Lai v. Canada (Minister of Citizenship and Immigration), 2005 FCA 125

• Judge: Richard, C.J., Sharlow and Malone, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 11, 2005
• Jurisdiction: Canada (Federal)
• Citations: 2005 FCA 125;(2005), 332 N.R. 344 (FCA)

Lai v. Can. (M.C.I.) (2005), 332 N.R. 344 (FCA)

MLB headnote and full text

Temp. Cite: [2005] N.R. TBEd. AP.039

Lai Cheong Sing, Tsang Ming Na, Lai Chun Chun, Lai Chun Wai and Lai Ming Ming (appellants) v. The Minister of Citizenship and Immigration (respondent)

(A-191-04; 2005 FCA 125)

Indexed As: Lai v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Richard, C.J., Sharlow and Malone, JJ.A.

April 11, 2005.

Summary:

Five citizens of China, a husband and wife, their three children (the applicants) came to Canada and claimed refugee status. The Minister of Citizenship and Immigration claimed that the applicants were inadmissible under art. 1F(b) of the refugee Convention be­cause the husband and wife had committed serious non-political crimes outside Canada. The Con­vention Refugee Determination Di­vi­sion of the Immigration and Refugee Board rejected their refugee claims. The ap­plicants applied for judicial review.

The Federal Court, in a decision reported [2004] F.T.R. Uned. 97, dismissed the appli­cation. The applicants appealed. Four ques­tions were certified for consideration by the Court of Appeal:

"In a refugee exclusion case based on Ar­ticle 1F(b) of the Refugee Convention

1(a) Where the Minister relies upon in­terrogation statements produced abroad by foreign government agencies, must the Minister establish those statements were voluntary when made, particularly where there is some evidence of a lack of voluntariness of one or more of the statements, and evidence of torture some­times used in obtaining statements from persons detained is included in informa­tion on general country conditions?

1(b) Is the Minister required to give no­tice in advance of a hearing, of speci­fic criminal acts alleged against the claim­ant, or is it sufficient if evidence at the subsequent hearing reveals specifics of crim­inal acts allegedly committed by the claimant?

1(c) Is the Refugee Division required to state in its decision the specifics of cri­minal acts committed by the claimant?

2. Does the decision of the Supreme Court in Suresh v. M.C.I., [2002] 1 S.C.R. 3, providing for separate assess­ment of a foreign state's assurance to avoid torture of returned nationals, apply where there is some evidence of general­ized resort to torture in the foreign state, or only where there is evidence reason­ably indicating resort to torture in similar cases?"

The Federal Court of Appeal dismissed the appeal. The court answered questions 1(a), 1(b) and 1(c) in the negative and declined to answer question 2.

Aliens - Topic 1322

Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecu­tion - Five citizens of China, a husband and wife and their three children (the ap­pli­cants) fled to Canada because the adults were wanted by Chinese authorities for their alleged involvement in bribery and smuggling - The adult appli­cants claimed that they feared the death penalty and tor­ture if returned to China - The refugee board found that the adult appli­cants were inadmissible under art. 1F(b) of the refu­gee Convention for having com­mitted seri­ous non-political crimes - As to the deriva­tive claim through the children, the board, relying on a diplomatic note from China, held that the fear of persecu­tion was not well-founded and rejected their claims - The applicants applied for judicial review -The applica­tions judge dismissed the appli­cation, holding that general inclu­sion­ary issues were questions of mixed fact and law and the judge applied a standard of reasonable­ness to the findings of the board - The applicants appealed - The Federal Court of Appeal dismissed the appeal - See para­graphs 71 to 77.

Aliens - Topic 1323.8

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - "Political opinion" defined - Five citizens of China, a husband and wife and their three children (the applicants) fled to Canada because the adults were wanted by Chinese authorities for their alleged in­volvement in bribery and smuggling - The ap­plicants claimed a well-founded fear based on their belief that the criminal process in China had been and would con­tinue to be politically manipu­lated against them, and that these acts and opin­ions of the Chinese government there­fore fell within the political opinion ground set out in the Convention refugee definition - The refugee board rejected their claims, finding that the Chinese auth­orities were not seek­ing the adult appli­cants because of their actual or perceived political opinions and that the Chinese government did not see them as involved in political acts or as having a political opinion different from that of the govern­ment - Further, the ac­tions of the Chinese authorities did not have a political opinion as their core mo­tive - After an unsuccess­ful judicial review application, the appli­cants appealed - The Federal Court of Appeal dismissed the ap­peal, holding that the board made no error on this issue - See paragraphs 78 to 84.

