IMMIGRATION AND REFUGEE BOARD LA COMMISSION DE L’IMMIGRATION ET (REFUGEE DIVISION) DU STATUT DE RÉFUGIÉ (SECTION DU STATUT DE RÉFUGIÉ) VA0-02806 VA0-02807 VA0-02808 VA0-02809 VA0-02810 CLAIMANT(S) DEMANDEUR(S) LAI Cheong Sing TSANG Ming Na LAI Chun Chun LAI Ming Ming LAI Chun Wai DATE(S) OF HEARING DATE(S) DE L’AUDITION July 3, 2001 July 4, 2001 July 5, 2001 July 6, 2001 July 9, 2001 July 10, 2001 July 11, 2001 July 12, 2001 July 13, 2001 July 16, 2001 July 17, 2001 July 18, 2001 July 19, 2001 July 20, 2001 July 23, 2001 July 24, 2001 July 26, 2001 July 27, 2001 July 31, 2001 August 1, 2001 August 2, 2001 August 7, 2001 August 9, 2001 August 10, 2001 August 12, 2001 August 14, 2001 September 24, 2001 September 25, 2001 October 1, 2001 October 2, 2001 October 3, 2001 October 4, 2001 October 5, 2001 October 9, 2001 October 10, 2001 October 11, 2001 October 12, 2001 October 17, 2001 October 18, 2001 October 19, 2001 October 22, 2001 October 23, 2001 October 25, 2001 November 5, 2001 November 6, 2001 DATE OF DECISION DATE DE LA DÉCISION May 6, 2002 CORAM CORAM Kurt Neuenfeldt I.W. Clague FOR THE CLAIMANT(S) POUR LE(S) DEMANDEUR(S) D. Matas, Barrister & Solicitor P. Rankin, Barrister & Solicitor V. Wong REFUGEE CLAIM OFFICER AGENT CHARGÉ DE LA REVENDICATION M. Babcock DESIGNATED REPRESENTATIVE REPRÉSENTANT DÉSIGNÉ TSANG Ming Na for LAI Chun Chun and LAI Ming Ming MINISTER’S COUNSEL CONSEIL DE LA MINISTRE D. Collison J. Murray E. Resnick, Barrister & Solicitor M. Wilkinson You can obtain, within 72 hours, a translation Vous pouvez obtenir la traduction ou une copie de or a copy of these reasons for decision in the ces motifs de décision dans l’autre langue officielle other official language by writing to the Editing dans les 72 heures, en vous adressant par écrit à la and Translation Services Directorate of the Direction des services de révision et de traduction IRB, 344 Slater Street, 14th floor, Ottawa, de la CISR, 344, rue Slater, 14e étage, Ottawa Ontario, K1A 0K1 or by sending a request to (Ontario) K1A 0K1, par courrier électronique à the following e-mail address: l’adresse suivante : [email protected] or to facsimile [email protected] ou par télécopieur number (613) 947-3213. au (613) 947-3213. VA0-02806 VA0-02807 VA0-02808 VA0-02809 VA0-02810 INTRODUCTION These are the reasons for decision of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB) of Canada as to the refugee claims of Lai Cheong Sing (also known as Lai Wu Xing and Cai Cheong Sing), Tsang Ming Na (also known as Tsang Mei Hao and Zeng Ming Na), Lai Chun Chun, Lai Ming Ming and Lai Chun Wai (also known as Kenny Lai). The country of reference is the People’s Republic of China (China). Ms. Tsang Ming Na was the designated representative for her minor children, Lai Ming Ming and Lai Chun Chun. Lai Chun Wai is now an adult. The hearing of these claims took place over five months and required some forty-five days of testimony during which the panel heard from approximately twenty- five witnesses. All of the witnesses’ evidence has been considered. Several of the witnesses were put forward to give expert evidence. Many volumes of exhibits were filed, specific to the claimants and applying generally to China. Exhibits continued to be filed after the close of the hearing, and were considered by the panel. Lengthy oral and written submissions were also provided by the parties. All written submissions filed after the close of the hearing have also been considered by the panel. In general terms, the basis for the refugee claim of Mr. Lai Cheong Sing as set out in his Personal Information Form is that he has been allegedly targeted by the government of China for refusing to falsely implicate an official in the central government, Mr. Li Ji Zhou, of criminal activity. Because of his refusal to cooperate, Mr. Lai is being pursued by means of false charges of activities such as smuggling and bribery, although he has always been an honest businessman. It is alleged that the government of China often targets successful business persons such as Mr. Lai. Ms. Tsang Ming Na allegedly faces persecution because of her political opinion and because of her relationship to Mr. Lai. It is alleged the children face persecution as members of VA0-02806 VA0-02807 VA0-02808 VA0-02809 VA0-02810 the Lai family. The eldest son also alleges he will be persecuted for reasons of political opinion. If charged with criminal offences in