Date:
20130429
Docket:
IMM-9542-12
Citation:
2013 FC 441
Ottawa, Ontario, April 29, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
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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B451
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the
Refugee Protection Division [RPD] of the Immigration and Refugee Board, dated August
31, 2012, granting the Respondent refugee status.
I. Facts
[2]
The
Respondent is a Tamil male from Meesalai, a city located in the north of Sri Lanka. He worked as a tailor at a shop in Maruthanarmadam.
[3]
He
fears returning to Sri Lanka because of the Sri Lankan armed forces and aligned
paramilitary groups.
[4]
In
July 2006, the Liberation Tigers of Tamil Eelam [LTTE] detonated a bomb about
fifteen meters from the Respondent’s shop. It killed many officers. The
Respondent was interrogated about his knowledge of the bomb, was detained,
beaten and was frequently questioned even after being released.
[5]
After
this incident, the Respondent closed his shop and went to work for his father
on the family farm until the following January, when he left to work for
another tailor.
[6]
The
authorities detained the Respondent in October 2008 and asked him whether he
has connections to the LTTE. He was slapped and threatened during the
detention. In May 2009, his brother disappeared and is presumed dead.
[7]
The
Respondent continued to be questioned. In January 2010, he was ordered to
report to a military camp for questioning. As he was fearful of doing so, his
family advised him to flee so he went to Colombo and sought the services of an
agent.
[8]
In
February 2010, the Respondent found an agent who told him about a ship destined
for Canada. He flew to Thailand in April 2010, boarded the MV Sun Sea in
June 2010 and arrived in Canada in August 2010, where he immediately claimed
refugee protection.
II. Decision
under review
[9]
While
the RPD noted that the Respondent’s Tamil ethnicity had been established, it
did not find the Respondent’s story to be credible. The RPD determined that it
was not credible for the Respondent to have been requested to report to an army
camp, and yet decide to go to Colombo and not be intercepted at one of the
numerous checkpoints by the police on his way. Moreover, the RPD did not find
the Respondent credible in regard to being able to flee Sri Lanka by using his own passport without being arrested. His explanation of having paid
a bribe to leave Sri Lanka was rejected by the RPD as this information was not
included in his Personal Information Form.
[10]
The
RPD however did ultimately find the Respondent to be a Convention refugee
because his fear of persecution was based on his membership to a particular
social group. The RPD found that since the Respondent was a passenger on the MV
Sun Sea, he was therefore part of a group associated by a former
voluntary status, unalterable due to its historical permanence.
[11]
The
RPD found that as the agents of persecution are representatives of the Sri
Lankan government, the Respondent does not have state protection or an internal
flight alternative available to him.
[12]
The
Sri Lankan government still has an interest in identifying LTTE members and
supporters despite the fact that the conflict ended in 2009. Moreover, it is
reported that Tamils continue to be harassed by security officers and that
detentions are still being carried out. The evidence shows that those suspected
of having LTTE affiliation are still at risk of enforced disappearances and
torture.
[13]
As
LTTE sympathizers and members were on the ship, the RPD determined that every
passenger on the MV Sun Sea is linked in some way to the LTTE as they
lived among militants for several months. If returned to Sri Lanka, the Respondent would be known as a passenger on the MV Sun Sea, which
might lead to his persecution as some returnees are believed to have been
tortured.
[14]
The
RPD therefore granted the Respondent refugee protection as he faces a serious
possibility of persecution by the Sri Lankan government.
III. Applicant’s
submissions
[15]
The
Applicant submits that the RPD erred in finding that the Respondent faces a
risk of persecution as a member of the particular social group of Tamil
passengers on the MV Sun Sea. The Applicant argues that none of the
three categories recognized in Ward
v Canada (Attorney General),
[1993] 2 S.C.R. 689 at 739, 20 Imm LR (2d) 85 are
applicable to this case as the Respondent is not part of a group defined by an
innate or unchangeable characteristic, a group whose members voluntarily
associate for reasons fundamental to their human dignity or a group associated
by a former voluntary status, unalterable due to its historical permanence.
[16]
The
Applicant also submits that the RPD erred in determining that every passenger
on the MV Sun Sea is linked in some way to the LTTE, if only because
they were on an LTTE ship because such a conclusion disregards the personal
circumstance of every claimant. The Applicant also points out that there is no
evidence that the Sri Lankan authorities consider all passengers of the MV
Sun Sea as LTTE members.
[17]
Second,
the Applicant alleged that the RPD ignored key evidence such as a Canada Border
Services Agency [CBSA] Intelligence Report which states that Canada and the International Organization for Migration [IMO] signed an Assisted Voluntary Return
Agreement in which the IMO is to facilitate voluntary return of irregular Sri Lanka migrants from Africa to Colombo. The report also cites cases where the Canadian Liaison
Office attended the Colombo airport to monitor the arrival of returnees.
