Date:
20121119
Docket:
IMM-913-12
Citation:
2012 FC 1334
Ottawa, Ontario,
November 19, 2012
PRESENT: THE
CHIEF JUSTICE
BETWEEN:
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Applicant
|
|
and
|
|
|
B380
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Respondent is a 26 year old Tamil citizen of Sri Lanka who arrived in Canada on August 13, 2010 as a passenger on the MV Sun Sea. Among other things, he alleges
that he cannot return safely to his country because he is a perceived supporter
of the Liberation Tigers of Tamil Eelam [LTTE].
[2]
The
Refugee Protection Division [RPD] of the Immigration and Refugee Board of
Canada accepted his sur place claim for refugee protection after
determining that:
a.
he
is a member of a “particular social group” described in section
96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], by virtue of the fact
that he is a Tamil male who was a passenger on the MV Sun Sea; and
b.
there
is every reason to believe that he will be perceived to be an “LTTE cadre” and
will therefore face a serious chance of persecution if he is returned to Sri Lanka.
[3]
The
Applicant
submits that the Board erred in reaching each these two findings. I agree.
[4]
For
the reasons that follow, this application is granted.
[5]
Although
the Applicant raised a third issue, in its written submissions, relating to
procedural fairness, it stated at the hearing before the Court that it was no
longer pursuing that issue. Accordingly, that issue will not be further
addressed in these reasons.
I. Background
[6]
From
2005 to 2008, the Respondent lived in an area of Sri Lanka that was controlled
by the LTTE. However, he was able to avoid being recruited by the LTTE due to
the fact that the LTTE had a policy of obliging only one member of each family
to serve in its organization, and one of his siblings had died while serving as
an officer in the LTTE.
[7]
In
September 2008, he was displaced due to the approach of the Sri Lankan army.
For the following 8 months or so, he lived for short periods of time in several
cities and towns, before being taken to an internally displaced persons camp
run by the Sri Lankan authorities. At one point during his stay at that camp,
he was suspected of being a LTTE supporter and taken for questioning. He was
released from the camp after several months on terms and conditions that
included a regular reporting requirement, despite having lost a card which
stated that he was exempt from service in the LTTE.
[8]
Several
months later, the Respondent met up with one of his brothers, who put him in
contact with an “agent” who helped him to obtain a passport and a spot on the MV
Sun Sea.
II. The
Decision under Review
[9]
After
accepting the Respondent’s identity, the RPD stated that it had “significant
credibility concerns” with respect to his evidence. Due to those credibility
concerns and the absence of reliable corroboration for his alleged fears, as
set forth in the Personal Information Form [PIF] part of the Respondent’s claim
for refugee protection, the RPD rejected his allegations.
[10]
However,
the RPD observed that “a number of relevant facts remain”. In particular, it
stated that his link to the MV Sun Sea as a male Tamil passenger “is a
prior association which cannot be altered.” Based on this determination, the
RPD found him to be a member of a “particular social group” within the meaning
of section 96 of the IRPA.
[11]
The
RPD then relied on a report published on August 10, 2010 in the Toronto Star
to conclude that “there is every reason to think [the Respondent] will be
perceived to be an LTTE cadre if he is returned to Sri Lanka.” After briefly
referring to country documentation which reported that some LTTE fighters have
been released from government detention while thousands of others are suffering
torture or even extrajudicial execution, the RPD found that the Respondent
faces a serious chance of persecution if he is returned to Sri Lanka.
[12]
Accordingly,
RPD accepted his claim for refugee protection.
III. Standard
of Review
[13]
The Board’s findings with respect to the issue
of nexus to a ground of protection set forth in section 96 raises a question of
law and a question of mixed fact and law. The question of law is whether there
are limits to the scope of the words “particular social group” in that section
and, if so, the extent of those limits. That is a question of interpretation of
the Board’s home statute and the related jurisprudence, and does not involve
issues of central importance to the legal system that are outside of the RPD’s
expertise, issues of true jurisdiction or vires, constitutional issues
or the jurisdictional lines between two tribunals. Accordingly, the applicable
standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at paras 55 - 61, [2008] 1 S.C.R. 190 [Dunsmuir]; Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011
SCC 61, at paras 30 – 47, [2011] 3 S.C.R. 654).
[14]
The question of mixed fact and law in respect of the issue of
nexus is whether there was sufficient evidence on the record before the RPD to
permit the RPD to conclude that the Respondent is a member of a particular
social group, within the meaning of section 96. That is also subject to review
on a standard of reasonableness (Dunsmuir, above, at paras 51 – 53; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC
12, at paras 45-46, [2009] 1 S.C.R. 339; Jimenez Herrera
v Canada (Minister of Citizenship & Immigration), 2010 FC 499, at
para 7; Chekhovskiy v Canada (Minister of Citizenship and Immigration), 2009
FC 970 , at para 18 [Chekhovskiy]; Jayesekara v Canada
(Minister of Citizenship and Immigration) [2001] FJC No 1393, at paras
17-24).
