Judgments

IMM-5838-02

2003 FC 1514

Yi Mei Li (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Li v. Canada (Minister of Citizenship and Immigration) (F.C.)

Federal Court, Gauthier J.--Toronto, August 27; Ottawa, December 22, 2003.

Citizenship and Immigration -- Status in Canada -- Convention Refugees -- Judicial review of decision by Refugee Protection Division (RPD) applicant neither Convention refugee under Immigration and Refugee Protection Act, s. 96, nor person in need of protection under s. 97 -- Claiming in need of protection against stowaway agents (snakeheads), alleging Chinese authorities unable to give him such protection -- RPD finding Convention refugee claim not credible -- Chinese government would protect him from snakeheads -- Purposive contextual interpretation of s. 99 -- Standard to be applied by RPD when evaluating claim under Immigration and Refugee Protection Act, ss. 96, 97 different -- Under s. 97 must be persuasive evidence, i.e. balance of probabilities, establishing facts on which relies to say substantial danger of torture upon return -- Risk of torture must be more likely than not -- RPD properly analyzed applicant's claim -- Questions of general importance certified.

International Law -- Immigration and Refugee Protection Act, s. 97(1) adopted to give effect to Canada's international obligation under Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment -- S. 97 speaking of "danger, believed on substantial grounds to exist" -- Convention, Art. 3 only applies to "torture" -- Expression "substantial grounds for believing" in Art. 3 suggesting probability of torture -- F.C.A. discussion of threshold test in Art. 3, American interpretation considered -- No international consensus standard applicable to refugee claims must also apply to those facing real risk of torture -- As may conflict with Canada's treaty obligations, that under Convention, right to be protected against torture absolute obligation militating against interpretation going further than treaty obligation.

This was an application for judicial review of a decision by the Refugee Protection Division (RPD) finding that the applicant was neither a Convention refugee under section 96 of the Immigration and Refugee Protection Act, nor a person in need of protection under section 97 of the Act. The applicant is a citizen of China who claims to fear persecution by reason of his perceived religious beliefs. He left China without a passport and an exit visa with the help of stowaway agents (also referred to as snakeheads). He arrived in Vancouver in April 2001 on a boat operated by the snakeheads. In an addendum to his Personal Information Form (PIF) he disclosed a fear of the snakeheads because they blame him for the discovery of their boat by the Canadian police. He claimed to need protection against them because the Chinese authorities could not give him such protection. The RPD made a negative credibility finding based on omissions and inconsistencies between the port of entry notes, the applicant's PIF and his testimony. It also expressly found that the applicant would be protected against the snakeheads by the Chinese government. The main issue raised by the applicant was that the RPD erred by applying the wrong standard to his claim under subsection 97(1) of the Act.

Held, the application should be dismissed.

The RPD's negative finding with respect to the applicant's credibility was not unreasonable, let alone patently unreasonable. It found that the applicant's story was not credible because, among other things, of his omission to refer to his kidnapping in Toronto by the snakeheads in his PIF and that such story was inconsistent with the one he gave to the authorities at the port of entry. The onus of establishing that the Chinese government could not protect him was on the applicant. Given that a state is presumed to be able to protect its citizens, he had to produce clear and convincing evidence establishing their inability to do so. The RPD did consider the extensive documentary evidence presented and concluded that the Chinese government had applied various measures that showed a willingness to arrest and severely punish the snakeheads. It was open to the RPD to come to that conclusion on the evidence before it. The Board made no reviewable error.

The RPD found no persuasive evidence that the claimant would "probably" be subject to mistreatment or "at risk" of losing his life. The applicant submitted that the standard applicable to determine the status of a Convention refugee under section 96 of the Act should also apply when considering a claim under subsection 97(1). Under subsection 97(1), a person in need of protection is a person in Canada whose removal to their country or countries of nationality would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment. This provision must be construed using a purposive and contextual approach. Paragraph 97(1)(a) was adopted to give effect to Canada's international obligation as a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force on June 26, 1987. Article 3 of the Convention provides that no State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. This article only applies to "torture"; it is thus limited to the most severe cases of cruel and unusual treatment or punishment and applies only if such treatments are inflicted by, or at the instigation, or with the consent of a public official or person acting in an official capacity. The expression "substantial grounds for believing" does not give a clear and precise indication as to what Parliament intended, but it does suggest probability. The threshold test set out in Article 3 of the Convention was discussed in Suresh v. Canada (Minister of Citizenship and Immigration) where the Federal Court of Appeal said that the "risk of torture must be assessed on the grounds that go beyond `mere theory' or `suspicion' but something less than `highly probable'". The intermediate standard between the two extreme threshold tests, that is "mere possibility" and "highly probable", would be a "balance of probabilities".

