Federal Court Decisions

Federal Court

Cour fédérale

                                                                        Date: June 9, 2009

Docket: IMM-3786-08

Citation: 2009 FC 623

 

 

BETWEEN:

DONG ZHE LI

DONG HU LI

Applicants

and

 

THE MINISTER OF CITIZENSHIP

 AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT

 

HENEGHAN J.

 

Introduction

[1]               Mr. Dong Zhe Li and Mr. Dong Hu Li (the “Applicants”) seek judicial review of the decision of Pre-Removal Risk Assessment Officer A. Bremner (the “Officer”). In that decision dated April 24, 2008, the Officer determined that the Applicants are described in subsection 112(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA” or the “Act”).

 

 

Background

[2]               The Applicants are Chinese Nationals who legally entered Canada as visitors on December 31, 2004. Subsequently, they were detained under warrants issued pursuant to the Act in February 2007. An Exclusion Order was issued against them on February 27, 2007. A detailed history of the various legal proceedings initiated by the Applicants in Canada is to be found in the recent decision of the Federal Court of Appeal, Canada (Minister of Citizenship and Immigration) v. Li, 2009 FCA 85.

 

[3]               The Applicants challenged the Exclusion Order in causes IMM-1028-07, IMM-1098-07, IMM-1026-07 and IMM-1099-07. The four applications for judicial review were heard together and in a Judgment reported at (2007), 319 F.T.R. 14, Mr. Justice Simon Noël dismissed the applications for judicial review, finding that the Exclusion Order is valid and that, pursuant to subsection 99(3) of the Act, the Applicants are ineligible to claim refugee status because they are the subjects of a removal order.

 

[4]               In the course of his Judgment, Justice Noël described the basic facts surrounding the Applicants’ arrival in Canada in paragraphs 5 to 9 of his decision as follows:

5     The applicants are Chinese citizens who came to Canada on New Years Eve 2004. They each entered the country on a Temporary Residents Visa (TRV), which they did not seek to extend upon expiration. Instead of leaving the country when their visas expired, the applicants remained in Canada illegally and took concerted steps to avoid Canadian authorities. In fact they went into hiding at the Sheraton Wall Centre Hotel in downtown Vancouver after the arrest of an associate GAO, Shan and his wife, LI, Xue, on February 16, 2007.

 

6     Based on information provided by the Chinese authorities, the applicants allegedly fled the People's Republic of China (China), a few weeks before they were both charged with theft of over 170 million Yuan (equivalent of $24,500,000 CA), through negotiable instruments fraud. The brothers were the subject of a warrant for arrest dated January 24, 2005 issued by the People's Protectorate of Harbin City, Heilongjiang Province, China, under article 194 of the Criminal Law of the People's Republic of China. If committed in Canada, this offence would be equivalent to paragraph 380(1)(a) of the Canadian Criminal Code, R.S.C. 1985, c. C-46, fraud over $5,000.00, an indictable offence punishable by a maximum term of imprisonment of fourteen years.

 

7     Armed with these Chinese arrest warrants on November 14, 2006, the Immigration Enforcement Officer, Cheryl Shapka (Officer Shapka) issued an inadmissibility report pursuant to subsection 44(1) of the Immigration and Refugee Protection Act, (the Act), S.C. 2001, c. 27. [The relevant passages of the Act are attached to these reasons in Annex “A”]. Moreover, Officer Shapka issued a second inadmissibility report against the applicants for having overstayed their visitor’s visa. Two days later, on November 16, 2006, Officer Shapka issued warrants for their arrest.

 

 8    The applicants went underground and succeeded in eluding the Canadian authorities. When officers of the Vancouver Police Department (VDP) eventually tracked them down at the hotel and came knocking at their door on Friday, February 23, 2007, they refused to open the door to the police. Resorting to the use of a Special Entry Warrant, the VDP officers entered the applicants’ hotel suite. The applicants were arrested and taken into custody that same day.

 

9     Both applicants were detained at the North Vancouver RCMP detachment where they were read their rights. In addition, Officer Shapka interviewed each applicant separately at the RCMP detachment and informed them that they had been arrested for inadmissibility to Canada as a result of the serious fraud charges against them in China, pursuant to paragraph 36(1)(c) of the Act. She also informed them that they were arrested and detained pursuant to section 55 of the Act because of their refusal to leave Canada or apply for an extension when their TRV expired.

