Canada (Minister of Citizenship and Immigration) v. A068, (2013) 443 F.T.R. 46 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: May 15, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 443 F.T.R. 46 (FC);2013 FC 1119

Can. (M.C.I.) v. A068 (2013), 443 F.T.R. 46 (FC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2013] F.T.R. TBEd. NO.041

The Minister of Citizenship and Immigration (applicant) v. A068 (respondent)

(IMM-8485-12; 2013 FC 1119; 2013 CF 1119)

Indexed As: Canada (Minister of Citizenship and Immigration) v. A068

Federal Court

Gleason, J.

November 19, 2013.

Summary:

The claimant, a passenger on a ship bearing Tamil asylum-seekers, was found to not be a member of the Liberation Tigers of Tamil Elam. The Refugee Protection Division (RPD) determined that the claimant was a refugee due to the risk he faced as a result of his presence on the ship. The Minster of Citizenship and Immigration applied for judicial review, and framed the issue in the context of membership in a particular social group.

The Federal Court dismissed the application. The RPD tied its nexus finding to race or nationality and perceived political opinion. "As the Board's decision in this case was based on a reasonable determination of there being a nexus to a ground enumerated in the Refugee Convention and as its factual findings related to there being a reasonable chance that the claimant would be persecuted if returned to Sri Lanka are reasonable, the decision in this case must be upheld."

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Aliens - Topic 1314

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - General (incl. what constitutes) (IRPA, s. 97) - [See Aliens - Topic 1322 ].

Aliens - Topic 1322

Admission - Refugee protection, Convention refugees and persons in need of protection - Grounds - Well-founded fear of persecution - The claimant/respondent in this judicial review application was a passenger on the M/V Ocean Lady, one of the two ships bearing Tamil asylum-seekers that landed on Canadian shores in late 2009 and mid-2010 - The claimant was found by the Refugee Protection Division (RPD) to not be a member of the Liberation Tigers of Tamil Elam - The Federal Court reviewed the relevant legislative backdrop (ss. 96 and 97 of the Immigration and Refugee Protection Act), the higher standard of proof required in respect of a claim under s. 97, and the various decisions rendered to date by the court in cases involving passengers on the M/V Ocean Lady and M/V Sun Sea, including the four principal issues canvassed in the case law: (1) the standard of review; (2) the meaning to be ascribed to "particular social group"; (3) "mixed motives" and perceived political opinion; and (4) the court's treatment of the RPD's factual determinations regarding the degree of risk that a claimant might face if returned to Sri Lanka - See paragraphs 7 to 26.

Aliens - Topic 1323.1

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

Aliens - Topic 1335

Admission - Refugee protection, Convention refugees and persons in need of protection - Appeals or judicial review - Grounds - The Refugee Protection Division (RPD) 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, a ship bearing Tamil asylum-seekers - The claimant was found to not be a member of the Liberation Tigers of Tamil Elam (LTTE) - On judicial review, the Minister framed the issue in the context of membership in a particular social group - The Federal Court did not find it necessary to address the "particular social group" issue - The RPD tied its nexus finding to race or nationality and perceived political opinion - Upholding the Board's decision on that basis was in line with the 1993 decision of the Supreme Court of Canada in Canada (Attorney General) v. Ward - Thus, the RPD's determination that there was a nexus to a ground in the Refugee Convention was reasonable - Further, the RPD had before it multiple pieces of evidence that supported its actual findings related to there being a reasonable chance that the claimant would be persecuted if returned to Sri Lanka - See paragraphs 27 to 41.

Cases Noticed:

Canada (Minister of Citizenship and Immigration) v. B380 (2013), 421 F.T.R. 138; 2012 FC 1334, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B342, IMM-914-12, refd to. [para. 2].

P.M. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 40; 2013 FC 77, refd to. [para. 2].

S.K. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 41; 2013 FC 78, refd to. [para. 2].

Ganeshan v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 388; 2013 FC 841, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B472 (2013), 427 F.T.R. 279; 2013 FC 151, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B323, [2013] F.T.R. Uned. 68; 2013 FC 190, refd to. [para. 2].

B027 et al. v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 234; 2013 FC 485, refd to. [para. 2].

B223 v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 235; 2013 FCF 511, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. A011 (2013), 433 F.T.R. 229; 2013 FC 580, refd to. [para. 2].

B135 et al. v. Canada (Minister of Citizenship and Immigration) (2013), 438 F.T.R. 128; 2013 FC 871, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B399 (2013), 429 F.T.R. 88; 2013 FC 260, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B377 (2013), 430 F.T.R. 54; 2013 FC 320, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B420, [2013] F.T.R. Uned. 152; 2013 FC 321, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. A032, [2013] F.T.R. Uned. 153; 2013 FC 322, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B451, [2013] F.T.R. Uned. 233; 2013 FC 441, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B344, [2013] F.T.R. Uned. 219; 2013 FC 447, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B459 (2013), 435 F.T.R. 317; 2013 FC 740, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B171 et al. (2013), 435 F.T.R. 312; 2013 FC 741, refd to. [para. 2].

Thanapalasingam v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 384; 2013 FC 830, refd to. [para. 2].

Canada (Minister of Citizenship and Immigration) v. B272 (2013), 438 F.T.R. 104; 2013 FC 870, refd to. [para. 2].

P.K. v. Canada (Minister of Citizenship and Immigration) (2013), 440 F.T.R. 132; 2013 FC 969, refd to. [para. 2].

Balakrishnan v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 447; 2013 FC 944, refd to. [para. 2].

Adjei v. Minister of Employment and Immigration, [1989] 2 F.C. 680; 132 N.R. 24; 57 D.L.R.(4th) 153 (F.C.A.), refd to. [para. 8].

Németh v. Canada (Minister of Justice), [2010] 3 S.C.R. 281; 408 N.R. 198; 2010 SCC 56, refd to. [para. 8].

Mugadza v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 69; 164 A.C.W.S.(3d) 841; 2008 FC 122, refd to. [para. 8].

Li (Y.) v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346; 249 D.L.R.(4th) 306; 2005 FCA 1, refd to. [para. 9].

Febles v. Canada (Minister of Citizenship and Immigration) (2012), 442 N.R. 290; 357 D.L.R.(4th) 343; 2012 FCA 324, refd to. [para. 13].

Feimi v. Canada (Minister of Citizenship and Immigration) (2012), 442 N.R. 374; 353 D.L.R.(4th) 536; 2012 FCA 325, refd to. [para. 13].

B010 v. Canada (Minister of Citizenship and Immigration) (2013), 443 N.R. 1; 359 D.L.R.(4th) 730; 2013 FCA 87, refd to. [para. 14].

Ezokola v. Canada (Minister of Citizenship and Immigration) (2013), 447 N.R. 254; 361 D.L.R.(4th) 1; 2013 SCC 40, refd to. [para. 14].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 19].

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. 28].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 96 [para. 8]; sect. 97 [para. 9].

Counsel:

Alexis Singer and Nicole Paduraru, for the applicant;

Kumar Sriskanda, for the respondent.

Solicitors of Record:

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

Kumar S. Sriskanda, Scarborough, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on May 15, 2013, before Gleason, J., of the Federal Court, who released the following public version of the reasons for judgment and judgment, on November 19, 2013, at Ottawa, Ontario.