China, it is argued that Mr. Lai and Mr. Tsang will not get a fair trial because the judicial system is highly politicized and controlled by the central government. It is alleged that the case against them has already been decided. It is also argued that the children will be persecuted as members of the Lai family. Counsel for the Minister take the position that Mr. Lai and Ms. Tsang are common criminals who headed one of the largest smuggling operations that has ever existed in China, motivated by nothing more than greed. Media reports from US sources allege that the scale of the smuggling over several years was in the range of $6.4 billion dollars worth of goods, with unpaid tariffs and taxes totalling $3.6 billion dollars.1 General Organization of the Reasons The reasons begin with a review of the applicable provisions of the Immigration Act. Next, there is a brief description of the inclusionary and exclusionary grounds in the claims. The reasons continue with a review of the standards for determining credibility. The evidence concerning Mr. Lai, which is lengthy and many faceted, is then reviewed. The reasons continue with the evidence concerning Ms. Tsang and the children. The evidence from several other witnesses is reviewed in these sections. 1 See for example, Exhibit C4.1, tab 1, page 2. VA0-02806 VA0-02807 VA0-02808 VA0-02809 VA0-02810 Several witnesses were presented as experts on various aspects of Chinese political and judicial system. The next section of the reasons deals with a diplomatic note given to Canada by China concerning this case, should Mr. Lai and Ms. Tsang be repatriated. Next, the testimony of four witnesses from China is reviewed at length. These witnesses included a police inspector, two prosecutors, and a defense counsel. The police inspector and one of the prosecutors were involved in the Chinese investigation (the “4-20 Investigation”) of the smuggling operations allegedly headed by Mr. Lai and Ms. Tsang. The second prosecutor was involved in the prosecution of the aforementioned central government official, Mr. Li Ji Zhou. The defense counsel represented two men charged as part of the 4-20 Investigation. He gave evidence on how criminal defense counsel practice in China. The next section of the reasons refers to general documentation filed. The reasons continue with an outline of the submissions of counsel for the claimants and the Minister’s counsel. This is followed by an analysis of the law and the application of the findings of fact to that law. Exclusion is considered first, then inclusion. There is also a brief section on the issue of whether there should be a finding of “no credible basis”. Finally, the determination for all five claimants is set out. The Minister’s counsel filed numerous court documents and investigation statements provided by the government of China. These materials were presented to establish the allegations that Mr. Lai and Ms. Tsang were involved in criminal activity. Counsel for the claimants filed a large number of documents, including documents concerning Mr. Lai and Ms. Tsang and reports from various media sources. Materials were also filed on general country conditions in China. These materials are referred to throughout the reasons. VA0-02806 VA0-02807 VA0-02808 VA0-02809 VA0-02810 TABLE OF CONTENTS Page INTRODUCTION 1. APPLICABLE PROVISIONS OF THE IMMIGRATION ACT 1 2. BASIS FOR INCLUSION IN THE DEFINITION OF THE CONVENTION REFUGEE 2 3. BASIS FOR EXCLUSION FROM THE DEFINITION OF CONVENTION REFUGEE FOR LAI CHEONG SING AND TSANG MING NA 3 4. STANDARD FOR ASSESSING A CLAIMANT’S EVIDENCE 4 5. EVIDENCE CONCERNING LAI CHEONG SING 4 6. EVIDENCE CONCERNING TSANG MING NA 108 7. EVIDENCE CONCERNING THE CHILDREN 143 8. REVIEW OF WITNESSES PRESENTED AS EXPERTS 147 9. DIPLOMATIC NOTE 179 10. WITNESSES FROM CHINA 185 11 GENERAL DOCUMENTATION 232 12. REVIEW OF SUBMISSIONS 234 13. ANALYSIS OF THE CLAIM 261 14. CONCLUSIONS 293 - 1 - VA0-02806 VA0-02807 VA0-02808 VA0-02809 VA0-02810 1. APPLICABLE PROVISIONS OF THE IMMIGRATION ACT The following sections of the Immigration Act and Convention Refugee Determination Division (CRDD) Rules were of particular relevance in this claim. They are as follows. 2. “Convention refugee” means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person’s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person’s former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; 67.