Date: 20081002
Docket: IMM-539-08
Citation: 2008 FC 1112
Ottawa, Ontario, October
2, 2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AQING
LU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Lu Aqing is a citizen of the People’s Republic of China, whose claim for
refugee protection was rejected because the Refugee Protection Division of the
Immigration and Refugee Board found that there were serious reasons for
considering that Ms. Lu had committed a serious non-political crime prior to
coming to Canada. As a consequence, she was excluded from the refugee
definition by virtue of Article 1F(b) of the Convention Relating to the
Status of Refugees.
[2]
Ms. Lu now seeks judicial review of the Board’s decision, asserting that
the Board acted in an unfair manner by relying on a document that had not been
provided to her. Ms. Lu further submits that the Board’s decision was
unreasonable, as it was based upon inconsistent and contradictory evidence,
including evidence that had been obtained through the use of torture.
[3]
For the reasons that follow, I find that the Board did act in a
procedurally unfair manner, and that the Board erred in failing to properly
address the evidence suggesting that at least one of the statements made
against Ms. Lu had been obtained through the use of torture. As a consequence,
the application for judicial review will be allowed.
Background
[4]
Ms. Lu was a member of the Communist Party, and held various positions
in state-owned corporations. Along with her two brothers, Ms. Lu was charged
with a number of offences relating to the misappropriation of public funds.
After coming to Canada, Ms. Lu sought refugee protection, claiming to fear
persecution as a member of a particular social group.
[5]
Ms. Lu asserts that she is innocent of the charges against her, claiming
that she was falsely accused by the head of the Anti-Corruption Unit of
Shandong Province because she had complained about the treatment of her older
brother, Jiaoqing.
[6]
Lu Jiaoqing had been charged with fraud and with accepting bribes. Ms.
Lu had visited her brother in prison, and had spoken out against the appalling
conditions under which he was being held, and the negative effect that his
detention was having on her brother’s health.
[7]
According to Ms. Lu, her brother disappeared for some 18 months while in
custody after his arrest in January of 1995, and had later made two suicide
attempts. Lu Jiaoqing was evidently convicted of at least some of the charges
against him, and was sentenced to death. The death sentence had not as yet
been carried out at the time of Ms. Lu’s refugee hearing, and Jiaoqing remained
in prison in China.
[8]
Ms. Lu’s younger brother, Lu Xiaoqing, was himself arrested by the same
authority in April of 2000, and was charged with similar offences. After 19
months in detention, Xiaoqing pleaded guilty to some or all of the charges
against him, and was sentenced to two years in prison.
[9]
Xiaoqing is now out of jail, and still resides in China. While he was
incarcerated, Lu Xiaoqing provided the authorities with a statement implicating
his sister Aqing in his criminal activities.
[10]
Ms. Lu’s refugee hearing took place over three days – November 14, 2006,
April 3, 2007, and May 1, 2007. Counsel for the Minister participated in the
hearing, alleging that Ms. Lu should be excluded from the protection of the
Convention on the grounds that there were serious reasons for believing that
she had committed a serious non-political crime before entering Canada.
[11]
The Board accepted the Minister’s argument, and Ms. Lu’s refugee claim
was rejected on the grounds that she was excluded from the refugee definition
by virtue of Article 1F(b) of the Convention.
The Interpol “Red Notice”
[12]
Ms. Lu’s first argument is that she was denied procedural fairness in
the refugee hearing, as the Board relied on a document which had never been
disclosed to her.
[13]
The standard of review analysis does not apply where judicial review is
sought based upon an alleged denial of procedural fairness in the hearing
process. Rather, the task for the reviewing Court is to determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances.
[14]
This has not changed as a consequence of the Dunsmuir decision: see Justice Binnie’s concurring decision in Dunsmuir
v. New Brunswick, [2008] S.C.J. No. 9, at
paragraph 129, where he confirmed that a reviewing court has the final say in
relation to questions of procedural fairness. See also Canada
(Attorney General) v. Clegg, [2008] F.C.J. No. 853 (F.C.A.).
