Lai v. Canada (Minister of Citizenship and Immigration), 2007 FC 361

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: March 23, 2007
• Jurisdiction: Canada (Federal)
• Citations: 2007 FC 361;(2007), 307 F.T.R. 1 (FC)

Lai v. Can. (M.C.I.) (2007), 307 F.T.R. 1 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. AP.016

Lai Cheong Sing and Tsang Ming Na (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2669-06; 2007 FC 361)

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

Federal Court

de Montigny, J.

April 5, 2007.

Summary:

Lai and his wife and three children, citizens of China, claimed refugee status in Canada. The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned home to face prosecution for their alleged crimes. The Refugee Division of the Immigration and Refugee Board rejected their refugee claims, describing the couple as criminals fleeing from justice, not persecution. The children's claims, being based on their parents' claim, failed accordingly. In their Pre-removal Risk Assessment (PRRA) application, the Lais made submissions alleging bias and breaches of procedural fairness and challenged the Chinese legal system. They maintained that China had fabricated all the allegations against them. They argued they could not get a fair trial in China, and that they faced torture and the death penalty despite a diplomatic note from China assuring the contrary. The PRRA officer rejected all of their claims. The Lais applied for judicial review. The children applied for judicial review separately (see [2007] F.T.R. Uned. 237).

The Federal Court allowed the application, holding that the PRRA officer erred in her assessment of the risk of torture. The court certified related questions for consideration by the Court of Appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - [See Administrative Law - Topic 2093 ].

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal - Bias - Institutional or systemic bias - The Refugee Division of the Immigration and Refugee Board (IRB) rejected the refugee claim of Lai and his wife, citizens of China - The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned - The Lais consistently maintained that China had fabricated all the allegations against them, that they would not get a fair trial in China, and that they faced torture and the death penalty despite a diplomatic note from China assuring the contrary - A Pre-removal Risk Assessment (PRRA) officer rejected their PRRA application - The Lais applied for judicial review, alleging a reasonable apprehension of bias on the part of the PRRA officer, particularly with respect to the diplomatic note (i.e., the Lais believed that the PRRA officer could not assess the diplomatic note independently because she had to restrict her findings to whatever counsel for the Minister had submitted before the IRB) - The Federal Court rejected this argument, holding that there was no reasonable apprehension of bias, either from an institutional or from an individualized point of view - See paragraphs 56 to 75.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - The Refugee Division of the Immigration and Refugee Board rejected the refugee claim of Lai and his wife, citizens of China - The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned - The Lais consistently maintained that China had fabricated all the allegations against them and that they faced the death penalty despite a diplomatic note from China assuring the contrary - A Pre-removal Risk Assessment (PRRA) officer rejected their PRRA application - The Lais applied for judicial review, arguing that China's diplomatic assurance allowed for a suspended death sentence under which the Lais could be later executed for failing to confess - The Federal Court rejected the Lais' argument - The court held that the matter of the interpretation of the diplomatic note, in this case, should be considered a question of fact on which the PRRA officer was entitled to a considerable measure of deference - The PRRA's decision that the assurance regarding the death penalty was reliable was not patently unreasonable - See paragraphs 82 to 100.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - A Pre-removal Risk Assessment (PRRA) officer rejected a PRRA application by the Lais, citizens of China, holding that they were unlikely to face a risk of torture or mistreatment in China - The officer found that a diplomatic note from the Chinese government respecting torture was reliable, especially in light of the international publicity surrounding the Lais' case - The Lais applied for judicial review - The Federal Court held that the PRRA officer's decision respecting the reliability of the note was a question of fact reviewable on the standard of patent unreasonableness - The court concluded that in evaluating the reliability of a diplomatic assurance the PRRA officer skipped an important step in her reasoning and came to a patently unreasonable conclusion - The officer erred in finding that the Lais would be protected by their own notoriety - The officer failed to assess whether it was appropriate in any case to rely on diplomatic assurances from China in light of the overall pattern of torture in China - This in itself was patently unreasonable - The court opined that even in those situations where there might not be a pattern, but where there was a risk of torture or other forms of ill-treatment in an individual case, an assurance should at the very least fulfill some essential requirements to ensure that it was effective and meaningful - The PRRA officer erred by failing to determine whether the assurances met the essential requirements to make them meaningful and reliable, rather she simply wrote that the Lais' notoriety would protect them - See paragraphs 101 to 143.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - The Refugee Division of the Immigration and Refugee Board rejected the refugee claim of Lai and his wife, citizens of China - The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned - The Lais consistently maintained that China had fabricated all the allegations against them and that they faced death or torture despite a diplomatic note from China assuring the contrary - A Pre-removal Risk Assessment (PRRA) officer rejected their PRRA application - The Lais applied for judicial review, asking the court to determine when an officer had to conduct separate assessments of an assurance against death and an assurance against torture - The Lais queried whether a separate assessment was mandated when there was evidence of generalized resort to torture or evidence of torture in similar cases - The Federal Court held that this issue was academic because the PRRA officer did conduct a separate assessment of the assurance against torture - See paragraphs 101 to 113.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - The Refugee Division of the Immigration and Refugee Board rejected the refugee claim of Lai and his wife, citizens of China - The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned - The Lais consistently maintained that China had fabricated all the allegations against them, that they would not get a fair trial in China, and that they faced torture and the death penalty despite a diplomatic note from China assuring the contrary - A Pre-removal Risk Assessment (PRRA) officer rejected their PRRA application - The Lais applied for judicial review, arguing that the PRRA officer erred in dealing with their argument that they would not get a fair trial if returned to China - The Federal Court rejected this argument - The court held that the officer's finding respecting the nature of the trial that the Lais would receive in China was a factual finding subject to review on the standard of patent unreasonableness - Based on the evidence before her, the officer's finding on the nature of the trial the Lais faced was not patently unreasonable - See paragraphs 144 to 153.