Aliens - Topic 1326.8

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Joint processing of claims (incl. derivative claims) - Five citizens of China, claimed refugee status - The refugee board found that the applicants were inadmissible under art. 1F(b) of the refu­gee Convention (the exclusionary provi­sion) because two of the applicants had committed serious non-political crimes outside Canada (i.e., bribery and smuggl­ing) - After an unsuc­cessful judicial review application, the ap­plicants appealed - The Federal Court of Ap­peal held that the board made no error in its art. 1F(B) rul­ing, and therefore the adult applicants were excluded from the def­inition of Convention refugee and not en­titled to have their in­clusionary claims de­termined - However, the children's ac­tions were not subject to art. 1F(b) and their derivative claims had to be deter­mined - Accordingly, it was proper for the Board to proceed to conduct an inclusion­ary analysis with respect to all five of the applicants in order to determine if the children's derivative claims could be suc­cessful - See paragraph 70.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Section 2(1) of the Immi­gration Act excluded from the statutory definition of Convention refugee any per­son to whom art. 1F of the Refugee Con­vention applied (i.e., the exclusionary provision) - Article 1F(b) provided that the Convention did not apply to persons with respect to whom there were serious reasons for considering that they had committed a serious non-political crime while outside the country of refuge - The Federal Court of Appeal stated that the primary purpose of art. 1F(b) was to ensure that perpetra­tors of serious non-political crimes were not entitled to international protection in the country in which they were seeking asylum - The effect of a finding that this article applied to a claimant was that the claimant was excluded from accessing the Canadian refugee determination process and there­fore could not be found to be a Con­vention refugee - See paragraphs 21 and 22.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Section 2(1) of the Immi­gration Act excluded from the statutory def­inition of Convention refugee any per­son to whom art. 1F of the Refugee Con­ven­­tion applied (i.e., the exclusionary pro­vision) - Article 1F(b) provided that the Convention did not apply to persons with re­spect to whom there were serious reasons for considering that they had committed a serious non-political crime while outside the country of refuge - The Federal Court of Appeal noted a previous decision of the court wherein it was established that an "ex­clusion" hearing under art. 1F(b) was not in the nature of a criminal trial where the reasonable doubt standard applied, rather, the onus was upon the Minister of Citizenship and Immigration, based on the evi­dence presented, to establish that there were "seri­ous reasons for considering" that the appli­cants in question committed seri­ous non-political crimes prior to arriving in Canada - See paragraph 23.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Section 2(1) of the Immi­gration Act excluded from the statutory def­inition of Convention refugee any per­son to whom art. 1F of the Refugee Con­vention applied (i.e., the exclusionary provision) - Article 1F(b) provided that the Convention did not apply to persons with respect to whom there were serious reasons for considering that they had committed a serious non-political crime while outside the country of refuge - The Federal Court of Appeal stated that at an exclusionary hearing, the board, pursuant to s. 68(3) of the Immigration Act, was not bound by any legal or technical rules of evidence; how­ever, the board was required to receive and consider evidence that was credible or trustworthy in the circumstances and deter­mine whether or not the threshold test of "serious reasons for considering" was met respecting the serious non-political crime alleged - The standard of evidence to be ap­plied to this threshold was higher than a mere suspicion, but lower than proof on the civil probabilities standard - See para­graphs 24 and 25.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Article 1F(b) of the refu­gee Convention provided that the Conven­tion did not apply to persons with respect to whom there were serious reasons for con­sidering that they had committed a ser­i­ous non-political crime while outside the country of refuge - The following question was posed for consideration: "In a refugee exclusion case based on art. 1F(b) of the Refugee Convention ... where the Minister [of Citizenship and Immigra­tion] relies upon interrogation statements produced abroad by foreign government agencies, must the Minister establish those state­ments were voluntary when made, par­tic­u­lar­ly where there is some evidence of a lack of voluntariness of one or more of the statements, and evidence of torture some­times used in obtaining statements from persons detained is included in infor­mation on general country conditions?" - The Fed­eral Court of Appeal answered the question in the negative - See paragraphs 26 to 43.