As to the argument that applying a different standard to the same evidence would put the RPD in a difficult situation, there are already significant differences between the test to be applied by the RPD when evaluating a claim under section 97 and one under section 96. The test under section 97 of the Act does not require a determination of a subjective fear of persecution. Section 97 requires the RPD to apply a different test, namely whether a claimant's removal would subject that individual personally to the danger and risk stipulated in paragraphs 97(1)(a) and (b) of the Act. Also the American interpretation of the Convention was considered as part of the context. American courts construed the "well-founded fear" standard as requiring claimants to establish a reasonable possibility of persecution as opposed to a probability. This illustrates that there is no international consensus that the standard applicable to refugee claims must also apply to those claiming that they face a real risk of torture. Under the Convention, the right to be protected against torture is an absolute right. As such, it may conflict with Canada's treaty obligations, thus militating against an interpretation that would go further than Canada's treaty obligations. Pursuant to subsection 97(1) of the Act, there must be persuasive evidence, that is a balance of probabilities, establishing the facts on which a claimant relies to say that he faces a substantial danger of being tortured upon his return. The danger or risk must be such that it is more likely than not that he would be tortured or subjected to other cruel and other degrading treatments. The RPD properly analyzed the applicant's claim under subsection 97(1) and reviewed the documentary evidence in that respect. It made no reviewable error in its decision.

Three questions of general importance were certified.

statutes and regulations judicially

considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36, Arts. 1, 3.

Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, Art. 3.

Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3), 96, 97.

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.

cases judicially considered

applied:

Harb v. Canada (Minister of Citizenship and Immigration) (2003), 27 Imm. L.R. (3d) 1; 302 N.R. 178 (F.C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; (2000), 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.); Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 73 C.R.R. (2d) 156; 3 Imm. L.R. (3d) 159; 252 N.R. 83 (F.C.A.); Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315; (1998), 52 C.R.R. (2d) 51; 144 F.T.R. 76 (T.D.); Shah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1121; [2003] F.C.J. No. 1418 (F.C.) (QL); Nyathi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1119; [2003] F.C.J. No. 1409 (F.C.) (QL).

considered:

Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153 (C.A.); Seifu v. Canada (Immigration Appeal Board), [1983] F.C.J. No. 34 (C.A.) (QL); Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 152; 90 C.R.R. (2d) 1; 18 Imm. L.R. (3d) 1; 281 N.R. 1; Mutombo v. Switzerland, Committee against Torture, Communication No. 13/1993, U.N. Doc. A/49/44, 45 (1994); Soering v. United Kingdom (1989), 11 E.H.R.R. 439; Vilvarajah and others v. United Kingdom (1991), 215 Eur. Ct. H.R. (Ser. A) 6; Selvaratnam v. Ashcroft, 81 Fed. Appx. 907; 2003 U.S. App. LEXIS 23968 (9th Cir.) (QL).

referred to:

Ozuak v. Canada (Minister of Citizenship and Immigration), 2003 FCT 580; [2003] F.C.J. No. 746 (T.D.) (QL); Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249; [2002] F.C.J. No. 332 (T.D.) (QL); Robles v. Canada (Minister of Citizenship and Immigration) (2003), 2 Admin. L.R. (4th) 315 (F.C.T.D.); Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.) (QL); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

authors cited

Gauthier, J.-J. Torture: How to Make the International Convention Effective: a Draft Optional Protocol. Geneva: International Commission of Jurists & Swiss Committee Against Torture, 1979.

Nouveau petit Robert: dictionnaire alphabétique et analogique de la langue française, nouvelle édition. Paris: Dictionnaires Le Robert, 2002.

United Nations Committee Against Torture. General Comment on the Implementation of Article 3 in the Context of Article 22 of the Convention against Torture. U.N. Doc. CAT/CIXX/Misc.1 (1997).

APPLICATION for judicial review of a decision by the Refugee Protection Division that the applicant was neither a Convention refugee under section 96 of the Immigration and Refugee Protection Act, nor a person in need of protection under section 97 of the Act. Application dismissed.

appearances:

Vania Campana for applicant.

