Date: 20070920
Docket: IMM-6745-06
Citation: 2007 FC 945
Toronto, Ontario, September 20, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
ZILI
CUI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant Zili Cui is an adult male citizen of the People’s Republic of China. He,
together with another adult male citizen of that country, Xin Zhi Deng (whose
application is also under consideration by this Court in proceeding
IMM-4071-06) entered Canada on a valid visitor’s visa. That visa
expired. Cui and Deng sought an extension of their visas 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, S.C. 2001, c. 27 (IRPA).
[2]
Two
different proceedings ensued with respect to the Applicant Cui. The first was
an admissibility hearing. On June 24, 2004, Cui was found to be not
inadmissible. The Minister appealed that decision and, as of this date, the
appeal is still pending. The second proceeding was a Refugee hearing that
commenced on March 16, 2005 and continued on June 21, 2005. The Minister
participated in this hearing pursuant to paragraph 170(e) of IRPA and invoked
Article 1F(b) of the Refugee Convention alleging serious criminality on the
part of the Applicant. On November 24, 2006, a decision in respect of the
refugee hearing was rendered by a Member of the Immigration and Refugee Board
wherein it was determined that the Applicant Cui was excluded from protection
under section 98 of IRPA under Article 1F(b). Even absent such exclusion, the
Member determined that the Applicant was not a Convention refugee or a person
in need of protection. The Member found that there was no credible or
trustworthy evidence on which a decision favourable to the Applicant could have
been made, thus the claim for refugee protection was rejected. This decision is
the one under review by this Court.
[3]
Cui
raises a single issue in his application namely whether the Minister, or his
counsel or agents, acted improperly in the obtaining of a certain document
subsequently entered into evidence at the hearing before the Board held in
March and June 2005. The document in question is one entitled “Notice of Annulling
the (2003) C. Z. Zi, No. 10630 Notarial Certificate” which appears in the
original Chinese language at pages 1057 and 1058 of the Tribunal Record and in
English language translation at page 1059 of that Record. This document was
part of a larger bundle identified at the hearing as Exhibit M-4.
[4]
Cui’s
counsel in his Memorandum of Argument asks that there be a fresh hearing and
that the Minister “provide proof that they did not take actions contrary to
law.”
[5]
Cui’s
position is based on paragraph 166(c) of IRPA which requires that proceedings
such as that at issue here “must be held in private”.
[6]
There
appears to be no judicial consideration as to what is encompassed in the phrase
“in private”. A “proceeding” has been considered by Justice Tremblay-Lamer of
this Court in Gagné v. Canada (Attorney General), 2002 FCT 711 at
paragraphs 27 and 28 where she adopted, inter alia, the definition found
in Black’s Law Dictionary that a “proceeding” contemplates “the regular and
orderly progression of a lawsuit, including all acts and events between the
time of commencement and entry of judgment.” Thus a “proceeding” as contemplated
by paragraph 166(c) of IRPA is not just the hearing but all that which occurs
from the institution of the matter until its final disposition.
[7]
The
document in question is characterized as an Annulment of a Notarial
Certificate. It purports to annul a certificate provided by a notary’s office
in China on April 23,
2003 on the basis that at that time, false documents has been provided by Cui’s
Chinese attorney. The Notarial Certificate of April 23, 2003 does not appear
to be in the Tribunal Record. An earlier Notarial Certificate dated September
11, 2002 is of record at page 771 of the Tribunal Record. It says that it
certifies that Cui “has no record of committing offences against the
criminal law during he reside (sic) in China up to the day Aug. 29, 2002.”
When asked about the September 2002 certificate, Cui indicated in his oral
evidence that it was for use in business trips, no particular country was
involved. He said at pages 94-95 of the transcript:
MINISTER’S COUNSEL: Okay.
You provided us with a notarial certificate indicating that you had no criminal
record in China. That certificate is dated
September 2002. For what purpose did you obtain that certificate in September
2002?
CLAIMANT (Z. CUI): To
get a notarial certificate to apply for a visa for business trip.
MINISTER’S COUNSEL: Which
visa?
CLAIMANT (Z. CUI): For
September 2002. But the actually certificate could be used (inaudible). There
is no particular country that you needed to use for.
MINISTER’S COUNSEL: Okay.
But what I asked was, what did you get the certificate for in 2002 and you said
to apply – oh, okay. You said to apply for a visa and you’re just saying for
any business trip that might come up. Is that ---
CLAIMANT (Z. CUI): Yes.
[8]
No
reference is made in the transcript to any other Notarial Certificate nor to
the Annulment document at issue.
[9]
In
the Tribunal Record, at pages 777 and 778 is a document apparently obtained
from a US State Department website explaining what a Chinese Notarial
Certificate is. It says in part:
Notarial offices are located
in all major Chinese cities and in rural county seats. These offices are part
of the Ministry of Justice structure, but are separate from the people’s court
system.
Notaries in China did not perform the same
functions as their American counterparts. Chinese notaries affix their
signatures and office seal to certificates that attest to the probity of claims
made by the applicants. By regulation, notaries are empowered to issue
certificates only after they conclude that the applicant’s claims are true.
Notarial certificates of birth, death, marriage, divorce, no criminal record
and pre-1981 adoptions are, at best, secondary evidence of the events they
purport to document. Although these certificates are secondary evidence, they
are used because primary evidence is not standardized, is easily forged, and
difficult to evaluate. Notarial certificates are easier to interpret than
primary evidence and theoretically represent an expert judgment on the part of
the notarial official as to the facts documented.
