PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
[1] A court order staying the execution of an enforceable removal order is an interlocutory measure. It is not readily granted because removal is the general rule. To obtain a stay, an applicant must satisfy the well-established conditions articulated in the jurisprudence. Even if successful, the relief is temporary. The stay remains in effect only until determination of the application for leave for judicial review and (if leave is granted) the application for judicial review.
[2] Mr. Lai seeks a stay of his removal, presently scheduled for June 2, 2006. His underlying application relates to a negative pre-removal risk assessment (PRRA) made pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Mr. Lai, in accordance with what is referred to as the tri-partite test delineated in Toth v. Canada(Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) (Toth), must demonstrate that:
(i) a serious issue exists;
(ii) he would suffer irreparable harm if his removal is not stayed; and
(iii) the balance of convenience favours staying his removal.
Because the test is conjunctive, all three branches of the test must be satisfied.
Background
[3] Mr. Lai is a Chinese citizen. In 1999, Chinese authorities received information from an undisclosed source regarding a smuggling operation taking place in Xiamen in the south of China. The Chinese authorities assembled a team to investigate this allegation and allegedly discovered a large-scale smuggling operation headed by Mr. Lai and his wife (Ms. Tsang) through their Yuan Hua group of companies. Much of the investigation was done by detaining and interrogating employees of the Yuan Hua companies and various public servants. Charges were laid against many individuals. A number of persons were convicted and some were executed as a result of their involvement.
[4] In August of 1999, before the investigation of alleged wrongs had been completed, Mr. Lai, Ms. Tsang and their children left China and came to Canada. In June 2000, the family made a refugee claim here. Mr. Lai and Ms. Tsang are wanted in China on the equivalent of arrest warrants.
[5] The refugee claim was heard under the Immigration Act, R.S.C. 1985 c. I-22 (the former Act) by the Convention Refugee Determination Division (CRDD) over a period of 45 days. The Minister intervened and presented evidence at the hearing. The Minister alleged that there were serious grounds to believe that Mr. Lai and Ms. Tsang had committed serious non-political crimes before coming to Canada (including bribery, smuggling, fraud and tax evasion) thereby engaging Article 1 F(b) of the United Nations Convention Relating to the Status of Refugees (the Refugee Convention). The Minister also sought findings that the couple and their children were not Convention refugees because there was no nexus between the persecution they claimed to fear and the grounds that they claimed as a basis for their fear.
[6] Much evidence was introduced and heard during the course of the hearing. Among other things, the Minister tendered evidence in the form of a diplomatic note provided by the People's Republic of China. The diplomatic note contains the assurance of the Chinese government that neither Mr. Lai nor Ms. Tsang, if returned to China, will be sentenced to death by any criminal court in China nor will they be subject to torture or other cruel, inhumane, or degrading treatment or punishment.
[7] The CRDD found that Mr. Lai and Ms. Tsang were excluded from the definition of "Convention refugee" because there were serious reasons for considering that they had committed serious non-political crimes outside of Canada before their admission to Canada (Article 1F(b) of the Refugee Convention). All members of the Lai family were found not to be included in the definition of "Convention refugee" because the fear they claimed, if returned to China, was not persecution by reason of a ground specified in the definition.
[8] An application for judicial review of the decision of the CRDD was dismissed: Lai v. Canada(Minister Citizenship and Immigration), 2004 FC 179. An appeal from the Federal Court decision was dismissed: Lai v. Canada(Minister of Citizenship and Immigration) (2005), 332 N.R. 344 (F.C.A.). Leave to appeal to the Supreme Court was dismissed: Lai v. Canada(Minister of Citizenship and Immigration), [2005] S.C.C.A. No. 298.
[9] On October 12 2005, a Canada Border Services Agency (CBSA) officer provided Mr. Lai and Ms. Tsang with the opportunity to apply for a PRRA. They accepted, but submitted that their PRRA applications should be determined by someone other than the Minister (in practice a ministerial delegate). An application for judicial review was initiated on the basis that, in the unique circumstances of this case, allocating the decisions on the PRRA applications to the Minister created a reasonable apprehension of bias. The reasonable apprehension of bias allegedly resulted from the Minister's "effective determination" of the applications because of the Minister's defence of the Chinese diplomatic assurances at the refugee hearing. That application was dismissed as premature: Lai v. Canada, 2006 FC 473.
