Assurances against torture from the government of China have been a prominent feature of efforts by the Canadian government to extradite Lai Cheong Sing, wanted on bribery and smuggling charges in China, and his family. The case illustrates the danger that the use of diplomatic assurances in terrorism or national security cases poses to a broader pool of people subject to forced return.
Lai, his wife Tsang Ming Na, and their three children were excluded from refugee status in Canada in June 2002 on the ground that there were reasons to believe that Lai had committed serious non-political offenses, namely bribery and smuggling, in Hong Kong and China prior to arrival in Canada in 1999. In its ruling, the court overlooked substantial evidence that torture was pervasive in the Chinese criminal justice system and that persons interrogated in China regarding the Lai familys activities had been ill-treated and coerced into giving false information. The panel that made the decision to exclude the Lai family from consideration for full refugee status did so based in part on assurances from the Chinese authorities that if returned, they would not face the death penalty or torture.8
A key issue of concern in the Lai case was whether assurances against torture should be assessed separately and in a different manner than assurances against the death penalty. The Canadian Supreme Court had already answered that question in the Suresh v. Canada case, stating that death penalty assurances relating to the legal processes of prosecution, conviction, and sentencing are easier to monitor than assurances against torture, which is illegal, and often conducted with the collusion of the government or as a result of government impotence at stopping the forces that commit such abuse.9 In February 2004 a Canadian federal court dismissed the familys application for judicial review of their refugee status determination. Concluding that there was no persuasive evidence of torture or degrading treatment following return in cases similar to theirs, the court decided that a separate assessment of the assurances against torture was not justified. The Court of Appeal upheld the lower court decision in an April 2005 decision, paving the way for the familys transfer to China.
Lai Cheong Sing submitted an application to the minister of citizenship and immigration for a pre-removal risk assessment (PRRA) in November 2005. The application was denied by the PRRA officer on the basis that Lai was not a person in need of protection and was unlikely to face a risk to life, a risk of torture, or a risk of cruel and unusual treatment or punishment if returned to China. Lai has sought a review of that decision in federal court. Pending review of the decision, however, he sought and was granted a federal court order on June 1, 2006, staying the execution of an enforceable removal order. In determining whether Lai identified a serious issue related to the ministers risk assessment that gave rise to a presumption of irreparable harm if Lai were to be deported (irreparable harm meaning a serious threat to life or safety), the court found that there was credible evidence of such harm:
The issue of the assurances lies at the heart of the debate. Absent the assurances, the records disclose credible evidence that a serious likelihood of jeopardy to life or safety exists. Removal at this time would cause Mr. Lai to face the risk that he alleges is present and that he argues has not been adequately assessed by the PRRA officer. I consider that irreparable harm has been established.10
The Lai appeal on the PRRA determination is scheduled to begin in January 2007.
The government of Canada is currently holding three Arab menHassan Almrei (a Syrian national), Mohammad Zeki Mahjoub (an Egyptian national), and Mahmoud Jaballah (also Egyptian)in detention without charge or trial under security certificates based on secret evidence. The security certificate regime permits the government to detain any person certified as a suspected threat to the security of Canada for an unspecified period without charge or trial; present secret evidence in closed hearings to which detainees and their lawyers do not have access; and ultimately to deport the certified person.12
Two other men subject to deportation based on security certificates have been released on bail after being detained for several years. Mohamed Harkat, an Algerian citizen, who had been in jail since December 2002, was granted bail on May 23, 2006. Adil Charkaoui, a Moroccan national, who had been detained in May 2003, was released on bail on February 17, 2005. The five men are sometimes referred to collectively as the secret trial five.
Prior to deportation, Canadian immigration authorities normally conduct a protection assessment to determine whether it is more likely than not that an individual would be at risk of torture upon return.13 However, if a security certificate is deemed reasonable by a judge it significantly reduces the likelihood of a successful claim for protection against deportation based on such a risk. In the 2002 case of Suresh v. Canada, the Supreme Court of Canada acknowledged that international law bans absolutely returns to countries where there are substantial grounds for believing the individual would be in danger of being subjected to torture, but in an extraordinary departure from well established international standards, stated, We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified.14 The so-called Suresh exception would thus permit a transfer to a place where a person would be at risk of torture, a clear violation of Canadas obligations under international law. To date, Canada has yet to invoke the Suresh exception to remove a person acknowledged to be at risk of torture.