 

 

[5]               Although Justice Noël provided counsel for the Applicants and the Minister of Citizenship and Immigration (the “Respondent”) with the opportunity to submit a question for certification, neither side submitted a question and no question was certified. The Judgment of Justice Noël was delivered on September 21, 2007.

 

[6]               The Applicants submitted their Pre-Removal Risk Assessment (“PRRA”) applications on March 13, 2007. They asked that assessment of their applications be deferred pending disposition of their outstanding proceedings before the Federal Court. By letter dated September 28, 2007, that is after delivery of the Judgment of Justice Noël, the Officer advised Counsel for the Applicants of the opportunity to make submissions on risk.

 

[7]               By letter dated September 28, 2007, the Officer advised the Applicants that the PRRA application was being considered. By letter dated the same day, Counsel for the Applicants said that they were awaiting further disclosure of documents.

 

[8]               The Officer replied to the letter from Counsel for the Applicants on September 28, 2007 advising that she was awaiting submissions on the issue of risk and evidence about country conditions as they related to the Applicants.

 

[9]               On October 22, 2007, Counsel for the Applicants wrote again to the Officer, addressing the issue of risk. The risk was identified as the treatment of the Applicants by the Chinese authorities in the investigation and prosecution of financial crimes alleged to have been committed by the Applicants in China. The basis of the Applicants’ fear of returning to China is that they are named in warrants of arrest for the commission of the crime of theft of more than 170 million yuan, through negotiable instruments fraud. The Applicants, through their lawyers, argued that they would be at risk of torture, cruel or unusual treatment or punishment, or risk to life from the Chinese authorities if they were returned to China.

 

[10]           As well, in this letter, Counsel for the Applicants said that the Applicants were eligible to pursue a PRRA determination since they were subject to a removal order, that they did not fall within the scope of subsection 112(3) of the Act, and that the Officer did not have jurisdiction to consider section 98. Further, Counsel for the Applicants requested that if the Officer were going to consider section 98 of the Act, the Applicants wanted to know what evidence would be reviewed so that they could have the opportunity to respond.

 

[11]           By further correspondence dated January 10, 2008 the Officer advised that she was going to consider possible exclusion pursuant to section 98 of the Act, on the basis that the Applicants had allegedly committed serious non-political crimes. She specifically said that she was not inviting submissions as to her jurisdiction to consider the application of section 98. She went on to say that if she found that the Applicants were subject to exclusion under section 98, then she would proceed to do an assessment of risk pursuant to section 97 and if that decision were positive, that is if risk were established, then she would forward the matter for balancing.

 

[12]           Counsel for the Applicants sent another letter on February 7, 2008, addressing the application of section 98. Further submissions were also made relating to sections 96 and 97. Counsel did not make submissions on the Officer’s jurisdiction to consider section 98 but indicated that they were prepared to address that issue in the future.

 

[13]           By letter dated March 18, 2008, the Officer wrote to Counsel for the Applicants concerning the section 98 exclusion. She requested an explanation concerning the Applicants’ possession of large sums of money upon their arrival in Canada.

 

[14]           Counsel for the Applicants responded to this letter on March 20, 2008, asking if the inquiry about this money was the amount of $300,000.00 US referred to in the statement of Cpl. Armstrong or to the assets of the Applicants in Canada prior to their arrival in Canada on December 24, 2004 or to both.

 

[15]           The Officer replied by letter of March 20, 2008 and said that she was “asking to know all about the Applicants’ funds that allowed them to engage in the financial activities described in the affidavit of Cpl. Dave Armstrong”.

 

[16]           By letter dated April 11, 2008, Counsel for the Applicants made further submissions about section 98 and forwarded affidavits of the Applicants, providing an explanation for their possession of large amounts of money. In their affidavits, the Applicants denied the commission of any crimes in China.

The PRRA Decision  

[17]           The Officer briefly reviewed the facts about the arrival of the Applicants in Canada. She noted that they had been the subject of two reports under section 44 of the Act, one for inadmissibility due to overstaying their visitors’ visas and the second for possible criminal inadmissibility. At the time of making her decision on the PRRA application, no decision had been made respecting the alleged criminal inadmissibility.

