Docket:
IMM-25-13
Citation: 2013 FC
871
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BETWEEN:
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B135, B136, B137, B138 AND B139
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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PUBLIC REASONS FOR ORDER
(Identical
to Confidential Reasons for Order issued August 15, 2013, save for the
postscript)
HARRINGTON J.
[1]
There are three
principles of refugee law and one of administrative law at issue in this
judicial review. The Refugee Protection Division of the Immigration and Refugee
Board of Canada held that the applicants were not refugees within the meaning
of the United Nations Convention and s. 96 of the Immigration and Refugee
Protection Act, and were not in need of protection in the sense that their
removal to Sri Lanka would not subject them personally to a risk to their lives
or to a risk of cruel and unusual treatment or punishment, or to a danger of
torture.
[2]
Canada abides by the principle of non-refoulement recognized by s. 115 of the IRPA. A person will not be removed to a country where he or she would be at
risk of persecution on the grounds enumerated in the United Nations Convention
and s. 96 of the IRPA, i.e. race, religion, nationality, membership in a
particular social group or political opinion, or at risk under s. 97 of IRPA.
[3]
The second principle
is that the analysis of a claim for asylum is based on a prediction. The
history of a person, or similarly placed persons, is relevant in that it might
shed light on what might happen should the person be returned to his or her homeland.
[4]
The third is that while
one might not have been at the appropriate level of risk upon leaving one’s
country, he or she might be on return due to subsequent events. This is the
concept of refugee sur place.
[5]
One of the basic tenets
of judicial review is that it is based on the record which was before the
underlying tribunal. However, there are exceptions to that rule. One of the
exceptions is when the record is incomplete in that it does not contain
material which should have been before the decision-maker (Tremblay v Canada (Attorney-General), 2006 FC 219, [2006] FCJ No 272 at para 10 (QL)).
[6]
Counsel for the
applicants, who did not represent them before the RPD, readily concedes that it
would be extremely difficult to argue that the decision was unreasonable based
on the material in the record. However, had the record been complete, the
result may well have been different.
[7]
The Minister fully
participated in all aspects of the claim by presenting evidence, questioning
witnesses and making representations, as he was permitted to do under s. 170(e)
of the IRPA. According to the applicants, the Minister presented incomplete evidence.
Consequently, the board member was misled.
[8]
The second basis of
the submission that the record was incomplete is that counsel who represented
the applicants before the RPD was incompetent. Any competent counsel would have
put before the board certain publicly available information. This information
was known to the applicants who begged him to put it before the board. However,
he refused to do so.
[9]
I shall first review
the decision of the RPD before dealing with the duty, if any, upon the Minister
in the circumstances of this case to disclose information not in the public
domain, and not in the bank of country conditions maintained by the IRB. If
necessary, I will then address the alleged negligence of the claimants’ first
solicitor.
THE RPD’S DECISION
[10]
The claimants were
found not to be at risk upon leaving Sri Lanka because of serious credibility
issues and because they lacked subjective fear. In addition, one of the
children may have been born outside Sri Lanka and another may have obtained
refugee status in Thailand. However, those are side issues in that the RPD
found they would not be at risk if sent to Sri Lanka.
[11]
The member then dealt
with the sur place aspect of their claim. The applicants submitted that
they would be at risk on return to Sri Lanka because they are Tamils who were
on board the Sun Sea, a ship perceived by some to be controlled by the
Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers). The member reviewed
the IRB’s country conditions documents and concluded that they do not
corroborate the assertion that as returnees the applicants would face arrest,
detention and torture. Reference was made to information gathered from the
Canadian, Norwegian, Australian and British governments, the Institute of Medicine and the United Nations High Commissioner for Refugees. The member found
that the applicants do not fit the profile of LTTE members, and although they
might be briefly detained and questioned on return they were not at risk of
torture or mistreatment by the authorities.
[12]
The member placed a particular
emphasis on a statutory declaration by Trevor Gross, Inland Enforcement Officer
with Canada Border Services Agency, who spoke with the First Secretary of the
High Commission of Canada in Colombo. The First Secretary had visited one of
the Sun Sea returnees, B005, who was then being held in detention. At that
time, however, he did not appear to be mistreated or abused in any way. The
member said: “This document provided strong evidence in support of the Minister’s
position that failed refugee claimants from Canada who are returning to SL are
not being unfairly detained or mistreated.”
DUTY ON THE CROWN TO DISCLOSE
[13]
As there are many
other refugee claims of passengers on board the Sun Sea or the Ocean Lady which
are still being processed, I will limit my remarks to what I consider to be
absolutely essential.