The certificates can be based
upon primary evidence, secondary evidence, testimony of the applicant or other
parties, or investigation by the notary. For most notarial certificates of
birth or adoption, the primary underlying documentation is the household
register (HHR) which appears to be extremely susceptible to fraud and
manipulation, especially if the holder of the HHR lives outside of a major
metropolitan area. Notarial certificates rarely cite the basis for their
issuance.*
Thus a certificate in itself
may not be adequate evidence of the facts claimed, and is best used in
conjunction with primary and contemporaneous secondary evidence.
[10]
Thus
a Notarial Certificate appears to have limited evidentiary value and appears at
best to be secondary evidence. In this present case at the hearing, neither
the Certificate of April 25, 2003 nor the Annulment was referred to in oral
testimony nor does the Board refer to either in its Reasons.
[11]
At
the hearing held in March 2005, a bundle of documents provided by the Minister
on February 7, 2005 headed Volume 3 of the Minister’s Evidence was addressed by
Cui’s counsel. That bundle included the Annulment document now at issue.
Cui’s counsel was concerned primarily that he had insufficient time to prepare
a response to the documents in the bundle. No particular reference was made to
the Annulment document. Cui’s counsel stated that, if it were a criminal
matter then, what he referred to as Supreme Court of Canada dicta, would
have been involved. However, Cui’s counsel did not object to the admissibility
of the bundle which included the Annulment document. All that he sought was an
extension of time, which he received. To quote in part from the lengthy
submissions of Cui’s counsel at pages 6 and 9 of the transcript of the hearing
held March 16, 2005:
But the document of February 7th
raises highly significant and new concerns. The document of February 7, 2005,
which is headed Volume 3 of the Minister’s Evidence, consists of a great number
of documents which have been presented to us for the very first time under
letter dated February 7, 2005. It consists of allegations of criminals for
each of the two applicants, there are alleged transcripts of inquiries of
various so-called witnesses for China Life Insurance. Some of them dated well
after the admissibility hearings for these gentlemen had been concluded. And
therefore, either were developed after the admissibility hearings or, in some
cases, were ready, could have been presented at the admissibility hearing, but
were not.
Now, if this were a criminal
matter, which is not, if the admissibility hearing were a criminal matter,
which is not, the Supreme Court of Canada dicta regarding disclosure would
clearly have been violated. Now, I said it was not, we’re not talking about
criminal law, I’m just drawing an analogy here.
. . .
PRESIDING MEMBER: Okay.
Counsel, you’re making submissions, I gather, there you have no objections to
enter this document into evidence. You’re not raising any objections.
COUNSEL: No. Well, no,
I---
PRESIDING MEMBER: I
just want to get that clear. It’s only a question of time.
COUNSEL: Perfectly
admissible. And if it were there alone, at the end of this hearing I would say
exclude them. You know? Because…
[12]
As
can be seen, Cui’s counsel stated that the documents were “perfectly
admissible”. At page 16 of the transcript of the hearing for March 16, 2005,
the bundle of documents was entered as Exhibit M-4.
[13]
At
pages 21 and 22 of the transcript of March 16, 2005, Cui’s counsel stated that
he was “fearful the transcript of this proceeding and the evidence given by my
clients may wind up not in Canada, were the Charter would apply, but in
China.” An undertaking was requested of the Minister’s counsel that the
transcript and evidence not be sent to China. The
Minister’s counsel replied that “no such undertaking is required by law” but
that his office “has no intention of providing the transcripts of this hearing
to Chinese authorities.” A discussion followed as to whether the documentation
would become public if an application for review was taken in the Federal
Court.
[14]
A
review has been taken in this Court, no Order as to confidentiality has been
sought or obtained.
[15]
At
no time during the hearing did Cui’s counsel raise any issue as to how the
Minister may have obtained the documents now at issue nor as to the propriety
as to their use in evidence.
[16]
The
Federal Court of Appeal has considered the question as to the use in evidence
at an application hearing, of documents obtained from Chinese authorities. Pelletier J.A. for the
Court found that even if the matter in which the documents were obtained should
not have occurred, it does not mean that it was illegal or unlawful. At
paragraphs 14 to 16 of Xie v. Canada (Minister of Citizenship and Immigration ), [2005] 1 F.C.R. 304
he said:
14 But the fact that something
"should not have occurred" does not mean that it is either illegal or
unlawful. When pressed as to the basis for the allegation that the warrant was
illegally obtained, counsel argued that by bringing the appellant to the
attention of the Chinese authorities, the government had increased the risk of
torture in the event of her return. Given the requirement in the Convention
against Torture that the subscribing parties take steps to prevent torture, the
government had breached its treaty obligations which, [page315] for present
purposes, ought to be treated as an unlawful act.
15 It is pure speculation as
to whether the disclosure of the appellant's refugee claim increased the risk
of torture. From what one can gather from the Board's reasons, the risk of
torture arises in the course of detention during the criminal investigation.
There is nothing before us to suggest that the disclosure that a refugee claim
has been made would affect that particular risk, or would create a risk of
torture on its own.
16 Even if one assumes that
the Chinese diplomatic note is an accurate report of the course of events, the
apparent lapse by the consular service does not provide a basis for saying that
the warrant was illegally obtained evidence. Consequently, the question of
exclusion of the warrant on the ground that it would bring the administration
of justice into disrepute does not arise.
[17]
In
the present case, Cui’s counsel agreed that the documents were “perfectly
admissible” and raised no objection before the Board as to how they were
obtained. No reference was made to the documents at issue in oral evidence or
by the Board in its Reasons. The documents are, in any event, at best
secondary evidence.
[18]
I
find that given in particular the conduct of Cui’s counsel before the Board
which amounts to a waiver, the issue as to the provenance of the documents
cannot now be raised.
[19]
There
is no question for certification the issues being fact specific. No costs will
be awarded.
JUDGMENT
For the Reasons provided:
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application is dismissed;
2. There is no question
for certification;
3. There is no award of
costs.
“Roger
T. Hughes”
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