[10] On November 10, 2005, Mr. Lai submitted his PRRA application seeking protection under subsection 97(1) of the IRPA claiming that he was a person in need of protection. Substantial documentary evidence, extensive submissions and supplementary submissions were filed. Subsection 97(1) of the IRPA provides:
[11] The PRRA application is the first assessment pertaining to Mr. Lai's claim to be a person in need of protection. The CRDD lacked jurisdiction to consider risk to torture or cruel or inhumane treatment except to the extent that it constituted persecution within the definition of "Convention refugee". Under the "consolidated grounds" contained in the IRPA, the Refugee Protection Division (RPD) was granted jurisdiction to consider such claims, outside the parameters of the definition of "Convention refugee", when the IRPA came into force on June 28, 2002.
The Decision
[12] In a decision comprising more than 40 pages, the PRRA officer conducted an extensive and detailed analysis of the evidence before her. She concluded that Mr. Lai is not a person in need of protection and is unlikely to face a risk to life, a risk to torture, or a risk of cruel and unusual treatment or punishment if returned to China. Nonetheless, Mr. Lai asserts that there are a number of significant errors, meriting review by the court, in the PRRA officer's decision.
Serious Issue
[13] The meaning of the term "serious issue" is derived from the decisions of the Supreme Court of Canada in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 (Metropolitan) and RJR-MacDonald Inc. v. Canada(Attorney General), [1994] 1 S.C.R. 311 (RJR-MacDonald). Subject to two exceptions, neither of which is relevant here, the term "serious issue" means that the claim is not frivolous or vexatious. The threshold is a low one and involves a preliminary assessment of the merits of the case. Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests. A prolonged examination of the merits is generally neither necessary nor desirable: RJR-MacDonald at pp. 335, 337 and 338.
[14] While Mr. Lai contends that several errors exist in the PRRA officer's reasons, one will suffice for purposes of this motion. In my view, Mr. Lai has established the existence of a serious issue.
[15] There is significant debate with respect to the assurances provided by the Chinese government. The Minister takes the position that the PRRA officer's express conclusion that the "Government of [China] has the ability to ensure that the full terms of the diplomatic note will be abided by, in other words that neither of the applicants (Mr. Lai or Ms. Tsang) will face either the death penalty or a suspended death sentence" is sound and unassailable. According to the Minister, the PRRA officer considered all relevant factors in arriving at her conclusion and, in substance, Mr. Lai's quarrel is with the weight assigned to the evidence.
[16] Mr. Lai takes a different view. He claims that the analysis was deficient for a variety of reasons. One reason arises from the comments of the Supreme Court of Canada in Suresh v. Canada(Minister of Citizenship Immigration), [2002] 1 S.C.R. 3 (Suresh) in combination with the certification of a question by the Federal Court in this very matter.
[17] Reference is made to the following passage found at paragraph 124 of Suresh:
It may be useful to comment further on assurances. A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable.
[18] A host of issues were argued regarding the PRRA officer's findings in relation to monitoring, separating the death penalty and torture into discrete questions, the appropriate use of country-conditions documentation and so on. Mr. Lai claims that the PRRA officer, to the extent that she analysed the country-conditions documents, did so only in relation to persons similarly situated to him (individuals allegedly involved in the smuggling operation). He claims that regard ought to have been had to the general country conditions, particularly with respect to torture. The Minister argues contra. It is at this point where the certification of a question intersects.
[19] A few words about the certification of a question are in order. Under the IRPA, final decisions of the Federal Court are not subject to appeal unless the application judge certifies a question. Interlocutory decisions cannot be appealed. In relation to the certification of a question, the law is settled. To be certified, the question must be serious and be of general importance. It must transcend the interest of the immediate party to the litigation and must also be determinative of the appeal: Canada(Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4 (F.C.A.); Zazai v. Canada(Minister of Citizenship and Immigration) (2004), 318 N.R. 365 (F.C.A.).
[20] Mr. Justice MacKay's order, dismissing Mr. Lai's application for judicial review of the CRDD determination, contained, among others, the following certified question:
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.
[21] On appeal, the Federal Court of Appeal declined to answer the question. The question did not arise with respect to exclusion and it did not arise with respect to inclusion because, in relation to inclusion, no nexus was established. Hence, an answer to the question would be academic. At paragraph 94 of its reasons, the Court of Appeal stated:
This, of course, is not the end of the review process for the appellants. The next proceeding is the "Pre-Removal Risk Assessment" under section 112 of the new Act, where the question of torture and diplomatic assurances can be fully canvassed along with any new and relevant evidence that may become available. It is also noteworthy that the appellants may also apply to the Minister to stay in Canada on humanitarian and compassionate grounds pursuant to the principles set out in subsection 25(1) of the new Act. The Board's decision in the present appeal does not fetter the Minister's discretion in any way when he considers an application under section 112 or on humanitarian and compassionate grounds.
