Canada (Minister of Citizenship and Immigration) v. B377, (2013) 430 F.T.R. 54 (FC)

• Judge: Blanchard, J.
• Court: Federal Court (Canada)
• Case Date: February 05, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 430 F.T.R. 54 (FC);2013 FC 320

Can. (M.C.I.) v. B377 (2013), 430 F.T.R. 54 (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. MY.001

The Minister of Citizenship and Immigration (applicant) v. B377 (respondent)

(IMM-6116-12; 2013 FC 320; 2013 CF 320)

Indexed As: Canada (Minister of Citizenship and Immigration) v. B377

Federal Court

Blanchard, J.

March 28, 2013.

Summary:

The respondent was a young adult Sri Lankan citizen of Tamil ethnicity. He alleged that he was displaced three times in the 1990s due to civil war. He was separated from his family in 2006 and moved to an area controlled by the Liberation Tigers of Tamil Eelam (LTEE). He was subsequently interrogated and tortured on suspicion of being a member of the LTEE. He fled to Thailand in 2010 and boarded a ship to Canada. The Refugee Protection Division granted the respondent Convention refugee status. The Minister of Citizenship and Immigration applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The respondent, a young adult Sri Lankan citizen of Tamil ethnicity, was allegedly displaced three times in the 1990s due to civil war - He was separated from his family in 2006 and moved to an area controlled by the Liberation Tigers of Tamil Eelam (LTEE) - He was subsequently interrogated and tortured on suspicion of being a member of the LTEE - He fled to Thailand and boarded a ship (the MV Sun Sea) to Canada - The Refugee Protection Division (RPD) granted the respondent Convention refugee status, finding that he had a well-founded fear of persecution based on his membership in a particular social group - The RPD conducted a "mixed motives" analysis and found that a sur place refugee claim also existed because of the respondent's membership in a group of refugee claimants aboard the MV Sun Sea - Several factors led to the respondent's fear of persecution, including his ethnicity and his perceived political opinion as a Sun Sea passenger - The Minister of Citizenship and Immigration applied for judicial review, arguing that the RPD erred in finding a nexus between the respondent's claim and a Convention ground, and it was unclear which Convention ground it was making the nexus with - The Federal Court dismissed the application - The RPD concluded that a nexus to a Convention ground was established based on the respondent's race and evidence of a pattern of discrimination by government authorities against Tamils - This finding was reasonable - The RPD's analysis clearly set out the respondent's fear of persecution on the grounds of his ethnicity or race - The RPD's conclusion respecting political opinion was not justified, but this deficiency had no bearing on the outcome - See paragraphs 12 to 27.

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - [See Aliens - Topic 1331 ].

Aliens - Topic 1323.1

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - "Particular social group" defined - [See first Aliens - Topic 1322 ].

Aliens - Topic 1323.7

Admission - Refugee protection, Convention refugees and persons in need of protection - Refugee "sur place" - [See first Aliens - Topic 1322 ].

Aliens - Topic 1323.8

Admission - Refugee protection, Convention refugees and persons in need of protection - "Political opinion" defined - [See first Aliens - Topic 1322 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - The respondent, a young adult Sri Lankan citizen of Tamil ethnicity, was allegedly displaced three times in the 1990s due to civil war - He was separated from his family in 2006 and moved to an area controlled by the Liberation Tigers of Tamil Eelam (LTEE) - He was subsequently interrogated and tortured on suspicion of being a member of the LTEE - He fled to Thailand and boarded a ship to Canada - The Refugee Protection Division (RPD) granted the respondent Convention refugee status - The RPD rejected certain documentary evidence to the effect that returnees to Sri Lanka were questioned but not mistreated - The RPD found that Sri Lankan authorities behaved differently when being observed, and public reports were likely to be skewed in the direction of less reporting of torture and abuse - The Minister of Citizenship and Immigration applied for judicial review, arguing that the RPD applied the incorrect standard of proof by rejecting the documentary evidence - The Federal Court dismissed the application - The RPD applied the correct standard of proof, namely that the respondent had to establish his case on a balance of probabilities but did not have to prove that persecution would be more likely than not - It was open to the RPD to prefer reports which indicated that returnees were mistreated - The finding respecting public reports was supported by evidence that Sri Lankan authorities were secretive about their internal practices, barred access to detainees, and threatened people who spoke up about their treatment in detention - See paragraphs 28 to 31.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008); 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 8].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 8].

Ministry of Commerce and Industry of the Republic of Cyprus v. Producteurs Laitiers du Canada et al. (2011), 420 N.R. 124; 2011 FCA 201, refd to. [para. 10].

Yang v. Canada (Minister of Public Safety) (2008), 324 F.T.R. 22; 2008 FC 158, refd to. [para. 10].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 12].

Levano v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 182 F.T.R. 153 (T.D.), refd to. [para. 16].

Stefanov v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 475; 2002 FCT 704, refd to. [para. 16].

Ivakhnenko v. Canada (Solicitor General), [2004] F.T.R. Uned. 729; 2004 FC 1249, refd to. [para. 16].

Canada (Minister of Citizenship and Immigration) v. B380 (2013), 421 F.T.R. 138; 2012 FC 1334, dist. [para. 19].

Gonsalves v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 22; 2011 FC 648, refd to. [para. 21].

Veeravagu v. Canada (Minister of Citizenship and Immigration), [1992] F.C.J. No. 468 (C.A.), refd to. [para. 22].

Nara v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 212; 2012 FC 364, refd to. [para. 22].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 24].

Canada Post Corp. v. Public Service Alliance of Canada et al. (2010), 399 N.R. 127; 2010 FCA 56, revd. (2011), 423 N.R. 117; 2011 SCC 57, refd to. [para. 26].

Adjei v. Canada (Minister of Citizenship and Immigration), [1992] 2 F.C. 680 (C.A.), refd to. [para. 29].

Kozak et al. v. Canada (Minister of Citizenship and Immigration) (2006), 349 N.R. 309; 2006 FCA 124, refd to. [para. 33].

Ndungu v. Canada (Minister of Citizenship and Immigration) (2011), 423 N.R. 228; 2011 FCA 208, refd to. [para. 34].

Counsel:

Banafsheh Sokhansanj, for the applicant;

Douglas Cannon, for the respondent.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Elgin, Cannon & Associates, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard in Vancouver, British Columbia, on February 5, 2013, before Blanchard, J., of the Federal Court, who delivered confidential reasons for judgment on March 28, 2013, and the following public reasons for judgment on May 8, 2013.