Aliens - Topic 1583

Exclusion and expulsion - Pre-removal risk assessment - Application for protection (incl. procedure and considerations) - The Refugee Division of the Immigration and Refugee Board rejected the refugee claim of Lai and his wife, citizens of China - The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned - The Lais consistently maintained that China had fabricated all the allegations against them, that they would not get a fair trial in China, and that they faced torture and the death penalty despite a diplomatic note from China assuring the contrary - A Pre-removal Risk Assessment (PRRA) officer rejected their PRRA application, not accepting the Lais' argument that there was evidence that anyone associated with them would also face sanction and punishment - The officer found that certain convictions of the Lais' relatives "were ones of general application, and not ones that bespeak of forward-looking risk to the applicants" - The Lais applied for judicial review, arguing that the PRRA erred in relying on the concept of laws of general application - The Federal Court rejected this argument, holding that this involved a factual finding reviewable on a standard of patent unreasonableness and the court was not convinced the officer made a reviewable error - See paragraphs 154 to 159.

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment - Duty of fairness - The Refugee Division of the Immigration and Refugee Board (IRB) rejected the refugee claim of Lai and his wife, citizens of China - The Chinese government accused the Lais of masterminding a massive smuggling and bribery operation and wanted the couple returned - The Lais consistently maintained that China had fabricated all the allegations against them, that they would not get a fair trial in China, and that they faced torture and the death penalty despite a diplomatic note from China assuring the contrary - A Pre-removal Risk Assessment (PRRA) officer rejected their PRRA application - The Lais applied for judicial review, arguing that the officer breached the duty of fairness by disregarding two affidavits filed by the Lais in support of their application without first granting the Lais an oral hearing to address the officer's concerns - The Federal Court rejected this argument, holding that an oral hearing was not required in this case - See paragraphs 77 to 81.

Aliens - Topic 1590

Exclusion and expulsion - Pre-removal risk assessment - Duty of fairness - [See Administrative Law - Topic 2093 ].

Aliens - Topic 1594

Exclusion and expulsion - Pre-removal risk assessment - Judicial review (incl. standard of review) - The Federal Court stated that "it is by now settled law that when considered globally and as a whole, a PRRA [Pre-Removal Risk Assessment] decision must be reviewed against a standard of reasonableness ... Nevertheless, the standard must be adjusted in accordance with the particular issue that is being considered ... As Justice Richard Mosley determined in Kim v. Canada ... questions of fact must be reviewed against a standard of patent unreasonableness, questions of mixed fact and law are subject to a standard of reasonableness, and questions of law must be assessed in accordance with a standard of correctness ... When procedural fairness is at stake, the court must determine whether the procedure followed was fair or not ..." - See paragraph 55.

