Feb 27 (NP) The Immigration & Refugee Board misinterpreted the law when it granted asylum to two Sri Lankans simply because they had traveled to Canada aboard the human smuggling ship MV Sun Sea, the Federal Court has ruled.
In a pair of decisions, the court weighed in on attempts by refugee lawyers to argue that, because the Sun Sea has been publicly linked to the Tamil Tigers rebels, its passengers faced persecution if Canada sent them back to Sri Lanka.
The latest cases involved two men who were not considered genuine refugees except for the fact they had been on board the Sun Sea. The refugee board ruled that made them members of a "social group" that faced persecution.
But this week, the court said it had used the wrong standard of proof to reach those decisions. It overturned both men's asylum claims and sent the cases back for re-evaluation.
Citizenship & Immigration Canada declined to comment, saying it was reviewing the matter. The men were identified in the court rulings only as B323 and B472, both young ethnic Tamils.
The Sun Sea arrived off the British Columbia coast in August 2010, carrying 492 Sri Lankan migrants. The voyage had originated in Thailand and was organized by a smuggling syndicate that charged hefty fees.
Although those on board claimed to be fleeing persecution, Justice Sean Harrington said B472 "was found to be a liar," while B323 was not credible and did not face a serious chance of mistreatment when he had lived in Sri Lanka.
"The Sun Sea passengers had a myriad of motives to come to Canada," he wrote in his ruling.
"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."
Nonetheless, the refugee board had ruled B472 and B323 were refugees under the convention on the laws of war by virtue of being passengers of the Sun Sea. Citizenship & Immigration Canada appealed the rulings. Last November, the Federal Court also overturned a similar case in the government's favour.
"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, the Tamil passengers on the ship," Justice Harrington wrote.
Before the latest court decisions, 65 of those found on the Sun Sea had been accepted as refugees, while 72 had been rejected. Another 26 had been ordered deported after they were found to have been ship's crew or members of the Tamil Tiger rebels.
Eighteen passengers who were on a second ship that reached B.C. waters in October 2009, carrying 76 Sri Lankans, had been accepted as refugees as of Feb. 13. Another 17 had their claims rejected and three had been ordered deported.
The ships arrived after a brutal civil war between government forces and separatist Tamil rebels in which an untold number of civilians died. Sri Lanka has been under mounting international pressure since then as evidence has surfaced implicating its forces in war crimes.
A report released Tuesday by Human Rights Watch accused security forces of raping and sexually abusing suspected members and supporters of the Tamil Tiger rebels, also known as the Liberation Tigers of Tamil Eelam (LTTE). Both men and women reported being raped in detention by army, police and pro-government militias, it said.
"These are not just wartime atrocities but continue to the present, putting every Tamil man and woman arrested for suspected LTTE involvement at serious risk," said Brad Adams, the rights group's Asia director.