Federal court overturns Sun Sea passenger’s refugee status; refugee board grants protection to traveller aboard Ocean Lady

Published: January 23, 2013

ADRIAN HUMPHREYS 
POSTMEDIA NEWS

The MV Sun Sea is escorted past Fisgard Lighthouse and into CFB Esquimalt in Colwood, B.C., in this Aug. 13, 2010 file photo. The seeming disconnect between recent rulings in two separate cases highlights the difficulty in handling the many passengers found aboard the two boatloads of Tamils – one group on the MV Sun Sea and the other on the MV Ocean Lady – fleeing the conflict in Sri Lanka when they arrived in Canadian waters. Jonathan Hayward/The Canadian Press

The Federal Court of Canada has overturned the refugee status granted a passenger aboard a smuggling ship linked to Tamil rebels, just as the refugee board extended protection on the same grounds to a Tamil passenger of a second smuggling ship, highlighting the difficulty in handling the two highly publicized mass arrivals.

The overturned decision involves one of 492 Sri Lankan Tamil migrants who arrived aboard the MV Sun Sea in 2010; the newly granted asylum decision involves one of the 76 aboard the MV Ocean Lady in 2009.

In both, the men had been accepted as refugees under claims that publicity connecting the ships to the Liberation Tigers of Tamil Eelam placed all passengers at risk in their homeland by mere association. The court’s rejection of the claim could impact other cases still pending.

In the Sun Sea case, the IRB had accepted the 26-year-old Tamil man as a refugee even though he was not believed to be involved with the LTTE; just being on the ship could lead to persecution, the board said.

The government appealed the decision to the Federal Court and Justice Paul Crampton accepted its objection.

“A group of people who have decided to travel to Canada on a particular ship,” is not “fundamental to a person’s basic humanity,” wrote Justice Crampton, and did not qualify as what are called “refugees sur place,” meaning those not refugees when they leave their homeland but become refugees through the circumstance of their case.

The claimant’s testimony, that he had previously been questioned by Sri Lankan officials about possible links to the LTTE and released, is evidence that the government knows he is not a hardcore member of the LTTE, the judge said.

His case was sent back to the IRB for a fresh hearing.

Justice Crampton made his decision Nov. 19 but it only disseminated publicly on Monday. The outcome contrasts with another IRB decision made Oct. 16 but released only last week.

The second case involves a 24-yearold Tamil who arrived aboard the MV Ocean Lady, which officials identified as a rebel arms smuggling ship.

IRB adjudicator Trudy Shecter accepted him as a refugee on the same grounds that Justice Crampton rejected.

“If he were to return to Sri Lanka, he is afraid that the government would know or quickly learn, possibly from the Canadian government, that he travelled on the Ocean Lady and he would be subject to torture, death, and having his body thrown into the river,” her decision says.

She found no evidence he was involved with the LTTE.

“I find, however, that the claimant’s profile changed when he chose to board the Ocean Lady, a ship that has been suspected of carrying LTTE members into Canada,” she wrote.

The government is reviewing the IRB’s decision, said Alexis Pavlich, spokeswoman for Jason Kenney, Minister for Citizenship and Immigration.

The seeming disconnect between the two cases highlights the difficulty in handling the many passengers found aboard the two boatloads of Tamils fleeing the conflict in Sri Lanka when they arrived in Canadian waters.

The Sun Sea arrived Aug. 13, 2010, carrying 380 men, 63 adult women and 49 children. As of last week, 50 have been accepted as refugees, 63 have had their claims rejected and 23 claims were withdrawn.

Deportation orders have been issued against 25; another 16 had admissibility hearings but were not ordered deported, with three non-deportation cases under appeal by the government.

Of the 25 people ordered deported, 14 were members of the ship’s crew and involved in people smuggling, according to the IRB.

Eleven were found to be members of a terrorist organization; two of those were also found to have committed war crimes. One man remains in immigration detention.

The Ocean Lady carried 76 males, one a minor, when it arrived Oct. 17, 2009. As of last week, 15 had been accepted as refugees and 15 have had their claims rejected. One claim was withdrawn. Three have been issued deportation orders.

Some on each ship also face criminal charges in B.C. for human smuggling – four from the Ocean Lady and six from the Sun Sea.

- With files from Stewart Bell

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