Docket:
IMM-11547-12
Citation: 2014 FC 4
Ottawa, Ontario, January 6, 2014
PRESENT: The Honourable Mr. Justice Phelan
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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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A25
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This is another in the series of judicial review
applications involving refugee claims made by passengers who arrived in Canada on one of the two ships bearing Tamil refugee-seekers who arrived in late 2009 and
mid 2010. In the present case the Respondent arrived on the MV Ocean Lady.
[2]
In some of the cases the claimant had a history,
prior to arrival in Canada, of troubles with Sri Lankan authorities due to
their identification as Tamils from the north and possible association with the
Liberation Tigers of Tamil Eelam [LTTE]. However, in this case, the Refugee
Protection Division [RPD] did not find the Respondent’s pre-arrival narrative
to be credible. Therefore, the only basis for the claim is that upon return to Sri Lanka he will be targeted by the authorities due solely to him being a passenger on the
ship.
[3]
Justice Gleason in Canada (Minister of
Citizenship and Immigration) v A068, 2013 FC 1119, thoroughly and helpfully
canvassed the numerous decisions on similar claims and the central themes which
run through those cases. I adopt her line of reasoning and conclusions.
A
central point is that each case turns on its own facts and each judicial review
turns on the specific conclusions of the RPD.
II. BACKGROUND
[4]
The Respondent is a Tamil male citizen of Sri Lanka. He claimed that prior to leaving Sri Lanka, the Respondent and his family had
been repeatedly harassed and detained by the Eelam People’s Democratic Party.
He also claimed that he had been arrested, questioned and beaten and detained
by the Sri Lankan police. He then fled to Thailand and from there he travelled
on the MV Ocean Lady to Canada.
[5]
The RPD upheld the Respondent’s claim for
refugee protection holding that the Respondent “has a well-founded fear of
persecution for a Convention refugee ground in Sri Lanka by reason of his
nationality as [a] young Tamil male and membership in a particular social
group, namely, young Tamil males who would be suspected of links to the
Liberation Tigers of Tamil Eelam (“LTTE”) because of their travel to Canada on
the MV Ocean Lady”.
[6]
This central finding was supported by a number
of factual determinations:
•
The Respondent was not credible concerning his
alleged persecution while in Sri Lanka but was credible with respect to his
travel on the ship. There was no persuasive evidence suggesting that the
Respondent would have been considered to have connections with the LTTE prior
to his departure.
•
The Respondent’s profile changed when he boarded
the MV Ocean Lady because the ship was identified generally in the
public domain as owned and operated by the LTTE and containing some passengers
who were connected to the LTTE.
•
The Respondent’s presence on the ship would be
known to the Sri Lankan authorities; consequently, they would suspect him of
LTTE membership or having connections or information.
•
The expert evidence and an internal Canadian
government report stated that a number of individuals on the MV Ocean Lady
were suspected LTTE members.
•
There was media coverage suggesting that the
RCMP were communicating with Sri Lankan authorities to investigate identities
and background of passengers. This was denied by the RCMP.
•
The UNHCR recommended continuing protection for
persons suspected of having links to the LTTE.
•
There was evidence of the continued prevalence
of torture and disappearances in Sri Lanka and impunity of state officials.
•
Other evidence that pointed to returning refugee
claimants from the ships were subject to detention and special questioning.
•
The evidence of the Canadian High Commission was
not persuasive because its source was the Sri Lankan government and was biased.
[7]
The Member found that if the Respondent was
returned to Sri Lanka, he would be identified as a MV Ocean Lady
passenger by Sri Lankan authorities, detained so that the authorities could
determine his membership status, his information on the LTTE, his participation
in LTTE activities on board and/or his role in the trafficking of weapons.
[8]
The Member found a nexus to one or more
Convention grounds and further found that state protection would not be
available because the agent of persecution was the Sri Lankan state itself. The
s 97 claim was not assessed.
III. ANALYSIS
[9]
The Applicant’s concern with the decision was
the conclusion of a nexus to a Convention ground, most particularly whether the
Respondent was a “member of a particular social group”.
A. Standard
of Review
[10]
The jurisprudence of this Court on the standard
of review in cases similar to the present tends to favour the “reasonableness”
standard but the Court is not unanimous on this point.
[11]
In my view one must examine carefully the
reasons for the decision to determine whether the RPD was making a legal
finding or a factual or mixed factual and law determination and how significant
was the legal component of that determination.
[12]
I note that the Member does no real analysis of
the legal concept of “a member of a particular social group” and tends to mix
other parts of s 96 (i.e. nationality) as forming the basis of the particular
social group.
[13]
Considering the decision as a whole, the Member
makes a determination of mixed law and fact. As such, the appropriate standard
of review is reasonableness.
[14]
The suggestion that merely being a passenger on
the ship is sufficient to constitute membership in a particular social group is
problematic under s 96. However, the Member’s determination went further than
that. The Member reached a decision based on what has been called “mixed
motives” but is in reality a confluence of motives.
[15]
Consistent with Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, the Court is to examine the record and the reasons to
determine if the decision can be supported. This requires the Court to examine
what might be called “the pith and substance” of the reasons – the real core of
the determination.
[16]
Examined in that light, the reasons for granting
refugee status was the Respondent’s “nationality” used in the sense of
race/ethnicity as well as in the traditional sense of nationality. His identification
by the authorities with the LTTE speaks to the element of political opinion. In
reaching this conclusion, it is not necessary to “read in” political opinion or
conclude by reference, political opinion was an evident component of the
decision.
[17]
To be at risk of persecution for political
opinion, in this case, does not require that a claimant hold the particular
political opinion but simply that he be perceived by his persecutors to hold
that opinion.
[18]
The Member’s reasons for concluding that the Respondent
had a well-founded fear of persecution are based on race, nationality and
political opinion. The element of “membership in a particular social group”, to
the extent that it is legally flawed, can be readily divorced from the other
grounds.
[19]
Based on the Member’s findings set forth in
paragraphs 6 and 7 of these Reasons, this forms a reasonable basis for the
Member’s conclusion that the Respondent is entitled to refugee protection.
There is no reason for this Court to interfere with the RPD’s decision.
[20]
There is no question for certification as the
judicial review turns not only on the specific facts but on the specific
reasons in this case.
IV. CONCLUSION
[21]
Therefore, this judicial review will be
dismissed.
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