Date:
20130703
Docket:
IMM-11399-12
Citation:
2013 FC 741
Ottawa, Ontario,
July 3, 2013
PRESENT: The
Honourable Mr. Justice Mosley
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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B171, B169, B170
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application by the Minister for judicial review pursuant to the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], s 72(1), of a decision by
the Refugee Protection Division that the respondents B171, B169, and B170 were
Convention refugees.
[2]
The
three respondents are ethnic Tamils from Sri Lanka who arrived in Canada on board the MV Sun Sea on August 13, 2010. The respondents B169 and B170 were
unaccompanied children upon arrival and B170 remains a minor. B171 is an adult
and is married to the other respondent’s sister.
[3]
The
Board Member who made the decision noted that the three claimants’ identities
had been established by documentation. B171 and B169 alleged personal
experience of harassment by various authorities seeking information about the
Liberation Tigers of Tamil Eelam (LTTE), while B170 did not allege personal
experience of mistreatment, but submitted through his counsel that as a minor
he was particularly vulnerable to persecution. The Board Member found
that the claimants had a genuine fear of returning to Sri Lanka.
[4]
The
foundation of the refugee determination, however, was the unalterable
historical fact that all three respondents had been passengers on the MV Sun Sea. The Board Member found that this amounted to membership in a
“particular social group” for Convention purposes. He specified that he did
not analyze any other basis for protection.
ISSUE:
[5]
The
issue in this application is whether the Board Member erred in finding that the
respondents’ claim had a nexus to a Convention refugee ground, that being
membership in a “particular social group”.
[6]
As
the question is not the definition of a “particular social group” but whether
the respondent fell within such a group, a question of mixed fact and law, and
as the Board was interpreting its home statute and the related jurisprudence, I
find that the standard of review is the more deferential one of reasonableness
(Canada (MCI) v B380, 2012 FC 1334, at paras 13-15). However, I note
that there is not unanimity on this point and that the correct identification
of the appropriate standard of review was certified as being a serious question
of general importance in Canada (MCI) v A011,
2013 FC 580 at para 57:
[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?
ANALYSIS:
[7]
The
applicant Minister submitted that the Board Member’s reasons clearly identified
the “particular social group” as passengers on the Sun Sea and not as some
other possible grouping such as “suspected LTTE supporters”. The test for
membership in a Convention “particular social group” involves more than
identifying a group of people who share some commonality. Citing section 96 of
the IRPA and Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 [Ward],
the applicant argued that voluntarily choosing to set sail for Canada on an
illegal human smuggling ship did not create a group which defined its members
in a way which engaged the defense of human rights and that to include such people
would trivialize the notion. There had to be something about a group which was
related to discrimination or human rights in order for it to have a Convention
nexus.
[8]
The
respondent B171 argued that the Board Member’s determination was in line with
the Supreme Court’s categories in Ward. The Sun Sea voyage had been publicly labeled an LTTE operation and therefore it was no longer just
another smuggling trip. All of the vessel’s passengers had been Tamils and the
Sri Lankan authorities continued to target Tamils and suspected LTTE supporters. It was essential
to the Board Member’s decision that B171 was an ethnic Tamil; Tamil ethnicity
coupled with passage on the Sun Sea and a perceived political opinion as
a supporter of the LTTE had added up to a Convention nexus. B171 argued that
even if he did not qualify under the “particular social group” category, the
combination of factors sufficed to create a serious possibility of
persecution. He submitted that the Board Member had made a mixed motives
finding.
[9]
The
respondents B169 and
B170 also argued that the Board Member was correct in finding them to be
members of a particular social group. They cited Canada
(MCI) v B420, 2012 FC 321 at paras 22-23,
and Veeravagu
v Canada (MEI),
[1992] FCJ No 468 (QL) (FCA) as support for the proposition that when a
claimant “belongs to a group one of whose defining
characteristics is race, (young Tamil males), it is simply impossible to say
that such person does not have an objective fear of persecution for reasons of
race.” The respondents argued that Tamil race together with passage on
the vessel combined to create both a particular social group and a perceived
political opinion.
[10]
I
find that the Board Member expressly chose not to analyze any Convention ground
for protection other than the “particular social group” he identified and
therefore that only his findings on that subject can be reviewed by this Court.
I
note that while the jurisprudence from this Court on the question of
“particular social group” as it pertains to the MV Sun Sea is somewhat
mixed, this is largely due to variations in the factual circumstances of each
case and the reasons for decision provided by different Board Members.
[11]
There
is no doubt that the aim of the concept of a “particular social group”, as
established by Ward, is based on the defense of human rights:
70 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.
[12]
It
is not every identifiable “particular social group” formed by irrevocable
historical facts which faces persecution on a discriminatory ground. As
Justice Harrington stated in the similar case of A011, at para 40:
[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 B72:
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.
[13]
Even
on the deferential standard of reasonableness, given the existing jurisprudence
on the question of a “particular social group” resulting from passage on the Sun
Sea, I find that the Board Member’s decision in the present case did not
fall within the range of possible,
acceptable outcomes which were defensible in respect of the facts and law. (Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190, at para 47).
[14]
The confidentiality order imposed by this Court shall be
maintained.
CERTIFIED
QUESTION:
[15]
As
there is uncertainty on the appropriate standard of review, I certify the same
question as was proposed in A011:
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?
CONCLUSION:
[16]
The
application is granted. No costs shall be awarded.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. the
application is granted;
2. no
costs are awarded,
3. the
confidentiality order imposed by this Court shall be maintained pending the
final determination of the matter, or order to the contrary; and
4. the
following question 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?
“Richard G.
Mosley”
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