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10.20 Assessing the objective risk to life or of cruel and unusual treatment or punishment

The assessment of whether there are substantial grounds to believe the applicant would be personally subjected to a risk to life or of cruel and unusual treatment or punishment is evaluated on an objective basis. The risk must be personalized to the individual. The assessment may be based on past events but is forward looking: the issue to be determined is whether events related by the applicant, together with all the other evidence, including country conditions at the time of the decision, show that the applicant, if returned, would be subjected to a risk to life or of cruel and unusual treatment or punishment.

[...]

All relevant considerations include the general situation in a country and, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

116 In their PRRA application, the Lais argued they would face torture and/or cruel and unusual treatment in China because others involved in the Yuan Hua case had been tortured and coerced into making confessions, their family members had been mistreated, Falun Gong members and human rights defenders are tortured in China — and finally, because of China’s general human rights record. The officer considered each of those claims and found the evidence did not satisfy her that the Lais faced a forward-looking risk of torture or mistreatment. She found, inter alia:

• There was no objective evidence to link the mysterious prison deaths of Mr. Lai’s brother and accountant to a forward-looking risk to either applicant. There was not enough proof that the men were tortured. Nor was there evidence that anyone had requested — and been denied access to — autopsies into their deaths (PRRA Reasons, page 18);

• The disclosed court judgments from China were not probative evidence that those involved in the Yuan Hua cases had been coerced or mistreated (PRRA Reasons, page 39);

• Despite counsel’s attempts to indict China’s entire judicial system, the specific facts in this case did not suggest that those charged in the Yuan Hua cases had been denied due process or the right to a fair trial. There was no probative evidence that suggested anyone had been convicted unfairly, was denied legal counsel, or had been coerced into confessing (PRRA Reasons, page 41);

• There was insufficient evidence to establish any statements from the 4-20 Investigation had been made under duress, although the officer acknowledged officials would not likely admit to such behaviour if it occurred (PRRA Reasons, page 19);

• There was insufficient evidence that the Chinese government intends to incriminate the applicants with tainted evidence, obtained through duress, mistreatment and torture (PRRA Reasons, p. 38)

• Tao Mi’s purported recantation was worth little weight, because her statement was not signed. Further, there was insufficient direct evidence to corroborate that Tao Mi had been tortured by Chinese authorities (PRRA Reasons, pp. 29-30);

• The unsigned statement purportedly dictated by Tao Mi was not probative evidence of a forward-looking risk to the applicants (PRRA Reasons, p. 41);

117 It is also noteworthy that the Board had examined the same evidence concerning the manner in which the Chinese authorities had treated the others from the Yuan Hua group of companies, including Tao Mi. The Board also concluded that they had not been tortured. While the Board accepted that detainees are mistreated in China, the Lais had not established mistreatment on a balance of probabilities with respect to any particular statement or confession obtained by 4-20 investigators (Tribunal Record, vol. 7, pages 2048; 2143-2144).

118 Thus, while the Lais continue to say there is evidence that others involved in the Yuan Hua companies were tortured and mistreated, the fact is that the officer found there was not a substantial likelihood that the Lais would be tortured or mistreated if returned to China. This entire line of complaint is based on the weight the officer assigned to the evidence, reviewable on the standard of patent unreasonableness.

119 There was, indeed, ample evidence before the PRRA officer that was also before the Board, and she did refer to that evidence in her reasons (PRRA Reasons, pages 18-19). For example, Dr. Zhao Bing Zhi, defence counsel for two accused persons in the Yuan Hua smuggling operation, was before the Board for two days. He testified that his clients did not show any signs of physical mistreatment. The Board found Dr. Zhao was a credible witness. The chief investigator of the cigarette smuggling investigation case, Wu Jian Ping, also testified in person before the Board for four days. He took some statements himself and supervised other investigators taking statements. He testified that he and his 30 investigators conducted interviews in accordance with the law and did not mistreat any individuals questioned. The Board accepted investigator Wu’s evidence on this point and found he was a credible witness. Wang Zhong Hua, the chief Chinese prosecutor in the case against Mr. Li, also testified before the Board for two days. He stated that none of Mr. Li’s statements were obtained by means of mistreatment. He was also held to be a credible witness by the Board. Finally, there was the evidence of Li Yong Jun, the principal Chinese prosecutor of a team of eight who had prosecuted 19 people involved in the Yuan Hua smuggling and bribery scheme. He gave testimony before the Board for five days, and was found credible. The Board found no suggestion in his testimony that he participated in the mistreatment of any people subject to his team’s prosecution.

