Ottawa, Ontario, April 5, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LAI CHUN WAI, LAI MING MING and LAI CHUN CHUN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2845-06
STYLE OF CAUSE: Lai Chun Wai, Lai Ming Ming and Lai Chun Chun v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 18, 2007
REASONS FOR JUDGMENT de MONTIGNY J.
AND JUDGMENT
APPEARANCES:
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Mr. David Matas
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Ms. Esta Resnick
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SOLICITORS OF RECORD:
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Mr. David Matas Barrister & Solicitor Winnipeg, Manitoba
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John H. Sims, Q.C. Deputy Attorney General of Canada
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