[15]
Having carefully reviewed the record in this matter, I am satisfied that
Ms. Lu was indeed denied
procedural fairness in relation to her refugee hearing. That is, it was unfair
for the Board to have relied upon a document relating specifically to Ms. Lu’s
case, namely a “Red Notice issued by the INPO-Interpol Headquarters for Aqing
Lu”, which document had never been provided to her.
[16]
A review of the record discloses that on October 5, 2006, in advance of
the first day of Ms. Lu’s refugee hearing, her counsel wrote to the Immigration
and Refugee Board noting that he had not yet received copies of the Interpol
documents being relied upon to support the Minister’s contention that Ms. Lu should
be excluded from the protection of the Convention.
[17]
Approximately two weeks later, a hearings officer for the Canadian
Border Services Agency responded to counsel’s letter, stating that “As far as
the Interpol documentation is concerned, that is considered confidential and we
are not at liberty to disclose it to you or your client”.
[18]
On October 25, 2006, the Minister’s counsel provided counsel for Ms. Lu
with disclosure of the documents being relied upon by the Minister at the
hearing. Although the list of documents provided with the disclosure package made
specific reference to the “Photocopy of Red Notice issued by the INPO-Interpol
Headquarters for Aqing Lu”, a copy of the actual document was not produced.
[19]
Ms. Lu’s refugee hearing commenced on November 14, 2006. Counsel for
Ms. Lu endeavoured to obtain a copy of the transcript of this hearing, but was
advised by the Immigration and Refugee Board that the recording of the first
day of the hearing had been corrupted, with the result that the transcript was
unavailable.
[20]
Various disclosure issues were evidently raised at this hearing,
however, and the matter was adjourned to allow for their resolution. It does
not appear that the Board made any specific orders in this regard.
[21]
On April 2, 2007, the day before the resumption of Ms. Lu’s refugee
hearing, her counsel wrote to counsel for the Minister, once again raising the
issue of the non-disclosure of the Interpol “Red Notice”. A copy of this
letter was also sent to the member presiding over Ms. Lu’s hearing.
[22]
Ms. Lu’s refugee hearing then resumed the following day. Although the
presiding member commenced the hearing by confirming that everyone now had the
same documents relevant to the claim, as will be explained further on in these
reasons, there is good reason to believe that this was not in fact the case.
[23]
Ms. Lu then proceeded to testify in support of her claim. In the course
of her testimony, she confirmed that she had never seen any of the Interpol
documents being relied upon by the Minister. Ms. Lu repeated this assertion
when the hearing resumed on May 1, 2007.
[24]
After the completion of the evidentiary portion of Ms. Lu’s hearing, the
presiding member agreed to allow counsel to provide their arguments by way of
written submissions.
[25]
In Ms. Lu’s submissions to the Board, her counsel reiterated his concern
about the failure of the Minister to produce the “Red Notice”, despite repeated
requests for its production, asking “Why was this document not provided? Does
it exist?”.
[26]
In the responding submissions provided to the Board, counsel for the
Minister stated that “We have […] disclosed all the documentation that was
provided to this office”.
[27]
In response to questions from the Court, counsel for the Minister on
this application was unable to explain or reconcile the seemingly conflicting
representations made by the Minister’s representatives in this case with
respect to availability of the “Red Notice” from Interpol.
[28]
That is, in response to Ms. Lu’s October 5, 2006, request for production,
the Minister took the position that the documents could not be produced because
they were confidential. There was no suggestion at that time that the
documents were not in the Minister’s possession or were otherwise unavailable.
[29]
In contrast, in May of 2007, the Minister took the position that the
documents could not be produced because they were simply not available.
[30]
The presiding member’s decision was released on January 3, 2008. In
determining whether there were serious reasons for believing that Ms. Lu had
committed a serious non-political crime before entering Canada, the member
listed the various documents that he had relied upon in coming to the
conclusion that there were indeed good reasons for concluding that Ms. Lu was
excluded from the protection of the Convention. Amongst the documents
specifically identified by the member in his reasons as providing the
foundation for his finding in this regard was the Interpol “Red Notice”.
