Refugee Sur Place

The Refugee Board and Federal Court are deeply divided on the issue of whether those aboard the Ocean Lady and Sun Sea are refugees or not. The issue is this: because of allegations made by the Canadian government and publicized in local news outlets that passengers of these ships had links to the Tamil Tigers, are all of the passengers at risk of detention, questioning and possibly torture upon return to Sri Lanka. In other words, are they refugees sur place. In a recent decision by Justice Harrington in MCI v. A011, he overturned a decision of the refugee board  on the technical ground that these passengers, whether at risk or not,  were not part of a particular social group - as that term is defined in section 96 of IRPA. The issue is important because if section 96 applies, the standard to be applied in serious reasons. If not, and s. 97 applies, it is balance of probabilities - a much higher legal burden for an applicant. A particular social group is a group with immutable characteristics which are fundamental to human dignity. In the case of the passengers of the Ocean Lady and Sun Sea, the Court held that their common desire to come to Canada had little to do with fundamental human dignity. They were therefore not part of a particular social group and so the decision was overturned.

The issue is one of imputed political opinion, in my view, not social group. Section 96 should certainly apply.