The government of Canada sought diplomatic assurances against torture and ill-treatment from the government of Morocco in the Charkaoui case, the government of Egypt in the Mahjoub case, and the government of Algeria in the Harkat case. The government has acknowledged that such assurances are not reliable,15 but contends that the men may be deported in any event within the context of the Suresh exception. The government has also argued that the Suresh exception may apply to Jaballah and Almrei.
In January 2006 the Supreme Court of Canada gave leave to three of the menAdil Charkaoui, Hassan Almrei, and Mohammad Harkatto challenge the constitutionality of the statutory scheme that allows people to be detained in Canada under security certificates. The appeal was heard in June 2006 and a decision on the constitutionality of the security certificate regime is expected in early 2007.16 None of the men will be removed from Canada until the Supreme Court rules in the case.
A Canadian federal court ruled on December 14, 2006, that a January 2006 decision by the minister of immigration and citizenship (represented in such proceedings by the ministers delegate who authors the decision on behalf of the minister) to deport Mohammad Zeki Mahjoub was patently unreasonable. The courts reasoning serves as a scathing critique of the methodology that the Canadian government has employed in the security certificate cases to justify returns to risk of torture and the use of diplomatic assurances.18
Mahjoub, in detention under a security certificate since June 2000, is a recognized refugee in Canada. He is alleged to be a member of the Vanguards of Conquest, a faction of al-Jihad al-Islamiya, an Egyptian armed Islamist group.
The December 2006 judgment concluded that the ministers delegate consistently ignored critical evidence, failed to take important factors into consideration and arbitrarily relied on selected evidence. This flawed approach can be considered nothing short of patently unreasonable with regard to the substantial risk of torture issue.19 The court accepted Mahjoubs contention that the government had relied upon information that went against the bulk of the evidence in concluding there was no institutionalized torture in Egypt Noting the varied and numerous sources of legitimate information regarding Egypts well documented torture practices and the absence of accountability for such abuses, from sources that the government deems reliable in other contexts, the judgment noted,
The delegates blanket rejection of information from agencies with worldwide reputations for credibility such as AI and HRW [Amnesty International and Human Rights Watch] is puzzling, especially given the institutional reliance of Canadian courts and tribunals on these very sources. Indeed, the Minister of Citizenship and Immigration frequently relies on information from these organizations in creating country condition reports, which in turn are used by Immigration and Refugee tribunals, in recognition of their general reputation for credibility.21
The judgment chastises the government for relying on one source, an Austrian courts initial ruling in the Bilasi-Ashri case in 2002 (see above), as proof that the practice of torture was not institutionalized in Egypt. Although the delegate acknowledged that Bilasi-Ashris extradition had not occurred in 2002 because the Egyptian government declined at that time to agree to the conditions stipulated by the Austrian court, the delegate ignored that this refusal is reflective of Egypts general attitude towards human rights. It was not tenable for her to rely on this single source of evidence to conclude that torture was not prevalent in Egypt, where the bulk of the evidence pointed to the contrary conclusion.22
With respect to the Egyptian governments diplomatic assurances that Mahjoub would not be tortured or otherwise ill-treated upon return, the court agreed with Mahjoub that the delegate disregarded the bulk of evidence from a multitude of sources that cited Egypts non-compliance with assurances.23
The courts most pointed critique involved the delegates reliance upon the Swedish governments submissions in the Agiza case (see update below) as proof that Egypt abided by its assurances in that case. The court expressed dismay that the government delegate failed to note that the United Nations Committee Against Torture (CAT) held that the assurances were in fact breachedAgiza was tortured and ill-treated upon return and had a patently unfair trial resulting in a 15-year sentenceleading to a violation of article 3 of the Convention against Torture by the Swedish government: I find that her [the delegates] favouring of a biased partys submissions over the final conclusions of the CAT to be perverse.24
Mahjoubs risk assessment was sent back to the minister of citizenship and immigration for re-determination, with a caution that the next report conform with the reasoning of the court.25
