Date:
20130225
Docket:
IMM-7816-12
Citation:
2013 FC 151
Ottawa, Ontario,
February 25, 2013
PRESENT: The
Honourable Mr. Justice Harrington
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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B472
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Respondent
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PUBLIC REASONS
FOR ORDER
(Identical to Confidential
Reasons for Order Issued February 12, 2013)
HARRINGTON J.
[1]
Mr.
B472, a young Tamil, left Sri Lanka as an economic migrant. He arrived here in Canada as a refugee within the meaning of the United Nations Convention Relating to the
Status of Refugees. Why? – because of how he got here. He was one of the
close to 500 passengers on the M.V. “Sun Sea”, a ship which has gained
considerable notoriety in Canada and in Sri Lanka. He was found to be a
liar; that there was no serious risk of his being persecuted when he left Sri Lanka. Furthermore, he had done nothing while in Canada to draw himself to the
attention of Sri Lankan authorities. However, a terrorist organization,
the Liberation Tigers of Tamil Elam [LTTE] may have organized the “Sun Sea”’s fateful voyage. Thus, even though the deciding member of the Refugee Protection
Division [RPD] of the Immigration and Refugee Board found he had no LTTE
affiliations prior to his departure, his status as a passenger on board the “Sun Sea” raised that issue and exposed him to a serious possibility of persecution should
he be returned to Sri Lanka. Consequently, in the “determination” section
of her reasons, the member wrote:
I find the claimant is a Convention refugee because
he has a well-founded fear of persecution based on his particular social group,
pursuant to s. 96 of the Act.
[2]
Thus
he was found to be a refugee sur place. This judicial review is brought
on by the Minister who submits that it was unreasonable to find that the Tamil
passengers on board the M.V. “Sun Sea” were a “particular social group” for the
purposes of section 96 of the Immigration and Refugee Protection Act
[IRPA] and that the wrong standard of proof was used in the Board’s findings of
fact. It should have used the “balance of probabilities” standard rather than
the “serious possibility” standard.
[3]
In
accordance with section 96 of the IRPA, a Convention refugee is one who has a
well-founded fear of persecution “for reasons of race, religion, nationality,
membership in a particular social group or political opinion…” Section 96 is to
be contrasted with section 97 which gives protection to persons who are not
Convention refugees, but if returned to their country would be personally
subjected to a danger of torture or to a risk to life or to a risk of cruel and
unusual treatment or punishment.
[4]
The
standard of proof differs. Under section 96 the burden is on the claimant to
establish a reasonable chance of persecution, which is something less than the
balance of probabilities (Adjei v Canada (Minister of Employment and
Immigration), [1989] 2 FC 680, [1989] FCJ No 67 (QL)). However, under
section 97 the applicant must make out a case on the balance of probabilities (Li
v Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3
FCR 239, [2005] FCJ No 1 (QL)).
I. ISSUES
[5]
The
issues in this judicial review are:
a.
What
is the standard of review?
b.
If
the standard of review is correctness, is the decision correct?
c.
If
the standard of review is reasonableness, is the decision unreasonable?
II. DECISION
- Standard
of Review
[6]
The
RPD found not only that there was no serious possibility of persecution when
Mr. B472 left Sri Lanka, but also that, on the balance of probabilities, he was
not at risk of torture, to his life, or of cruel and unusual treatment or
punishment. Although reference was made in the decision to the rather
ambivalent attitude of the Sri Lankan authorities toward torture, the decision
was based strictly on section 96, to the exclusion of section 97. Thus, the
standard of review is crucial to this case. There may be more than one
reasonable interpretation of sections of IRPA, but there can only be one
correct interpretation. The decision-maker found Mr. B472 to be a refugee sur
place. On the same facts, other decision-makers at the Board have held the
contrary. Thus, it may well be a matter of chance whether one is allowed to
stay in Canada or not. I was also told during the hearing that one stood a
better chance at being found a refugee sur place if the hearing took
place in Vancouver rather than in Toronto.