 

[18]           In her decision, the Officer found that the Applicants are described in subsection 112(3) of the Act. At the same time, she found that upon a balance of probabilities, the Applicants face a danger of torture in China. In her decision, the Officer reviewed the evidence before her, including arrest warrants that had been issued by the Chinese authorities, and the applicable law of the Republic of China regarding the crime of financial fraud. The law of China allows for the imposition of the death penalty in the case of serious financial fraud.

 

[19]           The Officer considered the affidavit of Cpl. Dave Armstrong that contained a summary of the financial information gathered in the course of the investigation of the Applicants. She directed her mind to the question of evidence relating to the Applicants’ “possession of large amounts of money in a manner that is not related to any legally recognized source of funds”.

 

[20]           The Officer noted that the Applicants had sworn affidavits saying that the accusations against them were false.

 

[21]           In beginning the analysis section of her decision, the Officer said that she would examine the evidence to see if she “must find that the Applicants are excluded pursuant” to section 98 of the Act. She referred to the decision in Xie v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304 (F.C.A.) where the Federal Court of Appeal confirmed the finding of the trial judge that a purely economic offence was sufficient to exclude a person from refugee protection. In that case, the applicant had been excluded from refugee protection on the basis of section 98, after a hearing before the Immigration and Refugee Board, Refugee Protection Division (“IRB”).

 

[22]           The Officer acknowledged the decision of the Federal Court in Biro v. Canada, 2007 FC 776 where the Court decided that the absence of a fair trial process may have negatively affected the ability of the applicant to present a full defence at trial. The Officer concluded that the facts in Xie presented a closer parallel to those in the present case and said that she was to be guided by the principles that “persons who are fleeing prosecution do not use the asylum principles to avoid legal accountability”.

 

[23]           Ultimately, the Officer concluded that, on the basis of the evidence submitted and guided by the decision in Xie, that the Applicants have committed a serious crime in China, that they fall within the scope of Article 1F(b) of Schedule 1 of the Refugee Convention and are excluded from refugee consideration pursuant to section 98 of the Act. She then proceeded to address the question of risk pursuant to section 97 of the Act and determined that the Applicants are at risk of torture if returned to China.  She said that the Applicants’ case would be forwarded to a Minister’s delegate for balancing pursuant to section 172 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”). The consequences of the Officer’s decision are significant for the Applicants.

 

Submissions

[24]           The Applicants argue that the Officer had no jurisdiction to make an exclusion order and that she was authorized only to assess risk, pursuant to sections 96 and 97.

 

[25]           Further, they submit that the Officer erred in her interpretation and application of the decision of the Federal Court of Appeal in Xie.

 

[26]           For his part, the Respondent argues that the Officer properly followed the statutory scheme. The statutory scheme requires the PRRA officer to assess the application pursuant to section 113 and that will lead to a consideration of subsection 112(3). Subsection 112(3) requires an officer to consider restrictions on eligibility to be granted refugee protection. The Respondent submits that the Officer committed no reviewable error.

 

Issues

[27]           The parties addressed the following issues in their respective memoranda of fact and law:

1.      Did the Officer err in finding that the Applicants are described in subsection 112(3) of the Act?

2.      Did the Officer have jurisdiction to consider exclusion in respect of Article 1F of the Convention?

3.      Was the decision unreasonable and not made pursuant to the principles of fundamental justice?

4.      Was the decision made without regard to the evidence?

5.      Did the Officer err by shifting the burden of proof regarding the exclusion clause on to the Applicants?

 

Discussion and Disposition

[28]           In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of Canada identified two standards of review for administrative decisions, that is correctness and reasonableness. Decisions that are fact-specific or those that involve the exercise of discretion and policy considerations will usually attract a standard of reasonableness. Questions where the legal issues are closely entwined with factual issues will also generally attract review on the standard of reasonableness; see Dunsmuir, para. 51.

 

[29]           In my opinion, the question whether the Officer erred in finding that the Applicants are described in subsection 112(3) involves a question of fact. That issue should be reviewed on the standard of reasonableness.

 

[30]           Questions of jurisdiction and of statutory interpretation such as those raised by issue two will attract review on the standard of correctness.

 

[31]           The issue of any breach of the principles of fundamental justice as guaranteed in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“the Charter”) is a question of law and will be reviewed on the standard of correctness.