120 A Canadian immigration official also interviewed Mr. Li and Mr. Lai’s brother, Lai Shui Qiang. The videotapes and transcripts of these interviews were adduced into evidence. In the tapes, both men affirmed to tell the truth to the immigration officer, and said their statements to Chinese authorities were voluntary. They said they were under no physical or mental pressure to give the statements, and had an opportunity to review and correct them before signing them.

121 I appreciate the Lais’ submission that victims of torture are not likely to come forward and state openly that they have been tortured if they are still under the control of state authorities. At the same time, one should not speculate about what may have happened, or infer that some or all of the persons convicted in the Yuan Hua smuggling scheme were tortured just because China’s record on this issue is far from commendable. Once again, it is not for this Court to reweigh the evidence, absent an error of fact made in a perverse or capricious manner or without regard for the material before the PRRA officer (Federal Courts Act, R.S.C. 1985, c. F-7, paragraph 18.1(4)(d)).

122 The Lais submit the officer should have found that the affidavits affirmed by Clive Ansley and his assistant, attaching an unsigned statement said to be from Tao Mi, established torture. At paragraph 80 of this decision, I rejected the applicants’ argument that the officer was obliged to call a hearing if she questioned the identity of the person claiming to be Tao Mi. But the officer went further. Despite her doubts about who authored the unsigned statement, she nevertheless considered it and concluded as follows, at page 41 of her reasons:

I find that the unsigned statement said to have been dictated by Tao Mi [recanting her previous testimony regarding her knowledge of Lai Cheong Sing and Tsang Ming Na's smuggling activities and recounting her treatment at the hands of Chinese authorities which counsel submits equated to torture and mistreatment] is not probative or significantly determinative of forward-looking risk to the applicants.

123 The officer also considered the Lais’ claim that members of the Falun Gong and human rights defenders were tortured and/or mistreated and concluded the Lais were not similarly situated because they were neither Falun Gong practitioners nor human rights defenders (PRRA Reasons, pages 28, 30, 39-41).

124 The officer then considered the Lais’ claim that Ms. Tsang’s father had been mistreated by Chinese authorities. She concluded the hearsay affidavits from Ms. Tsang’s sister, the only evidence provided to support this claim, had limited probative value, and did not establish forward-looking risks under subsection 97(1) of the IRPA (PRRA Reasons, page 28). It is noteworthy that the same two hearsay affidavits from Ms. Tsang’s sister were before the Board in 2001 and Ms. Tsang was cross-examined on them. That cross-examination evidence was also before the PRRA officer. The Board found Ms. Tsang’s evidence and her sister’s affidavits were inconsistent and gave them little weight (TR, vol. 8, pages 2342-2343).

125 As discussed previously, the Lais complain about the weight the officer gave to Ms. Tsang’s sister’s affidavits, seemingly because they were not provided an oral hearing to explain them. A decision-maker is not required to give great weight to affidavit evidence merely because the affiant has not been cross-examined (see paragraph 80 of this decision). It was not patently unreasonable for the officer to give the uncorroborated hearsay affidavits limited probative value.

126 As I also discussed, the PRRA officer looked at the press release detailing the UN Special Rapporteur on Torture’s visit to China. She noted that, according to that report, the practice of torture in China is on the decline but remains widespread, and China has undertaken practical measures to combat it. The press release also noted the absence of essential procedural safeguards necessary to make the prohibition on torture effective, and that the problem of torture cannot be brought under effective control in the absence of an independent judiciary in China (PRRA Reasons, pages 16-17).

127 The officer also wrote, at page 20 of her decision, that she considered continuing reports that torture is still used to coerce confessions from criminal suspects, without elaborating on the subject (PRRA Reasons, page 20). In the 2005 U.S. Department of State Country Report on Human Rights Practices, which the officer had before her, we read: