Date:
20130703
Docket:
IMM-11315-12
Citation:
2013 FC 740
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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B459
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Respondent
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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 respondent B459 was a Convention
refugee.
[2]
The
respondent is an ethnic Tamil from Sri Lanka who arrived in Canada on board the MV Sun Sea on August 13, 2010. The Board Member who heard his case
noted that there were credibility concerns with his account of events prior to
the Sun
Sea
voyage.
However, the principal foundation of the refugee determination was the fact
that he had been a passenger on the vessel, and that fact was not contested. The
Board Member found that B459 merited refugee protection due to his membership in
the social group of MV Sun Sea passengers. The
Member specified that he did not analyze any other basis for protection.
ISSUE:
[3]
The
issue in this application is whether the Board Member erred in finding that
“Tamil passengers on the MV Sun Sea” constituted
a “particular social group” for the purposes of a Convention refugee
definition, sufficient to grant refugee status.
STANDARD
OF REVIEW:
[4]
As
the issue 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:
[5]
The
applicant Minister, citing section 96 of the IRPA and Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689 [Ward], submitted that the Board
Member had not found that B459 had a well-founded fear of persecution based on
any ground other than membership in a particular social group. The Minister
argued that the Member’s finding that B459 was a member of a particular social
group was an error. 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. The social group in
question was unambiguously stated by the Board Member as “passengers on the Sun
Sea” and not “people perceived by the Sri Lankan government to have links
to the LTTE”; a perception of shared political opinion did not therefore arise.
[6]
The
respondent B459 argued that the Board had examined evidence that
the Sri Lankan government believed that the MV Sun Sea had carried a substantial number of leaders, cadres, and members of the LTTE, and had
reasonably found that a passenger on the vessel would be believed to be linked
with the LTTE due to his voyage. He submitted that although “passengers on the Sun
Sea” did
not
per se constitute a social group, the Board had reached its conclusion
on the basis that he would be viewed as a person with links to the LTTE as a
result of being a passenger on the voyage and that people with perceived links
to the LTTE formed a particular social group and could invoke the “political
opinion” Convention ground. The Board Member clearly identified the link to the
LTTE as the nexus to a well-founded fear and the applicant Minister is merely
disagreeing with the possible, acceptable outcome of the Member’s findings, the
respondent contends.
[7]
The Board Member
stated very clearly that the basis for his finding was membership in a
particular social group and not a nexus to any other Convention ground. To conclude otherwise would require the Court to ignore this
statement and read into the Member’s reasons an analysis which he declined to
conduct.
[8]
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.
[9]
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.
[10]
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.
[11]
The
Board Member chose not to analyze whether there was a nexus to a Convention
ground of political opinion via the perception that the respondent B459 was an
LTTE member. Thus, 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 his decision
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).
COSTS:
[12]
The
respondent sought costs pursuant to section 22 of the Federal Courts Immigration
and Refugee Protection Rules, SOR 93-22, on the basis that the applicant
Minister had met with mixed success in similar Sun Sea cases and had not
included in its record on this application new evidence demonstrating that the
Sri Lankan government did view Sun Sea passengers as LTTE supporters yet
had argued that the Sri Lankan government did not hold such a view.
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22. No costs shall be awarded to or payable by
any party in respect of an application for leave, an application for judicial
review or an appeal under these Rules unless the Court, for special reasons,
so orders.
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22. Sauf ordonnance contraire rendue par un juge
pour des raisons spéciales, la demande d’autorisation, la demande de contrôle
judiciaire ou l’appel introduit en application des présentes règles ne
donnent pas lieu à des dépens.
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[13]
As
the applicant Minister has been successful, I will not award costs. The
confidentiality order imposed at the outset of the proceedings in this Court
will be maintained.
CERTIFIED
QUESTION:
[14]
As
there is continuing 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:
[15]
The
application is granted.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. the
application is granted;
2. no
costs are awarded,
3. the
confidentiality order is maintained pending the final determination of the
respondent’s claim 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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