[7]
Prior
to the Supreme Court’s decision in Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, [2008] SCJ No 9 (QL), this Court showed no
deference to the Immigration and Refugee Board on questions of law, even if
they were related to its home statute, IRPA, or related statutes.
[8]
Dunsmuir held
at paragraph 54 that “deference will usually result where a tribunal is
interpreting its home statute or statutes closely connected to its function,
with which it will have particular familiarity: - -” However, it went on to say
an exhaustive analysis was not necessary in every case in which the proper
standard of review was in issue as existing jurisprudence might prove helpful
in determining questions that generally fall to be determined according to the
correctness standard. One has to take into account whether the question is one
of general law that is both of central importance to the legal system as a
whole and outside the adjudicator’s special area of expertise.
[9]
The
court concluded at paragraph 62:
In summary, the process of judicial review involves two steps. First, courts
ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a
particular category of question. Second, where the first inquiry proves
unfruitful, courts must proceed to an analysis of the factors making it
possible to identify the proper standard of review.
[10]
Since
then, the Supreme Court may well have hardened its view against the correctness
standard. In Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, [2011] SCJ No 61 (QL) at
paragraph 39, Mr. Justice Rothstein stated:
When considering a decision of an administrative tribunal
interpreting or applying its home statute, it should be presumed that the
appropriate standard of review is reasonableness.
[11]
It
is not beyond the realm of possibility that some provisions of a “home” statute
are to be interpreted on a reasonableness standard, while others may be
interpreted on a correctness standard. In Febles v Canada (Minister of
Citizenship and Immigration), 2012 FCA 324, [2012] FCJ No 1609 (QL),
Mr. Justice Evans, with whom Madam Justice Sharlow concurred, held that
correctness was the standard of review applicable to the RPD’s interpretation
of Article 1F (b) of the United Nation Convention, which is incorporated
into IRPA via section 98. The Minister had submitted that it was unnecessary for
the Court to decide the issue, as the appeal must fail irrespective of which
standard of review applied. However, Mr. Justice Evans took note of the fact
that the application judge had applied the reasonableness standard while in the
companion case of Feimi v Canada (Minister of Citizenship and Immigration),
2012 FC 262, [2012] FCJ No 506 (QL), the correctness standard was applied. He
was of the view that such uncertainty was sufficient reason to decide which
standard applied. In applying the correctness standard, he said at paragraphs
24 and 25:
[24] I agree with Mr Febles that the
normal presumption that reasonableness is the standard of review applicable to
tribunals’ interpretation of their enabling statute does not apply in this
case. Article 1F (b) is a provision of an international Convention that
should be interpreted as uniformly as possible: see, for example, Jayasekara
at para. 4. Correctness review is more likely than reasonableness review to
achieve this goal, and is therefore the standard to be applied for determining
whether the RPD erred in law by interpreting Article 1F (b) as precluding
consideration of Mr Febles’ post-conviction rehabilitation and his present
dangerousness. Further, the interpretation of Article 1F (b) does not give rise
to any ambiguity.
[25] Accordingly, the prior jurisprudence
of this Court applying the correctness standard of review to the RPD’s
interpretation of Article 1F (b) should be regarded as having satisfactorily
resolved the issue: Dunsmuir para. 62.
[12]
In
his concurring set of reasons, Mr. Justice Stratas agreed with the Minister
that the standard of review need not have been determined in that case. He was
not prepared to ascribe to the view that the need for uniformity in the
interpretation of Article 1F (b) necessarily favoured the correctness standard
of review.
[13]
This
leads me to recent decisions of this Court. In Dufour v Canada (MCI), 2012 FC 580, [2012] FCJ No 588 (QL), Mr. Justice Shore, relying on Dunsmuir,
was of the view that the degree of deference to be given to the Board’s
interpretation of provisions of IRPA had already been determined in a
satisfactory manner and concluded that the standard of review was correctness.
[14]
In
Portillo v Canada (Minister of Citizenship and Immigration), 2012 FC 678,
[2012] FCJ No 670 (QL), Madam Justice Gleason carried out an extensive review
of Federal Court jurisprudence which waffles between the two standards. It was
not necessary for her to reach any conclusion in that case as the decision was
unreasonable in any event.
[15]
She
noted that in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339, an IRPA case, Mr. Justice Binnie stated at paragraph 44
that errors of law were generally governed by the correctness standard as
per Mugesera v Canada (Minister of Citizenship and Immigration), 2005
SCC 40, [2005] 2 S.C.R. 100, [2005] SCJ No 39 (QL).
[16]
She
also referred to the decision of the Supreme Court in Canadian Human Rights
Commission v Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, [2011]
SCJ No 53 (QL). Messrs Justices LeBel and Cromwell, who wrote for the court,
stated at paragraph 21 that:
At this point, we must acknowledge a degree of tension between
some policies underpinning the present system of judicial review, when it
applies to the decisions of human rights tribunals.
[17]
After
referring to the fact that administrative tribunals are generally entitled to
deference, they continued:
On the other hand, our Court has reaffirmed that
general questions of law that are both of central importance to the legal
system as a whole and outside the adjudicator’s specialized area of expertise,
must still be reviewed on a standard of correctness, in order to safeguard
a basic consistency in the fundamental legal order of our country.”
[18]
On
the other hand, another judicial review of a decision in which a “Sun Sea”
passenger was found to be a refugee sur place, is that of Chief Justice
Crampton in Canada (Minister of Citizenship and Immigration) v B380,
2012 FC 1334, [2012] FCJ No 1657 (QL). Basing himself on Dunsmuir
and Alberta Teachers, and concluding that the question of the
interpretation of IRPA did not involve issues of central importance to the
legal system that were outside the Board’s expertise, he applied the
reasonableness standard of review. He also concluded that the member in
question, who is not the decision-maker in this case, interpreted “membership
in a particular social group” unreasonably.
[19]
Subsequent
to that case, Madam Justice Snider rendered two decisions concerning passengers
on the Sun Sea who were not granted refugee sur place status: P.M. v
Canada (Minister of Citizenship and Immigration), 2013 FC 77, and S.K. v
Canada (Minister of Citizenship and Immigration), 2013 FC 78. In both she
applied the reasonableness standard of review.
[20]
With
this difference of opinion within our Court, there is no scope for the concept
of comity. I shall make my own determination.
[21]
In
addition to Mugesera, above, the Supreme Court also applied the
correctness standard in Chieu v Canada (MCI), 2002 SCC 3, [2002] 1 SCR
84, [2002] SCJ No 1 (QL), which led the Federal Court of Appeal to apply the
same standard in Nazifpour v Canada (MCI), 2007 FCA 35, [2007] FCJ No
179 (QL). To name but one other case, in Azizi v Canada (MCI), 2005 FC
354, [2005] FCJ No 436 (QL), affirmed 2005 FCA 406, [2005] FCJ No 2041 (QL),
Mr. Justice Mosley applied the correctness standard to an interpretation of the
Immigration and Refugee Protection Regulations.
[22]
In
my opinion, like Mr. Justice Shore in Dufour, the standard of review in
this case as applied to sections 96 and 97 of IRPA is correctness. Section 96
gives effect to the United Nations Convention Relating to the Status of
Refugees. Such persons are ones “who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion… [are] at risk in their home
countries.” We are dealing with fundamental human rights.
[23]
In
the matter at hand, the reasonable possibility rule of evidence was applied,
not the balance of probabilities.
[24]
The
case turns on the legal definition of “membership in a particular social group”
within the meaning of section 96 of IRPA. As noted by the Chief Justice in B380,
above, the cornerstone case is Canada (AG) v Ward, [1993] 2 SCR
689, [1993] SCJ No 74 (QL). Although non-exhaustive, there are three categories
of groups:
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.
[25]
The
narrow group in that case, as in this, is one associated by a former voluntary
status, inalterable due to its historical permanence.