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Five citizens of China (the applicants) claimed refugee status - The Minister of Citizenship and Immigration pre­sented evidence that two of the appli­cants had committed serious non-pol­itical crimes outside Canada - The appli­cants ar­gued that foreign statements relied on by the Minister were involuntary (obtained by torture) - The refugee board rejected the refugee claims under art. 1F(b) of the Con­vention - The applicants applied for judi­cial review - The applications judge dis­missed the application - The applicants ap­pealed - The Federal Court of Appeal dis­missed the appeal - The court held that refu­gee board properly applied s. 68(3) of the Immigra­tion Act and proceeded to ad­mit and weigh evidence that it con­sidered credible or trustworthy in the circum­stances of the case - Since the board ap­plied the appro­priate legal standard, its determinations on admissibility and the weight to be accorded to the evidence ac­cepted were entitled to great deference, as these were generally findings of fact or mixed fact and law that fell squarely with­in the board's expertise - The applications judge was therefore cor­rect in noting that he could only intervene if he was per­suad­ed that the board's deter­minations were pat­ently unreasonable - Accordingly, there was no basis on which the court should in­terfere with the applica­tions judge's find­ing that the board's as­sessment as to the voluntariness of and weight to be given to the disputed state­ments was not patently unreasonable - See paragraphs 26 to 43.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Article 1F(b) of the refu­gee Convention provided that the Conven­tion did not apply to persons with respect to whom there were serious reasons for con­sidering that they had committed a ser­i­ous non-political crime while outside the country of refuge - The following question was posed for consideration: "In a refugee exclusion case based on art. 1F(b) of the Refugee Convention ... is the Minister re­quired to give notice in advance of a hear­ing, of specific criminal acts alleged against the claimant, or is it suffi­cient if evidence at the subsequent hearing reveals specifics of criminal acts allegedly com­mitted by the claimant? - The Federal Court of Appeal answered the question in the negative - See paragraphs 44 to 53.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Five citizens of China (the applicants) claimed refugee status - The Minister of Citizenship and Immigration is­sued a notice of intent to participate in the pro­ceedings to show that two of the appli­cants had committed serious non-political crimes outside Canada - The applicants claimed that the notice was overly broad and that in absence of charges being laid in China they were entitled to notice of the specific crimes alleged against them so they could ade­quately prepare their case - The refu­gee board rejected the refugee claims - The applicants applied for judicial review - The applications judge dismissed the applica­tion, holding that the Minister's notice of intent to participate met the re­quirements of the Immigration Act - The ap­plicants appealed - The Federal Court of Appeal dismissed the appeal, holding that the notice met the statutory require­ments and the Minister was not required to pro­vide notice of specific criminal acts - See para­graphs 44 to 53.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Article 1F(b) of the refu­gee Convention provided that the Conven­tion did not apply to persons with respect to whom there were serious reasons for con­­sidering that they had committed a seri­ous non-political crime while outside the country of refuge - The following question was posed for consideration: "In a refugee exclusion case based on Article 1F(b) of the Refugee Convention ... is the Refugee Division required to state in its decision the specifics of criminal acts committed by the claimant? - The Federal Court of Ap­peal answered the question in the negative - See paragraphs 54 to 59.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Five citizens of China (the applicants) claimed refugee status - The refugee board found that the appli­cants were inadmissible under art. 1F(b) of the refu­gee Convention because two of the ap­pli­cants had committed serious non-politi­cal crimes outside Canada - The applicants applied for judicial review - The applica­tion was dismissed - The applicants ap­pealed, arguing that the refugee board made no finding specific enough to meet the requirements of art. 1F(b) since the board made no determination that impli­cated either of the adult applicants in any specific act of smuggling or bribery (i.e., they alleged that the board made a legal error in determining that there were serious reasons for considering that the adult appli­cants were involved in a smuggling oper­a­tion absent a conclusion with respect to a specific act of smuggling or bribery) - The Federal Court of Appeal rejected this ground of appeal - See paragraphs 54 to 59.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Article 1F(b) of the refu­gee Convention provided that the Conven­tion did not apply to persons with respect to whom there were serious reasons for con­sidering that they had committed a seri­ous non-political crime while outside the country of refuge - The Federal Court of Appeal stated that whether a crime was po­litical for the purposes of art. 1F(b) was determined by the motivation of the of­fender at the time the crime was com­mit­ted - The court stated further that in es­sence, a crime either was or was not politi­cal when committed and its character could not depend on the consequences that the of­fender might afterwards suffer if he was returned to the state in which the crime was committed - For the purposes of an art. 1F(b) exclusionary finding, when a crime was not accompanied by any stated or identifiable political motive, it was, in fact, a non-political crime - See paragraphs 62 and 63.

