Date: 20080523
Docket: IMM-3479-07
Citation: 2008 FC 654
Ottawa, Ontario, May 23, 2008
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
BING LIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction and
Background
[1]
Bing
Liu, a citizen of the People’s Republic of China (PRC) and a permanent resident
of Canada since 2000, challenges the July 13, 2007 pre-removal risk assessment (PRRA)
decision made by a PRRA officer (the tribunal) determining he would not
be subject to risk of persecution, danger of torture, risk to life or risk of
cruel and unusual treatment or punishment if returned to his country of
nationality. In coming to this conclusion, the PRRA officer relied heavily on
an April 2007 report from the UK Border and Immigration Agency, Country of Origin
Information Service Report on China (The UK Home Office Report).
[2]
The
applicant became a permanent resident of Canada on his
wife’s sponsorship; they are now divorced. In May 2003, Mr. Liu was convicted
in Toronto of sexual
assault; he received a one year suspended sentence with conditions less time
served.
[3]
As
a result of his conviction, he was reported as being inadmissible pursuant to
paragraph 36(1)(a) of the Immigration and Refugee Protection Act (the Act).
An admissibility hearing was held; Mr. Liu was found to be a person described
in paragraph 36(1)(a) of the Act and was ordered deported. His appeal to
the Immigration Appeal Division (IAD) was deemed abandoned after his failure to
attend a scheduling conference. He never sought leave of this Court from the
IAD decision. The authorities then took the necessary steps to enforce the
deportation order hence his PRRA application and the subsequent PRRA decision
which is the subject of this proceeding.
Mr. Liu’s PRRA submissions
[4]
The
applicant’s PRRA submissions dated February 8, 2007 from his counsel expressed a
central fear in these terms:
In addition Mr. Liu fears that if he is
forced to return to China, he will be detained by the
Chinese authorities based on his criminal conviction for sexual assault in Canada. He is afraid of what the
Chinese authorities and inmates would do to him in prison. Sexual offenders are
treated like pariahs in China. Even if he is afforded a
trial, he does not believe he will receive a fair trial. The punishment he will
receive will be harsh and disproportionate to the crime he committed in Canada. [Emphasis mine.] (Applicant’s
application record, page 70.)
[5]
In
his PRRA submission, his counsel referred to documentary evidence on human
rights violations and corruption in China, including:
·
The US DOS
report for 2005 on China;
·
Amnesty
International’s Annual Report on China
for 2006;
·
The Human
Rights Watch Country Summary for China, January 2007;
·
A specific
Amnesty International Report entitled “Fear of torture and ill treatment
without charge” (July 1 and
December 1, 2006);
·
Human
Rights Watch’s “China: Letter to President Hu Jintao,
September 2006”;
·
Amnesty
International Death Penalty News, January 2006;
·
Extracts
from BBC News.
[6]
The
certified tribunal record (CTR), page 11, discloses that by letter of June 27,
2007, the PRRA officer offered Mr. Liu’s counsel an opportunity to provide
additional submissions in support of his PRRA application. His counsel
responded by submitting two letters dated July 4, 2007. In the first letter,
counsel encloses numerous additional human rights reports which, in his view,
show:
“Torture, arbitrary arrests
and house arrests continue to be widely practiced in China. Death penalty continues to be
exercised. Human rights situation continues to be extremely poor.
Mr. Liu is at risk of being
detained and imprisoned. He has a conviction of sexual assault and fears that
he will be detained for that in China.
Prison conditions are abysmal and abuse of prisoners remains pervasive. Those
convicted of sexual assault are treated particularly harshly.
Recent documentary evidence
illustrates corruption, serious abuses within the justice system, arbitrary
arrests, extra judicial killing and deteriorating human rights
conditions in China.”
(CTR p. 13)
[7]
The
second letter, on the same date, again stressed the fact Mr. Liu “had been
convicted of sexual assault will come to the attention of Chinese authorities
no matter where he goes in China. He fears that he may be imprisoned for
the committed offence, even though he has served his sentence in Canada”. Counsel
enclosed recent documentary evidence to buttress the points he was making. (CTR
p. 14)
[8]
It
would appear that the UK Home Office report (CTR 114) which the PRRA officer
relied on was provided under cover of counsel’s July 4th letter.
