Digests

Sing v. Canada (Minister of Citizenship and Immigration)

IMM-3194-02

2004 FC 179, MacKay J.

3/2/04

29 pp.

Judicial review of Convention Refugee Determination Division's (CRDD) dismissal of application for Convention refugee status--Applicants family of five--Parents excluded from definition of refugee by Art. 1F(b) of United Nations Convention Relating to the Status of Refugees (Convention) --Each member of Lai family denied refugee status because fear claimed not persecution on ground specified in definition --Applicants citizens of People's Republic of China who arrived in Canada in August 1999 and claimed refugee status in June 2000, 10 months after arrival--Principal applicant claimed refugee status on basis of fear of persecution because of membership in particular social group, i.e. successful Chinese businessmen--Other applicants feared persecution as members of his family--Minister alleging serious grounds to believe parents committed serious non-political crimes in China, including bribery, smuggling, fraud, tax evasion-- Disputing nexus between feared persecution, grounds claimed--Applicants say wrongly accused, would not receive fair trial in China--Say CRDD should not have admitted some documentary evidence as obtained by torture or cruel, inhuman treatment--On submissions concerning admissibility of documents, particularly those emanating from government of China and from those under its jurisdiction as well as document of applicants to which Minister had objected, CRDD concluded materials admissible; issue what weight evidence merits--Conclusion consistent with lawful discretion of CRDD to consider, determine what evidence admissible in any case--Evidence obtained by torture or other means precluded by International Convention, ought not to be relied upon by CRDD considering refugee application--CRDD did consider evidence objected to by applicants, but only after concluding no credible evidence interrogation statements in issue resulted from torture or from degrading treatment of persons under investigation in China--As general ruling, determination about admissibility of statements, court records and exhibits in this case clearly within capacity and statutory authority of CRDD--As to onus of proof to support exclusion, references in CRDD's decision to "balance of probabilities" referring to finding of credible evidence rather than to onus of proof of parties--In relation to exclusion, CRDD clearly acknowledged onus of proof on Minister to establish serious reasons to find applicants should be excluded--In relation to inclusion, CRDD clearly recognized onus of proof on claimants to establish credible evidence of reasonable fear of persecution for Convention reason--CRDD's reference to balance of probabilities referring to particular evidence issues before it, not to its ultimate decisions, not indicating error on its part in applying onus of proof to be met by parties--As to adequacy of notice and of findings, applicants urging notice of basis of exclusion, at least specifics of alleged criminal activities, vague, and therefore uncertain about allegations against them--Notice of intention of Minister to intervene in hearing of applicants' refugee claim met essential requirement of indicating basis of intervention, in relation to Convention, Art. 1F(b), and further applicants advised by notice adult applicants considered excluded in relation to commission of serious non-political crimes of smuggling, fraud, tax evasion, and bribery--Notice clearly met requirements of Immigration and Refugee Protection Act (IRPA)--Applicants also arguing CRDD erred in law in determining alleged crimes committed by applicants non-political crimes--CRDD not erring in determination not to accept applicants' submissions crimes alleged political--Ample evidence before CRDD supporting conclusion applicants' portrayal of subservience of criminal law process to political leadership in China, key element of applicants' claim, not established--Finding reasonable and no basis for Court to intervene in relation to CRDD's conclusions crimes alleged non-political--Further, CRDD found crimes alleged "serious crimes" within Convention, Art. 1F(b)-- CRDD's finding concerning "serious crimes" made with reference to comparisons of Canadian criminal and customs laws with criminal laws of China, penalties assigned under both legal systems including possible execution in China in serious cases, and numerous allegations of offences raised as result of investigations of principal applicant's companies-- Findings activities alleged "serious crimes" also made in light of case law, including other decisions of CRDD--Such determinations reasonable--As to CRDD's conclusions on exclusion, no serious errors of fact warranting Court's intervention--Decisions reached on ultimate determinations of exclusion reasonable in light of evidence before CRDD-- As to CRDD's findings on inclusion, CRDD found no reasonable risk of persecution if applicants returned to China, in sense of Convention, or in particular because of possible imposition of death penalty, or of torture, cruel or degrading treatment or punishment--Rather, applicants' fears concerned prosecution under criminal laws of general application in China--As to possible penalty of execution, or of torture or degrading treatment, in regard to threat of execution, Minister adduced diplomatic note from Chinese government undertaking not to sentence principal applicant to death-- Applicants disputing CRDD's interpretation of note as holding out similar assurances for both parents and submitting CRDD ought to have considered and referred to earlier misleading tactics of Chinese investigators who came to Canada, claiming visas as visiting businessmen when sole purpose to meet principal applicant, persuade him to return to China--CRDD's interpretation of note reasonable, and conclusion on trust to be accorded to note made in light of its knowledge of evidence as whole, including clumsy efforts of Chinese investigators to come unknown to Canada and seek to deal with Mr. Lai here, whether or not evidence specifically related as factor considered in reaching conclusion--CRDD, on evidence before it, including diplomatic note, reasonably found no evidence supporting conclusion applicants would face torture or degrading treatment upon return to China-- CRDD found no basis for claims of both parents to fear persecution for reasons of political opinion because it found they had none and claimed none--Claim of Mr. Lai to fear persecution because of membership in particular social group, successful businessman in China, not established, as evidence before CRDD showed business and businessmen encouraged in China and not focus of any persecutory action--Claim of eldest child to fear persecution arose because two members of mother's family in China had been convicted and imprisoned for crime of harbouring or abetting fugitive from justice in China (mother) to whom, at daughter's request, had sent money--No evidence showing he would be treated similarly; and if he were, that would be subject to another law of general application in China--That would not be matter of persecution but merely of prosecution--CRDD's findings none of claims of members of family within definition of Convention refugee reasonably supported by evidence-- Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27--United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(b).