Docket:
IMM-13216-12
Citation: 2014 FC 341
Ottawa, Ontario, April 8, 2014
PRESENT: The Honourable Madam Justice Strickland
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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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A069
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This application for judicial review concerns
another decision of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) involving refugee claims made by Tamil asylum-seekers
who arrived in Canada on either the M/V Ocean Lady or M/V Sun Sea.
[2]
By way of background, section 96 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA) provides that
claimants who have a well founded fear of persecution by reason of race,
religion, nationality, membership in a particular social group or political
opinion will be granted refugee status if they are unable or, if due to their
well-founded fear, are unwilling to obtain protection in their country of
nationality or habitual residence. To establish section 96 protection a
claimant must prove on the balance of probabilities that there is more than a
mere possibility, or a reasonable chance, that he or she will face persecution
if returned to their country of origin (Adjei v Canada (Minister of
Employment and Immigration), [1989] 2 FC 680 at 683 (FCA), explained
in Ospina v Canada (Minister of Citizenship and Immigration), 2011 FC
681 at paras 22-34; Hinzman v Canada (Minister of Citizenship and
Immigration), 2006 FC 420 at para 184; aff’d 2007 FCA 171).
[3]
In this matter, the Respondent, a 33 year old citizen
of Sri Lanka, was a passenger on the M/V Ocean Lady and arrived in Canada on October 17, 2009. The Board determined that he is a Convention refugee because
he has a well founded fear of persecution by reason of his nationality and
membership in a particular social group: young Tamil males who would be
suspected of links to the Liberation Tigers of Tamil Eelam (LTTE) resulting
from travel to Canada on board the M/V Ocean Lady. This placed him
within the third possible category of particular social groups described by the
Supreme Court in Canada (Attorney General) v Ward, [1993] 2 SCT 659 at
726-744, [1993] 2 S.C.R. 689 [Ward], being those “associated by a former
voluntary status, unalterable due to historical permanence”.
[4]
The Board found the Respondent to be credible.
Further, that he is a sur place refugee as described by the UNHCR
Handbook and Guidelines on Procedures and Criteria for Determining Refugee
Status (UNHCR Handbook) having a well founded fear of persecution should he
return to Sri Lanka. While there was no evidence to suggest that while he
lived in Sri Lanka he was a member of or would have been considered to have
connections to the LTTE, the Board found that his profile changed when he
boarded the M/V Ocean Lady, a ship owned and operated by the LTTE and
whose passengers included persons who were members of the LTTE. The Board
found that the Respondent’s nexus to a Convention ground changed from the
particular social group of “young Tamil males from Jaffna not suspected
of being LTTE members or supporters” to “young Tamil males from Jaffna,
passengers on the Ocean Lady, suspected of being LTTE members or having
information about LTTE members on board the Ocean Lady”. As a result of
passage to Canada on that vessel and his subsequent claim for refugee
protection, the Board found he would very likely come to the attention of the Sri
Lankan authorities. Given this, and upon review of the documentary evidence,
the Board concluded that there was more than a mere possibility that the
Respondent would be stopped, detained, interrogated, tortured, disappeared or
even killed by the Sri Lankan authorities if he were returned.
[5]
The Applicant submits that the Board erred in
finding that the Respondent had a nexus to a Convention ground. More
specifically, that the Board erred in finding that the Respondent was a
Convention refugee on the basis of nationality and particular social group.
[6]
With respect to nationality, the Applicant
submits that the Board provided no reasons for its finding that the
Respondent’s claim had a nexus to the Convention ground of nationality. Simply
identifying him as Sri Lankan and referencing potentially problematic country
conditions will not ground a nexus based on nationality, and thus results in a
lack of a justifiable, transparent and intelligible conclusion (Canada (Minister
of Public Safety and Emergency Preparedness) v Baraniroobasingam, 2010 FC
92 at para 6; Canada (Minister of Citizenship and Immigration) v Fouodjl,
2005 FC 1327 at para 20; Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16) [Newfoundland
Nurses]).
