search5 Szh 1h Quickwpthemes searchasSexInSex%21%20Board%D1%C7%D6%DE%D3%D0%C2%EB%D4%AD%B4%B4%C7%F8a Quickwpthemes gsearche Szh searchhtatSexInSex%21%20Board%20%3F%20Asia%20Authorship%20Seed%20%7C%20%D1%C7%D6%DE%B3%C9%C8%CB%CE%DE%C2%EB%D4%AD%B4%B4%C7%F8e Szh o Music fsearchc Music r0er Music e Szh searchnsearchrsearchlsearchi Music go Quickwpthemes Quickwpthemes h Music o Szh c Quickwpthemes p Quickwpthemes Music f Quickwpthemes l Quickwpthemes wsearcho Music esearcher Szh lsearchasearchpsearchi Szh a Szh isearchn Quickwpthemes bsearchcsearchu Szh e Quickwpthemes itsearchonl Quickwpthemes Music eat Szh sto hsearch Szh o Quickwpthemes v Music n Szh i Quickwpthemes n0rf Music ge Quickwpthemes d Szh f Music n Quickwpthemes tin Music unsearche Quickwpthemes ectsearcho Quickwpthemes search6 Szh of Music tsearche Quickwpthemes IsearchP Music ,OL%CB%BF%CD%E0%20Rio%20%A4%CE%B4%CC%BC%A4%B5%C4%A4%CASEX%28%D6%D0%CE%C4%D7%D6%C4%BB%29%B5%C810%B2%BFn Szh t Music o Quickwpthemes hww123cm Quickwpthemes r Music un%B7%B8%D7%EF%92%C8%B2%E9%B9%D9%B8%B4%F6%C5%A4%CE%8F%8E%BA%DBssearchf Quickwpthemes r Music r Quickwpthemes tecsearchiosearch th Szh searchffi Quickwpthemes e Music w Quickwpthemes s %D1%C7%D6%DE%B3%C9%C8%CB%CE%DE%C2%EB%D4%AD%B4%B4%C7%F8%20-%20SexInSex%21o Quickwpthemes ssearchd Music risearchg Quickwpthemes therAsia%20Authorship%20Seed. h Quickwpthemes Quickwpthemes elevasearcht Quickwpthemes n Music u Quickwpthemes r Quickwpthemes iss1t Music o Quickwpthemes tsearchi%C5%B7%C3%C0%B3%C9%C8%CB%CE%DE%C2%EB Quickwpthemes ection 97(1)(b)(iii) of the IRPA, and should have been whether the risk the applicants face is or is not inherent or incidental to lawful sanctions, and if it is, whether the risk is nevertheless imposed in disregard of accepted international standards. While the officer did state that the conviction and jailing of Tsang Ming Na’s relatives were “not imposed in disregard of international standards”, so runs the argument, she did not consider those standards and therefore failed to have regard to the material before her and to exercise her jurisdiction (PRRA Reasons, p. 40).

156 I believe this argument is without merit, essentially for the reasons raised by the respondent. First of all, it is not accurate to say that the officer applied the wrong test in relying on the concept of law of general application. Though the convictions of Ms. Tsang’s relatives were relevant to the applicants’ overall risk assessment, there was no particular way in which that evidence had to be assessed. Moreover, the officer did, in fact, consider the convictions of Ms. Tsang’s relatives for “harbouring a fugitive” under Article 310 of the Criminal Law of the People’s Republic of China and did find that these convictions were not in violation of international standards. Having reviewed the judgment of the Chinese court in that case, she found Ms. Tsang’s relatives were represented by counsel, who presented arguments at an open trial, that they pleaded guilty and that they were given credit at sentencing for their time in custody awaiting trial (PRRA Reasons, pages 28-29, 40). As a result, she concluded the relatives’ convictions were arrived at pursuant to a law of general application that did not violate international standards and was not imposed in violation of international standards and did not bespeak of forward-looking risks to the applicants.

157 The Lais would have it that Article 310 of the Criminal Law of the People’s Republic of China is contrary to the International Covenant on Civil and Political Rights, which both Canada and China have signed and ratified, and which provides that everyone shall be entitled to legal assistance when facing a criminal charge. Since Ms. Tsang’s relatives were merely trying to help the Lais pay their legal fees, they argue, their conviction was clearly a violation of international standards.

158 I do not find this argument very compelling. There is no evidence to the effect that the money was provided for the only purpose of covering the legal fees of the applicants. But even more to the point, it is the act of providing money to fugitives that is the offence under Article 310, irrespective of what the fugitives say they want the money for. It cannot be said, therefore, that Article 310 criminalizes legal assistance.

159 Finally, the Lais themselves do not face prosecution under Article 310. The officer nevertheless considered the facts giving rise to the convictions of Ms. Tsang’s relatives in her overall risk assessment of the Lais’ case, together with their argument that the convictions meant the Lais would be denied defence counsel. She found that they did not support a finding that the Lais would be unable to access their legal privileges and rights if returned to China. These are factual findings reviewable on the standard of patent unreasonableness. On that basis, I am not convinced the officer made a reviewable error.

Conclusion

160 For all of the foregoing reasons, I shall therefore grant the application for judicial review. In coming to that conclusion, I do not doubt the good faith of the Chinese Government nor do I want to cast aspersion on those officials who were instrumental in the drafting and issuance of the diplomatic note. The role of this Court, in reviewing decisions made by PRRA officer, is not to pass judgment on foreign countries’ record, but only to determine if the decision under review is consistent with Canadian law. In the case at bar, I have concluded that the PRRA decision, though well reasoned and quite comprehensive in its assessment of the facts and of the submissions made by both counsel, is deficient in its assessment of the risk of torture.

ORDER

THIS COURT ORDERS that the application for judicial review is granted, and the Court certifies the following questions:

1. Where the Minister takes a public position on pre-removal risk to an applicant before a pre-removal risk assessment application is decided, is there a reasonable apprehension that the Minister’s decision on pre-removal risk assessment application will be biased?

2. What is the appropriate standard of review for the interpretation of a diplomatic note providing assurances against the death penalty or the infliction of torture or other cruel or unusual treatment?

3. Is it appropriate to rely on assurances against torture in assessing an applicant’s risk under section 97 of the IRPA, when there are credible reports that torture prevails in the country where the applicant is to be removed? If so, under what circumstances?

4. If there is a risk of torture in an individual case, what are the requirements that an assurance against torture should fulfill to make that risk less likely than not? Should the assurance provide for monitoring to allow for verification of compliance for that assurance to be found reliable? In the absence of a monitoring mechanism, is the notoriety of the person to be removed a relevant, and a sufficient, consideration for the PRRA officer in determining whether it is more likely than not that the assuring state will adhere to the diplomatic assurance?

Application granted.

FN*. A corrigendum issued by the court on May 2, 2007 has been incorporated herein.

END OF DOCUMENT

Copr. (c) West 2008 No Claim to Orig. Govt. Works

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