Date:
20130606
Docket:
IMM-11021-12
Citation:
2013 FC 580
Ottawa, Ontario,
June 6, 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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A011
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Respondent
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PUBLIC REASONS FOR
ORDER AND ORDER
(Confidential reasons for order
issued 30 May 2013)
[1]
When
A011, a Tamil male, left Sri Lanka, he did not face a serious risk of
persecution. However, because he came to Canada on the Ocean Lady, a precursor
to the Sun Sea, he was found by the Refugee Protection Division [RPD], of the Immigration
and Refugee Board of Canada [IRB], to be a refugee sur place. The Minister
seeks judicial review of that decision.
[2]
As
far as I am aware, this is the sixth decision of Lucinda Bruin, RPD Member, in
which the Minister has obtained leave to seek judicial review of her findings
that Tamil passengers on the Ocean Lady or the Sun Sea became refugees sur
place. In all six, her analyses were identical. In two, the Minister succeeded.
In three, he did not.
[3]
In
Canada (Minister of Citizenship and Immigration) v B472, 2013 FC 151, [2013]
FCJ No 192 (QL), I was of the opinion that refugee status was granted on the
basis of the applicant facing persecution as a member of a “particular social
group” within the meaning of s. 96 of the Immigration and Refugee Protection
Act [IRPA]. I held that the standard of review was correctness, and that
the decision was incorrect. I certified the standard of review as a serious
question of general importance which would support an appeal to the Federal
Court of Appeal. No appeal was taken.
[4]
I
came to the same conclusion in Canada (Minister of Citizenship and
Immigration) v B323, 2013 FC 190, [2013] FCJ No 193 (QL). I certified the
same question, but again no appeal was launched.
[5]
However,
in The Minister of Citizenship and Immigration v B134, B130, B133,
B131 and B132, IMM-8010-12, by order dated 8 April 2013 Madam Justice
Hansen dismissed the Minister’s application. She held that the standard of
review was reasonableness and found that the decision that the applicants were
members of a particular social group was reasonable.
[6]
In
Canada (Minister of Citizenship and Immigration) v B377, 2013 FC 320, [2013]
FCJ No 522, again based on the same analysis, Mr. Justice Blanchard held that the
passenger was not a member of a particular social group. However, he upheld the
refugee determination based on mixed motives, particularly ethnicity, one of
the nexus which brings s. 96 of IRPA into application.
[7]
In
Canada (Minister of Citizenship and Immigration) v B344, 2013 FC 447, [2013]
FCJ No 547 (QL), Mr. Justice Simon Noël, again based on the same analysis,
concluded that the respondent’s Tamil ethnicity was a prime contributing factor
and held, based on the mixed motives doctrine, that the decision was
reasonable, and so dismissed the Minister’s application.
[8]
No
question was certified in B134, B377 or B344.
[9]
I
am now faced with the very same analysis by Ms. Bruin. The only difference is
that A011 was a passenger on the Ocean Lady, rather than the Sun Sea.
[10]
All
I can say is that we have come to a very sad state of affairs. Depending on the
member of the RPD who decides the case, a passenger may or may not be found to
be a refugee sur place. Even if found to be a refugee sur place, the Minister’s
application for judicial review may or may not be granted. For instance, in Canada
(Minister of Citizenship and Immigration) v B380, 2012 FC 1334, [2012]
FCJ No 1657 (QL), Chief Justice Crampton concluded that the decision of the
member in question, whose reasons were not as fulsome as Ms. Bruin’s, was
unreasonable. Mr. Justice Simon Noël came to the same conclusion in Canada
(Minister of Citizenship and Immigration) v B451, 2013 FC 441.
[11]
In
my view, it is a great injustice that passengers on these two ships should be
treated so differently. There is no sound basis for predicting who will be welcomed
here as a refugee and who will be thrown out.
ISSUES
[12]
This
judicial review turns on the following four issues:
a.
What
was the basis for the decision that A011 is a refugee sur place?
b.
What
is a “particular social group” within the meaning of s. 96 of IRPA?
c.
Was
the decision reasonable?
d.
What
is the standard of review?
Why is A011 a
refugee sur place?
[13]
In
B472, I said that the Member’s decision was to be found in the “DETERMINATION”
section of her reasons where she 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.
