Date:
20130225
Docket:
IMM-6600-12
Citation:
2013 FC 190
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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B323
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Respondent
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REASONS
FOR ORDER AND ORDER
HARRINGTON J.
[1]
Mr.
B323, a young Tamil from Sri Lanka was found to be a refugee sur place within
the meaning of the United Nations Convention and section 96 of the Immigration
and Refugee Protection Act [IRPA] “because he has a well-founded fear of
persecution based on his particular social group.” He was one of the close to
500 passengers onboard the M.V. “Sun Sea”. This is the judicial review of that
decision at the behest of the Minister.
[2]
This
case is remarkably similar to the Canada (Minister of Citizenship and
Immigration) v B472, 2013 FC 151. Like Mr. B472, Mr. B323 was not found to
be credible and did not face a serious possibility of persecution based on a
Convention ground when he left Sri Lanka. However, he was found to be a
Convention refugee sur place because of his “membership in a particular
social group”, that group being Tamil passengers on the M.V. “Sun Sea”.
[3]
The
determination that Mr. B323 is a Convention refugee is crucial because the
deciding member of the Refugee Protection Division (RPD) of the Immigration and
Refugee Protection Board of Canada, the same member who decided Mr. B472’s
case, also held that he did not, on the balance of probabilities, face a risk
to life or risk of cruel or unusual treatment of punishment in accordance with
section 97 of IRPA when he left Sri Lanka.
[4]
My
reasoning in B472 applies to this case, mutatis mutandis.
[5]
As
to a certified question, based on the standard of review, neither side sees the
need for me to certify a serious question of general importance so that the
matter may go forward to the Federal Court of Appeal. This is so
notwithstanding that the Minister submits that the standard of review in the
interpretation of section 96 is reasonableness, while Mr. B323 submits the
standard is correctness. The Minister submits that the decision is
unreasonable. Mr. B323 submits that the decision was correct, adding that the
member of the RPD referred to other Convention grounds as well. However, as in B472’s
case, I am not prepared to rewrite the decision.
[6]
As
a fall back, the Minister proposed the same question he did in Mr. B472’s case.
For the reasons stated therein, I shall certify the following question:
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?
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
application for judicial review is granted.
2.
The
matter is referred back to another member of the Refugee Protection Division of
the Immigration and Refugee Board of Canada for redetermination.
3.
The
following serious question of general importance is certified:
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?
“Sean
Harrington"
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