[22] Mr. Lai contends that the noted certified question is squarely in issue in this matter and requires an answer. The Minister does not seriously suggest otherwise. Having regard to the nature of a certified question and the requisite threshold in relation to "serious issue", I conclude that Mr. Lai has demonstrated the existence of a serious issue.
Irreparable Harm
[23] Mr. Lai asserts that in light of the fact that he claims risk of serious harm on return, if his application for leave and judicial review of the PRRA raises a serious issue, then it should follow that the harm on removal, before that application is decided, creates irreparable harm. Additionally, he states that there is jurisprudence holding that once a person is removed, the application for leave and judicial review of the PRRA assessment becomes moot. It is said that the loss of the legal remedy that the individual would otherwise have creates irreparable harm.
[24] The respondent Ministers argue that the possible mootness of the leave and judicial review proceedings does not establish irreparable harm. In any event, it is nothing more than speculation to say that Mr. Lai's leave and judicial review proceedings will become moot because the court retains a discretionary power to hear matters that are technically moot and it can exercise its discretion in favour of hearing judicial reviews of PRRA decisions after stays have been dismissed.
[25] I agree with the respondents' position that the mere presence of a serious issue arising out of a PRRA is not automatically determinative of the issue of irreparable harm. Further, an application being rendered nugatory does not amount to irreparable harm in every case: El Ouardi v. Canada(Solicitor General) (2005), 332 N.R. 76 (F.C.A.). There will, however, be cases where the identified serious issue will give rise to a presumption of irreparable harm: Onojaefe v. Minister of Citizenship and Immigration, IMM-2294-06. Allegations of irreparable harm must be non-speculative and credible: Xu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1634; Molnar v. Canada(Minister of Citizenship and Immigration), 2001 FCT 325; Atakora v. Canada(Minister of Employment and Immigration) (1993), 68 F.T.R. 122 (F.C.T.D.).
[26] In this matter, it is common ground that the Chinese government wants Mr. Lai returned to China. It is not suggested, if he were successful on his underlying application, that he would be returned to Canada.
[27] The issue of the assurances lies at the heart of the debate. Absent the assurances, the records disclose credible evidence that a serious likelihood of jeopardy to life or safety exists. Removal at this time would cause Mr. Lai to face the risk that he alleges is present and that he argues has not been adequately assessed by the PRRA officer. I consider that irreparable harm is established.
Balance of Convenience
[28] Mr. Lai submits that once a serious issue and irreparable harm are demonstrated, then the balance of convenience is in his favour. He has not been convicted of any criminal offence; he is not on welfare; and he is not a danger to the public or a security risk.
[29] The Ministers argue that the court must consider the public interest in the enforcement of laws that have been enacted by democratically-elected legislatures and passed for the common good. The IRPA requires the Minister of Public Safety to enforce a removal order as soon as is reasonably practicable. Only in exceptional circumstances will a person's interests outweigh the public interest.
[30] I am mindful of the Minister's statutory obligation to enforce removal orders as soon as is reasonably practicable. Mr. Lai became subject to removal only when the negative PRRA assessment was determined. The PRRA is the first assessment of risk to Mr. Lai and, other than on this motion, has not been the subject of review. In view of the circumstances of this case and, in particular, the characterizations of both the serious issue and the alleged irreparable harm, Mr. Lai's interests and the need for fairness outweigh the IRPA section 48 directive. Consequently, the balance of convenience favours Mr. Lai.
ORDER
THIS COURT ORDERS THAT the motion is granted. Mr. Lai's removal is stayed pending determination of his application for leave for judicial review and, if leave is granted, pending determination of the judicial review.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2669-06
STYLE OF CAUSE: LAI CHEONG SING
v.
MCI & MPS & EP
PLACE OF HEARING: Ottawa, Ontario
AND ORDER: Layden-Stevenson J.
APPEARANCES:
| Mr. David Matas
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|
|
Ms. Esta Resnick |
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SOLICITORS OF RECORD:
| David Matas Barrister & Solicitor Winnipeg, Manitoba
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| John H. Sims, Q.C. Deputy Attorney General of Canada |