Specifically that report which is dated April 30, 2007 contained two paragraphs
under the heading “Double jeopardy” which read:
10.15
As
reported by the Canadian Immigration and Refugee Board (IRB) in a
report dated 9 March 2001, “A Professor
of Law at the University of Washington who specializes in Chinese criminal law was
unaware of any cases in which the government of China has retried individuals
for crimes committed outside China and for which sentences had already been
served (8 Mar. 2001). Additional and/or corroborating information could not
be found among the sources consulted by the Research Directorate.” [3v]
10.16
In a
letter dated 15 July 2005, the FCO (British Foreign & Commonwealth
Office) stated the following:
“The circumstances under which an
individual would be punished in China
for a crime committed in a foreign country for which he had already been
punished in that country are unstipulated. The Chinese authorities are
most likely to take this action if the crime had received a lot of publicity
in China, if the victims were well-connected in China, if there were a political angle to the
original crime or if the crimes were of a particular type that the authorities
wanted to make an example of. Our Embassy in Beijing is unaware of such instances. The specific inclusion in the
Criminal Law of ‘exemptions’ from second punishment in China for crimes committed abroad suggests
that the authorities would not take further action against ordinary criminal
offences”. [31g] [Emphasis mine.]
The PRRA
officer’s decision
[9]
The
PRRA officer indicates in his assessment he received Mr. Liu’s PRRA submissions
on February 9, 2007 in which Mr. Liu “maintains that he faces risk of detention
and imprisonment in China for a foreign sexual assault conviction
although he has already served his sentence in Canada. The letter
from counsel contends that those convicted of sexual assault are at an
increased risk of ill treatment”.
[10]
The
PRRA officer notes the applicant was given an opportunity to submit additional
evidence and states he has read Mr. Liu’s PRRA application carefully as well as
the documentation regarding current country conditions in China.
[11]
The
PRRA officer reiterated he considered all reports regarding human rights in China and opined “these
documents are general in nature and they assist in assessing general country
conditions.” He added: “However, little evidence has been submitted to
support the allegation that the applicant would be subject to detention upon
return as a result of his criminal history.” [Emphasis mine.]
[12]
The
PRRA officer then focussed on Article 10 of the PRC Criminal Code which
stipulates:
Any person who commits a crime outside
PRC territory and according to this law bear criminal responsibility may still
be dealt with according to this law even if he has been tried in a foreign
country: however, a person who has already received criminal punishment in a
foreign country may be exempted from punishment or given a mitigated
punishment.
[13]
The
PRRA officer then referred to documentary evidence, as noted above, on the
manner which this section is applied by the Chinese authorities. He wrote:
According to the UK Home
Office report, the Foreign
Commonwealth Office has stated that
Chinese authorities are unlikely to take further action against ordinary
criminal offences, and are more interested in pursuing well-connected criminals
or high profile media cases. A Professor of Law at the University of Washington who specializes in Chinese
criminal law was unaware of any cases where the Chinese government retried
individuals for crimes committed outside China, and for which sentences had already
been served.
Although the criminal code provides for it, there is little evidence to
demonstrate that the government uses this provision in practice to detain
returning nationals. The general country documentation confirms that prison
conditions for inmates in China are very poor. However, insufficient objective evidence of
personal risk to the applicant related to further punishment for his criminal
record has been submitted.
[Emphasis mine.]
and concluded:
Based on a thorough review of all the
evidence before me and the documentary evidence, I find that there is less than
a mere possibility that the applicant would face persecution upon his return to
China. Further, there are no
substantial grounds to support that he would face torture, nor are there
reasonable grounds to believe that he would face a risk to life or a risk of
cruel or unusual treatment or punishment.