[31]
This categorical statement by the presiding member that he had relied upon
the “Red Notice” in making his exclusion finding is problematic in light of the
assertion of Ms. Lu and her counsel, repeated right up to their final
submissions, that they had never even seen the document.
[32]
The statement becomes even more problematic, however, in light of the
fact that the document does not appear anywhere in the Certified Tribunal
Record, nor was an application brought by the Minister under the provisions of
section 87 of the Immigration and Refugee Protection Act to protect the
document from disclosure.
[33]
An exclusion finding is a serious one – one that can potentially have
very grave consequences for the individual in question. As a consequence, a
relatively high degree of procedural fairness is required in a hearing in which
there is an issue of potential exclusion.
[34]
In all of the circumstances of this case, I have no confidence that Ms.
Lu was provided with a fair hearing in relation to her refugee claim.
[35]
Before leaving this issue, it should also be noted that because the “Red
Notice” apparently relied upon by the member has not been provided to the
Court, there simply is no way of knowing what the document says, or how
material the evidence was to the member’s exclusion finding.
[36]
As a result, the application is allowed, and the Refugee Protection
Division’s decision is set aside.
Evidence Obtained by Torture
[37]
While the above finding is sufficient, by itself, to warrant the setting
aside of the Board’s decision, I will deal briefly with one of Ms. Lu’s other
arguments for the assistance of the panel that will ultimately have to re-hear
Ms. Lu’s case: that is, the assertion by Ms. Lu that some of the evidence,
including the statement of her younger brother, Xioaqing, implicating her in
the misappropriation of public funds, was obtained through the use of torture.
[38]
As was the case with the “Red Notice”, the presiding member stated quite
clearly in his reasons that he had relied upon Lu Xioaqing’s statement
implicating Ms. Lu in criminal activities in coming to the conclusion that she
should be excluded from the refugee definition.
[39]
In support of her contention that her brother’s statement was obtained
through the use of torture, Ms. Lu relied upon her own evidence in this regard,
as well as a Notice of Appeal allegedly filed by her brother in China, which
makes specific reference to the torture that he says that he endured while he
was incarcerated in that country. Ms. Lu also relied upon country condition
information relating to the deplorable conditions in Chinese jails, which included
numerous references to the widespread use of torture in Chinese penal
institutions.
[40]
Although the member does make reference in his reasons to the evidence
and arguments adduced by Ms. Lu to suggest that Lu Xioaqing’s statement was
obtained through the use of torture, he considers this evidence only in
relation to the question of whether Ms. Lu would herself be subjected to
torture if she were to return to China.
[41]
In this regard, the member stated that in accordance with the decision
of the Federal Court of Appeal in Xie v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 250, he was neither required nor permitted to
consider or balance the seriousness of a claimant’s crimes against the risk of
torture in the claimant’s country of origin.
[42]
With respect, this was simply not sufficient.
[43]
In the face of evidence suggesting that an incriminatory statement was
obtained through the use of torture, it was incumbent on the member to also
consider the reliability of the evidence of torture, and the weight to be
accorded to it.
[44]
It was open to the member to choose to give little weight to the
evidence of torture in this case, provided that adequate reasons were provided
for so doing. However, if the evidence of torture was found to be reliable,
the member would then have had to go on to consider what weight, if any,
could or should have been accorded to the evidence in question.
[45]
Obviously, if a member were satisfied that the inculpatory evidence was
indeed obtained through the use of torture, great caution would have to be
exercised before accepting the evidence as reliable or worthy of any weight
whatsoever.
[46]
Finally, if the presiding member were to conclude that the evidence was
not worthy of any weight, in light of the circumstances under which it was obtained,
the member would then also have to consider whether the remaining evidence
against Ms. Lu was sufficient to establish that there were serious reasons for
considering that she had committed a “serious non-political crime, if the
evidence obtained through the use of torture was disregarded in its entirety.
Conclusion
[47]
For these reasons, the application for judicial review is allowed.
Certification
[48]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a differently constituted panel for
re-determination; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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