[7]
As to particular social group, the Applicant
submits that the Board’s finding was contrary to the relevant law on the scope
of “particular social group” for the purposes of the Convention refugee
definition. In support of this, the Applicant submits that the Supreme Court
of Canada in Ward, above, held that the particular social group category
was not meant to include any association bound by some common thread, but must
take into account the general underlying themes of the defence of human rights
and anti-discrimination which form the basis for the international refugee
protection initiative. The third category—described by the Supreme Court as “groups
associated by a former voluntary status, unalterable due to its historic
permanence”—does not capture Tamil males who voluntarily associated for the
reason of passage on the M/V Ocean Lady as there is no link to the underlying
theme of the defence of human rights and anti-discrimination (Canada (Minister
of Citizenship and Immigration) v B380, 2012 FC 1334 at para 24 [B380];
Canada (Minister of Citizenship and Immigration) v A011, 2013 FC
580 at para 40 [A011]; Canada (Minister of Citizenship and
Immigration) v B171, B169, B170, 2013 FC 761 at para 7 [B171, B169,
B170]; Zefi v Canada (Minister of Citizenship and Immigration),
2003 FCT 636 at paras 31-41).
[8]
The Applicant also submits that because, other
than nationality and particular social group, the Board made no other finding
as to nexus, the Court is precluded by Ward and an absence of reasons
from reading in a nexus finding on other grounds such as ethnicity and
perceived political opinion (Ward, above at para 78; B171, B169, B170,
above at para 10; Newfoundland Nurses, above at para 16-17; Canada
(Minister of Citizenship and Immigration) v Harvey, 2013 FC 717 at paras
58-60; Agidi v Canada (Minister of Citizenship and Immigration), 2013 FC
691 at paras 8-9; Alberta Teachers’ Association v Alberta, 2011 SCC 61
at para 54; A011, above at para 42; Canada (Minister of Citizenship
and Immigration) v B377, 2013 FC 320 at para 27 [B377]).
[9]
Further, that while being a Tamil could fall
under the Convention nexus ground of race, the Board did not find that the
Respondent would face a risk of persecution on that basis. Accordingly, any
mixed motives argument on ethnicity or race must fail because it is not clear
that the Board turned its mind to the Respondent’s ethnicity or race in coming
to its conclusion. Rather, the Board found that there was no evidence that his
profile as a young Tamil male from Jaffna created any risk of persecution. The
Court cannot separate the Board’s conclusions on the Respondent’s profile prior
to leaving Sri Lanka from his profile for the purposes of his sur place
claim. A finding of mixed motives would amount to speculation (Kengeswaran
Thanpalasingham v Canada (Minister of Citizenship and Immigration), 2013 FC
380 at para 16; Jegatheeswaran Ganeshan v Canada (Minister of Citizenship
and Immigration), 2013 FC 841 at para 35).
[10]
The Applicant also submits that recent
jurisprudence supports its position (Canada (Minister of Citizenship and
Immigration) v B472, 2013 FC 151 at paras 27-28, 32; Canada (Minister of
Citizenship and Immigration) v B323, 2013 FC 190 at para 6; A011,
above at para 42; PM v Canada (Minister of Citizenship and Immigration),
2013 FC 77 at para 13; SK v Canada (Minister of Citizenship and Immigration),
2013 FC 78 at para 21; B171, B169, B170, above at para 10). Further,
decisions where the Minister’s applications for judicial review were denied can
be distinguished (Canada (Minister of Citizenship and Immigration) v
B399, 2013 FC 260 [B399]; Canada (Minister of Citizenship
and Immigration) v A032, 2013 FC 322 at paras 18-21 [A032]; Canada (Minister of Citizenship and Immigration) v B420, 2013 FC 321 at paras
23, 26; B377 at para 27).