[14]
Basing
myself on the detailed analysis carried out by Chief Justice Crampton in B380,
above, I agreed that male Tamil passengers on board the Sun Sea did not
constitute a particular social group protected by the United Nations Convention
and by s. 96 of the Immigration and Refugee Protection Act. The only difference
is that while Chief Justice Crampton found the decision to be unreasonable, I
found it to be incorrect in law.
[15]
In
B134 et al, on the same analysis by Ms. Bruin, Madame Justice Hansen
found the decision to be reasonable, and held that the standard of review was
reasonableness. She referred to the recent decision of the Federal Court of
Appeal in B010 v Canada (Minister of Citizenship and Immigration), 2013
FCA 87, [2013] FCJ No 322 (QL).
[16]
In
B377, Mr. Justice Blanchard also held that the applicable standard of
review was reasonableness. It is implicit in his reasons that a finding that
B377 was a member of a “particular social group” would be unreasonable.
However, his interpretation of the set of reasons was that the RPD conducted a
detailed mixed motives analysis, and that the fear of persecution was based, at
least in part, on Tamil ethnicity or race. Therefore, there was sufficient
evidence to support a motive based on a United Nations Convention ground (Gonsalves
v Canada (Attorney General), 2011 FC 648 and Veeravagu v Canada
(Minister of Employment and Immigration), [1992] FCJ No 468 (QL) (CA). He
added that the RPD’s conclusion with respect to political opinion was
problematic. Imputed knowledge, in this case knowledge of the Liberation Tigers
of Tamil Elam [LTTE] because they had organized the voyage of the Sun Sea, did
not necessarily lead to a finding of imputed political opinion.
[17]
In
B344, Mr. Justice Simon Noël, again on the same RPD analysis, basically
came to the same conclusion as Mr. Justice Blanchard. He also applied the mixed
motives approach. If at least one of the motives can be related to a United
Nations Convention ground, nexus to s. 96 may be established. He found the
RPD’s Tamil ethnicity nexus to be reasonable. He may have been a little more
ambivalent on the other nexus asserted, that of perceived political opinion.
[18]
In
the case before me, the Minister submits that Justices Blanchard and Simon Noël
have rewritten the RPD’s decision. All agree that the decision was extremely
well thought out and extremely well written. Consequently, this is not a case
where the reviewing court may look at the record to determine whether the
conclusion reached was reasonable, even if the rationale was wanting (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, [2011] SCJ No 62 (QL)). I agree.
[19]
In
all cases, the cover sheet on the IRB, RPD, letterhead is “Reasons and Decision
– Motifs
et décision”.
There are a number of headings within the reasons. One heading, in all cases,
is this:
DETERMINATION
[…] 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.
[20]
At
paragraph 13, she found a heightened risk for A011:
[…] as a Tamil and as a person who travelled to Canada on the Ocean Lady. The government of Sri Lanka has accused the travellers of
being linked to the LTTE, and has demonstrated its willingness to use torture
to secure information […]
[21]
Paragraphs
14-22 deal with ongoing human rights abuses by the government of Sri Lanka.
[22]
In
her “Nexus” section, paragraphs 23 and following, she
agreed that simply having been a passenger on the Ocean Lady did not by itself
constitute the basis for membership in a particular social group, as defined in
Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, [1993] SCJ No 74
(QL). She then went on to consider the “possibility of mixed motives”, and
found that A011’s Tamil ethnicity was a contributing factor to his risk.
[23]
However,
at paragraph 26 she conceded that: “Tamil ethnicity does not provide the sole
basis for well-foundedness of fear”.
[24]
At
paragraph 27, she went on to say:
I therefore find that there is nexus to a Convention
ground, in which the claimant’s Tamil race, along with perceived political
opinion as a passenger on the Ocean Lady, are combined elements of the
grounds on which he may face persecution in Sri Lanka, and that there may be
mixed motives on the part of potential persecutors.
[My emphasis.]
[25]
Therefore,
she analyzed the case under s. 96 of IRPA, the standard being a serious
possibility of persecution, rather than under s. 97 which is based on the
balance of probabilities.
[26]
In
B472, at paragraph 28, I said:
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.