The
Applicant’s arguments
[14]
Counsel
for the applicant argues the heart of the applicant’s fear is if returned to
China, he will be arrested and retried for the crime he committed in Canada for which he
was convicted here and has served his time. The reason the PRRA officer came to
the conclusion she did is her reliance upon the UK Home Office report in March
2007 which references two sources:
·
A
2001 Canadian Immigration and Refugee Board (IRB) report which itself relies
upon a Washington Professor of Law’s opinion on who is likely to be retried by
the Chinese authorities for crimes committed abroad;
·
The
July 2005 British Foreign and Commonwealth Office’s views on the same question.
[15]
The
essence of counsel for the applicant’s argument is that the PRRA officer’s
reliance on the UK Home Office report is undue particularly in the context of
the regressive and press controlled regime run by the Chinese authorities which
all country reports flag as having a very poor human rights record and where
its judicial system is known for its lack of transparency, its secrecy, its
lack of a presumption of innocence and the absence of safeguards for judicial
independence.
[16]
In
this context, she argued how much weight or reliance could be placed on the law
professor’s conclusion he was “unaware” of any case of the Chinese authorities
retrying its citizens who had committed crimes abroad and had served their
sentences. How good is his unawareness in China’s secretive
society she asked.
[17]
Counsel
for the applicant also argues the PRRA officer erred by omitting to consider
a category of persons who are likely to be retried in China, i.e., those
persons whose crimes were of a particular type that the authorities there
wanted to make an example of. An example might be sexual assault.
Analysis
a) Standard of review
[18]
The
particular task the PRRA officer was mandated to perform is set out in
subsection 113(b) of the Immigration and Refugee Protection Act (the Act)
which stipulates consideration of the application for protection [be] on the
basis of sections 96 (persecution) and 97 (risk of torture and risk of cruel
and unusual treatment or punishment) of the Act. The PRRA officer
arrived at the conclusion she did, as noted, by reliance on the two sources
mentioned in the UK Home Office report.
[19]
The
issue raised by the applicant is the PRRA officer’s assessment of the evidence
and the making of a finding of fact triggers, in my view, the application of
subsection 18.1.4(d) of the Federal Courts Act. The applicant’s
obligation was to demonstrate to the Court that the PRRA officer’s finding was
arrived at capriciously or arbitrarily or without regard to the evidence before
her, a breach of which in the post-Dunsmuir era is gauged on the reasonableness
standard.
b) Conclusions
[20]
For
the following reasons, the application for judicial review must be dismissed.
[21]
First,
the PRRA officer was entitled to give proper weight and rely on the UK Home
Office report. This document is prepared for use by officials involved in the asylum/human
rights determination process and includes information available up to March 31,
2007. The report notes the material used is “a collation of material produced
by a number of reliable information sources” and is subject to oversight by an
Advisory Panel on Country Information (see Applicant’s Record, pages 2001 and
2005).
[22]
Secondly,
reliability and weight of evidence are matters within the purview of the
decision maker. The jurisprudence is clear that on judicial review, the
reviewing judge is not to re-weigh the evidence before the tribunal.
[23]
Third,
taken as a whole, the PRRA officer’s decision makes it clear she was aware of
the infirmities of China’s judicial system and human rights record.
[24]
Fourth,
while counsel for the applicant is correct to say the PRRA officer did not
mention one category of persons returning to China may be
retried, nothing turns on this omission since the British Embassy in Beijing was not
aware of any such instances.
[25]
Fifth,
this is not a case where there were contra-reports differing from what was said
in the UK Home Office report on how section 10 of China’s Criminal Code
was administered. The applicant could not refer to any such counter evidence.
[26]
Sixth,
this is a case where the PRRA officer concluded the applicant did not muster
sufficient evidence to make his case which was his onus.
[27]
Seventh,
my colleague Justice Heneghan’s decision in Man v. Canada (Minister of
Citizenship and Immigration), 2005 FC 85 is on point in terms of the evidence
on how Article 10 of China’s Criminal Code is applied with reference to
the IRB report buttressed by other evidence.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this judicial
review application is dismissed. No certified question was proposed.
“François
Lemieux”
____________________________
Judge
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