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77 The Lais have raised a second procedural fairness issue, relating to two affidavits they filed in support of their application. The first was from Ms. Tsang’s sister. It said their father had been beaten and was under house arrest in China, while their mother was taken away by policemen on instructions from 4-20 investigators. The second affidavit was from the Canadian lawyer Clive Ansley, with Tao Mi’s alleged recantation attached as an exhibit. In both cases, the PRRA officer gave little probative value to the evidence. She found Ms. Tsang’s sister had an interest in the outcome of her claim for protection. Furthermore, her sister’s affidavit contained uncorroborated hearsay. With respect to Mr. Ansley, as well as his assistant, neither one of them could testify as to the identity of the person who claimed to be Tao Mi. The Lais now claim the PRRA officer was not entitled to disregard those affidavits, without first granting them a hearing to address the officer’s concerns.

78 Subsection 113(b) of the IRPA makes it clear that a hearing is to be held in exceptional circumstances. The factors to consider are found in section 167 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), which reads as follows:

167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:

(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;

(b) whether the evidence is central to the decision with respect to the application for protection; and

(c) whether the evidence, if accepted, would justify allowing the application for protection.

167. Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience est requise :

a) l’existence d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui soulèvent une question importante en ce qui concerne la crédibilité du demandeur;

b) l’importance de ces éléments de preuve pour la prise de la décision relative à la demande de protection;

c) la question de savoir si ces éléments de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée la protection.

79 Having reviewed the circumstances under which a hearing must be held, I do not think an interview was required in this case. First of all, the sister’s affidavit put her own credibility into question, not Ms. Tsang’s. Since section 167 of the Regulations envisions the possibility of a hearing for an applicant, I fail to see how Ms. Tsang could have testified on the basis of her sister’s affidavit.

80 As for Mr. Ansley and his assistant, they could have certainly been cross-examined on their affidavits before the Board, but the Minister chose not to. This was her absolute prerogative. It is trite law that a decision-maker is not required to accept affidavit evidence merely because the affiant was not cross-examined (Bath v. Canada (Minister of Citizenship & Immigration), IMM-4095-98 [1999 CarswellNat 1475 (Fed. T.D.)]; Singh v. Canada (Solicitor General), 2005 FC 159 (F.C.)).

81 The applicants further contend that the PRRA officer breached both the regulatory requirement on interviews and the duty of fairness. They submit she should have either interviewed the affiants about the identity of the woman who came to Mr. Ansley’s office, or given them notice of her concern and an opportunity to respond. I strongly disagree. First of all, the affidavits of Mr. Ansley and his assistant were before the Board in 2001, and the Board gave them very little weight. Between then and now, the Lais could have cured this evidentiary deficiency, by seeking evidence to confirm how the affiants knew the woman in Mr. Ansley’s office was Tao Mi. However, they did not. Moreover, the Lais’ credibility was not the determining issue in the PRRA decision. Rather, the officer found the risks to the Lais had not been established on objective evidence, particularly in light of the diplomatic note. The officer concluded, at page 41 of her reasons, that the unsigned statement was “not probative or significantly determinative of forward-looking risk to the applicants.” This was not a credibility finding against the Lais, but a finding based on the evidence they submitted to support the claim that they were at risk of torture. For all of these reasons, I do not think the officer breached section 167 of the Regulations by failing to conduct an oral hearing with the Lais to discuss the two affidavits.

c) Does the diplomatic assurance encompass a conditional death sentence?

82 The Lais are wanted for arrest for the offence of smuggling, contrary to Article 153 of the Criminal Law of the People’s Republic of China. Mr. Lai is also wanted for bribery, contrary to Article 389 of the same law. It is true that the Lais have not been charged yet, but as I explained above, it appears a person is not charged with a crime in China until he or she is in custody. While the maximum sentence for bribery is ten years’ imprisonment, the penalty for “especially serious” cases of smuggling jumps to life imprisonment or death, pursuant to Article 151 of the Criminal Law of the People’s Republic of China. Accordingly, I am confident that removing Mr. Lai to China would subject him to a risk to his life, were it not for the diplomatic assurances. And this is precisely why these assurances were given, in the wake of the Supreme Court’s decision in United States v. Burns, above.

83 The Lais’ argument with respect to the diplomatic note is twofold. First, they submit the PRRA officer erred by failing to address whether the note encompasses a conditional death penalty. Second, and this argument was raised for the first time before this Court, they argue a suspended death sentence amounts to cruel and unusual treatment or punishment even if the person is never executed.

84 Before assessing these arguments, I must first determine the applicable standard of review. The Lais submit the interpretation of the diplomatic note is a matter of international law, not just domestic Chinese law. They claim that since international law is a part of Canadian law, the proper interpretation of the note should therefore be reviewed against a standard of correctness.

85 The Minister, on the other hand, submits that the interpretation and the reliability of the note are both questions of fact that must be assessed on a standard of patent unreasonableness. While accepting this precise issue has never been decided, the Minister argues that interpreting and assessing the note involved findings about foreign law and evidence of past practice, and as such the PRRA officer’s conclusions deserve significant deference.

86 There is no doubt that foreign law is a matter of fact reviewable on the standard of patent unreasonableness. As the Federal Court of Appeal held in Saini v. Canada (Minister of Citizenship & Immigration) (2001), [2002] 1 F.C. 200 (Fed. C.A.) at paragraph 26:

Foreign law is a question of fact, which must be proved to the satisfaction of the Court. Judicial findings about foreign law, therefore, have always been considered on appeal as questions of fact (see J.-G. Castel, Canadian Conflict of Laws, 4th ed. (Toronto: Butterworths, 1997), at page 155). Moreover, it is well settled that this Court will only interfere with a finding of fact, including a finding of fact with regard to expert evidence, if there has been a palpable and overriding error (See for example N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; Stein et al. v. “Kathy K” et al. (The Ship), [1976] 2 S.C.R. 802).

See also: Magtibay v. Canada (Minister of Citizenship & Immigration), 2005 FC 397 (F.C.) at paragraph 15; Aung v. Canada (Minister of Citizenship & Immigration), 2006 FC 82 (F.C.) at paragraph 13; Buttar v. Canada (Minister of Citizenship & Immigration), 2006 FC 1281 (F.C.) at paragraph 9; Nur c. Canada (Ministre de la Citoyenneté & de l’Immigration), 2005 FC 636 (F.C.) at paragraph 30; Canada (Minister of Citizenship & Immigration) v. Choubak, 2006 FC 521 (F.C.).

87 It is equally beyond dispute that assessing whether an assurance is reliable is a question of fact, reviewable on the standard of patent unreasonableness. The Supreme Court said so in both Ahani v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 72 (S.C.C.) at paragraph 17, and Suresh, above, at paragraph 39, where it stated:

As mentioned earlier, whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more.

[...]

Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister’s decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors.

88 Mr. Matas is certainly correct in asserting that a diplomatic note is more akin to an international law instrument than to a domestic law. In his affidavit, expert John Holmes described the note in this case as “a commitment of a political nature from one state to another.” Having said that, Mr. Holmes recognized that a diplomatic note is not binding in international law. Rather, it reflects one party’s intention to fulfill a specific undertaking.

89 I am aware of no case law dealing specifically with the standard of review applicable to interpreting such an instrument. In the above-quoted citation from Suresh, above, the Court appears to have focused more on the value to give a diplomatic note than on its interpretation. I have nevertheless concluded that, at least in this case, the interpretation of the assurances from Chinese authorities is so intertwined with the construction of Chinese law that it ought to be considered a question of fact, on which the PRRA officer was entitled to a considerable measure of deference.