[27]
With
the greatest respect to those who disagree, I remain of the view that A011 was
granted refugee status sur place on the basis of membership in a particular
social group, and not on mixed motives, including race. To my mind, the “DETERMINATION”
clause is a clause paramount. Although the comparison is far from perfect, many
statutes have preambles, marginal notes and headings. The Interpretation Act
deals with preambles and marginal notes as rules of construction, but not
headings. However, headings are an essential structural feature of a statute,
and in this case of the reasons for the RPD’s decision (Law Society of Upper
Canada v Skapinker, [1984]
1 SCR 357, [1984] SCJ No 18 (QL) and Charlebois v
Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563, [2005] SCJ No 77 (QL)).
[28]
As
Ruth Sullivan noted in Sullivan on the
Construction of Statutes, 5d Ed (Markham: LexisNexis Canada, 2008), at page 394: “These cases make it
clear that headings are a valid indicator of legislative meaning and should be
taken into account in interpretation.”
MEMBERS OF A
PARTICULAR SOCIAL GROUP
[29]
Membership
in a particular social group is one of five grounds upon which one may be
determined to be a refugee within the meaning of the United Nations Convention
Relating to the Status of Refugees. The other four Convention grounds are
race, religion, nationality and political opinion. These five grounds are repeated
in s. 96 of IRPA. An applicant must establish a serious possibility of
persecution to himself, or to a similarly situated person, based on a
well-founded subjective and objective fear (see Ward, above, and Rezk
v Canada (Minister of Citizenship and Immigration), 2005 FC 151, 149 ACWS
(3d) 286, [2005] FCJ No 221 (QL) at paragraph 9, citing Rajudeen v Canada
(Minister of Employment and Immigration), (1984), 55 NR 129 (FCA),
[1984] FCJ No 601 (QL)).
[30]
Section
96 must be contrasted with s. 97 through which Canada will offer protection on
non-United Nations Convention grounds based on a danger, believed on
substantial grounds to exist, of torture, or a risk to life or a risk of cruel
and unusual treatment or punishment. The risk must be personal, and the burden
which falls upon the claimant is on the balance of probabilities, a higher
standard than a serious possibility (Li v Canada (Minister of Citizenship
and Immigration), 2005 FCA 1, [2005] 3 FCR 239, [2005] FCJ No 1 (QL)).
[31]
The
leading Canadian case on the United Nations Convention in general, and more
specifically the meaning of membership in a particular social group, is Ward,
above.
[32]
Mr.
Ward, a resident of Northern Ireland, joined the Irish National Liberation Army
(INLA), a paramilitary terrorist group dedicated to the union of Ulster and the Irish Republic. He was detailed to guard innocent hostages. Upon learning that they
were to be executed, he secured their escape. The INLA tortured him and
sentenced him to death. He managed to escape, and after serving a prison
sentence, came to Canada where he sought refugee protection.
[33]
Mr.
Justice La Forest, speaking for the Court, dealt at some length with the
treatment of a “particular social group” in Canadian jurisprudence and
elsewhere. Some definitions were very wide and others narrower.
[34]
It
would appear that the category of “particular social group” had been suggested
at the last minute to the drafters of the Convention. He concluded at page 739:
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,
supra, Cheung, supra, 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 anti-discrimination influences, in that
one's past is an immutable part of the person.
[35]
Mayers
is
a reference to the decision of the Federal Court of Appeal in Mayers v
Canada (Minister of Employment and Immigration) (1992), 97 DLR (4th) 729, [1992]
FCJ No 1007 (QL), Cheung is another decision of the Federal Court of
Appeal, Cheung v Minister of Employment and Immigration (1993), 102 DLR
(4th) 214, [1993] FCJ No 309 (QL), and Acosta is the Matter of Acosta,
Interim Decision 2986, 1985 WL 56042 (BIA), an interim decision of the United
States Board of Immigration Appeals in 1985.
[36]
In
Mayers, it was found there was some evidence upon which the applicant could
be considered to be a refugee because she feared persecution on the basis of
membership in the particular social group of “Trinidadian women subject to wife
abuse”. At issue in Cheung was the Chinese policy that women who had
more than one child were faced with forced sterilization. Mr. Justice Linden,
speaking for the Court of Appeal, considered that such women were members of a
particular social group. He found that these women were united or identified by
a purpose fundamental to their human dignity. They should not be required to
alter it simply because their government held a different interest.
