THE MINISTER OF CITIZENSHIP v. IMMIGRATION, 2013 FC 741

Date: 20130703 Docket: IMM-11399-12 Citation: 2013 FC 741 Ottawa , Ontario , July 3, 2013 PRESENT: The Honourable Mr.

Justice Mosley BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION Applicant and B171, B169, B170 Respondents REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application by the Minister for judicial review pursuant to the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA], s 72(1), of a decision by the Refugee Protection Division that the respondents B171, B169, and B170 were Convention refugees. [ 2 ] The three respondents are ethnic Tamils from Sri Lanka who arrived in Canada on board the MV Sun Sea on August 13, 2010.

The respondents B169 and B170 were unaccompanied children upon arrival and B170 remains a minor. B171 is an adult and is married to the other respondent’s sister. [ 3 ] The Board Member who made the decision noted that the three claimants’ identities had been established by documentation. B171 and B169 alleged personal experience of harassment by various authorities seeking information about the Liberation Tigers of Tamil Eelam (LTTE), while B170 did not allege personal experience of mistreatment, but submitted through his counsel that as a minor he was particularly vulnerable to persecution.

The Board Member found that the claimants had a genuine fear of returning to Sri Lanka. [ 4 ] The foundation of the refugee determination, however, was the unalterable historical fact that all three respondents had been passengers on the MV Sun Sea . The Board Member found that this amounted to membership in a “particular social group” for Convention purposes. He specified that he did not analyze any other basis for protection.

ISSUE: [5] The issue in this application is whether the Board Member erred in finding that the respondents’ claim had a nexus to aConvention refugee ground, that being membership in a “particular social group”. [6] As the question is not the definition of a “particular social group” but whether the respondent fell within such a group, aquestion of mixed fact and law, and as the Board was interpreting its home statute and the related jurisprudence, I find that the standardof review is the more deferential one of reasonableness (Canada (MCI) v B380, 2012 FC 1334, at paras 13-15).

However, I note thatthere is not unanimity on this point and that the correct identification of the appropriate standard of review was certified as being aserious question of general importance in Canada (MCI) v A011, 2013 FC 580 at para 57: [57] Unfortunately, counsel for A011 did not propose a serious question of general importance to certify.

Nevertheless, I shall certify thefollowing question: Is review by this Court of the meaning of “membership in a particular social group” in the United Nations Convention relating to thestatus of refugees, and reflected in s. 96 of the Immigration and Refugee Protection Act, as determined by a Member of the RefugeeProtection Division, of the Immigration and Refugee Board, on the correctness or reasonableness standard?

ANALYSIS: [7] The applicant Minister submitted that the Board Member’s reasons clearly identified the “particular social group” aspassengers on the Sun Sea and not as some other possible grouping such as “suspected LTTE supporters”. The test for membership in aConvention “particular social group” involves more than identifying a group of people who share some commonality. Citing

section 96of the IRPA and Canada (Attorney General) v Ward, (SCC), [1993] 2 SCR 689 [Ward], the applicant argued thatvoluntarily choosing to set sail for Canada on an illegal human smuggling ship did not create a group which defined its members in away which engaged the defense of human rights and that to include such people would trivialize the notion. There had to be somethingabout a group which was related to discrimination or human rights in order for it to have a Convention nexus. [8] The respondent B171 argued that the Board Member’s determination was in line with the Supreme Court’s categories inWard.

The Sun Sea voyage had been publicly labeled an LTTE operation and therefore it was no longer just another smuggling trip. Allof the vessel’s passengers had been Tamils and the Sri Lankan authorities continued to target Tamils and suspected LTTE supporters. Itwas essential to the Board Member’s decision that B171 was an ethnic Tamil; Tamil ethnicity coupled with passage on the Sun Sea and aperceived political opinion as a supporter of the LTTE had added up to a Convention nexus.

B171 argued that even if he did not qualifyunder the “particular social group” category, the combination of factors sufficed to create a serious possibility of persecution. Hesubmitted that the Board Member had made a mixed motives finding. [9] The respondents B169 and B170 also argued that the Board Member was correct in finding them to be members of aparticular social group.

