a breach of procedural fairness or
natural justice:
Powers of the Adjudicator
In order to arrive at the correct interpretation of
statutory provisions that are susceptible of different meanings, they must be
examined in the setting in which they appear. We are dealing here with the
powers of an administrative tribunal in relation to its procedures. As a
general rule, these tribunals are considered to be masters in their own
[page569] house. In the absence of specific rules laid down by statute or
regulation, they control their own procedures subject to the proviso that they
comply with the rules of fairness and, where they exercise judicial or
quasi-judicial functions, the rules of natural justice.
[27]
Here
the Applicant Deng was given ample opportunity to know the Minister’s case and
assemble appropriate materials in reply. One adjournment had already been
given to a date asked for by Deng’s counsel. The manner in which the new
material was eventually sought to be introduced was procedurally flawed. Deng
never gave any evidence as to why the material was not obtainable earlier.
[28]
The
material in any event does not go to the heart of the issue. If valid, the
documents would only go to challenge whether or not Deng was convicted of an
office in 1988. That alleged offence is not at issue here.
[29]
Counsel
for Deng asserts that the allegations of the 1988 offence serve to colour the
case against his client and bolster issues of credibility against Deng. Given
the findings of the Board particularly as set out at pages 45 and 46 of its
Reasons that there were a “myriad of contradictions, inconsistencies and
failure to mention significantly material pieces of evidence”, the 1988 issue
was but a small part of this picture and not significant to the overall
assessment of credibility. It was not mentioned by the Board at all in coming
to its conclusions as to Deng’s credibility.
[30]
Therefor,
I find that the refusal to grant a further adjournment or failure to accept
further documents by the Board does not constitute a basis for setting the
decision aside.
4. Bias
[31]
Deng
alleges that the fact that the Board had before it the decision of the Immigration
Division of May 13, 2004, in which he was found to be inadmissible caused the
Board to be biased in coming to the decision now under review.
[32]
The
Board, at page 13 of its Reasons made it clear that it was not considering the
earlier hearing. There is no evidence or compelling submission from Deng or
his counsel that would lead this Court to conclude, or even reasonably to
suspect that the Board was influenced by the earlier decision.
[33]
Judicial
bodies every day deal with matters and persons that may have been subjected in
one way or another to an earlier determination of some sort. The fact that the
judicial body was aware of these matters does not, without a clear indication
to the contrary, mean that improper bias resulted.
[34]
A
review of the transcript and the Reasons given by the Board leads to the
overwhelming conclusion that the Board was not only fair and indulgent to Deng
and his counsel but went overboard in many instances when there was no need to
do so. No bias against Deng or his counsel has been demonstrated.
5. FAIR
HEARING
[35]
Deng
argues that, all in all, he did not get a fair hearing. This argument is
simply a summary of the foregoing issues 2 to 4. Deng received a fair hearing.
FINDINGS OF THE BOARD
[36]
While
the specific issues raised by Deng have been discussed, the substantive findings
by the Board must be remembered. It is abundantly clear that, for a variety of
reasons, the Board did not find the evidence of Deng to be credible. It is
further abundantly clear that there was a good deal of procedural activity in
the case and that the Board exercised an indulgent but firm control over the
proceedings.
[37]
There
is a second branch to the proceedings, that of Deng’s claim for refugee status
based on his alleged fear of severe reprisals from the Chinese authorities by
reason of his alleged membership in Falun Gong and alleged donation of some
$20,000 to an illegal church. At page 50 of its Reasons, the Board summarized
its findings in stating that, even absent the exclusion decision, the Refugee
Protection Division determined that Deng was not a Convention refugee or person
in need of protection. Deng did not challenge this finding in this Court. The
Minister’s counsel was invited to consider whether this was sufficient to
dismiss Deng’s application. That invitation was declined as the Minister
wished to engage the issues raised in respect of the exclusion decision. Thus,
these reasons address these matters.
CERTIFICATION
[38]
Deng’s
counsel requested certification of one or more questions. The Minister’s
counsel requested none.
[39]
Paragraph
74(d) of IRPA provides that a question should only be certified if it is a
“serious question of general importance.” The nature of such a question has
been considered by the Federal Court of Appeal in Liyanagajage v. Canada (Minister of
Citizenship and Immigration), (1994) 176 N.R. 4 at pages 5 and 6 and by
this Court in Chu v. Canada (Minister of
Citizenship and Immigration) (1986), 116 FTR 68 at paragraph 2. Both
cases rely upon the decision of the late Justice Catzman of the Ontario High
Court (as he then was) in Rankin v. McLeod Young, Weir Ltd. (1986), 57
O.R. (2d) 569 where he found, in respect of a similar provision in the Ontario
Rules that the question should be one that “contemplates issues of broad
significance or general application that are felt to warrant resolution by a
higher level of judicial authority” (page 575).