[15]
Similarly, the issue that has been raised regarding the well
foundedness of the Respondent’s fears, which largely relates certain factual
findings made by the RPD, but also has an element of a question of mixed fact
and law, is subject to review on a standard of reasonableness.
IV. Analysis
A. Nexus
[16]
The
Applicant submits that the RPD erred in finding that “Tamil males who were passengers
on the
MV Sun Sea” constitute a particular social group within the meaning of
section 96 of the IRPA. I agree.
[17]
In
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, at paras 63-70 [Ward],
the Supreme Court held that “the international community’s commitment to the
assurance of basic human rights without discrimination,” as reflected in the
preamble to the Convention
Relating to the Status of Refugees, 1951, Can TS 1969 No 6 [Refugee
Convention],
provides an inherent limit to the scope of protection afforded by section 96.
In applying this approach to the meaning of “particular social group” in
section 96, it noted that “the general underlying themes of the defence of
human rights and anti-discrimination that form the basis for the international
refugee protection initiative” should be taken into account. To this end, it
identified the following three possible categories of groups that “provide a
good working rule to achieve this result”:
a.
groups
defined by an innate or unchangeable characteristic;
b.
groups
whose members voluntarily associate for reasons so fundamental to their human
dignity that they should not be forced to forsake the association; and
c.
groups
associated by a former voluntary status, unalterable due to its historical
permanence.
[18]
In
its decision, the RPD grounded its finding with respect to nexus in the third
of the above categories, when it found that the Respondent’s link to the MV Sun Sea as a Tamil
passenger “is a prior association which cannot be altered.”
[19]
The
Applicant submits that the RPD erred in making this finding because “Travel
aboard the MV Sun Sea has nothing to do with human rights or
anti-discrimination.”
[20]
The
Respondent disagrees. He maintains that because he is a young Tamil male who
travelled to Canada aboard the MV Sun Sea, he will be suspected by Sri
Lankan authorities of having links to the LTTE, and therefore will be at risk
on the ground of his membership in that social group. He further asserts that
(i) he falls within the first of the categories identified in Ward and
set forth above, because he is a young Tamil male, and (ii) he falls within the
third of those categories, because the bare fact of having travelled aboard the
MV Sun Sea places him in a group associated by a former voluntary status
that is unalterable due to its historical permanence.
[21]
I
agree with the Respondent that being a young Tamil male may be a sufficient
basis upon which to make him a member of a particular social group that is
defined by innate and unchangeable characteristics, as contemplated by the
first of the three categories identified in Ward, above. However, on
the particular facts of this case, the Respondent did not have a well founded
fear persecution “for reasons of” his membership in that social group, as
contemplated by section 96. This was because the RPD rejected the allegations
set forth in his PIF that were related to his membership in that group, after
identifying “significant credibility concerns” with his evidence.
[22]
It
is for this reason that the focus of the parties’ written and oral submissions
was upon the Respondent’s membership in a narrower group, namely, Tamil males
from Sri Lanka who were passengers on the MV Sun Sea. The link between
his membership in that group and his claimed well founded fear of persecution
was that Sri Lankan authorities would perceive him to be affiliated with the
LTTE by virtue of the fact that he was a passenger on the MV Sun Sea.
[23]
I
do not accept the Respondent’s position that this narrower group constitutes a
“particular social group” within the meaning of section 96. I recognize that
the bare fact of having travelled aboard the MV Sun Sea may well place
the Respondent into a group associated by a former voluntary status,
unalterable due to its historical permanence. However, it is implicit in the
approach that was adopted in Ward, above, that the historical fact of
having come voluntarily together in a particular way for the ultimate purpose
of travelling to Canada to seek refugee status is not a sufficient basis upon
which to become a “particular social group” within the meaning of section 96.
Otherwise, every group of people, including even a small family, who might
voluntarily come together for this purpose would have a nexus to section 96,
and the words “race, religion, nationality …or political opinion” would be
essentially superfluous (Ward, above, at para 61).
[24]
To
come within the scope of a particular social group contemplated by section 96,
there must be something about a group which is related to discrimination or
human rights. That something can include associating for reasons so fundamental
to their dignity that they should not be required to forsake or alter that
association. However, that something must be more than simply coming together
to seek refugee protection. In addition, that something should relate to what
the members are, in an immutable or fundamental way, as opposed to what they do
(Ward, above, at paras 65, 66 and 69-70; Chan v Canada (Minister of
Employment and Immigration), [1995] 3 S.C.R. 593, at paras 83-86 [Chan]
(per LaForest dissenting on an issue not considered by the majority) .
