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Canadian Federal Court Overturns Refugee Status for MV Sun Sea Refugee

[TamilNet, Wednesday, 23 January 2013 12:31 No Comment]

The Federal Court of Canada has revoked the refugee status of a 26-year-old male Eezham Tamil refugee who arrived aboard the MV Sun Sea, the National Post reported on Monday. Federal Court Chief Justice Paul Crampton’s recent ruling conflicts with decisions by the Immigration and Refugee Board in two separate cases granting refugee status to Eezham Tamil refugees aboard both the MV Sun Sea and Ocean Lady. In response to the recent Federal Court ruling based on an appeal by the Minister of Citizenship and Immigration, Eezham Tamil political observers in Canada highlight the complicity of the Canadian government in the ongoing persecution of Eezham Tamil refugees.

The Federal Court decision dated November 19, 2012 and recently released to the public overturns a January 10, 2012 ruling by the Immigration and Refugee Board (IRB) granting refugee status in the same case. Chief Justice Paul Crampton of the Federal Court ordered the case to be retried by a different panel of the Refugee Protection Department in the IRB.

The IRB and the Federal Court have demonstrated different and conflicting understandings of whether young Tamil men who arrived aboard the Ocean Lady in 2009, or the MV Sun Sea in 2010 constitute a “particular social group” facing a well-founded fear of persecution in Sri Lanka and therefore are deserving of protection under the 1951 UN Convention Relating to the Status of Refugees.

In the original ruling struck down by the Federal Court, the IRB granted refugee protection under section 96 of the Immigration and Refugee Protection Act (IRPA) because it found that the individual in question belonged to a “particular social group.”

Section 96 of the IRPA relates to Canada’s international obligations as a signatory of the 1951 Convention Relating to the Status of Refugees. In Section 96, Canadian law defines a Convention refugee as “a person who, by reason of a well-founded fear or persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion” requires refugee protection.

The IRB originally found that young Eezham Tamil men who arrived aboard the MV Sun Sea are members of a “particular social group” based on their nationality and mode of arrival and also face a well-founded fear of persecution in Sri Lanka.

The IRB cited comments made by Mr. Sumith Dassanayake, a representative of the Sri Lankan High Commission in Ottawa. Mr. Dassanayake was quoted by the Toronto Star in an August 10, 2010 article stating, “Most of [the passengers on the MV Sun Sea] are hardcore LTTE people (Tamil Tigers).” Mr. Dassanayake was also reported claiming “The Tigers are trying to regroup here to keep the movement alive” and that most, if not all of the Tamil refugees aboard the MV Sun Sea are “a grave security threat to Canada.”

In the view of the IRB, these statements confirmed that Eezham Tamils, in particular, the young Eezham Tamil men who arrived aboard the MV Sun Sea face discrimination, harassment, and a well-founded fear of persecution in Sri Lanka based on the Sri Lankan government’s claims that they are all “LTTE cadres.”

In a different IRB ruling dated October 16, 2012 adjudicator Trudy Shecter granted refugee status to a 24 year-old Tamil male who arrived in Canada aboard the Ocean Lady in October 2009.

In the IRB ruling, Shecter provided several reasons outlining why the claimant is a Convention refugee who faces a well-founded fear of persecution.

These include statements by the RCMP which indicate co-operation with Sri Lankan authorities following the arrival of the Ocean Lady.

Shecter’s IRB ruling states, “Being detained and questioned on suspicion of LTTE connections has been seen to involve beatings and torture that rise to the level of persecution. The documents continue to be very clear that anyone who is even suspected of having the slightest links with the Tigers faces more than a mere possibility of persecution from government authorities.”

The IRB further questioned the credibility of Sri Lankan authorities that assured Canadian High Commission officials that failed refugee claimants would not be persecuted or targeted. Shecter ruled “I prefer the information provided by the responders other than the Canadian High Commission official, as I note that the official’s information sources were Sri Lankan government officials, who would be expected to have a vested interest in making their government’s activities appear humane to the international community.”

Instead Shecter’s IRB ruling relies upon and acknowledges the credibility of several sources that detail the ongoing persecution of Eezham Tamils by the Sri Lankan government, especially those who are deported or forced to return to Sri Lanka because their asylum processes and refugee claims have been denied.

A wide range of sources cited in the IRB decision including the Canadian Border Services Agency, the Law and Society Trust, the U.S. Department of State, Amnesty International and Human Rights Watch have documented the persecution of ‘returned’ Tamil refugees at the hands of Sri Lankan authorities. These forms of persecution cited in the IRB ruling include detention, torture, interrogation and ‘disappearances.’

Relying upon a U.S. Department of State Report, the Shecter IRB ruling further discusses why the presumption of state protection does not apply to the case of Sri Lanka for Eezham Tamil refugees. The ruling states “there is no state protection whatsoever from any unlawful detention, torture, disappearances or killings by state agents; there is no governmental agency to which to report these atrocities.”

Shecter further finds in the IRB decision, “Without state protection from official impunity, I find that the police and military, with reckless disregard for the human rights of Tamils, will subject suspected Tamil LTTE members or those with links to the Tamil Tigers more than other returning young Tamil males to the kinds of atrocities that the claimant fears.”

Federal Court Chief Justice Paul Crampton’s recent ruling conflicts with decisions by the IRB in two separate cases granting refugee status to Eezham Tamil refugees aboard both the MV Sun Sea and Ocean Lady.

As stated by IRB adjudicators in at least two separate instances, the 1951 UN Convention Relating to the Status of Refugees, which determines Canada’s legal, moral, and ethical obligations clearly identifies both Eezham Tamils, and certainly all Eezham Tamils who arrived aboard the MV Sun Sea and Ocean Lady as Convention refugees who would face a well-founded fear of persecution if deported to Sri Lanka.

In response to the recent Federal Court ruling based on an appeal by the Minister of Citizenship and Immigration, Eezham Tamil political observers in Canada highlight the complicity of the Canadian government in the persecution of Eezham Tamil refugees.

While Canadian jurisprudence has clearly demonstrated and recorded the persecution faced by Eezham Tamils and therefore recognized some claimants as Convention refugees, the Canadian government, particularly the Ministry of Citizenship and Immigration persists in seeking to deny and remove refugee status conferred by the IRB.

[Full Coverage]

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