[40]
All
issues save that of constitutionality raised in this application are
sufficiently fact specific such that a certification would not be appropriate.
However, the constitutionality issue is of sufficient general importance such
that consideration by the appeal court is appropriate, that is, it is a
“serious” question (and I note that the word “serious” appears in paragraph
74(d) of IRPA as it does in Article 1F(b) of the Convention). Therefore, the
following question will be certified:
“Do the provisions of section
98 of the Immigration and Refugee Protection Act to the extent that they
incorporate the provisions of Article 1F(b) of the Refugee Convention violate
the provisions of section 7 of the Charter of Rights and Freedoms in
failing to provide fundamental justice by reason of vagueness.”
COSTS
[41]
No
party requested costs and none will be awarded.
JUDGMENT
For the
Reasons given:
THIS COURT ORDERS AND
ADJUDGES that:
1. The application is dismissed
2. The following question is
certified:
“Do the provisions of section
98 of the Immigration
and Refugee Protection Act to the extent that they
incorporate the provisions of
Article 1F (b) of the
Refugee Convention violate the
provisions of section
7 of the Charter of Rights
and Freedoms in failing to
provide fundamental justice by
reason of vagueness”
3. No costs are
awarded.
“Roger T. Hughes”
APPENDIX
|
Date
|
Event
|
|
1987
|
Cui is allegedly criminally
convicted of theft and larceny in China.
|
|
August 1988
|
A People’s Court Conviction Order is
allegedly issued against Deng in China.
|
|
1998 to 2002
|
Cui and Deng allegedly sell
fictitious insurance policies in China.
|
|
2002
|
The Chinese government charges Deng
with fraud.
|
|
January 24, 2003
|
Cui and Deng are admitted to Canada
on six-month visitor’s visas, after spending a week in New Zealand.
|
|
March 7, 2003
|
A warrant is issued by the Chinese
authorities for Deng’s arrest relating to three fraudulent transactions.
|
|
April 14, 2003
|
Cui and Deng’s visitor’s visas
expire.
|
|
April 22, 2003
|
Interpol arrest warrants are issued
against Deng and Cui.
|
|
May 20, 2003
|
Cui and Deng apply to extend their
stay in Canada up to the end of 2003. Their applications are denied.
|
|
August 12, 2003
|
Cui and Deng file inland claims for
refugee protection.
|
|
August 21, 2003
|
Cui and Deng are arrested and
detained for admissibility hearings.
|
|
November 2003 to January 26, 2004
|
An admissibility hearing is held
before the Immigration Division of the Immigration and Refugee Board to
determine if Deng is inadmissible for criminality.
|
|
April 8, 2004
|
Deng attends an interview with an
immigration officer concerning his refugee claim.
|
|
May 13, 2004
|
The Immigration Division finds Deng
inadmissible for serious criminality (under IPRA s. 36(1)(c)).
|
|
June 24, 2004
|
The Immigration Division finds Cui not
inadmissible. The Minister appeals.
|
|
July 2, 2004
|
The Chinese government issues four
Notices of Annulment and forwards them to the Canadian government (allegedly
in response to a request made by the Canadian government to confirm the
authenticity of Notarial Certificates that stated neither Cui nor Deng had a
criminal record in China). The Notices of Annulment allegedly demonstrate
that the Notarial Certificates were based on false documents as Cui and Deng were
criminally convicted in China in the late 1980s.
|
|
July 12, 2004
|
The Minister serves a Notice of
Intent to Participate in Cui and Deng’s Refugee Protection Division (RPD)
hearings. This is the first of three disclosures made by the Minister.
|
|
|
Cui and Deng’s RPD hearings are scheduled
to be heard on July 26, 2004.
The Minister’s counsel makes an
application pursuant to Rules 44 and 48 of the Refugee Protection Division
Rules to join Cui and Deng’s claims.
|
|
July 15, 2004
|
Counsel for both Applicants,
Weisdorf, requests an adjournment because of personal medical reasons. He
requests a resumption date after March 16, 2004.
|
|
July 22, 2004
|
The RPD notifies the Applicants’
counsel, Weisdorf, that Cui and Deng’s claims will be joined.