[26]
At
paragraph 23, Chief Justice Crampton went on to hold that the historical fact
of having come together voluntarily in a particular way for the purpose of
travelling to Canada to seek refugee status was not a sufficient basis
upon which to become a member of a “particular social group” within the meaning
of section 96. Otherwise, every group of people including a small family who
came together for that purpose would have a nexus to section 96 and the words “race,
religion, nationality -- or political opinion” would be superfluous. I agree.
[27]
The
“Sun Sea”’s passengers had a myriad of motives to come to Canada. Some were human smugglers. Some may well have been terrorists. Some were garden-variety
criminals who wanted to escape justice. Some had serious reason to fear
persecution in Sri Lanka and some, like Mr. 472, were economic migrants.
There is no cohesion or connection to the other refugee grounds set out in
section 96 of IRPA.
[28]
In
this case, the reasons given by the member are much more fulsome than in B380.
It may well be that B472 faces a serious risk of persecution were he to be
returned to Sri Lanka, but not because of his membership in a particular social
group, the Tamil passengers on the ship. Counsel made a valiant effort to
point out that there are passages in the member’s reasons which could support a
finding based on a combination of section 96 risks. This may be so, but I am
not prepared to rewrite the reasons.
[29]
The
member specifically did not deal with section 97 of IRPA and its balance of
probabilities standard of proof test. The Board having erred in its
interpretation of section 96, I can only grant judicial review and refer the
matter back to the Refugee Protection Division of the Immigration and Refugee
Board for redetermination.
- Certified
Question
[30]
No
question was certified in Dufour, Portillo, B380, P.M. or
S.K. The United Nations Convention is grounded in the Universal
Declaration of Human Rights. In Pushpanathan v Canada (MCI), [1998]
1 SCR 982, [1998] SCJ No 46 (QL), the Supreme Court held that the
correctness standard applied to the interpretation of a Convention refugee
definition. Is the law now such that the fundamental right of freedom from
persecution depends, first of all, on which member of the Refugee Protection
Division of the Immigration and Refugee Board hears the case, and then on which
judge of this Court hears the judicial review thereof? I say not.
[31]
Although
encouraged to do so at the hearing, neither party wishes to propose a certified
question which would allow an appeal to the Federal Court of Appeal. However,
the Minister went on to submit that if I were inclined to certify a question,
which I certainly am, the appropriate wording should be as follows:
What is the standard of review of the Refugee
Protection Division’s finding that “Tamil passengers on the M.V. “Sun Sea” comprise a “particular social group” for the purposes of section 96 of the Immigration
and Refugee Protection Act?
[32]
However,
I think the question should be somewhat broader. I shall certify the following
serious question of general importance:
Is review by this Court of the meaning of
“membership in a particular social group” in section 96 of the Immigration
and Refugee Protection Act as determined by a member of the Refugee
Protection Division of the Immigration and Refugee Board on the correctness or
reasonableness standard?
[33]
In
my opinion, such a judicial review is based on the correctness standard. I say
this because who comes and who goes is fundamental and central to the Canadian
way of life. Legislation does not impose any requirement that members of the
RPD have particular legal expertise. In speaking of the Immigration Division of
the Immigration and Refuge Board of Canada in Canada (Minister of Citizenship
and Immigration) v Thanabalasingham, 2003 FC 1225, affirmed, 2004 FCA 4,
Madam Justice Gauthier, as she then was, said at paragraph 43: “Thus, on questions of
law, this tribunal has little expertise compared to the Federal Court of Canada
and there appears to be no particular reason to accord any deference.” I agree.
[34]
In
my opinion, the qualified right of non-citizens to enter or to remain in Canada is to be determined on principles of fundamental justice, see Canada (Minister of
Employment and Immigration) v Chiarelli, [1992] 1 S.C.R. 711, [1992] SCJ No 27
(QL).
“Sean Harrington”
Ottawa, Ontario
Confidential
Reasons for Order dated February 12, 2013
Public
Reasons for Order (Identical to Confidential Reasons for Order) dated February
25, 2013
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