Immigration adjudicators and federal judges at odds over question on migrant ship refugee claims

Douglas Quan
Published: February 26, 2013, 6:22 pm
Updated: 15 hours ago

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.”

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