Ian Hicks for respondent.

solicitors of record:

Lewis & Associates, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order and order rendered in English by

[1]Gauthier J.: Mr. Yi Mei Li (Mr. Li), is a citizen of China who claims to fear persecution by reason of his perceived religious beliefs (Tian Dao follower). He asks the Court to quash a decision which held that he is not a Convention refugee (section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27) (Act), nor a person in need of protection (section 97 of the Act) [[O.K.K. (Re), [2002] R.P.D.D. No. 483 (QL)].

[2]Mr. Li was the owner of a fishing farm in the Fujian Province. He had three partners. The authorities believed that the fishing farm was used for illegal religious purposes. One day, they stormed the farm and seized prohibited statues of Guan Yin and Ji Gong. Two of his partners who were Tian Dao followers were arrested and sentenced to five years in jail. They are still imprisoned.

[3]Alerted by his mother who paged him to warn him that the search was going on, Mr. Li went into hiding and with the help of stowaway agents (also referred to as snakeheads), he left China without a passport and an exit visa in violation of article 322 of the Criminal Law of the People's Republic of China. Mr. Li is not a Tian Dao follower but he claims that he is perceived as one by the Chinese authorities.

[4]He arrived in Vancouver on a boat operated by the snakeheads in April 2001. He claims that later in September 2001, he was kidnapped in Toronto by those same snakeheads because they felt that he was responsible for discovery of their boat by the Canadian police. It appears that the intervention of the police prevented the collection of all the money owed to the snakeheads by some of the other passengers. Mr. Li discloses that he fears the snakeheads in an addendum to his Personal Information Form (PIF) dated July 2, 2002. He claims that he needs to be protected against them because the Chinese authorities cannot give him such protection.

[5]In its decision, the Refugee Protection Division (the RPD) makes a negative credibility finding based on omissions and inconsistencies between the port of entry notes, his PIF and his testimony, particularly:

(i) In his PIF and the addendum of July 2, 2002, he does not mention the sentencing of his partners nor their current imprisonment.

(ii) In the addendum of July 2, 2002, the claimant states that the snakeheads threatened him if he did not pay more money to them; he does not mention his kidnapping or their actual attempt to extort US$50,000 at that time.

(iii) At the port of entry, he mentioned that he had incurred a debt, that his business went bankrupt and that he was thus seeking asylum to support his family in China. No reference was made to his fear of being perceived as a Tian Dao follower.

[6]It also expressly finds that he would be protected against the snakeheads by his government.

Issues

[7]Mr. Li argues that the RPD:

(i) erred in assessing his credibility;

(ii) failed to assess the impact of the threats made by the snakeheads;

(iii) erred in its finding that he would be adequately protected by the Chinese government;

(iv) erred by applying the wrong standard to his claim under subsection 97(1) of the Act.

Analysis

[8]I shall apply the standard of review described in the recent decision of the Federal Court of Appeal in Harb v. Canada (Minister of Citizenship and Immigration) (2003), 27 Imm. L.R. (3d) 1, at paragraph 14.

[9]At the hearing, the applicant conceded that his strongest argument was in respect of the fourth issue. I will thus consider the first three issues briefly focussing my analysis on the RPD's evaluation of his claim under subsection 97(1) of the Act.

(i)     Credibility

[10]Mr. Li argues that it is patently unreasonable for the RPD to give any weight to the fact that he failed to mention that his partners were not only arrested but also sentenced to jail and were still in prison. The Court finds that his claim of persecution because of perceived religious beliefs was based entirely on what happened at the farm to his partners who were Tian Dao followers. Thus, his omission was not on a peripheral issue. The RPD discusses his explanation that he was afraid to disclose this information because it might prejudice him in the case of an eventual return to China. The RPD rejected it because it is well known that information obtained in the context of a refugee claim is kept strictly confidential.

[11]Mr. Li also submits that the RPD was patently unreasonable when it considered his omission to mention his kidnapping to be significant because he had clearly mentioned having received threats from them in the addendum to his PIF. Here again, the RPD deals with this argument in its decision and concludes that the kidnapping is central to his claim and cannot be considered a simple threat.