[11]
Addressed in the hearing of this matter, but not
noted in the written submissions of the Applicant, is the November 19, 2013
decision of Justice Gleason in Canada (Minister of Citizenship and
Immigration) v A068, 2013 FC 1119 [A068]. That decision is
significant to this judicial review for a number of reasons. First, because in
A068, Justice Gleason undertook a careful and thorough analysis of the
decisions of this Court concerning those who entered Canada on board the M/V
Ocean Lady or M/V Sun Sea. Second, because the issues raised and
submissions made by the Minister in A068 mirror the issues and submissions
in this case. And third, because the decision of the Board in A068 is,
other than its consideration of the credibility of the individual claimants,
almost a mirror image of the decision rendered by the Board in this case.
[12]
There, as here, the Board determined that the
claimant was a refugee due to the risk he faced as a result of his presence on
the M/V Ocean Lady. The Board found that his presence on that ship,
along with his background, subjected him to the risk of possible torture by the
Sri Lankan authorities if he were to return to that country because they would
either suspect him of being a member or supporter of the LTTE, or would seek to
obtain information from him about the LTTE members or sympathizers who were on board
the M/V Ocean Lady.
[13]
On the issue of whether the claimant in A068
was a member of a particular social group for the purposes of section 96,
Justice Gleason reviewed recent jurisprudence concerning claimants who were on
board the M/V Sun Sea and M/V Ocean Lady, and the principles set
out in Ward. She determined that the Board’s decision should be
maintained on the basis of its finding that the claimant would be at risk due
to his background and the belief of the Sri Lankan authorities that he might be
an LTTE supporter. She stated that the basis of her analysis was similar to
that applied by Justices O’Reilly, Noël and de Montigny in Canada (Minister
of Citizenship and Immigration) v B420, 2013 FC 321, Canada
(Minister of Citizenship and Immigration) v B344, 2013 FC 447, Canada
(Minister of Citizenship and Immigration) v B272, 2013 FC 870 [B272],
and B399, A032, B377, above. Because of this, she concluded she
did not need to address the issue of whether A068 was or was not a
member of a particular social group.
[14]
In the matter before Justice Gleason, as in
those cases, there were several places in the Board’s decisions where it
commented on the risk that the claimant would face by reason of being a young
Tamil male from the north of Sri Lanka who would be perceived by the Sri Lankan
authorities as being an LTTE member or sympathizer (and as having information
about the LTTE) due to his background and presence on the M/V Ocean Lady.
[15]
There, as here, the Board stated in its
determination that:
[7] The
claimant is a Convention refugee, in that he has a well founded fear of
persecution for a Convention refugee ground in Sri Lanka by reason of his
nationality and membership in a particular social group of young Tamil males
who would be suspected of links to the LTTE resulting from their travel to
Canada on board the Ocean Lady […]
[16]
There, as here, at several other places in its
decision the Board commented on the risk of torture the claimant might well face
upon return to Sri Lanka by reason of the fact that the authorities would
perceive him as having links to the LTTE. Justice Gleason gave several
examples, quoting paragraphs from the Board’s decision in A068. It is
unnecessary to repeat these here. What is relevant is that of the eight
paragraphs quoted, six are also contained in the decision of the Board in this
matter (paragraphs 23, 27, 29 31, 41, 44 in A068 have equivalents in
paragraphs 16, 21, 23, 25, 36 and 38 of the decision at issue).
[17]
In A068, as in this matter, the Board did
not use the words “political opinion” or “perceived political opinion” in those
passages. However, Justice Gleason found that the Board clearly delineated
that the risk the claimant would face is tied in part to the fact that the Sri
Lankan authorities would perceive that he had links to the LTTE. And while in B420,
A032, B377, B272 and B399 the Board had expressly used the words
“perceived political opinion”, that was not the case in B344 in which
Justice Noël upheld the Board’s decision on a “mixed motives” analysis (paras
37 and 45). Justice Gleason concluded:
[36] I find the
reasoning of Justices de Montigny, O’Reilly, Blanchard and Noël to be
persuasive and believe that the Board in this case should be viewed as having
tied its nexus finding to race or nationality and perceived political opinion.