[37]
Acosta was
a claim for refugee status by an El Salvadorian taxi driver, a member of a
cooperative that had been targeted by anti-government guerrillas for having
refused to comply with demands for work stoppages. It was found that members of
the cooperative were not part of a particular social group. The ejusdem
generis doctrine was invoked so that the membership should be an immutable
characteristic just as race, religion, nationality and political opinion, that
either is beyond the power of an individual to change or is so fundamental to
individual identity or conscience that it ought not be required to be changed.
[38]
Mr.
Ward was not found to be a member of a particular social group. At page 754,
Mr. Justice La Forest added:
The group of INLA members is not a "particular
social group". To review, the test given above includes:
(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.
[39]
However,
it was determined that he was covered by the Convention ground of political
opinion. Nevertheless, his case was referred back to the IRB for evaluation
because it had not dealt with protection by his second state of citizenship,
Great Britain.
[40]
In
A011’s case, given the structure of the decision, references to race and
perceived political opinion were part and parcel of why he was found to be a
member of a particular social group, Tamils who came to Canada on the Ocean
Lady. Those passengers did not voluntarily associate themselves for reasons
fundamental to their human dignity. The common desire of coming to Canada does
not make the passengers members of a particular social group within the meaning
of the Convention and s. 96 of IRPA. As I said at paragraph 27 of B472:
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.
[41]
It
must also be kept in mind that when Ward was handed down, there was no
equivalent in the Immigration Act, as it was, to the current s. 97 of
IRPA. A refugee claimant such as Acosta would likely be assessed in Canada
today under s. 97, which carries with it a much higher standard of proof. The
RPD member was clearly aware of this distinction. To repeat what she said at
paragraph 27:
I will therefore analyze the claim pursuant to
section 96 of the Act, and the standard in this case is that of a
serious possibility, rather than that of balance of probabilities, if the claim
were analyzed pursuant to Section 97 of the Act.
[42]
Furthermore,
I cannot agree with her suggestion that political opinion might be a mixed
motive. The reason passengers, who were not previously members of the LTTE,
might be at risk if returned to Sri Lanka is because they might have
information with respect to the LTTE. Having information is not political
opinion. Therefore, the assessment would have to be under s. 97, i.e. on
the balance of probabilities.
WAS THE DECISION
REASONABLE?
[43]
Given
that Ward was decided by four members of the Supreme Court, as the fifth
justice who heard the case, Mr. Justice Stephenson, did not participate in the
deliberations; given that Ward was decided before s. 97 of IRPA was
enacted in 2001, and given that Ward did not purport to set out closed
immutable categories of particular social groups, I am not prepared to find
that the decision was unreasonable. I find, just as in the case of B472,
that the decision was incorrect.
WHAT IS THE
STANDARD OF REVIEW?
[44]
In
determining in B472 that the standard of review was correctness, I
relied upon Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
[2008] SCJ No 9 (QL), in which 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.
[45]
I
was of the view that the existing jurisprudence had already determined, in a
satisfactory manner, the degree of deference to be accorded to the RPD as to
the definition of a refugee. No deference was owed. I referred to the recent
decision of Feimi v Canada (Minister of Citizenship and Immigration),
2012 FCA 325, [2012] FCJ No 1610 (QL), wherein Mr. Justice Evans, with the
concurrence of Madam Justice Sharlow, applied the correctness standard. Mr. Justice
Stratas was of the view that for the purposes of that case it was not necessary
to rule on the standard of review.
[46]
Since
then, in B010, above, Madam Justice Dawson, with whom Justices Evans and
Stratas concurred, had to deal with the definition of “people smuggling” within
the meaning of s. 37(1)(b) of IRPA. The serious question of general
importance certified by Mr. Justice Simon Noël was:
For the purposes of paragraph 37(1)(b) of the
Immigration and Refugee Protection Act, is it appropriate to define the
term “people smuggling” by relying on section 117 of the same statute rather
than a definition contained in an international instrument to which Canada is a
signatory?
[47]
The
Court came to the view that there was no basis for ousting the presumption that
deference should be afforded to the Board’s interpretation of its home statute.