[25]
In
its very brief discussion of the issue of nexus, the RPD did not identify any
considerations related to discrimination, human rights or a purpose of
association so fundamental to the Respondent’s dignity that he should not be
required to forsake or alter that association. I acknowledge that the human
rights situation for people perceived to be “LTTE cadres” was subsequently
discussed by the RPD, but that discussion related to a much broader group of
persons, and not just those who travelled aboard the MV Sun Sea.
[26]
There
is no discussion anywhere in the RPD’s decision, and nothing in the certified
tribunal record, that identified anything about the claimed “particular social group”
of Tamil males who travelled on the MV Sun Sea that is related to
discrimination, human rights, or human dignity. In my view, voluntarily
becoming a member of such a group is more analogous to voluntarily joining a
taxi driver cooperative (Chan, above) or a building contractors’ group (Chekhovskiy,
above, at para 23), than it is to deciding to have children (Chan,
above) or to get married. Becoming a parent or getting married cannot be
considered to be an activity that one merely does, but is fundamental to a
person’s basic humanity (Chan, above). No one who decides to have
children or to get married should be forced to forsake their “voluntary
association” with the “group” of people who have made similar decisions. The
same can not be said of people who voluntarily join a taxi cooperative, a
building contractor’s group, or a group of people who have decided to travel to
Canada on a particular ship.
[27]
Accordingly,
the RPD erred when it concluded that Tamil males who travelled to Canada on the MV Sun Sea constitute a particular social group within the meaning of
section 96.
[28]
The
Respondent also submitted that, although it was not a political action when he
boarded the MV Sun Sea, “it became a political matter when the Sri
Lankan government publicly declared the links between the vessel and the LTTE.”
For the reasons discussed below, there was no reasonable basis in the RPD’s
reasons or the underlying evidentiary record for reaching such a conclusion.
B. Well Founded Fear of
Persecution
[29]
The
Applicant submits that the RPD erred by making findings of fact that are not
reasonably supported by the evidence. I agree.
[30]
First,
the Applicant submits that the RPD inaccurately summarized an article published
in the Toronto Star on August 10, 2010 that it relied upon in concluding
that the Respondent has a well founded fear of persecution in Sri Lanka. In this regard, the RPD commenced its short discussion of that article by
stating the following:
Counsel provided a useful document this morning which establishes
that the Sri Lankan government believed, and certainly loudly proclaimed to the
public, that the “Sun Sea” was an operation undertaking for the profit of the
LTTE and to rescue its cadres.
[31]
However,
this mischaracterizes what the government sources quoted or paraphrased in the
article actually said. The only person who was identified in the article as
representing the Sri Lankan government is Mr. Sumith Dassanayake. He was
identified as being with the Sri Lankan High Commission in Ottawa. Although the
article did not indicate Mr. Dassanayake’s rank, I am prepared to assume
(without necessarily accepting) that if he did in fact make the statements that
he was reported to have made, he did so as a representative of the Sri Lankan
government.
[32]
Mr.
Dassanayake was reported as having made the following three statements:
a.
“Most
of [the passengers on the MV Sun Sea] are hardcore LTTE people (Tamil
Tigers).”
b.
“The
Tigers are trying to regroup here to keep the movement alive.”
c.
Some
or all of the passengers on the MV Sun Sea are “a grave security threat
to Canada.”
[33]
The
only other reference in the Toronto Star article to a statement
purportedly made on behalf of the Sri Lankan government was in the following
sentence of that article: “While the Sri Lankan government has warned that the MV
Sun Sea is engaged in brazen human rights smuggling, human rights experts
argue that the people aboard are legitimate refugees.” There is no indication
in the article as to who made this statement, allegedly on behalf of the Sri
Lankan government.
[34]
As
is readily apparent, none of the aforementioned statements actually state, let
alone establish, that the Sri Lankan government believed that the MV Sun Sea was
an operation undertaking for the profit of the LTTE and to rescue its “cadres”.
As it turns out, this particular statement was reported to have been made by
Mr. Rohan Gunaratna, who was identified as being the head of a research centre
in Singapore and an expert on the Tamil Tigers.
[35]
The
Respondent concedes that the RPD “drew some erroneous findings from the [Toronto
Star] article,” but maintains that “the core of its decision is
supported by the article.” I am inclined to agree that the first statement made
by Mr. Dassanayake, quoted at subparagraph 32(a) above, can reasonably be
interpreted as suggesting that the MV Sun Sea was an operation
undertaking for the profit of the LTTE and to rescue its “cadres”.