Aliens - Topic 1330.3

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Disqualifications - Serious non-political crime - Five citizens of China (the applicants), claimed refugee status - The refu­gee board found that the applicants were inad­missible under art. 1F(b) of the refu­gee Convention because two of the ap­pli­cants had com­mitted serious non-politi­cal crimes outside Canada (i.e., bri­bery and smuggl­ing) - The applicants applied unsuc­cessful­ly for judi­cial review - They ap­pealed, raising an issue as to whether the crimes alleged against them were either non-seri­ous or politi­cal - They argued that the alleged crimes were politi­cal, in the sense that they had a well-founded fear that the political author­ities were using the legal system to perse­cute them - With re­spect to the seri­ousness of the crimes, the appli­cants claimed that the board erred in law by considering Cana­dian criminal law in relation to the allega­tions of bribery and not the criminal law of China - The Feder­al Court of Appeal dismissed the appeal, hold­ing that the board made no error in its analysis of this issue - See paragraphs 60 to 69.

Aliens - Topic 1331

Admission - Refugee protection, Conven­tion refugees and persons in need of pro­tection - Evidence - [See second, third, fourth, sixth and eighth Aliens - Topic 1330.3 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 18].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 19].

Dr. Q. v. College of Physicians and Sur­geons (B.C.) - see Dr. Q., Re.

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 19].

Wyeth-Ayerst Canada Inc. v. Canada (Attorney General) (2003), 305 N.R. 317; 2003 FCA 257, refd to. [para. 19].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2003] 3 F.C. 761; 307 N.R. 201; 2003 FCA 178, refd to. [para. 22].

Xie v. Canada (Minister of Citizenship and Immigration) (2004), 325 N.R. 255; 243 D.L.R.(4th) 385; 2004 FCA 250, leave to appeal refused (2005), 339 N.R. 196 (S.C.C.), refd to. [para. 23].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 25].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 25].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 36].

R. v. Terry (R.S.), [1996] 2 S.C.R. 207; 197 N.R. 105; 76 B.C.A.C. 25; 125 W.A.C. 25, refd to. [para. 36].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161, refd to. [para. 36].

Arica v. Minister of Employment and Im­mi­gration (1995), 182 N.R. 392 (F.C.A.), refd to. [para. 48].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38, refd to. [para. 51].

Ovcharuk v. Minister of Immigration and Multicultural Affairs (1998), 158 A.L.R. 289 (Fed. Ct.), refd to. [para. 57].

Zrig v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2002] 1 F.C. 559; 211 F.T.R. 219 (T.D.), refd to. [para. 62].

T. v. United Kingdom, [1996] 2 All E.R. 865; 198 N.R. 174 (H.L.), refd to. [para. 62].

T. v. Secretary of State for the Home Department - see T. v. United Kingdom.

Gil v. Minister of Employment and Immi­gration, [1995] 1 F.C. 508; 174 N.R. 292 (F.C.A.), refd to. [para. 63].

Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680; 132 N.R. 24 (F.C.A.), refd to. [para. 74].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 75].

Zolfagharkhani v. Minister of Employment and Immigration, [1993] 3 F.C. 540; 155 N.R. 311 (F.C.A.), refd to. [para. 80].

Florea v. Minister of Employment and Im­mi­gration, [1993] F.C.J. No. 598 (F.C.A.), refd to. [para. 90].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 91].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1) [para. 21]; sect. 68(3) [para. 24].

United Nations Convention Relating to the Status of Refugees, art. 1F(b) [para. 22].

Counsel:

David Matas, for the appellants;

Esta Resnick, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the appellants;

John Sims, Deputy Attorney General of Canada, Ottawa, Ontario, for the respon­dent.

This appeal was heard on March 14 and 15, 2005, at Vancouver, British Columbia, by Richard, C.J., Sharlow and Malone, JJ.A., of the Federal Court of Appeal. The follow­ing reasons for judgment were delivered for the court by Malone, J.A., at Ottawa, On­tario, on April 11, 2005.