r v. Canada, 2013 FC 151

IMM-7816-12 2013 FC 151 The Minister of Citizenship and Immigration ( Applicant ) v. B472 ( Respondent ) Indexed as: Canada (Citizenship and Immigration) v. B472 Federal Court, Harrington .J.—Vancouver, January 22; Ottawa, February 25, 2013. Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Judicial review of decision by Refugee Protection Division (RPD) of Immigration and Refugee Board finding that respondent Convention refugee — Respondent, Sri Lankan Tamil, arriving as refugee on board MV Sun Sea — RPD determining that status as passenger on Sun Sea exposing respondent to persecution — Whether RPD’s decision correct — RPD erred in

interpretation of Immigration and Refugee Protection Act, s. 96 — Case turning on legal definition of “membership in a particular social group” within meaning of Act, s. 96 — Historical fact of coming together in particular way for purpose of travelling to Canada not sufficient basis to become member of “particular social group” — No cohesion or connection to other refugee grounds in s. 96 — Respondent not facing persecution because of membership in particular social group — Question as to standard of review to be used in interpreting “membership in a particular social group” certified — Application allowed.

Administrative Law — Judicial Review — Standard of Review — Refugee Protection Division (RPD) of Immigration and Refugee Board finding that respondent Convention refugee — Standard of review as applied to Act, ss. 96, 97 correctness since right of non-citizens to enter or to remain in Canada to be determined on principles of fundamental justice.

This was an application for judicial review of a decision by the Refugee Protection Division (RPD) of the Immigration and Refugee Board finding that the respondent is a Convention refugee because he has a well-founded fear of persecution based on his particular social group, pursuant to

section 96 of the Immigration and Refugee Protection Act (IRPA). The respondent, a Tamil of Sri Lankan nationality, arrived as a refugee on board the MV Sun Sea . Even though the RPD found that the respondent had no affiliations with the Liberation Tigers of Tamil Elam, it determined that 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. The RPD thus found him to be a refugee sur place . The applicant submitted that it was unreasonable to find that the Tamil passengers on board the MV Sun Sea were a “particular social group” for the purposes of

section 96 and that the “balance of probabilities” standard of proof should have been used in the RPD’s findings of fact rather than the “serious possibility” standard. The main issue was whether the RPD’s decision was correct. Held , the application should be allowed. The standard of review in this case as applied to sections 96 and 97 of IRPA was correctness. The RPD erred in its

interpretation of

section 96. The case turned on the legal definition of “membership in a particular social group” within the meaning of

section 96 of IRPA. As noted by the Court in Canada (Citizenship and Immigration) v. B380 , the historical 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

section 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

section 96. It may well be that the respondent faces a serious risk of persecution were he to be returned to Sri Lanka, but not because of his membership in a particular social group, the Tamil passengers on the ship. The question of whether the meaning of “membership in a particular social group” in

section 96 as determined by the RPD should be reviewed on the correctness or reasonableness standard was certified. Such a judicial review is based on the correctness standard because who comes and who goes is fundamental and central to the Canadian way of life. Legislation does not impose any requirement that members of the RPD have particular legal expertise. The qualified right of non-citizens to enter or to remain in Canada is to be determined on principles of fundamental justice. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 96, 97 , 98 .

Immigration and Refugee Protection Regulations , SOR/2002-227. TREATIES AND OTHER INSTRUMENTS CITED United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can. T.S. No. 6, Art. 1(F)(b). Universal Declaration of Human Rights , GA Res. 217 A (III), UN Doc. A/810, at p. 71 (1948). CASES CITED applied: Dufour v. Canada (Citizenship and Immigration) , 2012 FC 580 , 412 F.T.R. 52; Canada (Minister of Citizenship and Immigration) v.

Thanabalasingham, 2003 FC 1225, [2004] 3 F.C.R. 532, affd 2004 FCA 4, [2004] 3 F.C.R. 572. considered: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2F.C.R. 224, Feimi v. Canada (Citizenship and Immigration), 2012 FC 262, [2013] 4 F.C.R. 345; Portillo v. Canada (Citizenship andImmigration), 2012 FC 678, [2014] 1 F.C.R. 295; Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339;Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canada (Citizenshipand Immigration) v. B380, 2012 FC 1334, 421 F.T.R. 138; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3,[2002] 1 S.C.R. 84; Nazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515; Azizi v. Canada(Minister of Citizenship and Immigration), 2005 FC 354, 131 C.R.R. (2d) 120, affd 2005 FCA 406, [2006] 3 F.C.R. 118; Canada(Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689; Pushpanathan v.

Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982. referred to: Adjei v. Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C. 680, (1989), 57 D.L.R. (4th) 153(C.A.); Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239; Mugesera v. Canada (Minister ofCitizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100; P.M. v. Canada (Citizenship and Immigration), 2013 FC 77; S.K. v.Canada (Citizenship and Immigration), 2013 FC 78; Chiarelli v.

Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R (4th) 289. APPLICATION for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board finding thatthe respondent is a Convention refugee because he has a well-founded fear of persecution based on his particular social group, pursuantto

section 96 of the Immigration and Refugee Protection Act. Application allowed. APPEARANCES Banafsheh Sokhansanj for applicant. Daniel McLeod for respondent. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Preston Clark McLeod, Vancouver, for respondent. The following are the public reasons for order rendered in English by [1] Harrington J.: Mr. B472, a young Tamil, left Sri Lanka as an economic migrant. He arrived here in Canada as a refugee withinthe meaning of the United Nations Convention Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S. No. 6].

Why?—because of how he got here. He was one of the close to 500 passengers on the MV Sun Sea, a ship which has gained considerablenotoriety in Canada and in Sri Lanka. He was found to be a liar; that there was no serious risk of his being persecuted when he left SriLanka. Furthermore, he had done nothing while in Canada to draw himself to the attention of Sri Lankan authorities. However, a terroristorganization, the Liberation Tigers of Tamil Elam (LTTE) may have organized the Sun Sea’s fateful voyage.

Thus, even though thedeciding member of the Refugee Protection Division (RPD) of the Immigration and Refugee Board found he had no LTTE affiliationsprior to his departure, his status as a passenger on board the Sun Sea raised that issue and exposed him to a serious possibilityof persecution should he be returned to Sri Lanka. Consequently, in the “determination”

section of her reasons, the member wrote: I find the claimant is a Convention refugee because he has a well-founded fear of persecution based on his particular social group,pursuant to s. 96 of the Act. [2] Thus he was found to be a refugee sur place. This judicial review is brought on by the Minister who submits that it wasunreasonable to find that the Tamil passengers on board the MV Sun Sea were a “particular social group” for the purposes of

section 96of the Immigration and Refugee Protection Act [S.C. 2001, c. 27] (IRPA) and that the wrong standard of proof was used in the Board’sfindings of fact. It should have used the “balance of probabilities” standard rather than the “serious possibility” standard. [3] In accordance with

section 96 of the IRPA, a Convention refugee is one who has a well-founded fear of persecution “for reasonsof race, religion, nationality, membership in a particular social group or political opinion”.

Section 96 is to be contrasted with

section 97which gives protection to persons who are not Convention refugees, but if returned to their country would be personally subjected to adanger of torture or to a risk to life or to a risk of cruel and unusual treatment or punishment. [4] The standard of proof differs. Under

section 96 the burden is on the claimant to establish a reasonable chance of persecution,which is something less than the balance of probabilities (Adjei v. Canada (Minister of Employment and Immigration), (FCA), [1989] 2 F.C. 680 (C.A.)). However, under

section 97 the applicant must make out a case on the balance of probabilities (Liv. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239). I. ISSUES [5] The issues in this judicial review are: a. What is the standard of review?

b. If the standard of review is correctness, is the decision correct? c. If the standard of review is reasonableness, is the decision unreasonable? II. DECISION a. Standard of Review [ 6 ] The RPD found not only that there was no serious possibility of persecution when Mr. B472 left Sri Lanka, but also that, on the balance of probabilities, he was not at risk of torture, to his life, or of cruel and unusual treatment or punishment. Although reference was made in the decision to the rather ambivalent attitude of the Sri Lankan authorities toward torture, the decision was based strictly on

section 96, to the exclusion of

section 97. Thus, the standard of review is crucial to this case. There may be more than one reasonable

interpretation of sections of IRPA , but there can only be one correct

interpretation. The decision maker found Mr. B472 to be a refugee sur place . On the same facts, other decision makers at the Board have held the contrary. Thus, it may well be a matter of chance whether one is allowed to stay in Canada or not. I was also told during the hearing that one stood a better chance at being found a refugee sur place if the hearing took place in Vancouver rather than in Toronto. [ 7 ] Prior to the Supreme Court’s decision in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, this Court showed no deference to the Immigration and Refugee Board on questions of law, even if they were related to its home statute, IRPA , or related statutes. [ 8 ] Dunsmuir held, at paragraph 54 that “[d]eference will usually result where a tribunal is interpreting its home statute or statutes closely connected to its function, with which it will have particular familiarity”.

However, it went on to say an exhaustive analysis was not necessary in every case in which the proper standard of review was in issue as existing jurisprudence might prove helpful in determining questions that generally fall to be determined according to the correctness standard. One has to take into account whether the question is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s special area of expertise. [ 9 ] The Court concluded at paragraph 62: In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [ 10 ] Since then, the Supreme Court may well have hardened its view against the correctness standard. In Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654, at paragraph 39 , Mr. Justice Rothstein stated: When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. [ 11 ] It is not beyond the realm of possibility that some provisions of a “home” statute are to be interpreted on a reasonableness standard, while others may be interpreted on a correctness standard. In Hernandez Febles v. Canada (Citizenship and Immigration) , 2012 FCA 324 , [2014] 2 F.C.R. 224, Mr.