They cited Canada (MCI) v B420, 2012 FC 321 at paras 22-23, and Veeravagu v Canada (MEI), [1992] FCJ No468 (QL) (FCA) as support for the proposition that when a claimant “belongs to a group one of whose defining characteristics is race,(young Tamil males), it is simply impossible to say that such person does not have an objective fear of persecution for reasons of race.” The respondents argued that Tamil race together with passage on the vessel combined to create both a particular social group and aperceived political opinion. [10] I find that the Board Member expressly chose not to analyze any Convention ground for protection other than the “particularsocial group” he identified and therefore that only his findings on that subject can be reviewed by this Court.

I note that while thejurisprudence from this Court on the question of “particular social group” as it pertains to the MV Sun Sea is somewhat mixed, this islargely due to variations in the factual circumstances of each case and the reasons for decision provided by different Board Members. [11] There is no doubt that the aim of the concept of a “particular social group”, as established by Ward, is based on the defense ofhuman rights: 70 The meaning assigned to "particular social group" in the Act should take into account the general underlying themes of the defenceof human rights and anti-discrimination that form the basis for the international refugee protection initiative.

The tests proposed inMayers, supra, Cheung, supra, and Matter of Acosta, supra, provide a good working rule to achieve this result. They identify threepossible categories:

(1) groups defined by an innate or unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced toforsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence. The first category would embrace individuals fearing persecution on such bases as gender, linguistic background and sexual orientation,while the second would encompass, for example, human rights activists.

The third branch is included more because of historicalintentions, although it is also relevant to the anti-discrimination influences, in that one's past is an immutable part of the person. [12] It is not every identifiable “particular social group” formed by irrevocable historical facts which faces persecution on adiscriminatory ground.

As Justice Harrington stated in the similar case of A011, at para 40: [40] In A011’s case, given the structure of the decision, references to race and perceived political opinion were part and parcel of whyhe was found to be a member of a particular social group, Tamils who came to Canada on the Ocean Lady. Those passengers did notvoluntarily associate themselves for reasons fundamental to their human dignity. The common desire of coming to Canada does not makethe passengers members of a particular social group within the meaning of the Convention and s. 96 of IRPA.

As I said at paragraph 27of B72: 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. 472, were economic migrants. There is no cohesion or connection to the other refugee grounds set out in

section 96 ofIRPA. [13] Even on the deferential standard of reasonableness, given the existing jurisprudence on the question of a “particular socialgroup” resulting from passage on the Sun Sea, I find that the Board Member’s decision in the present case did not fall within the range ofpossible, acceptable outcomes which were defensible in respect of the facts and law. (Dunsmuir v New Brunswick, 2008 SCC 9 ,[2008] 1 SCR 190, at para 47). [14] The confidentiality order imposed by this Court shall be maintained.

CERTIFIED QUESTION: [15] As there is uncertainty on the appropriate standard of review, I certify the same question as was proposed in A011: Is review by this Court of the meaning of “membership in a particular social group” in the United Nations Convention relating to thestatus of refugees, and reflected in s. 96 of the Immigration and Refugee Protection Act, as determined by a Member of the RefugeeProtection Division, of the Immigration and Refugee Board, on the correctness or reasonableness standard? CONCLUSION: [16] The application is granted. No costs shall be awarded. JUDGMENT THIS COURT’S JUDGMENT is that:

1. the application is granted; 2. no costs are awarded, 3. the confidentiality order imposed by this Court shall be maintained pending the final determination of the matter, or order to the contrary; and 4. the following question is certified: Is review by this Court of the meaning of “membership in a particular social group” in the United Nations Convention relating to the status of refugees, and reflected in s. 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? “Richard G.

Mosley” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-11399-12 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND B171, B169, B170 PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: May 30, 2013 REASONS FOR JUDGMENT: MOSLEY J. DATED: July 3, 2013 APPEARANCES :

Hilla Aharon FOR THE APPLICANT Warren Puddicombe FOR THE RESPONDENT Gurpreet Badh FOR THE RESPONDENT SOLICITORS OF RECORD : WILLIAM F. PENTNEY Deputy Attorney General of Canada Vancouver , British Columbia FOR THE APPLICANT WARREN PUDDICOMBE Barrister & Solicitor Vancouver , British Columbia FOR THE RESPONDENT GURPREET BADH Smeets Law Corporation Vancouver , British Columbia FOR THE RESPONDENT