The Minister requests a
postponement of the July 26, 2004, hearing date. In light of this request
and Weisdorf’s request on July 15, 2004, the hearing is postponed and
eventually rescheduled for March 16, 2005.
|
|
September 22, 2004
|
The Minister files its second of
three disclosures in respect of the RPD hearing.
|
|
February 7, 2005
|
The Minister files its final
disclosure in respect of the RPD hearing.
|
|
March 16, 2005
|
Deng’s refugee hearing begins (it
continues on June 21, 2005).
At the outset of the hearing, the Applicants’
counsel brings a motion seeking to postpone the hearing until June 2005. He
argues that the Applicants did not have enough time to gather evidence to
rebut the Minister’s extensive evidence respecting non-political crimes,
particularly given counsel’s illness.
The Minister’s counsel advises that
his examination will take at least a day, and thus the hearing would need to
be adjourned to another date that would be at least 3 months away - thus,
giving the Applicants’ counsel additional time to gather and disclose
documents and make further submissions.
|
|
June 9, 2005
|
Deng’s counsel requests that the June
21, 2005, hearing date be postponed until September to permit him to obtain
rebuttal evidence against the Minister’s allegations, namely the criminal
convictions and sentence in 1988. The request is refused.
|
|
June 21, 2005
|
Deng’s Refugee Hearing is
completed. The RPD establishes deadlines for filing further written
submissions.
|
|
June 24, July 15
|
The RPO and Minister file written
submissions following the RPD hearing.
|
|
July 2005
|
Deng retains new counsel, Hung.
|
|
July/August 2004
|
A lawyer in China (retained by
Deng) obtains documents allegedly demonstrating that the Criminal Verdict
obtained by the Minister was a forgery (these documents were presented in an
affidavit filed on August 12 as part of a Rule 44 “Reply”).
|
|
July 28, 2005
|
Deng’s new counsel, Hung, makes a
written application, pursuant to Rule 44 of the RPD rules raising new issues
that include a request for an oral hearing and question the constitutional
validity of section 98 of IPRA.
|
|
August 4, 2005
|
The Minister opposes Deng’s change
of counsel of record at the last minute.
|
|
August 9, 2005
|
The Minister files written
submissions in response to Deng’s July 28, 2005, Notice of Application.
|
|
August 12, 2005
|
Deng’s new counsel files a Reply to
the Minister’s submissions of August 9, 2005. New evidence is attached to
this Reply, including documents obtained by Deng’s lawyer in China that
suggest the document confirming the 1987 Criminal Verdict was a forgery.
Applicants’ deadline for filing
written submissions for the RPD hearing. Nothing is filed by this date by Cui’s
counsel.
|
|
August 18, 2005
|
The Minister opposes the RPD
accepting Deng’s unsolicited post-hearing evidence, and notes that Deng has
failed to comply with Rule 37 of the Refugee Protection Division Rules.
|
|
October 5, 2005
|
Deng receives notice that the RPD
has refused to consider the materials that he filed on August 12, 2005. Deng
is given until October 21, 2005, to file written submissions in response to
this decision.
|
|
October 11, 2005
|
Deng files an Application for Leave
and Judicial Review of the October 5, 2005, interlocutory decision of the RPD
where the member refused to consider the materials he filed on August 12,
2005. Deng requests a de novo hearing, an order prohibiting the RPD
member from continuing to hear his claim, and requests that the Federal Court
assess the constitutionality of section 98 of IRPA.
|
|
October 21, 2005
|
Deng files a motion in the Federal
Court seeking an order suspending the RPD proceeding until his Application
for Leave and Judicial Review can be determined. The motion was heard on November
14, 2005.
|
|
November 17, 2005
|
Justice Gibson dismisses Deng’s
motion filed on October 21, 2005, and finds that the Application for Leave
and Judicial Review underlying the motion (filed October 11, 2005) was
ill-founded.
|
|
June 13, 2006
|
The RPD issues its reasons for
decision, finding Deng inadmissible under section 98 of IPRA (that
incorporates Article 1F(b) of the Convention). The RPD also rejects Deng’s
Rule 44 application.
|
|
July 18, 2006
|
Deng files an application to reopen
the refugee hearing (with extensive supporting materials).
|
|
August 11, 2006
|
The RPD rejects Deng’s application
to have his refugee hearing reopened. No reasons were provided.
|
|
August 21, 2006
|
Deng files an Application for Leave
and Judicial Review of the RPD’s decision dated October 5, 2005, in which the
member refused to accept the additional materials submitted by Deng after the
completion of the hearing. A Notice of Constitutional Question is filed on
August 22, 2006.
|
|
November 24, 2006
|
The RPD issues its reasons for
decision, finding Cui inadmissible under section 98 of IPRA (that
incorporates Article 1F(b) of the Convention).
|
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