Justice Evans, with whom Madam Justice Sharlow concurred, held that correctness was the standard of review applicable to the RPD’s

interpretation of

Article 1F(

b) of the United Nations Convention, which is incorporated into IRPA via

section 98 . The Minister had submitted that it was unnecessary for the Court to decide the issue, as the appeal must fail irrespective of which standard of review applied. However, Mr. Justice Evans took note of the fact that the application Judge had applied the reasonableness standard while in the companion case of Feimi v. Canada (Citizenship and Immigration) , 2012 FC 262 , [2013] 4 F.C.R. 345, the correctness standard was applied. He was of the view that such uncertainty was sufficient reason to decide which standard applied.

In applying the correctness standard, he said at paragraphs 24 and 25: I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’

interpretation of their enabling statute does not apply in this case.

Article 1F (

b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting

Article 1F (

b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the

interpretation of

Article 1F (

b) does not give rise to any ambiguity. Accordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s

interpretation of

Article 1F (

b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62 . [ 12 ] In his concurring set of reasons, Mr. Justice Stratas agreed with the Minister that the standard of review need not have been determined in that case. He was not prepared to ascribe to the view that the need for uniformity in the

interpretation of

Article 1F(

b) necessarily favoured the correctness standard of review. [ 13 ] This leads me to recent decisions of this Court. In Dufour v. Canada (Citizenship and Immigration) , 2012 FC 580 , 412 F.T.R. 52, Mr. Justice Shore, relying on Dunsmuir , was of the view that the degree of deference to be given to the Board’s

interpretation of provisions of IRPA had already been determined in a satisfactory manner and concluded that the standard of review was correctness. [ 14 ] In Portillo v. Canada (Citizenship and Immigration) , 2012 FC 678 , [2014] 1 F.C.R. 295, Madam Justice Gleason carried out an extensive review of Federal Court jurisprudence which waffles between the two standards. It was not necessary for her to reach any conclusion in that case as the decision was unreasonable in any event. [ 15 ] She noted that in Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, an IRPA case, Mr. Justice

Binnie stated, at paragraph 44 that errors of law were generally governed by the correctness standard as per Mugesera v. Canada(Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100. [16] She also referred to the decision of the Supreme Court in Canada (Canadian Human Rights Commission) v. Canada (AttorneyGeneral), 2011 SCC 53, [2011] 3 S.C.R. 471. Messrs.

Justices LeBel and Cromwell, who wrote for the Court, stated at paragraph 21that: At this point, we must acknowledge a degree of tension between some policies underpinning the present system of judicial review, whenit applies to the decisions of human rights tribunals. [17] After referring to the fact that administrative tribunals are generally entitled to deference, they continued [at paragraph 22]: On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as awhole and outside the adjudicator’s specialized area of expertise, must still be reviewed on a standard of correctness, in order tosafeguard a basic consistency in the fundamental legal order of our country. [18] On the other hand, another judicial review of a decision in which a Sun Sea passenger was found to be a refugee sur place, is thatof Chief Justice Crampton in Canada (Citizenship and Immigration) v.

B380, 2012 FC 1334, 421 F.T.R. 138. Basing himself onDunsmuir and Alberta Teachers, and concluding that the question of the

interpretation of IRPA did not involve issues of centralimportance to the legal system that were outside the Board’s expertise, he applied the reasonableness standard of review. He alsoconcluded that the member in question, who is not the decision maker in this case, interpreted “membership in a particular social group”unreasonably. [19] Subsequent to that case, Madam Justice Snider rendered two decisions concerning passengers on the Sun Sea who were notgranted refugee sur place status: P.M. v. Canada (Citizenship and Immigration), 2013 FC 77, and S.K. v. Canada (Citizenship andImmigration), 2013 FC 78.

In both she applied the reasonableness standard of review. [20] With this difference of opinion within our Court, there is no scope for the concept of comity. I shall make my own determination. [21] In addition to Mugesera, above, the Supreme Court also applied the correctness standard in Chieu v. Canada (Minister ofCitizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, which led the Federal Court of Appeal to apply the same standard inNazifpour v. Canada (Minister of Citizenship and Immigration), 2007 FCA 35, [2007] 4 F.C.R. 515. To name but one other case, in Aziziv.

Canada (Minister of Citizenship and Immigration), 2005 FC 354, 131 C.R.R. (2d) 120, affirmed 2005 FCA 406, [2006] 3 F.C.R. 118,Mr. Justice Mosley applied the correctness standard to an

interpretation of the Immigration and Refugee Protection Regulations[SOR/2002-227]. [22] In my opinion, like Mr. Justice Shore in Dufour, the standard of review in this case as applied to sections 96 and 97 of IRPA iscorrectness.