 

[32]           The issue of the assessment of the evidence, in light of the statutory criteria, is a question of mixed fact and law that is reviewable on the standard of reasonableness.

 

[33]           I agree with the submissions of the Respondent that the issue of any shifting burden of proof to the Applicants is a question of law that is reviewable on the standard of correctness.

 

[34]           The main statutory provisions that are involved in the proceeding are section 112 and 113 of the Act. Section 112 allows a person to apply for protection in Canada, as follows:

 

[35]           The Applicants availed themselves of the opportunity provided for in section 112(1). Section 113 describes the manner in which an officer shall consider a PRRA application and provides as follows:

 

[36]           Section 113(c) instructs an officer to consider if an applicant is “not described in subsection 112(3)”. This determination will affect how an officer is to assess an application for protection.

 

[37]           In this case, the Officer decided that the Applicants are as described in subsection 112(3), specifically paragraph (c). That provision applies to persons who have “made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention”.

 

[38]           In my opinion, the Officer erred in finding that the Applicants are as described in paragraph 112(3)(c). Following the conduct of an admissibility hearing before the Immigration Division on February 26, 2007 and the issuance of a removal order on February 27, 2007, the Applicants were ineligible to make a claim for Convention refugee protection. This ineligibility arose by operation of law, that is subsection 99(3) of the Act. As noted above, the Applicants challenged the effect of the removal order in proceedings before Justice Noël and their application for judicial review was dismissed. 

 

[39]           The Officer referred to the decision in Xie. In that case, the Federal Court of Appeal found that exclusion from Convention refugee status on the basis of Article F of section 1 did not mean exclusion from protection pursuant to the PRRA process. That situation is distinguishable from the present case since the Applicants did not make claims for refugee status and indeed, were found ineligible to do so.

 

[40]           Since the Applicants were barred from making Convention refugee claims, they have never received rejections by the IRB on the basis of section F of Article 1 of the Refugee Convention. As a result, they cannot be described in subsection 112(3)(c).

 

[41]           In my opinion, this argument is unsound. Had the Officer proceeded upon a proper assessment of the facts, she would have determined that the Applicants should have had their application for protection considered pursuant to subsection 113(c). That approach would have led to consideration upon the grounds set out in sections 96, 97 and 98. If the Applicants were found to be subject to the exclusion in section 98, they would be excluded from consideration as Convention refugees or as persons in need of protection. In this scenario, section 114 would not have been engaged.

 

[42]           The Respondent submits that the Officer’s finding that the Applicants are as described in paragraph 112(3)(c) is reasonable, if not correct, in order to avoid the “absurd result” of allowing them to obtain Convention refugee status pursuant to the operation of section 114 of the Act, despite their inability to claim refugee protection pursuant to subsection 99(3).  

 

[43]           The Respondent supports its argument by suggesting that I “read in” certain words such that “a claim for refugee protection”, in paragraph 112(3)(c) includes “a claim for protection” pursuant to the PRRA process. 

 

[44]           In my view, this approach would place the cart before the horse.  Before the Officer could find the Applicants as described in subsection 112(3) for having made a claim for protection pursuant to the PRRA process that was rejected upon the basis of section F of Article 1 of the Refugee Convention, the Officer would first have to reject their application on this ground. This in itself would create an absurd result as the Officer would essentially be rejecting the claim for protection and then returning to the application only to reassess it in light of her previous rejection.  In my opinion, the Respondent’s submissions in this regard are not well-founded.

 

[45]           Finding the Applicants to be as described within subsection 112(3) would deny them the ability to receive refugee protection pursuant to the operation of subsection 114(1) of the Act which provides as follows:

 

 

[46]           Subsection 112(3) imposes a preliminary obligation on the Officer to first identify, as a threshold step, whether there is a restriction on the availability of protection. This is essentially a fact-finding exercise, according to the criteria identified in subsection 112(3).

 

[47]           For ease of reference, I repeat subsection 112(3) as follows:

 

[48]           Each of the four situations referred to in paragraphs (a), (b), (c) and (d), respectively, contemplate that some action or determination has already occurred. Paragraphs 112(3)(a) and (b) address the consequences of inadmissibility hearings pursuant to section 45 of the Act. These hearings are conducted by the Immigration Division.

