Adjudicators and judges at odds over Tamil migrant-ship refugee claims

Published: February 27, 2013

DOUGLAS QUAN
POSTMEDIA NEWS

MV Sun Sea

The MV Sun Sea is photographed docked at the Nanaimo Shipyard in Newcastle Island Passage in this file photo. Krista Bryce/Postmedia News

They made their journey on the MV Sun Sea together. But is every passenger from the ship that carried nearly 500 Tamil migrants to Canada in 2010 at risk of persecution if sent home because of the vessel’s links to the Tamil Tigers rebel group and their own notoriety?

It’s a question that’s dividing Canada’s immigration adjudicators and federal judges as they struggle to determine the asylum-seekers’ fate, according to court documents.

At issue is whether the publicity around the ship’s arrival — which reignited an immigration debate in Canada — and its ties to the Tamil Tigers now make all of the migrants members of a “social group” that would be exposed to persecution in Sri Lanka.

In a decision released this week, Federal Judge Sean Harrington said members of the Immigration and Refugee Board and justices of the Federal Court have not been consistent on this question. As a result, “it may well be a matter of chance” who is allowed to stay in Canada and who is not, the judge said.

So, in an effort to bring consistency to the issue, Harrington certified a question, which paves the way for the Federal Court of Appeal to determine what the appropriate standard of review should be.

His decision stemmed from an Immigration and Refugee Board ruling involving a Sun Sea passenger identified as “B472.”

An IRB adjudicator had previously found that the young migrant had a “well-founded fear of persecution” if returned to Sri Lanka because of membership in a particular “social group.” Even though the migrant had no affiliations with the Tamil Tigers prior to his departure, his status as a passenger on the Sun Sea raised that issue, thus exposing him to the possibility of persecution, the IRB found.

The Tamil Tigers were engaged in a lengthy civil war with the Sri Lankan government until the Tigers’ defeat in 2009.

Under Section 96 of the Immigration and Refugee Protection Act, someone can be found to be a refugee if they have a well-founded fear of persecution “for reasons of race, religion, nationality, membership in a particular social group or political opinion.”

But representatives for the federal immigration minister disagreed, saying it was unreasonable for the IRB to find that all the Sun Sea’s passengers belonged to the same “social group.”

They said the IRB should have applied a different section of the law, Section 97, which requires a higher standard of proof before protection is granted.

Harrington agreed, saying that the Sun Sea’s passengers had a “myriad of motives” for coming to Canada. “Some were human smugglers. Some may well have been terrorists. Some were garden-variety criminals who wanted to escape justice. Some had serious reason to fear persecution in Sri Lanka and some, like Mr. 472, were economic migrants.

“It may well be that B472 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,” he said.

Harrington sent the case back to the IRB for redetermination.

But the judge also acknowledged that his colleagues within the Federal Court have ruled differently in similar cases. And so in the same ruling, he certified a question, which asks the federal appeal court to decide what the appropriate standard of review should be.





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