[12]In this particular case, the omission was again significant given that the applicant expressly amended his PIF to deal with this new ground (fear from the snakeheads) (see Ozuak v. Canada (Minister of Citizenship and Immigration), 2003 FCT 580; [2003] F.C.J. No. 746 (T.D.) (QL) and more generally on the Board's entitlement to draw adverse inferences regarding credibility based on omissions of facts from the PIF Akhigbe v. Canada (Minister of Citizenship and Immigration), 2002 FCT 249, [2002] F.C.J. No. 332 (T.D.) (QL); Robles v. Canada (Minister of Citizenship and Immigration) (2003), 2 Admin. L.R. (4th) 315 (F.C.T.D.); Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.) (QL)).

[13]The Court will not re-weigh the evidence and is satisfied that the RPD's negative finding with respect to Mr. Li's credibility was not unreasonable, let alone patently unreasonable.

(ii)     Threats from the snakeheads

[14]Mr. Li argues that the RPD failed to address his claim in that respect. The Court finds that a simple reading of the decision makes it clear that it did. At paragraph 27 of the decision, the RPD deals expressly with the applicant's allegation that he would not receive adequate state protection from the Chinese government against the snakeheads. It states that his submission is not well founded.

[15]Having found that Mr. Li's story was not credible because, among other things, of his omission to refer to his kidnapping by the snakeheads in his PIF and that such story was inconsistent with the one he gave to the authorities at the port of entry, the Court finds that the RPD did not have to say anything further on this aspect of his claim.

(iii)     State protection

[16]Mr. Li submits that the RPD only addressed the willingness of the Chinese authorities to protect him from the snakeheads rather than deal with their ability to provide such protection. In that respect, the Court notes that the onus of establishing that his state cannot protect him lies with Mr. Li. Given that a state is presumed to be able to protect its citizens, he had to produce clear and convincing evidence establishing their inability to do so. At the hearing, Mr. Li could not point to any specific evidence that had been ignored by the RPD.

[17]In its reasons, the RPD states that it did not find Mr. Li's allegation that there was a connection between the snakeheads and the Chinese government to be credible. As I said earlier, the RPD did consider the extensive documentary evidence presented and concluded that the Chinese government had applied various measures that showed a willingness to arrest and severely punish the snakeheads. At paragraph 29 of its reasons, it states:

In another article it is reported that the frontier police arrested more than 800 stowaway agents, colloquially called snakeheads in 1999. One hundred five of them had been sentenced to prison.

[18]The RPD also states that in the circumstances, it is reasonable to expect that Mr. Li will probably receive protection against reprisal by the smugglers.

[19]The Court finds that it was open to the RPD to come to this conclusion on the evidence before it. It did not ignore any evidence. The Board made no reviewable error.

(iv)     The standard under subsection 97(1) of the Act

[20]The most serious issue raised by the applicant is that the RPD applied the wrong standard to determine whether he was a person to protect under subsection 97(1) of the Act.

[21]In its reasons (at paragraphs 21 and 31), the RPD states:

The claimant alleges that people are beaten in prison and mistreated and that he may be subject to such mistreatment. It is true that the documentary evidence shows numerous instances of such mistreatment, however the panel finds that there is no persuasive evidence before it to find that the claimant will probably be subject to such mistreatment.

. . .

The panel also concludes that there is no persuasive evidence to find that the claimant is at risk of losing his life or being subjected to cruel and unusual treatment or punishment or in danger of being tortured if he returns to China. [My emphasis.]

[22]Relying on Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), the applicant submits that the standard applicable to determine the status of a Convention refugee under section 96 of the Act, should also apply when considering a claim under subsection 97(1). Given that a Convention refugee needs only establish that there is a reasonable chance of persecution on the basis of one of the grounds set out in the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951 [[1969] Can. T.S. No. 6], one cannot be required to establish that it is probable or likely that one would face a risk to one's life or of cruel and unusual treatment or punishment or a danger of being tortured if returned to one's country of origin. He argues that it would be unreasonable to ask the RPD to apply a different standard when assessing what is essentially the same evidence.

[23]Subsection 97(1) of the Act reads as follows:

97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally

(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or

(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if

(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,

(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,

(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and

(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. [My emphasis.]

[24]I will construe this provision using the purposive and contextual approach.

[25]Paragraphs 3(3)(c), (d) and (f) of the Act states:

3. . . .

(3) This Act is to be construed and applied in a manner that

[. . .]

(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;

(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;

. . .

(f) complies with international human rights instruments to which Canada is signatory.

[26]Both parties agree that paragraph 97(1)(a) was adopted to give effect to Canada's international obligation as a signatory to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984 [[1987] Can. T.S. No. 36] (the Convention). The Convention entered into force on 26 June 1987.

