Smuggling of migrants

Offences

• Financial or other material benefit (to smuggler)

MV Sun Sea (Canada)

UNODC No.:
CANx011

Fact Summary

The MV Sun Sea was a commercial shipping vessel that was used to bring 492 Tamil smuggled migrants to Canada. The vessel was monitored from about May 2010 when it was sighted in the Gulf of Thailand. It was intercepted off the coast of Vancouver Island, BC on 12 August 2010. The arrival of the vessel was surrounded by allegations that the vessel carried 'dozens' of member of the LTTE, a Sri Lankan separatist group. 12 of the persons on board served as vessel's crew during the vessel. Six men were later charged in connection with this incident.

The MV Sun Sea (formerly called the Harin Panich 19) was a 30-year-old Japanese built vessel that, prior to being used for the migrant smuggling venture to Canada, was 'set to be retired from excursions and sold for scrap due to its age and condition'.

The planning of the MV Sun Sea venture reportedly started some time in August 2009, one year before the vessel arrived in British Columbia, Canada. The vessel was monitored from about May 2010 when it was first apprehended in the Gulf of Thailand. The smuggled migrants boarded the vessel at different stages between April and July 2010. At the time the passengers boarded the vessel, it was manned by Thai crew who left the vessel two or three days later. It was originally believed that the 59-metre long, Thai-registered vessel was bound for Canada, but changed its course to Australia after experiencing engine trouble. In late June 2010, it was again suggested that the vessel may be bound for Canada. Later reports dismissed suggestions that the vessel was ever bound for Australia. After leaving the Gulf of Thailand, the MV Sun Sea sailed through Malaysian waters and the Philippines across the Pacific towards Canada's West Coast.

It appears that the passengers had come from Sri Lanka to Thailand in a variety of ways and that they were 'recruited' by agents in Thailand approximately two weeks before boarding the vessel. Most of the passengers initially came together in Bangkok, before they were moved to southern Thailand and ferried on small fishing vessels to the MV Sun Sea. A report published by UNODC in April 2013 suggests that the smuggled migrants had travelled from Jaffna to Bangkok by air legally as tourists (and then overstayed their visas), while some travelled on fraudulently obtained visas that had been issued in Colombo.

Some of the passengers on board the MV Sun Sea later testified that the persons organising this venture told them that they were not required to carry any valid travel or identity documents if they came to Canada by boat to make refugee claims.

Commentary and Significant Features

The arrival of the MV Sun Sea in August 2010 is one of the most notorious and controversial cases of migrant smuggling in Canada.

(1) Alleged links to the LTTE and terrorism

The arrival of the Sun Sea is one example in which a smuggling venture has been linked to terrorism and to fears that migrant smuggling may serve as a tool to bring terrorist clandestinely across borders. About six weeks prior to the arrival of the Sun Sea in Canada, suggestions were made that the passengers on board the vessel included persons associated with the LTTE, a terrorist organisation from Sri Lanka, that fought for separatism in the island's north but was brutally defeated by the Sinhalese Government. In an interview with the Sunday Observer, a Sri Lankan newspaper, published on 27 June 2010, Professor Rohan Gunaratna, Director of the International Centre for Political Violence and Terrorism Research in Singapore, suggested that the vessel carried a few dozen persons associated with the LTTE, including 'senior members and leaders'. He expressed the view that since the crack-down on the LTTE in Sri Lanka, the organisation 'wants to survive and people smuggling is one of their most lucrative businesses.' According to Mr Gunaratna, the captain of the vessel was a person by the name of 'Vinod' who had previously been involved 'in smuggling several tons of arms, ammunition and explosives from North Korea to Sri Lanka'. A day after the arrival of the Sun Sea, Mr Benjamin Perrin, an academic at the University of British Columbia, also told reporters that the journey of the MV Sun Sea was 'not some humanitarian mission'.

The views expressed by Mr Gunaratna and others were later echoed by Canadian politicians and government officials with Public Safety Minister Vic Toews, speaking on the day the MV Sun Sea arrived in British Columbia, referring to the people on board as 'suspected human smugglers', 'human traffickers', and 'terrorists'.

Several experts remained sceptical about the link between the Sun Sea passengers and terrorists from the beginning. In July 2010, about a month before the vessel arrived in Canada, a former UN spokesperson during the Sri Lankan war, Mr Gordon Weiss, wrote in an Australian newspaper that 'the links between Tamil boat people and the Tamil rebels' were 'fanciful'. In mid-September, reports emerged linking the arrival of the Sun Sea to the displacement of Sri Lankan Tamils following the government crack-down. The Globe and Mail, a Canadian daily, reported that the Canadian Government was warned as early as 12 January 2010, that the end of the 30-year-old civil war and the release of displaced Tamils from containment camps may create 'a significant challenge for Canada' and its immigration system. Several smuggled migrants also told stories about husbands being killed and other hardship they suffered under the Sri Lankan Government.

