B381 v. Canada (Minister of Citizenship and Immigration), (2014) 457 F.T.R. 137 (FC)

• Judge: Strickland, J.
• Court: Federal Court (Canada)
• Case Date: November 13, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2014), 457 F.T.R. 137 (FC);2014 FC 608

B381 v. Can. (M.C.I.) (2014), 457 F.T.R. 137 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. JN.045

B381 (applicant) v. The Minister of Citizenship & Immigration (respondent)

(IMM-11476-12; 2014 FC 608; 2014 CF 608)

Indexed As: B381 v. Canada (Minister of Citizenship and Immigration)

Federal Court

Strickland, J.

June 24, 2014.

Summary:

B381 was a 34 year old male citizen of Sri Lanka, who arrived in Canada aboard the MV Sun Sea, one of two ships carrying Tamil asylum-seekers. The Refugee Protection Division of the Immigration and Refugee Board rejected his claim for refugee protection under ss. 96 and 97 of the Immigration and Refugee Protection Act and his claim as a refugee sur place. B381 applied for judicial review.

The Federal Court allowed the application. The matter was remitted for reconsideration by a different panel.

Aliens - Topic 1323.7

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee "sur place" - B381 was a 34 year old male citizen of Sri Lanka, who arrived in Canada aboard the MV Sun Sea, one of two ships carrying Tamil asylum-seekers - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected his claim for refugee protection under ss. 96 and 97 of the Immigration and Refugee Protection Act and his claim as a refugee sur place - B381 applied for judicial review - The Federal Court allowed the application - The RPD's assessment of the sur place claim was unreasonable because of the manner in which it treated a report from Amnesty International (AI) - This error placed the decision outside of the range of reasonable and acceptable outcomes - The RPD was entitled to weigh documentary evidence - However, it erred when it engaged in a selective analysis of documentary evidence, accepting evidence that supported its conclusions but ignoring relevant contradictory evidence without explanation - The RPD failed to explain why it gave greater weight to a statement by the Sri Lankan High Commissioner than to the AI report - The RPD should have addressed the AI report by giving reasons for not accepting its content - See paragraphs 41 to 53.

Aliens - Topic 1323.7

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee "sur place" - B381 was a 34 year old male citizen of Sri Lanka, who arrived in Canada aboard the MV Sun Sea, one of two ships carrying Tamil asylum-seekers - The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected his claim for refugee protection under ss. 96 and 97 of the Immigration and Refugee Protection Act and his claim as a refugee sur place - B381 applied for judicial review - The Federal Court allowed the application - The RPD's assessment of the sur place claim was unreasonable because it made a contradictory finding regarding B381's risk on return to Sri Lanka - The RPD accepted that the Sri Lankan authorities might detain B381 because of their suspicions arising out of his travel on the MV Sun Sea or of his having ties to the Liberation Tigers of Tamil Eelam (LTTE) or because of information about passenger on the MV Sun Sea - It accepted that persons suspected of having LTTE links were at risk of persecution - However, these findings contradicted the RPD's finding that there was no serious possibility that B381 would face persecution - Further, the RPD relied in part on the fact that B381 had travelled in and out of Sri Lanka in the past and that B381 was unaware of the LTTE's involvement in the human smuggling operation until after the voyage - Each of those facts had limited bearing on the sur place analysis - See paragraphs 54 to 58.

Aliens - Topic 1326.4

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee Protection Division and Refugee Appeal Division - Reasons - [See first Aliens - Topic 1323.7 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - [See first Aliens - Topic 1323.7 ].

Cases Noticed:

Sivalingam v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 26; 2012 FC 47, refd to. [para. 14].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; [1989] 2 S.C.T. 659; 153 N.R. 321, refd to. [para. 22].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 26].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 26].

P.M. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 40; 2013 FC 77, refd to. [para. 27].

Ganeshan v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 388; 2013 FC 841, refd to. [para. 27].

Lici et al. v. Canada (Minister of Citizenship and Immigration) (2011), 401 F.T.R. 274; 2011 FC 1451, refd to. [para. 27].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 28].

Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 29].

Francis v. Canada (Minister of Citizenship and Immigration) (2011), 397 F.T.R. 162; 2011 FC 1095, refd to. [para. 29].

Alci v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 663; 2005 FC 675, refd to. [para. 29].

Turner v. Canada (Attorney General) (2012), 431 N.R. 327; 2012 FCA 159, refd to. [para. 29].

Sinnathurai v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 351; 2005 FC 515, refd to. [para. 29].

Garcia v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 466; 2005 FC 807, refd to. [para. 29].

Toriz Gilvaja v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 391; 2009 FC 598, refd to. [para. 29].

Neto v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 434; 2007 FC 664, refd to. [para. 29].

Lopez Villicana et al. v. Canada (Minister of Citizenship and Immigration) (2009), 357 F.T.R. 139; 2009 FC 1205, refd to. [para. 29].

Bohorquez v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 478; 2011 FC 808, refd to. [para. 29].

Kulasekaram v. Canada (Minister of Citizenship and Immigration) (2013), 431 F.T.R. 96; 2013 FC 388, refd to. [para. 30].

Canada (Minister of Citizenship and Immigration) v. B399 (2013), 429 F.T.R. 88; 2013 FC 260, refd to. [para. 30].

Canada (Minister of Citizenship and Immigration) v. B377 (2013), 430 F.T.R. 54; 2013 FC 320, refd to. [para. 30].

Mahjoub v. Canada (Minister of Citizenship and Immigration) et al. (2006), 304 F.T.R. 290; 2006 FC 1503, refd to. [para. 31].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al. (2009), 340 F.T.R. 53; 2009 FC 65, refd to. [para. 31].

Amiragova v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 30; 2008 FC 64, refd to. [para. 32].

Sobhesedgh v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 323; 2003 FCT 570, refd to. [para. 32].

B027 et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 234; 2013 FC 485, refd to. [para. 32].

Canada (Minister of Citizenship and Immigration) v. B272 (2013), 438 F.T.R. 104; 2013 FC 870, refd to. [para. 33].

Sinnathamby v. Canada (Minister of Citizenship and Immigration) (2005), 270 F.T.R. 151; 2005 FC 188, refd to. [para. 35].

Hilo v. Minister of Employment and Immigration (1991), 130 N.R. 236 (F.C.A.), refd to. [para. 35].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 35].

Florea v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 598 (C.A.), refd to. [para. 37].

Hasan v. Canada (Minister of Employment and Immigration, [1992] F.C.J. No. 946 (C.A.), refd to. [para. 37].

Kis et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 270; 2012 FC 606, refd to. [para. 37].

Kaur v. Canada (Minister of Citizenship and Immigration, [2002] F.C.J. No. 190 (T.D.), refd to. [para. 37].

Sarissky v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 79; 2013 FC 186, refd to. [para. 45].

Barua v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 279; 2012 FC 607, refd to. [para. 50].

Manoharan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 356 (T.D.), refd to. [para. 50].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 53].

Y.S. v. Canada (Minister of Citizenship and Immigration) (2014), 452 F.T.R. 144; 2014 FC 324, refd to. [para. 56].

Authors and Works Noticed:

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, generally [para. 42].

Counsel:

Karina Thompson, for the applicant;

Nur Muhammed-Ally, for the respondent.

Solicitors of Record:

Karina Thompson, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on November 13, 2013, by Strickland, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on June 24, 2014.