Federal Court - B010 v. Canada (Citizenship and Immigration)
Citation: 2012 FC 569
Ottawa , Ontario, May 15, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
| || B010
| || Applicant
| THE MINISTER OF CITIZENSHIPAND IMMIGRATION
| || Respondent
| || || |
REASONS FOR JUDGMENT AND JUDGMENT
 B010 [the applicant] seeks judicial review of a decision of the Immigration Division [ID or panel] of the Immigration and Refugee Board of Canada [IRB] dated July 6, 2011. The ID issued a deportation order after determining that the applicant was inadmissible for engaging in people smuggling in the context of transnational crime as set out in para 37(1)( b ) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA].
I. Alleged Facts
 The applicant, a Tamil refugee claimant from Sri Lanka, arrived in Canada on August 13, 2010 on the MV Sun Sea, an unregistered ship with 492 migrants on board seeking refuge. Their journey from Thailand had lasted approximately three months.
 A Globe and Mail article published on August 23, 2010 describes “the saga of the Sun Sea and its 492 bedraggled passengers” as “the stuff of spy thrillers.” The article goes on to outline the very serious danger and difficult conditions faced by the migrants (Trial Record [TR] at 268, 273):
The ship’s former owners are shocked the journey was attempted at all. Bhumindr Harinsuit, managing director of Harin Panich, said the 30-year-old Japanese-built ship was barely able to make the trek between Bangkok and Songkhla. The idea of taking the rickety boat as far as Canada was too crazy to contemplate.
“Even in the Gulf of Thailand , if there were rough seas she wouldn’t travel […]” Making the trip even more astonishing was its cargo of 492 human beings. When sold, the ship only had sleeping space for 15 crew, one small toilet, a galley kitchen and life rafts for a maximum of 30 people. With space for only 12 tonnes of water, supplies would have had to have been harshly rationed to keep from running out mid-journey.
“The captain was taking an amazing risk. We wouldn’t even send it to Malaysia ,” Mr. Harinsuit said. “The surprise isn’t that someone died [on the way to Canada ], the surprise is that it was only one person who died.”
 A Canada Border Services Agency [CBSA] investigation revealed that the ship had been part of an elaborate for-profit scheme to bring migrants to Canada . It also emerged from the investigation that the applicant was one of 12 migrants serving as the ship’s crew during the voyage. As a result, an immigration officer reported the applicant under subsection 44(1) of the IRPA as being inadmissible to Canada for people smuggling. A subsection 44(2) report was then referred to the ID and an admissibility hearing was held on April 15, 2011.
 The applicant testified at the hearing that until 2009, he had lived in the area of Sri Lanka controlled by the Liberation Tigers of Tamil Eelam [LTTE]. When the Sri Lankan army reasserted control of the area that year, he was held in a detention camp for suspected ties to the LTTE, interrogated, and beaten over a period of five months. As his ties to the LTTE were unsubstantiated, the applicant was eventually released, but remained the target of repeated harassment and interrogation by government forces.
 When he later refused to report to a detention camp and was nearly taken away by paramilitaries, the applicant fled to Thailand , leaving behind his wife and child. The applicant then waited in Bangkok while an agent arranged for him to travel to a country where he could claim refugee status. Unable to acquire a visa after a two-month wait, the agent offered him an opportunity to travel to Canada on the MV Sun Sea. The cost of the trip would be $30,000 and the applicant paid $5,000 up front.
 Ten days later, the applicant made his way to the ship in a van with about ten other men. They all boarded the vessel, which at that time had only a Thai crew and no other passengers on board. At the hearing before the ID, the applicant testified that he placed his belongings in one of the cabins of the vessel and slept. After two or three days, the Thai crew purportedly abandoned the vessel, leaving its passengers behind. The applicant claims that there was then a discussion as to what to do, that one of the men asked him if he could work on the ship, and that because he had already paid a portion of the fee for the voyage and feared returning to Sri Lanka , he agreed to help. For the rest of the voyage, the applicant worked twice a day in three-hour shifts in the engine room, monitoring the temperature, water, and oil level of the equipment. With regard to any material benefit he may have gained from his work, the applicant testified before the ID that he did not receive better accommodation or extra food, that he slept in a room because he was one of the first on the ship, and that he shared the room with eight others. Questioned again about receiving any extra food, the applicant stated that he received extra food on one occasion when the engine had broken down while he was on duty and one of the other men worked to repair it (TR at 57-63, Transcript of Proceedings at 11-17).