 

[49]           Paragraph 112(3)(c) describes the consequences of a hearing before the Refugee Protection Division, where a claim was rejected on the basis of section F of Article 1 of the Refugee Convention. Article 1 is incorporated in the Act as a Schedule, pursuant to subsection 2(1) of the Act, and provides as follows:

 

[50]           Paragraph 112(3)(d) addresses the consequences of action taken by the Minister pursuant to subsection 77(1) of the Act.

 

[51]           In my opinion, none of the exceptions in subsection 112(3) contemplate the restriction of protection vis à vis persons who are ineligible to make claims for Refugee Convention status as the result of the operation of section 99 of the Act.

 

[52]           As noted above, section 113 provides a “road map” to the manner in which an application for protection will be considered. Subsections 113(c) and (d) each refer to subsection 112(3), as follows:

 

[53]           The language of these provisions strengthens my opinion that the starting point in dealing with an application for protection is the factual determination in accordance with subsection 112(3). That factual finding will dictate how the PRRA application is assessed by an officer, in accordance with the Act and the Regulations.

 

[54]           On page four of her decision, the Officer found the Applicants as described in subsection 112(3). She then proceeded to assess their allegations of risk pursuant to subsection 113(d), that is on the basis of the factors set out in section 97 of the Act. If she had assessed the Applicants in accordance with subsection 113(c), the Officer would not have been limited to consideration only of section 97 since subsection 113(c) directs an officer to assess an application on the basis of sections 96 to 98. Section 96 is the basis for seeking refugee Convention status. Section 97 addresses degrees of risk that are not limited to Convention grounds. Section 98 is an exclusionary provision that incorporates by reference sections E and F of Article 1 of the Refugee Convention. The three provisions read as follows:

 

[55]           For present purposes, it seems to me that section 98 is the most important provision of the Act in the assessment of the Applicants’ claim for protection. I am satisfied that the Officer has jurisdiction to consider section 98 when acting pursuant to subsection 113(c). Section 98 requires the Officer to assess whether an applicant is described in either section E or F of Article 1 of the Refugee Convention. Section F is relevant to the within matter in the face of allegations that the Applicants committed serious non-political crimes, that is fraud, outside Canada, that is in China.

 

[56]           Counsel for the Applicants challenged the jurisdiction of the Officer to consider section 98. They also challenged her findings in that regard. Although I am satisfied that an officer clearly has the jurisdiction to consider section 98, upon a plain reading of the language of subsection 113(c), I am not satisfied that she properly exercised that jurisdiction since she was erroneously purporting to assess the Applicants’ application pursuant to subsection 113(d). It follows that in this case, the Officer improperly assumed jurisdiction.

 

[57]           In the result, I find that the Officer’s finding that the Applicants are as described in subsection 112(3) is not reasonable. 

 

[58]           Both the Applicants and the Respondent argue that subsection 112(3) must be interpreted in a purposive, contextual manner, following the directions from the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. However, the Applicants submit that the focus should be on the context of risk assessment, while the Respondent argues that regard should be given to the broader purpose of the Act, that is the regulation of the admission into Canada of immigrants and persons in need of protection.

 

[59]           The Applicants submit that an interpretation of subsection 113(c) that would allow an officer to exclude a person pursuant to section 98 would lead to the unfair result that a person may be removed from Canada without an assessment of risk, potentially giving rise to a breach of section 7 of the Charter and contrary to the decision in Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177.

 

[60]           In my opinion, consideration of this argument, that is, issue three, as well as the arguments respecting issues four and five, is premature since I am satisfied that this application for judicial review should be allowed and the decision of the Officer should be quashed, with the matter being remitted to a different officer for a proper determination. 

 

[61]           Counsel will have seven days from receipt of these Reasons to submit a proposed question for certification.

 

 

“E. Heneghan”

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-3786-08

 

STYLE OF CAUSE:                          DONG ZHE LI

                                                            DONG HU LI v.

                                                            THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

                                                           

 

PLACE OF HEARING:                    Vancouver, BC

 

DATE OF HEARING:                      December 9 and 16, 2008

 

REASONS FOR JUDGMENT:       HENEGHAN, J.

 

DATED:                                             June 9, 2009

 

 

 

APPEARANCES:

 

Christopher Elgin	FOR THE APPLICANTS
Cheryl Mitchell	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Elgin Cannon and Associates	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT