Docket:
IMM-8485-12
Citation: 2013 FC 1119
Ottawa, Ontario, November
19, 2013
PRESENT: The Honourable Madam Justice Gleason
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BETWEEN:
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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A068
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Respondent
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PUBLIC VERSION OF REASONS FOR JUDGMENT AND JUDGMENT
[1]
This file is another in the series of judicial
review applications involving refugee claims made by passengers who arrived in Canada on one of the two ships bearing Tamil asylum-seekers that landed on our shores in
late 2009 and mid-2010. The claimant in this case was a passenger on the M/V
Ocean Lady and was found to not be a member of the Liberation Tigers of
Tamil Elam [the LTTE].
[2]
Over the past thirteen months, this Court has
decided several judicial review applications in respect of similarly-situated
claimants who were aboard the M/V Ocean Lady or the other ship, the M/V
Sun Sea (see e.g. Canada (Minister of Citizenship and Immigration) v
B380, 2012 FC 1334, Crampton CJ [B380]; Canada (Minister of
Citizenship and Immigration) v B342, IMM-914-12 (unreported), Hughes J; PM
v Canada (Minister of Citizenship and Immigration), 2013 FC 77, Snider J [PM];
SK v Canada (Minister of Citizenship and Immigration), 2013 FC 78,
Snider J [SK]; Ganeshan v Canada (Minister of Citizenship and
Immigration), 2013 FC 841, Snider J; Canada (Minister of Citizenship and
Immigration) v B472, 2013 FC 151, Harrington J [B472], Canada
(Minister of Citizenship and Immigration) v B323, 2013 FC 190, Harrington J
[B323], B027 v Canada (Minister of Citizenship and Immigration),
2013 FC 485, Harrington J; B223 v Canada (Minister of Citizenship and
Immigration), 2013 FC 511, Harrington J; Canada (Minister of Citizenship
and Immigration) v A011, 2013 FC 580, Harrington J [A011]; B135 v
Canada (Minister of Citizenship and Immigration), 2013 FC 871, Harrington
J; Canada (Minister of Citizenship and Immigration) v B399, 2013 FC 260,
O’Reilly J [B399]; Canada (Minister of Citizenship and Immigration) v
B377, 2013 FC 320, Blanchard J [B377]; Canada (Minister of
Citizenship and Immigration) v B420, 2013 FC 321, Blanchard J [B420];
Canada (Minister of Citizenship and Immigration) v A032, 2013 FC 322,
Blanchard J [A032]; Canada (Minister of Citizenship and Immigration)
v B134, IMM-8010-12 (unreported), Hansen J [B134]; Canada
(Minister of Citizenship and Immigration) v B451, 2013 FC 441, Noël J [B451];
Canada (Minister of Citizenship and Immigration) v B344, 2013 FC 447,
Noël J [B344]; Canada (Minister of Citizenship and Immigration) v
B459, 2013 FC 740, Mosley J [B459]; Canada (Minister of
Citizenship and Immigration) v B171, 2013 FC 741, Mosley J [B171]; Thanapalasingam
v Canada (Minister of Citizenship and Immigration), 2013 FC 830, Phelan J; Canada
(Minister of Citizenship and Immigration) v B272, 2013 FC 870, de Montigny
J [B272]; PK v Canada (Minister of Citizenship and Immigration),
2013 FC 969, Kane J [PK]; and Balakrishnan v Canada (Minister of
Citizenship and Immigration), 2013 FC 944, Shore J.
[3]
In this case, the Refugee Protection Division of
the Immigration and Refugee Board [the RPD or the Board] determined that the
claimant was a refugee due to the risk he faced as a result of his presence on
the M/V Ocean Lady. The Board held in this regard that his presence on
the ship, along with his background, subjected him to the risk of possible
torture by the Sri Lankan authorities if he were to return to that country
because the authorities would either suspect him of being a member or supporter
of the LTTE or would wish to obtain information from him about the LTTE members
or sympathizers who were with him aboard the M/V Ocean Lady. In the
present application for judicial review, the Minster of Citizenship and
Immigration seeks to have the Court set aside the Board’s decision.
[4]
The Minister argues that the Board premised its
decision on an unreasonable or incorrect interpretation of the Convention
relating to the Status of Refugees, 22 April 1954, 189 UNTS 150 [the Refugee
Convention], which is incorporated into section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA or the Act]. More
specifically, the Minister argues that the Board committed a reviewable error
in finding that the claimant’s presence on the M/V Ocean Lady brought
him within the purview of a “particular social group” within the meaning of the
Refugee Convention so as to warrant refugee protection. The Minister
submits that this determination is erroneous as mere presence on the M/V
Ocean Lady does not make someone a member of a “particular social group”
within the meaning of the Refugee Convention. The Minster further asserts that
the RPD unreasonably determined that the claimant might be at risk of torture
if returned to Sri Lanka, arguing that the Board’s interpretation of the
evidence with respect to the alleged risk was unreasonable as it does not
demonstrate any such risk. Finally, the Minister submits that the Board
premised its decision solely on the ground of the claimant’s belonging to a
particular social group and that it would be erroneous for this Court to uphold
the decision on grounds not considered by the RPD, namely the combination of
the applicant’s ethnicity and perceived political opinion of being a suspected
member or supporter of the LTTE.
[5]
The claimant, on the other hand, argues that the
Board’s determination that he was a member of a “particular social group” due
to his presence on the M/V Ocean Lady was reasonable, as was the
determination that he would face more than a mere possibility of persecution if
returned to Sri Lanka. In the alternative, the claimant argues that, in
addition to relying on the ground of particular social group as a ground for
refugee protection, the Board should also be considered to have premised its
refugee determination on other protected grounds within the scope of the Refugee
Convention, namely the claimant’s Tamil ethnicity and the likelihood that
the Sri Lankan authorities would consider him to be a member or supporter of
the LTTE due to his background and presence on the M/V Ocean Lady. The
claimant argues that this would entitle him to refugee protection under the
mixed grounds of race or nationality and perceived political opinion and that
this alternative provides a further basis for upholding the Board’s decision as
being reasonable.
[6]
For the reasons set out below, I have determined
that the Board’s decision should be upheld and this application for judicial
review dismissed. To understand why this is so and to place the parties’
arguments in their appropriate context, it is useful to review both the
relevant legislative backdrop to the Board’s decision and the various decisions
rendered to date by this Court in cases of this nature.
Background
[7]
Under the IRPA, there are two principal
provisions under which an asylum claimant may receive protection, namely
sections 96 and 97 of the Act.
[8]
Section 96 incorporates the Refugee
Convention and, to paraphrase its key points, provides in relevant part
that those who have a well-founded fear of persecution by reason of race,
religion, nationality, membership in a particular social group or political
opinion will be granted refugee protection if they are unable or, if due to
their well-founded fear, they are unwilling to obtain protection in their
country of nationality or habitual residence. The case law recognizes that in
order to establish entitlement to protection under section 96 of the IRPA, a
claimant must prove on the balance of probabilities that there is more than a
mere possibility – or a reasonable chance – that the claimant will face
persecution if returned to his or her country of origin (Adjei v Canada
(Minister of Employment and Immigration), [1989] 2 FC 680 at 683, 57 DLR
(4th) 153 (FCA); Németh v Canada (Justice), 2010 SCC 56 at para 98,
[2010] 3 S.C.R. 281; and Mugadza v Canada (Minister of Citizenship and
Immigration), 2008 FC 122 at para 20, 164 ACWS (3d) 841).
[9]
Section 97 of the IRPA, on the other hand,
incorporates the protections enshrined in the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 June 1987,
1465 UNTS 85 [the Convention Against Torture] and, indeed, provides
somewhat broader protection than required by that Convention. To once again
paraphrase the portions of the Act that are relevant in this case, section 97
of the IRPA provides that protected person status will be granted to those who
would be subjected to a danger of torture, within the meaning of the Convention
Against Torture, or to a risk to their life or to cruel and unusual
treatment or punishment if returned to their country of nationality or habitual
residence. There are a number of exceptions to this general protection that are
contained in paragraph 97(1)(b) of the IRPA but none of them is relevant in
this case. What is relevant is the standard of proof required in respect of a
claim under section 97, which is higher than that required for a refugee claim
under section 96 of the Act. The case law recognizes in this regard that to be
entitled to protection under section 97 of the IRPA, a claimant must establish
the likelihood of risk on the balance of probabilities (Li v Canada
(Minister of Citizenship and Immigration), 2005 FCA 1 at para 14, 249 DLR
(4th) 306).
[10]
Given the difference in the standard of proof,
the cases involving passengers on the M/V Ocean Lady and M/V Sun Sea
have been cast under section 96 as opposed to section 97 of the IRPA. And the
issue of whether there is a legitimate basis for a claim – or nexus to a ground
in the Refugee Convention – has been the focus of much of the case law.
[11]
More specifically, four principal issues have
been canvassed in the jurisprudence of this Court in cases involving passengers
on the M/V Ocean Lady and M/V Sun Sea, namely:
1. What is the applicable standard to be applied by
this Court to review the Board’s interpretation of the requirements of the Refugee
Convention enshrined in section 96 of the IRPA and to its application of
those requirements to the facts of a particular claimant’s case?
2. What meaning is to be ascribed to the ground of
“particular social group” and is it broad enough to encompass those who face
risk flowing from being a passenger on the M/V Ocean Lady or M/V Sun
Sea?
3. Under the reasonableness standard of review,
should this Court uphold an RPD decision if, in addition to analyzing whether a
passenger on the M/V Ocean Lady or M/V Sun Sea is entitled to
refugee protection as a member of a “particular social group”, the RPD also
comments on risk flowing from the claimant’s ethnicity and perception that he
or she might be a member or supporter of or have information about the LTTE?
and
4. Should the Court intervene and set aside factual
determinations made regarding the degree of risk that the RPD finds a claimant
who was a passenger on the M/V Ocean Lady or M/V Sun Sea might
face if returned to Sri Lanka?
(a) Case law on Standard of Review
[12]
In terms of the first issue, the case law of
this Court is divided. While the cases uniformly recognize that the
reasonableness standard applies to the review of the RPD’s application of the
requirements of the Refugee Convention to the facts of a particular
claimant’s case, there is division in the jurisprudence on whether the
reasonableness standard should also be applied to the RPD’s interpretation of
the Refugee Convention as incorporated into section 96 of the IRPA.
[13]
On one hand, Justice Harrington held in B472
at para 22, B323, and A011 at para 44-49 that the correctness
standard of review applies to the RPD’s interpretation of section 96 of the
IRPA and the Refugee Convention as these are issues of general
importance to the legal system as a whole, reflecting Canada’s human rights
obligations flowing from international treaty. In reaching this decision,
Justice Harrington relied on the decisions of the Federal Court of Appeal in Febles
v Canada (Minister of Citizenship and Immigration), 2012 FCA 324, 357 DLR
(4th) 343 [Febles] and Feimi v Canada (Minister of Citizenship and
Immigration), 2012 FCA 325, 353 DLR (4th) 536 [Feimi]. In Febles,
the majority of the judges who heard the case held that the correctness
standard applies to the interpretation of section 98 of the IRPA, which
incorporates into domestic law the exclusions from refugee protection contained
in the Refugee Convention. In reaching this conclusion, Justice Evans,
writing for the majority on this point, held that the correctness standard
should apply because the Refugee Convention “…should be interpreted as
uniformly as possible … [and] [c]orrectness review is more likely than
reasonableness review to achieve this goal” (at para 24). In Feimi, the
same conclusion was reached, this time by a unanimous bench (at para 14).
[14]
There is further support for the view that the
correctness standard applies to the RPD’s interpretation of the Refugee
Convention in the subsequent decisions of the Federal Court of Appeal in B010
v Canada (Minister of Citizenship and Immigration), 2013 FCA 87, 359 DLR
(4th) 730 [B010] and of the Supreme Court of Canada in Ezokola v
Canada (Citizenship and Immigration), 2013 SCC 40, 361 DLR (4th) 1 [Ezokola].
[15]
In B010, Justice Dawson, writing for the
Court, held that the reasonableness standard is to be applied to the
Immigration Division’s interpretation of sections 37 and 117 of the IRPA, which
are not identical to the prohibitions contained in the United Nations
Protocol against the Smuggling of Migrants by Land, Sea and Air, 28 January
2004, 40 ILM 384 (2001) [the Protocol]. In so deciding, she noted at
para 71 that she was “… mindful that the [Federal Court of Appeal had]
previously applied the correctness standard of review to the [Immigration
Division’s] interpretation of international conventions … in view of the need
to interpret international conventions uniformly”. She went on to distinguish
the holding in Febles on the basis that in the case before her the
Immigration Division had interpreted the anti-people smuggling provisions in
the IRPA as opposed to an international convention and noted that the Protocol
at issue in her case, unlike the Refugee Convention, contemplated
that individual states would enact different measures to fulfill the objectives
of the Protocol. She thus concluded that “the uniformity concerns in Febles”
did not apply to the Protocol (also at para 71). Because the provisions
in the IRPA were not identical to those in the Protocol, Justice Dawson
held that the reasonableness standard of review was applicable as the Division
was interpreting its constituent statute and the issue fell within the
particular expertise of the Division.
[16]
In Ezokola, the Supreme Court was faced
with another decision of the RPD applying section 98 of the IRPA, which, as
already noted, incorporates into domestic law the exclusions from refugee
protection enshrined in the Refugee Convention. Although the Court did
not squarely address the standard of review issue, it applied a correctness
review to the Board’s decision and overturned it because the Court found that
the RPD had applied a flawed definition of complicity for purposes of
determining whether the claimant should be excluded from refugee protection due
to his complicity in international crimes.
[17]
While there is therefore support in the case law
for the application of the correctness standard of review to the RPD’s
interpretation of the Refugee Convention, several judges of this Court
have reached the opposite conclusion and have held that the Board’s
determination of what associations may constitute a “particular social group”
is reviewable on the reasonableness standard of review (see e.g. the decisions
of the Chief Justice in B380 at para 13; of Justice O’Reilly in B399
at para 18; of Justice Blanchard in B420 at para 13, A032 at para
14, and B377 at para 8; of Justice Hansen in B134; of Justice
Noël in B451 at para 26 and B344 at para 28; of Justice Mosley in
B459 at para 4 and B171 at para 6; and of Justice de Montigny in B272
at para 60). While the Chief Justice held in B380 that the
interpretation of “particular social group” as a question of law should be
reviewed on the standard of reasonableness, my other colleagues elected
reasonableness on the basis that the relevant question at issue was the
application of the claimant’s situation to the Convention ground and
hence a matter of mixed fact and law. For example, in B272, Justice de
Montigny held that the reasonableness standard applied because “the arguments
turn[ed] not so much on the interpretation of the Convention grounds per se,
but rather on mixed questions of fact and law… the question does not focus on
the definition of a “particular social group”, but whether the Respondent falls
within such a group” (at para 59).
(b) Case law on the meaning to be ascribed to “Particular
Social Group”
[18]
Turning to the second issue that is canvassed in
the jurisprudence, several of the decided cases hold that the mere fact of
having been aboard the M/V Ocean Lady or M/V Sun Sea is not
enough to make passengers members of a “particular social group” within the
meaning of the Refugee Convention and section 96 of the IRPA. Justices
O’Reilly, Blanchard, Noël, Mosley and de Montigny as well as the Chief Justice
have all indicated that a finding by the RPD to the opposite effect is
unreasonable (see e.g. B380 at paras 23-27; B399 at paras 16-18; B420
at para 17; B451 at para 27; B459 at paras 8-11, B171 at
paras 11-13; and B272 at para 75), whereas Justice Harrington has
indicated that while such a finding might be reasonable, it is incorrect (see B472
at paras 26-28; B323; A011 at para 43). Justice Snider, on the
other hand, has applied the reasonableness standard of review to these sorts of
determinations and has indicated, albeit in obiter dicta or non-binding
comments, that an RPD determination that being a passenger on one of the ships
would make one a member of a “particular social group” could be a reasonable
determination (see PM at para 17; SK at para 25).
[19]
The seminal case determining the meaning to be
ascribed to the term “particular social group” is Canada (Attorney General)
v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1 [Ward], where Justice La
Forest, writing for the Court, stated as follows at 739 (cited to SCR):
The meaning assigned
to “particular social group” in the Act should take into account the general
underlying themes of the defence of human rights and anti-discrimination that
form the basis for the international refugee protection initiative. The tests
proposed in Mayers, Cheung, and Matter of Acosta, supra,
provide a good working rule to achieve this result. They identify three
possible categories:
(1) groups defined by
an innate or unchangeable characteristic;
(2) groups whose
members voluntarily associate for
reasons so fundamental
to their human dignity that they should not be forced to forsake the
association; and
(3) groups associated
by a former voluntary status, unalterable due to its historical permanence.
The first category
would embrace individuals fearing persecution on such bases as gender,
linguistic background and sexual orientation, while the second would encompass,
for example, human rights activists. The third branch is included more because
of historical intentions, although it is also relevant to the antidiscrimination
influences, in that one’s past is an immutable part of the person.
[20]
In B380, Chief Justice Crampton set aside
as unreasonable a determination of the RPD that the claimant – a passenger on
the M/V Sun Sea – was a member of a “particular social group” comprised
of the passengers on the ship. The Chief Justice held that to come within a
“particular social group” within the meaning of section 96 of the IRPA, “…there
must be something about a group which is related to discrimination or human
rights … [and that] that something should relate to what the members are, in an
immutable or fundamental way, as opposed to what they do” (at para 24).
[21]
Importantly, the very brief RPD decision that
the Chief Justice reviewed in B380 found that the claimant in that case
was a member of a “particular social group” based solely on the bare fact that
he had been aboard the M/V Sun Sea. In that case, unlike the present,
the RPD did not comment on the fact that the claimant’s presence on the ship
might have led the Sri Lankan authorities to view him as an LTTE member or
supporter or to wish to interrogate him for his knowledge about the LTTE that
he might have gained while on board the ship.
(c) Case law regarding “Mixed Motives” and Perceived
Political Opinion
[22]
Turning to the third issue canvassed in the case
law, several cases have upheld RPD findings in situations like the present case
where the RPD premised its decision in large part on the claimants being
members of a “particular social group” comprised of Tamils who were at risk as
a result of their presence on one of the vessels but also commented at one
place or another in the decision that the risk in question was tied to the
claimants’ ethnicity and the possibility that they might be viewed as
supporters of the LTTE. In B399, B420, B377, B344
and B272, Justices O’Reilly, Blanchard, Noël and de Montigny upheld the
decisions reached by the RPD on the basis of there being a confluence of
grounds related to race and perceived political opinion, which they found to be
sufficient to establish a nexus to one of the grounds in the Refugee
Convention. To a greater or lesser extent, in each of these decisions, my
colleagues have read into the Board’s reasons to reach their conclusions. For
example, Justice O’Reilly noted at para 19 of B399:
Unfortunately, the
Board’s findings are not as clear as they could have been; yet, the following
passage in its reasons supports B399’s contention that the Board did not rest
its conclusion solely on membership in a particular social group as a passenger
on the MV Sun Sea:
… the claimant will
most likely be detained and questioned … upon his return to Sri Lanka…The panel finds that the authorities will suspect the claimant has links to the LTTE. The
country documents establish that Tamils suspected of having links to the LTTE
continue to be subject to serious abuses, including torture, by the authorities
in Sri Lanka.
[23]
In B399, B420, A032, B377,
B344 and B272, Justices O’Reilly, Blanchard, Noël and de Montigny
determined that decisions much like the one in this case were reasonable as
there was evidence to support the conclusion that the claimants might be at
risk of torture if returned to Sri Lanka and that such torture was based on the
confluence of their ethnicity, suspected complicity with the LTTE and
possession of knowledge about the LTTE, the first two of which would invoke the
grounds of race and perceived political opinion.
[24]
Conversely, in B472 at para 28, B323,
A011 at paras 40-42, B459 at para 7, and B171 at para 10,
Justices Harrington and Mosley refused to engage in a similar reading-in
exercise and decided the cases based solely on the reasonableness or
correctness of the Board’s analysis of the “particular social group” ground for
refugee protection. In B472 and A011, Justice Harrington set
aside RPD decisions as incorrect where the Board found the claimants to be
members of a “particular social group” comprised of passengers at risk due to
their presence on one of the vessels, and in B459 and B171,
Justice Mosley set a similar finding aside as unreasonable. In all four cases,
they certified a question regarding the appropriate standard of review and held
that it was inappropriate to consider whether the RPD’s decision could be
upheld under the grounds of race or perceived political opinion as neither of
these grounds was specifically addressed by the RPD as a reason for granting
refugee status.
(d) Case law regarding the challenges to the Board’s factual
determinations
[25]
Turning, finally, to the treatment of the
Board’s factual findings in these cases, in all but two they were not
interfered with. The first exception is B380, where the Chief Justice
set aside the Board’s determination that the claimant in that case might be at
risk of torture if returned to Sri Lanka. It appears from the decision that the
Board’s determination in that case was based on a single piece of evidence,
namely a newspaper article, which distinguishes it from the present case, as is
discussed below. In the second exception, PK, Justice Kane set aside the
RPD’s decision because she found the Board had failed to consider the
claimant’s particular personal circumstances. No such issue arises in this
case.
Analysis
[26]
With this background in mind, it is now possible
to turn to the present case and the positions advanced by the parties.
[27]
I do not find it necessary to address the
“particular social group” issue (or the standard of review that applies to the
Board’s determination regarding the applicant’s belonging to a “particular
social group”) because I have determined that the Board’s decision should be
maintained on the basis of an analysis similar to that applied by my colleagues
Justices O’Reilly, Blanchard, Noël and de Montigny in B399, B420,
A032, B377, B344 and B272.
[28]
In focusing on whether the Board erred in
premising its decision on the risk the claimant would face due to his
background and the belief of the Sri Lankan authorities that he might be an
LTTE supporter (as opposed to consideration of what the “particular social
group” ground encompasses as a matter of law), the standard of review to be
applied is reasonableness as the issue is one of mixed fact and law as opposed
to a pure legal issue (see e.g. Dunsmuir v New Brunswick, 2008 SCC 9 at
para 53, [2008] 1 S.C.R. 190, B420 at para 13; A032 at para 14; B377
at para 8). In other words, what is at issue is not what the grounds of
“nationality”, “race” or “political opinion” may mean under the Refugee
Convention, but, rather, whether the Board’s explicit or implicit finding
of a nexus to these grounds on the facts of this case should be disturbed. This
question requires application of the deferential reasonableness standard of
review.
[29]
In the decision in this case, as in B399,
B420, A032, B377, and B344, there are several
places in the RPD’s decision where the Board comments on the risk that the
claimant would face by reason of being a young Tamil male from the north of Sri
Lanka who would be perceived by the Sri Lankan authorities as being an LTTE
member or sympathizer (and as having information about the LTTE) due to his
background and presence on the M/V Ocean Lady.
[30]
For example, in the determination section of the
reasons, the RPD wrote as follows:
The claimant is a
Convention refugee, in that he has a well-founded fear of persecution for a
Convention refugee ground in Sri Lanka by reason of his nationality and
membership in a particular social group of young Tamil males who would be
suspected of links to the LTTE because of their travel to Canada on the Ocean Lady.
[31]
At several other points in the decision, the RPD
commented on the risk of torture the claimant might well face upon his return
to Sri Lanka by reason of the fact that the authorities would perceive him as
having links to the LTTE. For example, the Board wrote:
[23] … I find … that
the claimant’s profile changed when he chose to board the Ocean Lady, a
ship that has been suspected of carrying LTTE members into Canada. The government of Sri Lanka has shown itself to have a clear interest in tracking down and
often persecuting persons with LTTE links.
…
[27] … Even if an
immigration officer or any other representative of the Sri Lankan government
did not know for certain if he is or was an LTTE member, the claimant would
certainly be viewed by the government as a person of interest and at least with
possible ties to the Tamil Tigers. They would also be interested in any
information he could provide about his fellow passengers, the ship and the
journey.
…
[29] Under these
circumstances, I find that if the claimant were to return to Sri Lanka, he would
be immediately detained for some period of time so that the Sri Lankan
government can ascertain whether he is an LTTE member, whether he has organized
for the Tamil Tigers abroad, whether he possesses LTTE intelligence since he
apparently traveled with LTTE members on the ship, whether he participated in
the trafficking of weapons and ammunition, and so forth.
…
[31] The UNHCR
Guidelines, unchanged since their issuance two years ago in 2010,
specifically recommend ongoing protection for those persons with the following
profiles: persons suspected of having links with the LTTE [emphasis in
the original] … As I have found that this claimant would be suspected of having
links with the LTTE on return to Sri Lanka, I have paid particular attention to
the risks he might face.
…
[39] … I find that as
soon as an SIS officer were to query him about his travel pattern and means of
transportation to Canada, the claimant would be immediately identified as
having a link to the LTTE.
…
[41] … I find that
there is more than a mere possibility that the claimant would be stopped,
detained, interrogated, tortured and possibly disappeared or even killed since
he was on a ship suspected of being owned by and having LTTE members on it …
The Sri Lankan authorities will take these steps to ascertain whether the
claimant is a LTTE member and whether he has knowledge about others on board
who are LTTE members. He will also be interrogated about his possible
connections with the LTTE prior to leaving the country and afterwards, his
knowledge about whether the Ocean Lady was a LTTE ship, whether the
claimant was involved with human trafficking and smuggling, which members of
the ship were LTTE members, and whether the claimant has made any linkage with
the LTTE while outside the country.
…
[43] … In face of the
body of evidence that I had before me, the evidence put forth by the Minister
does not impact my finding that this claimant will be perceived as having LTTE
links on return to Sri Lanka.
[44] The
claimant’s nexus to a Convention ground changed from the particular social
group of “young Tamil males from Sri Lanka not suspected of being an LTTE
member or supporter” to “a young Tamil male from [deleted from the public
record under a confidentiality order] suspected of being a LTTE member or
having information about LTTE members on board the Ocean Lady.”
[32]
Although the Board does not use the words
“political opinion” or “perceived political opinion” in the foregoing
passages, it clearly delineates that the risk the claimant would face is tied
in part to the fact that the Sri Lankan authorities would perceive he had links
to the LTTE.
[33]
In B420, A032, and B377,
Justice Blanchard held that such reasoning is sufficient to establish a nexus
to the protected ground of political opinion; he noted as follows at para 21 of
B420:
The RPD’s findings
are not as clear as they could have been and in some cases arguably deficient.
For instance, the RPD could not rely upon imputed knowledge of LTTE activities
to support its finding of imputed political opinion. I am nevertheless
satisfied that the evidence referred to by the Tribunal in its reasons supports
a finding that the Respondent, as a young, Tamil male from northern Sri Lanka,
has a well-founded fear of persecution by reasons of his race and his imputed
political opinion by reason of his perceived association with the LTTE. I am
satisfied that the RPD’s conclusion is reasonable.
[34]
Justices de Montigny and O’Reilly reached a
similar conclusion in B272 and B399.
[35]
Although the Board in the decisions reviewed by
Justices Blanchard, de Montigny and O’Reilly explicitly used the words
“perceived political opinion” as part of the basis for the finding that there
was a nexus to a ground in the Refugee Convention, this express
enunciation of perceived political opinion appears to have been absent from the
Board decision in B344, where Justice Noël upheld the decision based on
a so-called “mixed motives” analysis. He focused in particular on the
connection to the claimant’s Tamil ethnicity, which when coupled with the other
factors, he found led to a nexus to the protected ground of “race”. He
concluded that the claimant’s ethnicity was a key factor, along with others,
which led to his being at risk of persecution and, therefore, that there was a
sufficient nexus to a ground in the Refugee Convention to warrant
protection under section 96 of the IRPA. He held in this regard that a narrow
interpretation of “mixed motive” contravenes the spirit of the Refugee
Convention, stating as follows at paras 37 and 45:
… Section 96 of the
IRPA has one objective which is to prevent people from being subjected to
persecution as long as it is linked to a Convention ground. If one of the
motivations of the agent of persecution is race but only in combination with another
factor, how could that not be sufficient to meet the requirements of section 96
of the IRPA? After all, section 96 of the IRPA as written, is not to be
interpreted in a narrow restrictive fashion: its purpose, as outlined, is to
address fear of persecution and to protect any person who suffers from
persecution based on race, religion, nationality, membership in a particular
social group or political opinion. Moreover, section 3(2)(d) of the IRPA
clearly states that one of the main purposes of Canada’s refugee system is to
“offer safe haven to persons with a well-founded fear of persecution based on
race, religion, nationality, political opinion or membership in a particular
social group, as well as those at risk of torture or cruel and unusual treatment
or punishment.” Section 96 of the IRPA needs to be interpreted in light of this
objective.
…
…the Respondent’s
Tamil ethnicity was a prime contributing factor to the possibility of risk of
persecution upon arrival in Sri Lanka. When considered individually, the
motivations, which are based on the Respondent’s Tamil ethnicity as well as his
status as a former passenger on the MV Sun Sea, which is perceived by
the government as a LTTE-driven operation, were not sufficient to establish a
nexus to the Convention ground of race on their own, however, when taken
together they cumulatively established a serious possibility of risk of
persecution upon return. Without one of the contributing factors, the
Convention ground would not be satisfactorily established but taken together,
these motivations form the basis of the ground of race. Therefore, the nexus to
race was essential to the RPD’s conclusion that the risk of persecution upon
return was a serious scenario to be envisaged.
[36]
I find the reasoning of Justices de Montigny,
O’Reilly, Blanchard and Noël to be persuasive and believe that the Board in
this case should be viewed as having tied its nexus finding to race or
nationality and perceived political opinion. In this regard, it must be
recalled that under the reasonableness standard of review, reasons need not be
perfect or follow any particular form as long as they allow the parties and the
reviewing court to understand why a decision was made (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 16, [2011] 3 S.C.R. 708). Here, as the above quotations
demonstrate, it is clear that it was the combination of the claimant’s race or
nationality and perceived political opinion, acquired as a result of his background
and presence on the M/V Ocean Lady, that led the Board to find him to be
a Convention refugee.
[37]
Upholding the Board’s decision on this basis is
in line with the decision of the Supreme Court in Ward. There, the
Supreme Court dismissed the argument that the claimant was a refugee on the
basis of membership in a particular social group, namely, for being a former
member of the Irish National Liberation Army. However, the Court found the
claimant to have a well-founded fear of persecution based on political opinion,
even though this ground had not been raised either before the Board or the
Federal Court of Appeal (at 745, cited to SCR). Therefore, Ward
establishes that where the facts support a well-founded fear of persecution
based on political opinion, a reviewing court is free to consider that ground
even if the parties had framed the issue in the context of membership in a
particular social group.
[38]
Thus, the Board’s determination that there was a
nexus to a ground in the Refugee Convention is reasonable.
[39]
Tuning, next, to the Board’s factual findings
regarding the likelihood of risk for the claimant, there were multiple pieces
of evidence before the Board upon which it premised its risk determination.
These included:
▪ Articles from various media outlets covering the
arrival of the M/V Ocean Lady to Canadian shores (at pp 924-27 of the
Certified Tribunal Record [CTR]), which commented on how the RCMP was receiving
“good co-operation from Sri Lankan officials” (at p 924 of the CTR) and
reported that one of the 76 migrants aboard was suspected to be involved with
the LTTE (at p 927 of the CTR);
▪ Articles from various media outlets linking the M/V
Sun Sea and M/V Ocean Lady to the LTTE (CTR at pp 928, 933-39),
including an article in the Toronto Star where the then Minister of Public
Safety and Emergency Preparedness was quoted as having stated that the LTTE
“are behind operations to smuggle people into Canada” (CTR at p 936);
▪ Articles from various media outlets indicating
that Canadian officials had communicated with Sri Lankan authorities about the M/V
Sun Sea and M/V Ocean Lady (CTR at pp 924, 926, 941);
▪ An expert report opining that the widespread media
coverage branding the passengers of the M/V Sun Sea and M/V Ocean
Lady as terror threats, the Canadian government’s communication with the
Sri Lankan authorities and the work of Tamil groups outside of Sri Lanka have
put the passengers at risk should they be returned to Sri Lanka (CTR at pp
173-82); and
▪ Reports from the United Nations High Commissioner
for Refugees, the United Kingdom Border Agency, the Canada Border Services
Agency and Amnesty International indicating that people suspected of having
links to the LTTE who return to Sri Lanka risk abuse and torture at the hands
of the Sri Lankan authorities (CTR at pp 296-98, 594, 621, 789).
[40]
This case is therefore fundamentally different
from B380, decided by the Chief Justice, as here, unlike there, the RPD
had before it multiple pieces of evidence that support its factual findings,
which, accordingly, are reasonable.
[41]
As the Board’s decision in this case was based
on a reasonable determination of there being a nexus to a ground enumerated in
the Refugee Convention and as its factual findings related to there
being a reasonable chance that the claimant would be persecuted if returned to Sri Lanka are reasonable, the decision in this case must be upheld. This application for
judicial review will accordingly be dismissed.
[42]
No question for certification under section 74 of
the IRPA was proposed by the parties and none arises in this case as my
determination is tied to the evidence before the RPD and to the way in which
the decision in this case was drafted.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1. This
application for judicial review is dismissed;
2. No
question of general importance is certified;
3. There
is no order as to costs.
"Mary J.L. Gleason"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-8485-12
STYLE OF CAUSE: The
Minister of Citizenship and Immigration v A068
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: May 15, 2013
REASONS FOR
JUDGMENT
AND JUDGMENT: GLEASON J.
DATED: November 6, 2013
(Confidential version released)
November
19, 2013 (Public version released)
APPEARANCES:
|
Alexis Singer
Nicole
Paduraru
|
FOR THE APPLICANT
|
|
Kumar
Sriskanda
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
William F.
Pentney
Deputy
Attorney General of Canada
Toronto, Ontario
|
FOR THE APPLICANT
|
|
Kumar S.
Sriskanda
Barrister
& Solicitor
Scarborough, Ontario
|
FOR THE RESPONDENT
|
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