In December 2010, one of the female migrants was identified as a 'security risk' by Canada's Border Services Agency and ordered to remain in detention. It was alleged that she had items in her possession that identified her as an associate of the LTTE. By 7 April 2011, 41 of the Sun Sea passengers had been referred to the Immigration and Refugee Board (IRB) for admissibility hearings over concerns over suspected links to the LTTE. At that time, two men had been ordered to be deported from Canada on grounds that they were members of the LTTE.

According to a newspaper report, by 14 January 2013, 11 persons had deportation orders issued against them because they were found to be members of a terrorist organisation (presumably the LTTE). Two of those were also found to have committed war crimes.

(2) Calls for tougher laws and enforcement

Mr Gunaratna, along with other commentators, also saw the arrival of the Sun Sea as proof that the Canadian Government had been too soft in dealing with the Tamil asylum seekers who arrived on the MV Ocean Lady a year earlier and called on the Canadian Government to take 'aggressive action'. The Globe and Mail, a Canadian daily, wrote on 12 August 2010, the day the MV Sun Sea docked in Victoria, BC, that this arrival 'exposes a gap in our country's ability to deter terrorists and people-smugglers from exploiting the refugee system as an easy mode of entry' and criticised the Canadian Government for not intercepting the vessel in international waters.

A range of suggestions about how to prevent similar ventures followed the arrival of the Sun Sea, ranging from calls 'to devote more law enforcement resources towards targeting people smugglers in Asia' to proposals to 'strike a deal with a Central American country' and detain Canada-bound asylum seekers there, in the same way as Australia detained asylum seekers in Nauru and Papua New Guinea.

(3) Migrant smuggling offences

Two month after the arrival of the MV Sun Sea, in October 2010, the Canadian Government introduced Bill C-94 into Parliament to insert new offences relating to smuggling of migrants to the Immigration and Refugee Protection Act.

In 2012, the four people accused of migrant smuggling in connection with another vessel (CAN-S-OceanLady on this database) applied to the Supreme Court of British Columbia for an order that s 117 of the Immigration and Refugee Protection Act (Canada), Canada's principal migrant smuggling offence, infringes s 7 of the Charter of Rights and Freedoms (Canada). In January 2013, the Court concluded that s 117 is overbroad and declared the section to be 'of no force or effect'.

(4) Admissibility of alleged migrant smugglers - Scope of 'people smuggling'

Starting in July 2011, several cases were brought to the Immigration and Refugee Board of Canada in which persons who arrived on the MV Sun Sea were found to be inadmissible to Canada because of their involvement in migrant smuggling pursuant to s 37(1)(b) of the Immigration and Refugee Protection Act. This section makes persons inadmissible 'on grounds of organized criminality' which under paragraph (b) involves 'engaging, in the context of transnational organised crime, in activities such as people smuggling'. Several persons who had made refugee claims after their arrival in Canada had their claim rejected (and some deportation order issued against them) because it was found that they had acted as crew, had cooked, or collected water, or had other involvement in facilitating the MV Sun Sea venture.

Some of those who had their claims rejected sought a review from the Immigration and Refugee Board arguing, inter alia, that the interpretation of the term 'people smuggling' in Canadian law was inconsistent with the definition of 'smuggling of migrants' under the Protocol against the Smuggling of Migrants. Specifically, it was argued that the lack of a material element relating to proof of a 'financial or material benefit' to the alleged migrant smuggler, as required by the Protocol, was a departure by Canadian law from international law. Counsel for some of the persons concerned argued that 'section 37 is so overly broad that it punishes those being smuggled along with the smugglers.'

The Immigration and Refugee Board consistently rejected these arguments and, citing other decisions, held that Canada's 'people smuggling' offence criminalised this phenomenon more broadly than the Protocol, but that this broader application was permissible by the Protocol. This position is also supported by interpretative material to the Protocol and is indeed an approach that has been adopted in other countries, such as Australia. This interpretation was later confirmed in an application for judicial review to the Federal Court which held on 15 May 2012 that deriving profit from 'people smuggling' 'is not a necessity and profit will only be factored into the penalty handed out for engaging in such an activity'. The Federal Court also rejected suggestions that 'people smuggling' requires 'a secret or clandestine component' or that there was a material difference between the terms 'people smuggling', 'human smuggling', and 'smuggling of migrants' as used in the Immigration and Refugee Protection Act and the Smuggling of Migrants Protocol.