Sixty-six of them were returnees who left Sri Lanka with the assistance of a
smuggler having links with the LTTE. They were all released in a timely manner.
[18]
The
Applicant also alleges that the RPD disregarded evidence to the effect that 11
000 former LTTE combatants have been released since September 2011.
[19]
Finally,
the Applicant submits that the RPD erred in concluding that the Respondent
would be considered linked to the LTTE as he was a passenger on the MV Sun
Sea and therefore would have lived among LTTE militants. Indeed, the
evidence demonstrated that no such link exists nor did he appear to be a
supporter of the LTTE.
IV. Respondent’s
submissions
[20]
First,
the Respondent submits that the RPD correctly determined that the Respondent
faces a risk of persecution because he was a passenger on the MV Sun Sea,
which was an LTTE operation and that several LTTE members were traveling on
board. The Sri Lankan authorities would find that he had LTTE affiliations and
therefore he is a member of a particular social group for the purposes of
section 96 of the IRPA. Moreover, LTTE affiliation also falls within the
definition of “political opinion.”
[21]
Second,
the Respondent argues that the RPD did not ignore any relevant evidence. The
CBSA Intelligence Report was reviewed by the RPD, as there is a presumption
that all evidence put before the RPD will be considered. Moreover, the present
case is different than that of the failed refugee claimants who came back as
they were not suspected of being linked to the LTTE and there is no evidence
that the same kind of monitoring would occur in the present case. Indeed, the
RPD had evidence, which was not contested by the Applicant, that one of the
passengers of the MV Sun Sea who was returned to Sri Lanka was detained, questioned and tortured.
[22]
As
for the document that has been ignored by the RPD and that states that
thousands of LTTE cadres have been released, it has been considered as the RPD
specifically referred to the said document in its decision. Moreover, there is
a lot of evidence that points to a risk of persecution and torture by Sri
Lankan authorities.
V. Applicant’s
reply
[23]
The
Applicant submits that the Respondent did not provide evidence to show that he
did not oppose the filing of evidence related to another MV Sun Sea
passenger. Moreover, in any event, the RPD did not rely on such evidence.
[24]
The
Applicant submits that it has been recognized in Canada (Minister of
Citizenship and Immigration) v B380, 2012 FC 1334, 224 ACWS (3d) 177 [B380] that the RPD committed an
error in considering that another passenger of the MV Sun Sea was a
Convention refugee as Tamil males on board the MV Sun Sea cannot
constitute a “particular social group” within the meaning of section 96 of the
IPRA.
[25]
Finally,
it has been recently decided in S.K. v Canada (Minister of Citizenship and
Immigration), 2013 FC 78, 2013 CarswellNat 207 that the fact that the Sri
Lankan’s speech on the MV Sun Sea passengers is on the government’s
website does not demonstrate that it reflects their current view.
VI. Issues
1.
Did the RPD err in determining that the Respondent is a member of a
particular social group subject to persecution?
2. Did the
RPD fail to consider key elements of evidence?
VII. Standard
of review
[26]
As
both parties suggested, the two issues are to be reviewed under a standard of
reasonableness since they raise questions of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 S.C.R. 190). Furthermore,
as this Court will address the sufficiency and intelligibility of the reasons,
the same standard of reasonableness is applicable (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 22, 340 DLR (4th) 17 [Newfoundland Nurses] but also Dunsmuir,
above at para 47).
VIII. Analysis
[27]
In
order to make a nexus finding relating to the notion of “membership in a
particular social group” pursuant to section 96 of the IRPA, the RPD should
take in consideration “the general underlying themes of the defence of human
rights and anti-discrimination” (see Ward, above at 739 and Chan v Canada (Minister of Employment
and Immigration), [1995] 3 S.C.R. 593 at paras 82-83, 128 DLR (4th) 213).
Simply having been a Tamil passenger on the MV Sun Sea, as established
by the Chief Justice in B380, above at para 16, does
not fall within the meaning of membership in a particular social group of
section 96 of the IRPA. There must be a sufficient evidentiary foundation to
support such a finding, including consideration of factors concerning human
rights and discrimination. Without such a basis, there is no support for a
finding of membership in a particular social group.
[28]
The Respondent
retorts that a reading of the decision as a whole shows that the RPD found that
there was more than a “serious possibility” that the Respondent would be
persecuted when returned to Sri Lanka because his status as a former passenger
on the MV Sun Sea would lead the Sri Lankan government to believe that
he is linked to the LTTE given that the Secretary of Defence has stated that
migrants on the MV Sun Sea included “hardcore LTTE” members and “LTTE
cadres.” In the Respondent’s view, the nexus finding is based on his “perceived
LTTE membership or affiliation” and is not restricted to his status as a former
MV Sun Sea passenger. The Respondent suggests that having links to the
LTTE is sufficient not only to meet the legal definition of membership in a
particular social group but also sufficient to meet the legal definition of
“political opinion,” another convention ground pursuant to section 96 of the
IRPA (see Respondent’s Submissions at paragraphs 5 and 7).