[27]In such circumstances, I shall consider the text of the Convention and how it has been construed internationally.

[28]Article 3¹ of the Convention states:

Article 3

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. [My emphasis.]

[29]As it appears from its wording, this article only applies to "torture" as defined in Article 1 of the Convention. It is thus limited to the most severe cases of cruel and unusual treatment or punishment and applies only if such treatments are inflicted by or at the instigation or with the consent of a public official or person acting in an official capacity. This may explain why paragraph 97(1)(b) of the Act does not include the reference to "substantial grounds for believing".

[30]Mr. Li relies heavily on the Federal Court of Appeal decision in Adjei, supra. In that case, the Court discusses, among other things, the interpretation given by the English courts to their legislation implementing the United Nations Convention Relating to the Status of Refugees. The Federal Court of Appeal says [at page 684]:

Despite the terminology sanctioned by the House of Lords for interpreting the British legislation, we are nevertheless of the opinion that the phrase "substantial grounds for thinking" is too ambiguous to be accepted in a Canadian context. It seems to go beyond the "good grounds" of Pratte J.A. and even to suggest probability. The alternative phrase "serious possibility" would raise the same problem except for the fact that it clearly remains, as a possibility, short of a probability.

[31]In Adjei, supra, the Federal Court of Appeal confirmed the interpretation given to section 96 by Pratte J.A. in Seifu v. Canada (Immigration Appeal Board), [1983] F.C.J. No. 34 (C.A.) (QL) who had said:

. . . in order to support a finding that an applicant is a Convention refugee, the evidence must not necessarily show that he "has suffered or would suffer persecution"; what the evidence must show is that the applicant has good grounds for fearing persecution for one of the reasons specified in the Act. [My emphasis.]

[32]Like the Court of Appeal, in Adjei, supra, I find that the expression "substantial grounds for believing" does not give us a clear and precise indication as to what Parliament intended, but it does suggest probability.

[33]The French version is not more precise. However, considering that the definition of "probable" in French includes "une opinion fondée sur des raisons sérieuses quoique non décisives" (see, Le nouveau petit Robert, édition 2002), it could again suggest probability.

[34]In General Comment on the Implementation of Article 3 in the Context of Article 22 of the Convention against Torture (see U.N. Doc. CAT/CIXX/Misc.1 (1997) or A/53/44, Annex IX) the United Nations Committee Against Torture states at paragraphs 6 and 7:

6. Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.

7. The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present. All pertinent information may be introduced by either party to bear on this matter. [My emphasis.]

[35]The threshold test set out in Article 3 of the Convention as explained in the above comment by United Nations Committee Against Torture was discussed in the Federal Court of Appeal's decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592. The Court said at paragraphs 150-152:

The question which remains is whether there are substantial grounds for believing that the appellant faces the risk of torture while in detention. At the same time, a more basic question must be addressed: what is the required requisite degree of risk of torture envisaged by the "substantial grounds" test?

It is generally acknowledged that the risk of torture must be assessed on the grounds that go beyond "mere theory" or "suspicion" but something less than "highly probable". The risk or danger of torture must be "personal and present". This is the approach adopted by the European Court of Human Rights in Chahal, supra, discussed earlier and by the United Nations Committee Against Torture: see General Comment on the Implementation of Article 3 in the Context of Article 22 of the Convention against Torture, U.N. Doc. CAT/CIXXs Misc.1 (1997), paragraphs 6 and 7.

If we reject the two extreme threshold tests, "mere possibility" and "highly probable", we are left with the intermediate standard framed in terms of a "balance of probabilities". That threshold can be conveniently recast by asking whether refoulement will expose a person to a "serious" risk of torture. [My emphasis.]

[36]In Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 73 C.R.R. (2d) 156 the Federal Court of Appeal expanded on this topic [at paragraph 4]:

The first is whether in the circumstances of this case the decision to return the appellant to Iran would constitute a breach of the principles of fundamental justice under section 7 of the Charter of Rights and Freedoms for the reason that refoulement would expose him to the risk of torture. It is common ground that in order to sustain this argument the appellant must first establish that there are substantial grounds for believing that refoulement would expose him to a risk of torture. In other words, the appellant must establish, on a balance of probabilities, that he would be exposed to torture at the hands of the Iranian authorities, or as set out in Suresh a "serious" risk of harm. [My emphasis.]