In the case of B306, decided in November 2012, the Federal Court, however, allowed an application for judicial review in a case involving an appeal against a deportation order. In this case, the Court held that the watch-keeping and cooking duties of some smuggled migrants did not suffice to demonstrate that the person 'aided and abetted' migrant smuggling. The appellant also argued that he had to perform these duties out of necessity because he was in a situation of complete dependency to his smugglers. The Court set aside the decision to deport B306 because of the 'unreasonably large reading of subsection 117(1)' and for 'failing establish the required mens rea' for the offence of people smuggling.

A similar decision followed in December 2012 when in JP and GJ v Minister of Public Safety and Emergency Preparedness [2012] FC 1466 the Federal Court rejected the overly broad interpretation of 'people smuggling' applied by the Immigration Refugee Board and allowed an application for judicial review. In this case, the applicants successfully argued that the interpretation of people smuggling to include acts not done for financial or material benefit would capture instances of migrant smuggling outside the UN Protocol and could lead to the penalisation of persons who assisted smuggled migrants on a humanitarian basis. The Federal Court accepted that the Immigration and Refugee Board erred by interpreting s 37 to cover 'any action by migrants being smuggled that may have assisted in the smuggling operation. [This] would capture individuals who are clearly not smugglers, including relatives, refugee advocates, settlement service workers, and human rights organisations. This is not necessary to achieve the purpose of anti-smuggling legislation. The provision should be targeted only at those engaged in the illegal activity of exploiting vulnerable migrants for profit.' The Court further concluded that 'Canada agreed to enact strict measures to penalise human [smugglers] when it signed on to the UN [Convention against Transnational Organised Crime] and Protocol. It also undertook, at that time, to take steps to protect those who were being smuggled. The line between the two responsibilities may be blurred by an overly expansive interpretation of s 37(1)(b) [of the Immigration and Refugee Protection Act] [...]'.

In May 2012, the Immigration and Refugee Board applied to the Federal Court to appeal a decision to release one of the passengers acting as crew (referred to as B147) from immigration detention. The Board argued that he was a flight risk because it had been found that he was inadmissible because of his involvement in people smuggling. The Federal Court accepted the submission and remitted the decision to release the person from detention for review.

(5) Miscellaneous

Initial suggestions that two further vessels 'packed with illegal immigrants' bound for Canada immediately after the Sun Sea incident did not materialise. Fears that 'Canada could well become the next Australia' insofar as the arrival of migrant smuggling vessels are concerned, also proved to be unfounded. Several reports also erroneously suggested that the MV Sun Sea was involved in migrant smuggling and human trafficking.

Following the arrival of the Sun Sea, and the MV Ocean Lady, a migrant smuggling vessel that arrived on Canada's west coast in October 2009 (CAN-S-OceanLady on this database), the Canadian Government introduced the Protecting Canada's Immigration System Act, SC 2012, c 17 to, inter alia, prosecute those responsible for these arrivals.

It should be noted that a large number of reports relating to the MV Sun Sea use the terms 'human smuggling' and 'human trafficking' interchangeably, though it is assumed that the majority of these reports, and experts commenting on the case, were referring to smuggling of migrants (and not to trafficking in persons) in this context.


Author:
Andreas Schloenhardt

Cross Cutting

Liability

... for

• completed offence

... as involves

• principal offender(s)
• organiser/director

Investigation

Involved Agencies

• National Defence (Candan), RCMP, Canadian Border Services Agency

International Cooperation

Involved Countries

Australia

Canada

France

Thailand

Philippines

Measures

• Extradition
• International law enforcement cooperation (including INTERPOL)
Outline:

The international cooperation between Australia, Canada, the Philippines and Thailand relates to the interception of the MV Sun Sea and the monitoring of its movement from the Gulf of Thailand to Canada between June and August 2010.

In April or May 2012 Canadian authorities sought the extradition of Mr Thayakaran Markandu from France in relation to charges relating to migrant smuggling. It is understood that INTERPOL was involved in locating Mr Markandu, who was arrested in France in early April 2012.

Newspaper reports suggest that Thai, Australian, French, and Norwegian authorities helped in the investigation of Mr Mahendran, who was arrested at Toronto's Pearson International Airport on 25 June 2012.

 

Procedural Information

 

Migrants

Migrant:
63 persons
Gender:
Female
Nationality:
Sri Lankan


The smuggled migrants were of Tamil background. It was initially thought that the Sun Sea carried about 150–200 passengers and later reports claimed the vessel carried 'as many as 500' persons. 6 of the minors on-board the vessel were unaccompanied.
In about June 2010, suggestions were made that among the smuggled migrants on board the Sun Sea were 'dozens' of 'leaders, members, and helpers' of the Tigers of Tamil Eelam (LTTE) a separatist, terrorist organisation. See the Commentary Section of this database entry for further details.