7 Human Rights Watch, Still at Risk, pp. 55-57.
8 Ibid., p. 55.
9 Supreme Court of Canada, Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3, 2002 SCC 1, (docket no. 27790), January 11, 2002, http://scc.lexum.umontreal.ca/en/2002/2002scc1/2002scc1.html (accessed January 1, 2007), para. 124.
10 Federal Court of Canada, Lai Cheong Sing v. Minister of Citizenship and Immigration, 2006 FC 672, June 1, 2006, http://decisions.fct-cf.gc.ca/en/2006/2006fc672/2006fc672.html (accessed January 1, 2007), para. 27.
11 Human Rights Watch, Still at Risk, pp. 47-55.
12 Immigration and Refugee Protection Act 2001 (IRPA), Division 9 (sections 76-87), http://laws.justice.gc.ca/en/I-2.5/text.html (accessed January 1, 2007). The law does not expressly provide for the indefinite detention of foreign nationals suspected of posing a national security threat to Canada. The law permits the government to detain with the intention of deporting a suspect. A judge can release a suspect if a deportation cannot be effected within a reasonable time, provided that the person does not pose a danger to national security. If a judge determines that a person would pose a threat to national security and deportation cannot be effected, then indefinite detention is a possibility because of a loophole in the law.
13 The standard in Canada is whether a person would more likely than not be at risk of torture if returned to his or her home country. The international standard articulated in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) is whether there are substantial grounds for believing an individual would be in danger of torture. The United States also uses the more likely than not standard.
14 Manickavasagam Suresh v. Minister of Citizenship and Immigration and the Attorney General of Canada (Suresh v. Canada), 2002, SCC 1. File No. 27790, January 11, 2002, http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/html/2002scr1_0003.html (accessed January 1, 2007), para. 78. See also Human Rights Watch, Empty Promises, pp. 18-19.
15 See, for example, Human Rights Watch, Still at Risk, p. 54 (Ministers delegate admits that Mahjoub presented credible evidence that called into question the extent to which Egypt would honor its assurances).
16 Human Rights Watch and the University Of Toronto Faculty Of Law International Human Rights Clinic were granted leave to intervene in the Supreme Court appeal. Supreme Court of Canada, Charkaoui et al. v. Minister of Citizenship and Immigration, file no. 30762, May 25, 2006, on file with Human Rights Watch.
17 Human Rights Watch, Still at Risk, pp. 52-55.
18 Mohammad Zeki Mahjoub v. Minister of Citizenship and Immigration, IMM-98-06, 2006 FC 1503, December 14, 2006, http://cas-ncr-nter03.cas-satj.gc.ca/fct-cf/docs/IMM-98-06.pdf (accessed January 1, 2007), p. 41, para. 109. Mahjoub had already challenged a 2004 risk assessment by the ministers delegate, and a federal court in January 2005 determined that that assessment was patently unreasonable because the ministers delegate who made that decision did not have access to confidential information in the governments dossier. The court ruled that an independent and proper assessment of the risk that Mahjoub posed to Canadas security required a review of at least some of that information. The January 2006 risk assessment was submitted in answer to that decision.
19 Ibid., p. 37, para. 97.
21 Ibid., p. 30, paras. 73-74.
22 Ibid., p. 32, para. 80.
23 Ibid., p. 35, para. 88. Those sources included reports by Human Rights Watch on assurances; an affidavit from Amnesty International; and an expert statement from an American-Egyptian professor who stated that Egypt frequently fails to abide by its promises when it comes to the human rights of detainees, and that it is beyond doubt that if returned to Egypt Mr. Mahjoub is extremely likely to be tortured and abused. Ibid., p. 36, para. 92.
24 Ibid., p. 37, para. 94.
25 Ibid., p. 41, para. 109.