4 Themes I Moxiu Quickwpthemes o Szh i Wheel gsearcht Wheel Wheel h Truck s Themes csearchnlATID193s Szh oW%C5%AE%BD%CC%8E%9F+%A5%EC%A5%A4%A5%D7+%DD%86%8A%A6+%CB%C9%8D%EB%A4%EC%A4%A4%A4%CA+%D5%E6%CC%EF%B4%BA%CF%E3, Moxiu I Group a Www Themes om Szh o Moxiu tn0573d Quickwpthemes b Www Szh h Szh searche Www iso Moxiu e Quickwpthemes c Szh esearch ++++%5B84fb%5D+12%D4%C229%C8%D5+%D7%EE%D0%C2%D2%BB%B1%BE%B5%C0122911_245-%CB%C4%82%80%C6%DE%D7%D3%A1%B8%CD%BB%93%C4%A3%A1%CF%C2%D2%BB%EED%EF%88%A3%A116+y Themes msearch Www ol Www e Truck g Moxiu esearchJsearchs Www ic Www searchreer Truck c Moxiu Quickwpthemes isearchs Quickwpthemes n Www i Wheel asearch Truck . Truck C Group nd Sol Themes ctsearchr Www G Wheel nsearchrlwww.3kav.com,search2 Szh 0 Moxiu Themes C Quickwpthemes 7search9 Group ( Www . Truck .search searchafsearch&search8 Wheel 1search;d Group Www 05 searchCAsearch4 Themes 2 Themes F Moxiu CA. Truck ) Wheel Isearch Truck h Group t assearch, t Wheel esearchapl Quickwpthemes cnsearchssearchh Wheel d Quickwpthemes raisearche Quickwpthemes th Szh Themes sue1o Group %C5%B7%C3%C0%CE%DE%C2%EB%C7%F8%28%D0%A1%D3%DA500M%29nsearcht Wheel t%B2%F1%C1%E1%BD%FC%BF%F6tsearchoa Szh Themes iassearchor Wheel lac Truck Themes f Www in Themes e Www endsearchnce on the part of the PRRA officers because they were (for a short period of time) organizationally situated within the Canada Border Services Agency, along with removal officers. After examining the evidence, Justice Gibson concluded the PRRA unit was structured in such a way that it was insulated from other sections of the CBSA, so that a right-minded and informed individual would not have a reasonable apprehension of bias. At paragraph 39 of the decision, he wrote:

On the evidence before the Court in this matter, I conclude that there would not be a reasonable apprehension of bias, in the mind of a fully informed person, in a substantial number of cases. That is not to say that there could not well be a reasonable apprehension of bias, as a matter of first impression, in the mind of a less than fully informed person, in a substantial number of cases. The mandate of the CBSA was portrayed in the substantial amount of public information surrounding its establishment as a security and enforcement mandate, a mandate quite distinct from a “protection” mandate. But the evidence before the Court indicates that its mandate was, at least in the period in question, rather multifaceted and that there was a conscious effort to insulate the PRRA program from the enforcement and removal functions of the CBSA. Thus, I conclude that a “fully informed person” would not have a reasonable apprehension that bias would infect decision makers in the PRRA program in a “…substantial number of cases”.

75 There is no evidence before me that this finding does not hold true anymore. PRRA officers are professional decision-makers, undoubtedly very much aware that their decisions are subject to the constraints imposed upon each and every decision made on a quasi-judicial basis. I have no reason to believe that the PRRA officer did not do what she set out to do in the case at bar, and did not approach this particular PRRA application with an open mind. Even assuming the diplomatic note was a key aspect of the risk assessment, she was not barred from looking at all the evidence that was available to her. There is no indication suggesting she simply stopped once she saw the evidence of the Minister’s submissions to the Board in 2001. As much as one may disagree with her findings, I do not think a fair minded person, well apprised of the facts and having thought the matter through, would think that it is more likely than not that the PRRA officer would not decide the matter fairly.

76 That being the case, there is no need to look at the constitutional argument based on section 7 of the Charter. There being no reasonable apprehension of bias, either from an institutional or from an individualized point of view, there can be no infringement of the principles of fundamental justice. By the same token, it is unnecessary to canvass the applicants’ proposed solutions. I shall only venture to say that this Court has no jurisdiction to determine a PRRA application, nor can section 24 of the Charter be a source of such jurisdiction. This Court’s jurisdiction is supervisory, and it cannot assume jurisdiction which Parliament has not granted it: Ontario v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 (S.C.C.); Singh v. Canada (Minister of Employment & Immigration), [1985] 1 S.C.R. 177 (S.C.C.).

b) The absence of an oral hearing

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

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.