Section 96 gives effect to the United Nations Convention Relating to the Status of Refugees. Such persons are ones “who, byreason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or politicalopinion” are at risk in their home countries. We are dealing with fundamental human rights. [23] In the matter at hand, the reasonable possibility rule of evidence was applied, not the balance of probabilities. [24] The case turns on the legal definition of “membership in a particular social group” within the meaning of

section 96 of IRPA. Asnoted by the Chief Justice in B380 [at paragraph 17], above, the cornerstone case is Canada (Attorney General) v. Ward, (SCC), [1993] 2 S.C.R. 689.

Although non-exhaustive, there are three categories of groups: a. groups defined by an innate or unchangeable characteristic; b. groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced toforsake the association; and c. groups associated by a former voluntary status, unalterable due to its historical permanence. [25] The narrow group in that case, as in this, is one associated by a former voluntary status, inalterable due to its historicalpermanence. [26] At paragraph 23, Chief Justice Crampton went on to hold that the historical fact of having come together voluntarily in aparticular way for the purpose of travelling to Canada to seek refugee status was not a sufficient basis upon which to become a memberof a “particular social group” within the meaning of

section 96. Otherwise, every group of people including a small family who cametogether for that purpose would have a nexus to

section 96 and the words “race, religion, nationality… or political opinion” would besuperfluous. I agree. [27] The Sun Sea’s passengers had a myriad of motives to come to Canada. Some were human smugglers. Some may well have beenterrorists. Some were garden-variety criminals who wanted to escape justice. Some had serious reason to fear persecution in Sri Lankaand some, like Mr. B472, were economic migrants. There is no cohesion or connection to the other refugee grounds set out in

section 96of IRPA. [28] In this case, the reasons given by the member are much more fulsome than in B380. It may well be that B472 faces a serious riskof persecution were he to be returned to Sri Lanka, but not because of his membership in a particular social group, the Tamil passengerson the ship. Counsel made a valiant effort to point out that there are passages in the member’s reasons which could support a findingbased on a combination of

section 96 risks. This may be so, but I am not prepared to rewrite the reasons. [29] The member specifically did not deal with

section 97 of IRPA and its balance of probabilities standard of proof test. The Board

having erred in its

interpretation of

section 96, I can only grant judicial review and refer the matter back to the Refugee ProtectionDivision of the Immigration and Refugee Board for redetermination. b. Certified Question [30] No question was certified in Dufour; Portillo; B380; P.M.; or S.K. The United Nations Convention is grounded in the UniversalDeclaration of Human Rights [GA Res. 217 A (III), UN Doc. A/810, at p. 71 (1948)]. In Pushpanathan v. Canada (Minister ofCitizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, the Supreme Court held that the correctness standardapplied to the

interpretation of a Convention refugee definition. Is the law now such that the fundamental right of freedom frompersecution depends, first of all, on which member of the Refugee Protection Division of the Immigration and Refugee Board hears thecase, and then on which judge of this Court hears the judicial review thereof? I say not. [31] Although encouraged to do so at the hearing, neither party wishes to propose a certified question which would allow an appeal tothe Federal Court of Appeal.

However, the Minister went on to submit that if I were inclined to certify a question, which I certainly am,the appropriate wording should be as follows: What is the standard of review of the Refugee Protection Division’s finding that “Tamil passengers on the M.V. Sun Sea comprise a“particular social group” for the purposes of

section 96 of the Immigration and Refugee Protection Act? [32] However, I think the question should be somewhat broader. I shall certify the following serious question of general importance: Is review by this Court of the meaning of “membership in a particular social group” in

section 96 of the Immigration and RefugeeProtection Act as determined by a member of the Refugee Protection Division of the Immigration and Refugee Board on the correctnessor reasonableness standard? [33] In my opinion, such a judicial review is based on the correctness standard. I say this because who comes and who goes isfundamental and central to the Canadian way of life. Legislation does not impose any requirement that members of the RPD haveparticular legal expertise. In speaking of the Immigration Division of the Immigration and Refuge Board of Canada in Canada (Ministerof Citizenship and Immigration) v.

Thanabalasingham, 2003 FC 1225, [2004] 3 F.C.R. 532, affirmed, 2004 FCA 4, [2004] 3 F.C.R. 572,Madam Justice Gauthier, as she then was, said at paragraph 43: “Thus, on questions of law, this tribunal has little expertise compared tothe Federal Court of Canada and there appears to be no particular reason to accord any deference.” I agree. [34] In my opinion, the qualified right of non-citizens to enter or to remain in Canada is to be determined on principles of fundamentaljustice, see Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711.