In this regard, it must be recalled that under the reasonableness standard of
review, reasons need not be perfect or follow any particular form as long as
they allow the parties and the reviewing court to understand why a decision was
made (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at para 16, [2011] 3 S.C.R. 708). Here, as the
above quotations demonstrate, it is clear that it was the combination of the
claimant’s race or nationality and perceived political opinion, acquired as a
result of his background and presence on the M/V Ocean Lady, that led
the Board to find him to be a Convention refugee.
[37] Upholding
the Board’s decision on this basis is in line with the decision of the Supreme
Court in Ward. There, the Supreme Court dismissed the argument that the
claimant was a refugee on the basis of membership in a particular social group,
namely, for being a former member of the Irish National Liberation Army.
However, the Court found the claimant to have a well-founded fear of
persecution based on political opinion, even though this ground had not been
raised either before the Board or the Federal Court of Appeal (at 745, cited to
SCR). Therefore, Ward establishes that where the facts support a well-founded
fear of persecution based on political opinion, a reviewing court is free to
consider that ground even if the parties had framed the issue in the context of
membership in a particular social group.
[38] Thus, the
Board’s determination that there was a nexus to a ground in the Refugee
Convention is reasonable.
[18]
Justice Gleason then turned to the Board’s
factual findings regarding the likelihood of risk for the claimant and found
that there were multiple pieces of evidence before the Board upon which it
premised its risk determination and listed examples of this. Justice Gleason
also distinguished the case before her from B380, decided by the Chief
Justice, on this basis. She concluded that the Board’s decision was based on a
reasonable determination of there being a nexus to a ground enumerated in the
Convention and that its factual findings related to there being a reasonable
chance that the claimant would be persecuted if returned to Sri Lanka were
reasonable, therefore the Board’s decision was upheld.
[19]
In this matter the record shows that much of the
same evidence was before the Board when it rendered its decision concerning B069.
Similarities include: articles from various media outlets linking the vessels
to the LTTE, including a Toronto Star Article in which the Minister of Public
Safety and Emergency Preparedness stated that the LTTE “are behind operations
to smuggle people into Canada”; evidence the RCMP and the Canadian Government
have communicated with the Sri Lankan government (Decision, paras 18, 19 and
20; Media index, CTR pp. 789-793); and, reports from various government bodies
and non-governmental organizations indicating persons with suspected links to
the LTTE are at risk of abuse and torture on return (Decision, para 32; CTR pp.
701, 712, 1475, 1493, 1500, 1527). Additionally, the documentary evidence here
stated in numerous sources that at least 25 of the 76 persons on board the M/V
Ocean Lady were LTTE members (Decision, paras 16, 17).
[20]
Given the common issues, similar documentary
evidence and almost identical reasons contained in the Board’s decision in A068,
I can see no reason to depart from the reasoning and findings of Justice
Gleason. The application for judicial review must therefore be dismissed.
[21]
The Respondent submitted in this case special
reasons exist which would support a costs award in its favour (relying on the
reasoning in A44, above at paras 43-46). He brought A068 to the
attention of the Applicant and requested that this proceeding be abandoned as,
based on that decision, it was plain and obvious that this matter could not
succeed Further, having had the benefit of A068, A061, A025, A44 and
other decisions, the zeal with which the Applicant has pursued this application
also warrants an award of costs. On the other hand, the Applicant submits that
the decisions of this Court in the M/V Ocean Lady and M/V Sun Sea
cases are not consistently decided in favour of claimants, demonstrating that
there were valid issues before the Court.
[22]
While I can understand why the Respondent would
feel an award of costs to be justified in this case, I am not convinced that
the high threshold for establishing the existence of special reasons has been
met in this circumstance warranting a departure from Rule 22. Accordingly, no
costs will be awarded.
[23]
The parties did not propose any questions for
certification and none arise.
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