[29]
I cannot ascribe
to the Respondent’s interpretation of the RPD’s decision. The RPD’s finding is
as follows:
Second, the claimant
was a passenger on the MV Sun Sea, a fact not in dispute. I find that on his unalterable,
historical connection to this ship makes him a member of a particular social
group: Tamil passengers on the MV Sun Sea. Accordingly, I have analyzed his
claim under s. 96 of the Act
[…]
For these reasons, I
find that every passenger on the MV Sun Sea is linked in some way to the LTTE,
if only because they were on a LTTE ship.
(See RPD’s decision at
paras 27 and 35.)
[30]
At no time does
the RPD discuss the necessary consideration to be given to human rights or
discrimination matters nor does it explain why the Respondent, as a former
passenger of the MV Sun Sea is part of a group associated by a former
voluntary status, unalterable due to its historical permanence. The RPD’s decision makes disparate findings on the
interest of the Sri Lanka government in identifying LTTE members and
supporters, on the ethically questionable methods when dealing with individuals
suspected of being LTTE members and supporters, on the part of the government,
on the Sri Lanka government linking the MV Sun Sea to the LTTE and on
the possibility that the Respondent be a person of interest to Sri Lankan
authorities upon return.
[31]
The RPD indicates in
its decision that the findings are cumulative but it does not relate them to
legal considerations to be given to a finding of membership in a particular
social group or, as submitted by the Respondent, to a political opinion nexus
pursuant to section 96 of the IRPA.
[32]
In this case, the RPD
failed to make the necessary factual findings with the applicable legal
rationale to justify its findings of membership in a particular social group or
a determination of political opinion.
[33]
As
determined by the Supreme Court of Canada in Newfoundland Nurses, above,
reviewing Courts must show deference to the reasons of administrative tribunals.
Indeed, a reviewing Court must carefully read the decision as a whole and
review the evidence presented by both parties before determining whether the
reasons given by the administrative body are reasonable. In some cases, when
the evidence allows, it must even read beyond that is specifically written and
look at the context of the decision and the evidence as a whole.
[34]
With
these considerations in mind, I have carefully read the reasons and reviewed
the evidence submitted to the RPD in order to gain a proper and in-depth
understanding of the reasons as well as the conclusions. I have also taken in
consideration the submissions, with particular attention paid to the
Respondent's counsel suggested interpretation of the RPD’s decision.
[35]
I
am of the view that the Respondent’s counsel suggested interpretation of the
RPD’s decision is not supported by the evidence. While it may well be that what
is proposed by counsel would result in a proper, legal determination of
membership in a particular social group or a finding of nexus to political
opinion ground pursuant to section 96 of the IRPA, I do not find it to be the
case. Unlike
this Court’s decision in Canada
(Minister of Citizenship and Immigration) v B399, 2013 FC 260 at para 19, 2013
CarswellNat 532, in the present case, the RPD’s reasons do not support the Respondent’s
argument that the RPD’s conclusion relied on more than his membership in a
particular social group.
[36]
I
do not read in the RPD’s reasons a proper legal foundation for a finding of
membership in a particular social group, despite the RPD finding it be to a
valid nexus, nor do I see any basis to establish a nexus to political opinion
ground, as suggested by the Respondent.
[37]
The
reasons include more than six findings as seen earlier but at no time does the
RPD relate one of them to necessary legal considerations of a determination
based on membership in a particular social group. This Court cannot speculate
as to what was the rationale of the RPD’s decision in this case. There is an
absence of linkage and there is no possibility of establishing one. This
renders the decision unreasonable.
[38]
As
for the second issue regarding the RPD’s alleged failure to consider key
evidence, I find it unnecessary to deal with this issue given the above
determination. I would however like to point out that the following pieces of
evidence: (1) the full speech of the Sri Lanka Secretary of Defence dated
August 2011 linking the MV Sun Sea to the LTTE and the considerable
number of “LTTE cadres” on the ship and (2) the sworn affidavit of an
immigration consultant dated January 30, 2012 stating that one passenger of the
MV Sun Sea who returned to Sri Lanka was detained and tortured since the
summer of 2011 were before the RPD, Such pieces of evidence ought to be
considered when assessing the situation of a MV Sun Sea passenger
returning to his home country
[39]
The
parties did not propose questions for certification, therefore, none will be
certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that the judicial
review of the RPD decision dated August 31, 2012 is granted and the matter
shall be returned to a different panel for consideration. No question for
certification will be certified.
“Simon Noël”
_____________________________
Judge
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