 There were notable differences between the above account provided to the ID and some of the answers given by the applicant in solemn declarations made to CBSA enforcement officers over the course of several interviews. During questioning, when asked what he received in exchange for working in the engine room, the applicant answered that he was able to sleep in a room in a level above (TR at 192, 196). Questioned as to why others would have identified him as a member of the LTTE, the applicant eventually stated the following: “See I was taken first on the ship, because of that I had a place to sleep and then I had the desire to learn more about the engine room so I had the opportunity and I worked there and then by working there we had kind of like extras, like noodles and stuff like that so maybe looking at all these things they have thought this way” (TR at 221). And later, questioned about what kind of food he received in comparison to the limited rations of noodles and water received by the passengers, the following exchange took place (TR at 237):
Q: Tell me about what kind of meals you ate.
A: Whatever is cooked that we eat but sometimes when I work in the engine room we are given some noodles.
Q: Tell me about the chicken and the pork and the beef.
A: They give us that. After a few days they said that’s all, we ran out of stock.
Q: Tell me about the soda pop, Coca Cola, Pepsi.
A: Yeah they gave soda.
Q: Not just everybody though.
A: That I don’t know.
Q: That was just to you guys. You guys got all kinds of good stuff. There was liquor, cigarettes if you wanted them, pop, soda, traditional foods.
A: Most of the people I see they were smoking but I’m not into smoking.
Q: But you still got traditional foods just like everyone else in the crew. See the thing is the passengers could smell it. The people in the hatch could smell it. They can smell the cooking 3 times a day for you guys while they’re stuck with noodles and small amounts of water.
A: What can I do? Those people give that what can I do? Whatever is given to me I’ll eat.
 In his solemn declarations, the applicant also confirmed that after the Thai crew left the ship, and before any other passengers had yet to board, he and seven of the men he had first boarded the ship with formed a crew that proved capable of picking up nearly five-hundred migrants and feeding them while navigating across the Pacific Ocean to Canada (TR at 195, 229). The applicant explained that he volunteered to work in the engine room because of his previous experience as a mechanic, but denied already knowing he would take on this role before boarding the ship.
 At the hearing, the applicant also denied knowing any of the other crew members prior to the voyage, but was presented with evidence to the contrary. Three photographs show him posing with three members of the crew (including the captain) while still in Bangkok . The men can even be seen eating a meal together in one of the photos. Invited to respond, the applicant could not remember when these photographs were taken and could only explain that he would sometimes interact with other members of the Tamil Diaspora he encountered in Bangkok during the approximately two and a half months he spent there. Despite the photos, the applicant insisted that he did not remember seeing the crew members in Bangkok (TR at 232-233).
II. Impugned Decision
A. Interpreting the Relevant Provisions of the IRPA and Identifying the Requirements to
Establish People Smuggling
 The applicant was reported inadmissible to Canada under para 37(1)( b ) of the IRPA, which reads as follows:
| Immigration and Refugee Protection Act , SC 2001, c 27Organized criminality 37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for[…](b) engaging, in the context of transnational crime, in activities such as people smuggling , trafficking in persons or money laundering.[Emphasis added.]
|| Loi sur l’immigration et la protection des réfugiés ,LC 2011, ch 27Activités de criminalité organisée 37. (1) Emportent interdiction de territoire pour criminalité organisée les faits suivants :[…]b) se livrer, dans le cadre de la criminalité transnationale , à des activités telles le passage de clandestins , le trafic de personnes ou le recyclage des produits de la criminalité.[Nous soulignons.]
 In its reasons, the ID first examined the term...