[36]
However,
I do not agree with the Respondent that it was “perfectly logical” for the RPD
to conclude, based solely on the statements reported upon in the Toronto
Star article, that “there is every reason to think that [the Respondent] will be
perceived to been an LTTE cadre if he is returned to Sri Lanka.” Likewise, I do
not agree with the submission made by the Respondent’s counsel during the
hearing of this application, to the effect that it was reasonable for the RPD
to essentially conclude, based on the statements reported in the Toronto
Star article, that there is a serious possibility that everyone who
traveled to Canada aboard the MV Sun Sea and who is forced to return to
Sri Lanka will be tortured or otherwise persecuted by Sri Lanka authorities
upon their arrival.
[37]
As
noted at paragraph 32 above, Mr. Dassanayake was simply reported to have stated
that most passengers aboard the MV Sun Sea “are hardcore LTTE
people.” He was not reported to have stated that everyone aboard the MV
Sun Sea is perceived to be among that group of persons. Even if it were
true that the Sri Lankan government believed that most of the passengers
who arrived in Canada aboard the MV Sun Sea are hardcore members of the
LTTE, the RPD erred by failing to discuss why there was a serious possibility
that the Respondent would be (i) perceived to be among that group of
individuals, as opposed to the other group of passengers on the MV Sun Sea,
namely, those who are not hardcore members of the LTTE, or (ii) tortured or
otherwise persecuted, either as a result of that perception or for the purposes
of providing information about other passengers who travelled on the MV Sun
Sea.
[38]
I
recognize that the Respondent’s own evidence regarding his experiences in Sri Lanka was found not to be credible. But that did not relieve the RPD of its obligation
to address the additional considerations that were part of his specific risk
profile and explain why it believed, based on that profile, that he had a well
founded fear of persecution. This was particularly important in this case
given the evidence in the certified tribunal record that people with low level
involvement in the LTTE are routinely released after a short period of
questioning that may involve detention. Contrary to the Respondent’s assertion,
it was not the Applicant’s burden to prove that the Respondent would not likely
be perceived to be an “LTTE cadre” and that he did not have a well founded fear
of persecution if required to return to Sri Lanka.
[39]
In summary, I am satisfied that the statement
that the RPD appears to have attributed to Mr. Mr. Dassayanake, together with
the three statements that he is reported to have made and the statement
reported to have made by the unnamed government source (discussed at paragraph
33 above), cannot reasonably support the conclusions reached by the RPD with
respect to the risk faced by the Respondent and the well foundedness of his
fear of persecution. In my view, those conclusions were not “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” and they were not appropriately justified or intelligible, given the
evidence in the record before the RPD (Dunsmuir, above, at para 47).
[40]
More fundamentally, it was unreasonable for the
RPD to rely solely on general statements reported in a newspaper article to
conclude that the Respondent has a well founded fear of persecution in Sri Lanka. Just as it ordinarily would be unreasonable to reject an application for
refugee protection solely on the basis of uncorroborated statements reported in
a newspaper article, it is ordinarily similarly unreasonable to accept
such an application, solely on that basis.
[41]
To the extent that the Respondent’s submission regarding his
perceived political opinions also rely solely on the statement reportedly made
by Mr. Dassayanake, to the affect that “[m]ost of [the passengers on the MV
Sun Sea] are hardcore LTTE people,” it is rejected for the same reasons set
forth above.
[42]
Given the foregoing, it is not necessary to address the
Respondent’s submissions regarding the risks faced by persons who are
perceived to be LTTE cadres, or who can establish that there is a serious
possibility that they will be perceived as such, by Sri Lankan authorities.
[43]
I
would simply add, in passing, that in his PIF and in his testimony, the
Respondent mentioned that he was released after a short period of time each
time he was questioned by Sri Lankan authorities, that he was photographed on
numerous occasions and that he was videotaped at least once. This suggests that
he is known to Sri Lankan authorities and is not perceived to be a hardcore
member of the LTTE.
V. Conclusion
[44]
For
the reasons discussed above, the RPD’s conclusions with respect to the
Respondent’s nexus to a “particular social group,” as contemplated by section
96 of the IRPA, and the well foundedness of his fear of persecution at the
hands of Sri Lankan authorities should he return to that country, were
unreasonable.
[45]
Therefore,
the RPD’s decision to grant the Respondent’s application for refugee protection
is quashed. The matter will be sent back to a different panel of the RPD for
consideration in accordance with these reasons for judgment.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES THAT the RPD’s decision, dated January
10, 2012, in which it accepted the Respondent’s claim for refugee protection
under section 96 of the IRPA, is set aside and remitted to a differently
constituted panel of the RPD for reconsideration in accordance with these
reasons.
There is no
question for certification.
“Paul S. Crampton”
Email this Content