[48]
Madam
Justice Dawson distinguished Febles, above. She said at paragraph 71:
In reaching this conclusion, I am mindful that this
Court has previously applied the correctness standard of review to the Refugee
Protection Division’s interpretation of international conventions (see, for
example, Febles v. Canada (Minister of Citizenship and Immigration),
2012 FCA 324, [2012] F.C.J. No. 1609, at paragraphs 22 to 25). There, the
presumption of reasonableness review was rebutted by the majority of the Court
in view of the need to interpret international conventions uniformly. In my
view, cases such as Febles are distinguishable on the basis that here,
the Board was interpreting sections 37 and 117 of the Act. Further, unlike the
Refugee Convention, the Protocol anticipates individual states will enact
different measures to fulfil the Protocol’s objectives (see: article 6, section
4). The uniformity concerns in Febles do not apply to the Protocol.
[49]
In
this case, the meaning of “membership in a particular social group” mirrors the
United Nations Convention. As such, I am of the view that Febles applies,
rather than B010. I remain of the view that the standard of review is
correctness.
[50]
In
addition to the earlier Supreme Court cases to which I referred in B472,
Ward itself is instructive. The Board simply assumed that Mr. Ward was a
member of a particular social group. This is how Mr. Justice La Forest began his set of reasons:
This case raises, for the first time in this Court,
several fundamental issues respecting the definition of a "Convention
refugee" in s. 2(1) of the Immigration Act, 1976, S.C. 1976-77, c.
52, which reads:
2. . . .
"Convention refugee" means any person 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 […]
[51]
He
did not say that notwithstanding he was of the opinion that Mr. Ward was not a
member of a particular social group he would let the Board’s decision stand
because it was reasonable. Alternatively, he did not say that the decision
could not stand because it was unreasonable. In fact, and in law, he did not
consider deferring to the Board’s opinion at all.
CONCLUSION
[52]
The
concept of “mixed motives” considered by both Mr. Justice Blanchard and Mr.
Justice Simon Noël is well known. In granting judicial review, I shall refer
the matter back to the RPD Member who decided the case, Ms. Bruin, for reconsideration.
If she thinks A011 is a refugee because of mixed motives, rather than because
of membership in a particular social group, then let her say so.
[53]
Counsel
for A011 shall have 10 days herefrom to pose a serious question of general
importance (obviously relating to the standard of review) and to suggest
redactions, if any, to the public version of these reasons. Thereafter, counsel
for the Minister shall have seven days to reply on both points.
POST SCRIPT
[54]
The
foregoing 53 paragraphs comprise the confidential reasons for order issued on
30 May 2013. No changes have been made thereto. At the time of the
original hearing, the parties were aware that the public versions of B377
and B344 were soon to be issued. Consequently, it was agreed to continue
the hearing once those reasons became available. The second hearing took place
by teleconference.
[55]
As
to possible redactions in this public version, counsel for A011 suggested that
the names of the ships be deleted. Counsel for the Minister pointed out that
this went beyond the Confidentiality Order in place. I have decided not to
redact the names of the two ships, the Ocean Lady and the Sun Sea, as otherwise there would be no context to these reasons.
[56]
In
accordance with the Immigration and Refugee Protection Act, an appeal of
decisions of this Court may be made only if a serious question of general
importance is certified. Since the Minister succeeded, only A011 is in position
to file an appeal if such a question is certified.
[57]
Unfortunately,
counsel for A011 did not propose a serious question of general importance to
certify. Nevertheless, I shall certify the following question:
Is review by
this Court of the meaning of “membership in a particular social group” in the
United Nations Convention relating to the status of refugees, and reflected in
s. 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?
[58]
If
this matter is not taken to the Court of Appeal, we will find ourselves in a
situation akin to the meaning of “residence” in the Citizenship Act.
There are currently three schools of thought, so that the outcome is often a
matter of pure chance. While no appeal lies from a decision of this Court under
the Citizenship Act, an appeal does lie under the Immigration and
Refugee Protection Act.
[59]
I
consider this question to be of fundamental importance and encourage A011 to
appeal. The appeal is on a narrow issue and would not take up much time.
Perhaps the Legal Aid Society can be persuaded to support him.
ORDER
FOR REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
application for judicial review is granted.
2.
The
matter is referred back to Ms. Lucinda Bruin, or failing her, another member of
the Refugee Protection Division, of the Immigration and Refugee Board, for
reconsideration.
3.
The
Confidentiality Order of Prothonotary Lafrenière, dated 19 November 2012,
remains in place.
4.
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 the
United Nations Convention relating to the status of refugees, and reflected in
s. 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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