[14]
For the most part,
refugee claims are non-adversarial. The Minister usually does not participate,
or does so for a very limited purpose, such as testing credibility. I need not
consider whether there is any duty to disclose information in those
circumstances.
[15]
The relevant circumstance
to this case is that the Minister participated in all aspects of the hearing
before the RPD to argue that the applicants were not refugees or otherwise in
need of protection. Thus, the applicants and the Minister were adversaries.
However, I will not consider what duty, if any, was imposed on the Minister to
provide evidence. What I will consider is that in this case, the Minister did
adduce evidence. Having done so, was the Minister entitled to be selective in
what was adduced, or was he obliged to provide all relevant documents in his
possession, power, or control over which no privilege was claimed?
ANALYSIS
[16]
The aforesaid
declaration of Mr. Gross and the transcript of his conversation with the First
Secretary covered both B005 and B016. Most of the declaration is the transcript
of that telephone call. As far as the parties are aware, only two passengers
from the Sun Sea have been returned to Sri Lanka: B005 and B016.
[17]
B005 was interviewed
by the First Secretary on his return to Colombo on 21 September 2012 and then again
12 October 2012, at which time he was being held in detention. He was observed
to be in an apparent good health and not mistreated in any way. The First Secretary
stated that it was his understanding that B005 was being detained for alleged
criminality.
[18]
As regards to B016,
he had been released from detention in July 2012. The First Secretary assumed
he was detained for investigative purposes. He was released, he believed, under
bail conditions which would indicate that there was a criminal charge pending.
The First Secretary had never met him.
[19]
It seems to me that
the best predictor of the fate of those passengers of the Sun Sea, whose refugee claims are pending, is the fate of those who were actually returned.
[20]
The Minister did not
disclose that B005 had sought a stay of his removal. In docket number
IMM-9472-12, Mr. Justice Phelan dismissed the motion. He said:
The Applicant’s case for irreparable harm by virtue of his purported
association with the Liberation Tigers of Tamil Eelam (LTTE) is speculative and
seriously undermined by findings of the Sri Lankan courts that he was not so
associated with LTTE. The Applicant relied substantially on the legitimacy of
the Sri Lankan court decisions when it was in his interests to do so in other
immigration proceedings but argued before this Court that the decisions were
obtained as a result of bribes. The exoneration by the Sri Lankan judiciary is
one of the unique aspects of this case. The Applicant has also secured a
passport after the Sri Lankan court decision which permitted him to leave the
country and return.
[21]
Indeed, exhibited to
Mr. Justice Phelan was a decision of the Chief Magistrate’s Court in Colombo, which after citing that B005 had been detained under emergency regulations so
that further investigation could be conducted, stated that he was released and
discharged because:
On further investigation carried out regarding the suspect and the reports
obtained has revealed that he was not involved in any LTTE terrorist activity
or any other criminal offences.
[22]
Thus, if anyone would
not be considered by the Sri Lankan authorities as being associated with the
LTTE, it was B005. Yet, he was detained; why? Had this document been before the
Member, would she have said that Mr. Gross’ declaration “provided strong
evidence in support of the Minister’s position that failed refugee claimants from
Canada who are returning to SL are not being unfairly detained or
mistreated.”? Would she have considered that Tamils on board the Sun Sea
constituted a particular social group under s. 96 of the IRPA, or found that
there were mixed motives on the part of the Sri Lankan authorities?
[23]
There are other
documents in the record before me which were not before the RPD. The
applicants’ current lawyer is in a special position as he acted for both B005
and B016. Allegedly, B005’s whereabouts is still unknown, or he is being held
incommunicado.
[24]
It was said, and not
contradicted, that this information has been provided to the RPD in other
refugee claims. As to B016, there is a sworn statement from him that he was
beaten and tortured for a year. He does not say why he was held. Again, this
was not before the RPD, but is said to have been put before the RPD in other
cases. The matter is complicated because nearly all these applicants are
covered by confidentiality orders. However, both B005 and B016 have waived
confidentiality, at least to some extent.
[25]
The applicants place
reliance on the decision of the Supreme Court in R v Stinchcombe, [1991]
3 SCR 326, [1991] SCJ No 83 (QL). It was held in the criminal law context that the
Crown is under a duty in indictable offences to disclose all material evidence
whether or not favourable to the accused. Failure to disclose impeded the
ability of the accused to make full answer and defence.
[26]
The Minister points
out that the IRB is an administrative tribunal with specialized knowledge so that
the disclosure standards in Stinchcombe are not necessarily applicable.
