Canada (Minister of Citizenship and Immigration) v. B472, (2013) 427 F.T.R. 279 (FC)

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: January 22, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 427 F.T.R. 279 (FC);2013 FC 151

Can. (M.C.I.) v. B472 (2013), 427 F.T.R. 279 (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: [2013] F.T.R. TBEd. MR.015

The Minister of Citizenship and Immigration (applicant) v. B472 (respondent)

(IMM-7816-12; 2013 FC 151; 2013 CF 151)

Indexed As: Canada (Minister of Citizenship and Immigration) v. B472

Federal Court

Harrington, J.

February 25, 2013.

Summary:

The respondent, a young Tamil, left his native Sri Lanka as an economic immigrant. He arrived in Canada as a Convention refugee on a ship (the Sun Sea) with 500 other passengers.  A terrorist organization, the Liberation Tigers of Tamil Elam (LTTE) might have organized the Sun Sea's voyage. Even though the deciding member of the Refugee Protection Division of the Immigration and Refugee Board found that the respondent had no LTTE affiliations prior to his departure, his status as a passenger on board the Sun Sea raised that issue and exposed him to a serious possibility of persecution should he be returned to Sri Lanka. Consequently, he was found to be a refugee sur place pursuant to s. 96 of the Immigration and Refugee Protection Act. The Minister of Citizenship and Immigration applied for judicial review.

The Federal Court allowed the application and remitted the matter to the Board for reconsideration. The Board certified the following question: "Is review by this Court of the meaning of 'membership in a particular social group' in section 96 of the Immigration and Refugee Protection Act as determined by a member of the Refugee Protection Division of the Immigration and Refugee Board on the correctness or reasonableness standard?"

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection -"Particular social group" defined - The respondent, a young Tamil, left his native Sri Lanka as an economic immigrant - He arrived in Canada as a Convention refugee on a ship (the Sun Sea) with 500 other passengers - A terrorist organization, the Liberation Tigers of Tamil Elam (LTTE) might have organized the Sun Sea's voyage - Even though the deciding member of the Refugee Protection Division of the Immigration and Refugee Board found that the respondent had no LTTE affiliations prior to his departure, his status as a passenger on board the Sun Sea raised that issue and exposed him to a serious possibility of persecution should he be returned to Sri Lanka - Consequently, he was found to be a refugee sur place pursuant to s. 96 of the Immigration and Refugee Protection Act (IRPA) - The Minister of Citizenship and Immigration applied for judicial review - The Federal Court allowed the application - The case turned on the legal definition of "membership in a particular social group" within the meaning of s. 96 of the IRPA - The applicable standard of review was correctness - The fact of having come together voluntarily in a particular way for the purpose of travelling to Canada to seek refugee status was not a sufficient basis upon which to become a member of a "particular social group" within the meaning of s. 96 - The Sun Sea's passengers had a myriad of motives to come to Canada - There was no cohesion or connection to the other refugee grounds set out in s. 96 of the IRPA.

Aliens - Topic 1334

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Scope of review - [See Aliens - Topic 1323.1 ].

Cases Noticed:

Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680; 132 N.R. 24 (F.C.A.), refd to. [para. 4].

Li (Y.) v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239; 329 N.R. 346 (F.C.A.), refd to. [para. 4].

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. 7].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 10].

Febles v. Canada (Minister of Citizenship and Immigration) (2013), 442 N.R. 290; 2012 FCA 324, refd to. [para. 11].

Feimi v. Canada (Minister of Citizenship and Immigration) (2012), 406 F.T.R. 14; 2012 FC 262, refd to. [para. 11].

Dufour v. Canada (Minister of Citizenship and Immigration) (2012), 412 F.T.R. 52; 2012 FC 580, refd to. [para. 13].

Portillo v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 290; 2012 FC 678, agreed with [para. 14].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 15].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 15].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 16].

Canada (Minister of Citizenship and Immigration) v. B380 (2013), 421 F.T.R. 138; 2012 FC 1334, refd to. [para. 18].

P.M. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 40; 2013 FC 77, refd to. [para. 19].

S.K. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 41; 2013 FC 78, refd to. [para. 19].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 21].

Nazifpour v. Canada (Minister of Citizenship and Immigration) (2007), 360 N.R. 199; 2007 FCA 35, refd to. [para. 21].

Azizi v. Canada (Minister of Citizenship and Immigration) (2005), 265 F.T.R. 251; 2005 FC 354, affd. (2005), 344 N.R. 174; 2005 FCA 406, refd to. [para. 21].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 24].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 30].

Canada (Minister of Citizenship and Immigration) v. Thanabalasingham (2003), 241 F.T.R. 12; 2003 FC 1225, affd. (2004), 315 N.R. 91; 2004 FCA 4, refd to. [para. 33].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 34].

Counsel:

Banafsheh Sokhansanj, for the applicant;

Daniel McLeod, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the applicant;

Preston Clerk McLeod, Lawyers & Notaries, Vancouver, British Columbia, for the respondent.

This application was heard at Vancouver, British Columbia, on January 22, 2013, by Harrington, J., of the Federal Court, who delivered confidential reasons for judgment on February 12, 2013, and filed the following public reasons on February 25, 2013.