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - [See Administrative Law - Topic 2093 ].

International Law - Topic 6007

International relations - General - Diplomatic notes - The Federal Court discussed the standard of review for the interpretation of a diplomatic note providing assurances against the death penalty or the infliction of torture or other cruel or unusual treatment - See paragraphs 82 to 100.

Cases Noticed:

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 42].

Figurado v. Canada (Solicitor General) (2005), 262 F.T.R. 219; 2005 FC 347, refd to. [para. 55].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 55].

Lal Chir v. Canada (Minister of Public Safety and Emergency Preparedness), [2006] F.T.R. Uned. 474; 2006 FC 765, refd to. [para. 55].

Kim v. Canada (Minister of Citizenship and Immigration) et al. (2005), 272 F.T.R. 62; 2005 FC 437, refd to. [para. 55].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 63].

Arthur v. Canada (Procureur général) (2001), 283 N.R. 346; 2001 FCA 223, refd to. [para. 65].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1, refd to. [para. 65].

R. v. Harrison, [1977] 1 S.C.R. 238; 8 N.R. 47, refd to. [para. 68].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 72].

Say et al. v. Canada (Solicitor General) (2005), 274 F.T.R. 172; 2005 FC 739, affd. (2005), 345 N.R. 340; 2005 FCA 422, refd to. [para. 74].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345, refd to. [para. 76].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 76].

Bath v. Canada (Minister of Citizenship and Immigration), [1999] F.T.R. Uned. 530 (T.D.), refd to. [para. 80].

Singh (Harjit) v. Canada (Solicitor General), [2005] F.T.R. Uned. 103; 2005 FC 159, refd to. [para. 80].

Saini v. Canada (Minister of Citizenship and Immigration), [2002] 1 F.C. 200; 278 N.R. 127 (F.C.A.), refd to. [para. 86].

Magtibay v. Canada (Minister of Citizenship and Immigration) (2005), 271 F.T.R. 153; 2005 FC 397, refd to. [para. 86].

Aung v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 49; 2006 FC 82, refd to. [para. 86].

Buttar v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 729; 2006 FC 1281, refd to. [para. 86].

Nur v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 391; 2005 FC 636, refd to. [para. 86].

Canada (Minister of Citizenship and Immigration) v. Choubak (2006), 291 F.T.R. 129; 2006 FC 521, refd to. [para. 86].

Ahani v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 72; 280 N.R. 201, refd to. [para. 87].

Varga et al. Canada (Minister of Citizenship and Immigration) (2006), 357 N.R. 333; 2006 FCA 394, refd to. [para. 100].

Thailand (Kingdom) v. Saxena (2006), 224 B.C.A.C. 43; 370 W.A.C. 43; 2006 BCCA 98, refd to. [para. 105].

Mahjoub v. Canada (Minister of Citizenship and Immigration) et al. (2006), 304 F.T.R. 290; 2006 FC 1503, refd to. [para. 105].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 109].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 151].

Authors and Works Noticed:

Canada, Legislative Guide for the Refugee Protection Division, Pre-removal Risk Assessment, c. 8, ss. 5.14 [para. 70]; 10.12, 10.13 [para. 114]; 10.20 [para. 115].

Pre-removal Risk Assessment Manual - see Canada, Legislative Guide for the Refugee Protection Division, Pre-removal Risk Assessment.

PRRA Manual - see Canada, Legislative Guide for the Refugee Protection Division, Pre-removal Risk Assessment.

Counsel:

David Matas, for the applicants;

Esta Resnick, for the respondent.

Solicitors of Record:

David Matas, Winnipeg, Manitoba, for the applicants;

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

This application was heard at Ottawa, Ontario, on March 23, 2007, by de Montigny, J., of the Federal Court, who delivered the following decision on April 5, 2007.