In my view, the principle was encapsulated by Mr. Justice de Montigny in Seyoboka
v Canada (Minister of Citizenship and Immigration), 2009 FC 104, [2009] FCJ No 108 (QL), where he said at paragraph 34:
A careful review of the case law on disclosure leads me to the conclusion
that this is much too broad a proposition. One must never loose sight of the
fact that the Refugee Protection Division of the Immigration and Refugee
Protection Board is an administrative tribunal with specialized knowledge, not
bound by legal or technical rules of evidence. As a result, the disclosure
standards delineated in Stinchcombe do not necessarily apply
automatically in the context of a refugee hearing and may require some
adaptation. On the other hand, I agree with the applicant that the level of
disclosure owed to an applicant cannot be decided by a simple invocation of the
distinction between criminal and administrative proceedings, and that the
consequences of an adverse finding on the applicant must be taken into
consideration…
At a bare minimum, if the Minister chooses to disclose evidence, that
disclosure must be complete.
[27]
It is not necessary
to enumerate all the documents which should have been before the RPD, either as
disclosed by the Minister or because they should have been in the IRB’s own
bank of country conditions. At the very least, the decision of the Chief Magistrate’s
Court, in Colombo with respect to B005 should have been before the decision-maker.
[28]
As I said in PG v
The Minister of Citizenship and Immigration, IMM-9472-12 , and as I repeat
now:
Considering further that it is most important to have as much information
as possible as to the treatment of others on board the ship “Sun Sea” who have been returned to Sri Lanka in order to consider their risk of persecution.
[29]
My remarks may have
to be tempered because of confidentiality orders, but in the past I have had
occasion to comment as to what should be in the IRB’s country conditions (Alexander
v Canada (Ministry of Citizenship and Immigration), 2009 FC 1305, [2009]
FJC No 1682 (QL)). The issue was whether Ms. Alexander, a victim of domestic
violence, would be afforded appropriate state protection if returned to St. Vincent and the Grenadines. In Trimmingham v Canada (Minister of Citizenship
and Immigration), 2009 FC 1059, [2009] FCJ No 1296 (QL), the Consul General of St. Vincent and the Grenadines wrote to say that the police were unable to protect the women
who might obtain a restraining order. I said at paragraph 13 of Alexander:
I find absolutely astonishing that the IRB publishes information on
country conditions but fails to mention that the Consul General has admitted
that the state cannot guarantee the effectiveness of a restraining order. That
would be relevant information in any assessment as would an analysis of the
types of threats Ms. Trimmingham received as opposed to those received by
Ms. Alexander.
[30]
Having been denied
natural justice, it is not up to the Court to determine what the decision would
have been if all relevant information had been placed before the RPD. The
recourse is to refer the matter back for a fresh determination (Cardinal v Director
of Kent Institution, [1985] 2 S.C.R. 643, 24 DLR (4th) 44, [1985] SCJ No 78 (QL)).
[31]
That would not be
necessary if the result could not have been any different (Mobil Oil Canada
Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994] SCJ No 14(QL)). However, in accordance with the authorities
canvassed in Canada (Minister of Citizenship and Immigration) v A011,
2013 FC 580, [2013]
FCJ No 685 (QL), some
Sun Sea passengers have been found to be refugees sur place either as
members of a particular social group: Tamils on board the Sun Sea, or because
of mixed motives, i.e. Tamil passengers on board the Sun Sea and ethnicity,
a Convention ground. As A011 shows, some judicial reviews by the
Minister on this point have been successful, others have not. Furthermore, if
the detention would be simply to obtain information about LTTE, it seems to me
that detention for that purpose is not based on a Convention ground but rather
would fall under s. 97 of the IRPA, which requires the higher standard of a
balance of probabilities of personal risk to life, cruel and unusual punishment
or torture. (Li v Canada (Minister of Citizenship and Immigration), 2005
FCA 1, [2005] 3 FCR 239, [2005] FCJ No 1(QL)).
[32]
In the circumstances,
it is not necessary to consider the alleged negligence of counsel.
[33]
Counsel for the
Minister shall have two weeks from the date of these reasons to suggest the
certification of a serious question of general importance, and the applicant
shall have one week to respond.
[34]
The applicants shall
have two weeks to propose redactions, if any, in the public version of these
confidential reasons, and the Minister shall have one week to respond.
POSTCRIPT
[35]
No serious question of
general importance was proposed, and none shall be certified.
[36]
No redactions were
proposed in the public version of these reasons.
“Sean Harrington”
Ottawa, Ontario
Confidential Reasons for Order dated August
15, 2013
Public Reasons for Order dated September 6,
2013
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