[37]The Supreme Court of Canada did not address this issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. It appears to have used interchangeably the expression "substantial grounds for believing" and "substantial risk of torture". The Supreme Court of Canada only dealt with the prima facie burden of proof which a claimant must meet to trigger an obligation for the Minister to assess whether the "refoulement" or extradition would involve a substantial risk to an individual's fundamental right to be protected from torture or serious ill treatment (see paragraphs 127 and 129).

[38]Even if the comments of the Federal Court of Appeal in Suresh, supra and Ahani, supra, were not made in the context of an analysis to section 97 (which did not then exist) but rather in the context of an alleged breach of section 7 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appedix II, No. 44] they remain quite persuasive as are those of Gibson J. in Farhadi v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 315 (T.D.) who said at paragraph 18:

In assessing the evidentiary basis necessary to support the Charter argument in this case, I consider it appropriate to be guided by the international jurisprudence cited above, as well as Canadian jurisprudence. In Nguyen [[1993] 1 F.C. 696 (C.A.), at pages 708, 709], Marceau J.A. referred to evidence illustrating torture "will be" inflicted at international law, the citations above from the Committee suggests a standard of "substantial grounds for believing that he would be in danger of being subjected to torture". Both, in my view, establish a high evidentiary threshold. Indeed, a high threshold is consistent with Supreme Court jurisprudence on the necessary factual foundation to support a Charter claim.

[39]It appears that generally in the international cases dealing with the Convention, the courts and the Committee Against Torture simply refer to the wording of Article 3 without defining it in terms of possibility versus probability. The following passage from Mutombo v. Switzerland, Committee against Torture, Communication No. 13/1993, U.N. Doc. A/49/44, 45 (1994), provides a good illustration [at paragraph 9.4]:

The Committee considers that in the present case substantial grounds exist for believing that the author would be in a danger of being subjected to torture. The Committee has noted the author's ethnic background, alleged political affiliation and detention history as well as the fact, which has not been disputed by the State party, that he appears to have deserted from the army and to have left Zaire in a clandestine manner and, when formulating an application for asylum, to have adduced arguments which may be considered defamatory towards Zaire. The Committee considers that, in the present circumstances, his return to Zaire would have the foreseeable and necessary consequence of exposing him to a real risk of being detained and tortured. Moreover, the belief that "substantial grounds" exist within the meaning of article 3, paragraph 1, is strengthened by "the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights", within the meaning of article 3, paragraph 2. [My emphasis.]

[40]With respect to paragraph 97(1)(b) which deals with other inhuman or degrading treatment or punishment not covered by the Convention, the decision of the European Court of Human Rights in Soering v. United Kingdom (1989), 11 E.H.R.R. 439, which deals with an alleged violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms [4 November 1950, 213 U.N.T.S. 221] (European Convention) is of interest. Even if Canada is not a signatory of this Convention, it is still relevant given that paragraph 97(1)(b) deals with those inhuman treatments which do not amount to torture. It is not as compelling as the case law on the Convention, but in light of the Supreme Court decision in Suresh, supra, and the object of the Act, it is, I believe, also part of the general context I should consider.

[41]The European Convention, Article 3, prohibits torture and inhuman and degrading treatment or punishment. It does not specifically spell out an obligation to extradite fugitives as Article 3 of the Convention does. For the first time in Soering, supra, the European Court on Human Rights, held that despite the absence of a specific article dealing with extradition, an obligation similar to that expressed in article 3 of the Convention was implicit given the general terms of article 3 of the European Convention which prohibits torture and inhuman and degrading treatment or punishment. It is noteworthy that the European Court, at paragraph 88, framed its question as follows:

The question remains whether the extradition of a fugitive to another State where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a Contracting State under Article 3 [of European Convention on Human Rights]. [My emphasis.]

[42]This passage was later construed as imposing a rigorous approach. For example, in Vilvarajah and others v. United Kingdom (1991), 215 Eur. Ct. H.R. (Ser. A) 6, at paragraph 108, the European Court of Human Rights said:

The Court's examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see the Soering judgment of 7 July 1989, series A, no. 161, p. 34, § 88). It follows from the above principles that the examination of this issue in the present case must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka in the light of the general situation there in February 1988 as well as on their personal circumstances.

[43]The Court agrees with the applicant that one must consider the fact that a lower standard applies under section 96 of the Act even though this provision deals with a different regime. It is part of the general context. However, I do not agree that it necessarily means that I must apply the same standard if there are other indications that this was not the intent of the legislator.

[44]I shall first deal with Mr. Li's argument that applying a different standard would be unreasonable because it would place the RPD in the difficult position of having to apply different standard to the same evidence.

[45]First, there are already significant differences between the test to be applied by the RPD when evaluating a claim under section 97 and one under section 96. In Shah v. Canada (Minister of Citizenship and Immigration), 2003 FC 1121; [2003] F.C.J. No. 1418 (F.C.) (QL), at paragraph 16, Blanchard J., held that the test under section 97 of the Act does not require a determination of a subjective fear of persecution. In Nyathi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1119; [2003] F.C.J. No. 1409 (C.F.) (QL), at paragraph 21, the learned Judge added that section 97 requires the RPD to apply a different test namely, whether a claimant's removal would subject that individual personally to the danger and risk stipulated in paragraphs 97(1)(a) and (b) of the Act. I agree with those findings.

[46]Second, the Court notes that, like Canadian courts, American courts very early on construed the "well-founded fear" standard as requiring claimants to establish a reasonable possibility of persecution as opposed to a probability (see INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)).

[47]The United States are signatories to the Convention. It appears that the obligations under Article 3 of the Convention were incorporated in their domestic law in 1999. In Selvaratnam v. Ashcroft, 81 Fed. Appx. 907; 2003 U.S. App. LEXIS 23968 (QL) (United States Court of Appeals for the Ninth Circuit), held:

Nor did the BIA [the Board of Immigration Appeals] err when it determined that Selvaratnam was not entitled to relief under the Torture Convention. It is true that the standard under that Convention is not identical with the standard for asylum, and a person's lack of credibility might result in denial of relief under the latter without absolutely foreclosing relief under the former.

[48]Obviously, the American interpretation of the Convention is not binding on this Court but again, it is part of the enlarged context. It illustrates that there is no international consensus that the standard applicable to refugee claims must also apply to those claiming that they face a real risk of torture.

[49]The Court is cognizant that legislation dealing with human rights must be given a broad interpretation, but one must be careful in doing so, not to encroach on other international obligations of Canada. Under the Convention, the right to be protected against torture is an absolute right. Because it appears to bear no exception, it may well conflict with Canada's obligations under bilateral or multilateral treaties such as those dealing with extradition. This factor militates against an interpretation that would go further than what is currently the object of an international consensus or an obligation under a treaty to which Canada is a signatory.

[50]In view of the foregoing, the Court finds that pursuant to subsection 97(1) of the Act, there must be persuasive evidence (i.e. balance of probabilities) establishing the facts on which a claimant relies to say that he or she faces a substantial danger of being tortured upon his or her return. Second, the danger or risk must be such that it is more likely than not that he or she would be tortured or subjected to other cruel and other degrading treatments. For the sake of clarity, this does not mean that the RPD will not continue to give the benefit of the doubt to a claimant. In fact, it must do so.

[51]I am satisfied that the RPD properly analysed Mr. Li's claim under subsection 97(1), it reviewed the documentary evidence in that respect.

[52]In the circumstances, the RPD made no reviewable error in its decision.

[53]The parties did not raise any question for certification but the Court finds that the following questions are of general importance:

(i) Does section 97 of the Act require that a person establish, on a balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) and (b)?

(ii) What is the requisite degree risk of torture envisaged by the expression "substantial grounds for believing that"?

(iii) Is the same degree of risk required under paragraph 97(1)(b)?

ORDER

THIS COURT ORDERS that:

1.     The application for judicial review is dismissed.

2.     The following questions are certified:

i) Does section 97 of the Act require that a person establish, on a balance of probabilities, that he or she will face the danger or risks described in paragraphs 97(1)(a) and (b)?

ii) What is the requisite degree risk of torture envisaged by the expression "substantial grounds for believing that"?

iii) Is the same degree of risk required under paragraph 97(1)b)?

¹The Court notes that the first draft of the Convention prepared by the Swedish delegation read as follows:

"No State Party may expel or extradite a person to a State where there are reasonable grounds to believe that he may be in danger of being subjected to torture or other cruel, inhuman or degrading treatment or punishment." [My emphasis.]

(J.-J. Gautier, Torture: How to Make the International Convention Effective: a Draft Optional Protocol (Geneva, 1979), at p. 35.)