14 of the persons on board were serving as crew, some by assisting to cook, collect rain water, or look our for other vessels. Some of these smuggled migrants later had their application for refugee status refused and deportation orders issued against them, because it was found that they aided migrant smugglers and, as such, were inadmissible to Canada (see Commentary section).

Migrant:
380 persons
Gender:
Male
Nationality:
Sri Lankan
Migrant:
49 persons
Gender:
Child
Nationality:
Sri Lankan

Defendants / Respondents in the first instance

Defendant:
Nadesan Jeeyananthan
Gender:
Male
Nationality:
Thai
Age:
48

Mr Jeeyanantham was arrested during a raid by the Royal Thai Police on 16 January 2011, together with seven other people believed to have been involved in the MV Sun Sea venture.

Defendant:
Kunarobinson Christurajah
Gender:
Male
Age:
32

Mr Christurajah was charged and taken into custody in May 2012 as one of the organizers of the MV Sun Sea venture.

Newspaper reports allege that Mr Christurajah owned a company called Sun & Rshiya & Co that bought the MV Sun Sea for THB 5.35 million. Some newspaper reports refer to Mr Christurajah as the 'ship owner'.

As on 5 November 2012, Mr Christhurajah was still in custody, while three of the co-accused had been released on bail.

Defendant:
Lesly Jana Emmanuel
Born:
positive integer value

Mr Emmanuel was charged in May 2012 as one of the organiser of the MV Sun Sea venture. In November 2012, the Supreme Court of British Columbia released him on bail.

Defendant:
Thayakaran Markandu
Nationality:
French

Mr Markandu is a French national who was born in Jaffna, Sri Lanka.

Mr Markandu, together with three other suspects, was first arrested by the Royal Thai Police sometime in 2009 before the MV Sun Sea left Thailand. Thai authorities suspected at that time that he was amassing supplies to prepare a migrant smuggling venture. He was fined on that occasion.

On 6 March 2012 the RCMP issued an arrest warrant for Mr Markandu. He was arrested in France on 29 March 2012 and charged in May 2012 as one of the organiser of the MV Sun Sea venture and taken into custody in France in April 2012, awaiting extradition to Canada. As on 5 November 2012, Mr Markandu was still in custody in France.

Defendant:
Thampeernayagam Rajaratnam
Gender:
Male

Mr Rajaratnam was charged on 6 June 2012 for his involvement in organising the MV Sun Sea venture. He was arrested in Ontario on 5 June 2012. In August 2012, the Supreme Court of British Columbia released him on bail.

Defendant:
Nadarajah Mahendran
Nationality:
Canadian
Age:
56
Born:
1956

Mr Mahendran was charged on 6 June 2012 for his involvement in the MV Sun Sea venture. His whereabouts were not known at that time. On 25 June 2012 the RCMP arrested him at Toronto's Pearson International Airport aboard a flight originating in Sri Lanka. He appeared before a Toronto court the following day and was remanded in custody. In August 2012, the Supreme Court of British Columbia released Mr Mahendran on bail.

Mr Mahendran was born in Sri Lanka and later migrated to and naturalised in Canada. At the time of his arrest he was living Ajax, Ontario, and was involved in a business importing clothing from South Asia to Canada. He previously owned a convenience store 'in the heart of Toronto's Tamil-Canadian neighbourhood'.

Defendant:
Sathyapavan Aseervatham
Gender:
Male

Mr Aseervatham was charged on 6 June 2012 for his involvement in the MV Sun Sea venture. His whereabouts were not known at that time. It was later revealed that Mr Aseervatham had been in Canada until he was deported to Sri Lanka in July 2011. His wife and child, however, remained in Canada.

In a newspaper interview, a Toronto-based immigration consultant who had previously represented Mr Aseervatham described him as 'the kingpin' of the MV Sun Sea venture.

Defendant:
S Christurajah
Nationality:
Sri Lankan

The persons referred to as 'SC' worked as a cook on board the Sun Sea. He was also the brother of Mr Kunarobinson Christurajah, who bought the vessel. He claimed that he was unaware if his brother's involvement until after he joined the Sun Sea. SC did not make an advance payment to be taken from Thailand to Canada. According to a court report, he had negotiated an agreement whereby his father would pay for SC's journey after SC secured work in Canada.


SC is a Sri Lankan national who had moved to Thailand in 2008 where he was granted refugee status by UNHCR.
Following his arrival in Canada, SC claimed refugee status. The Immigration Department sought to deny because of his alleged involvement in migrant smuggling.

Charges / Claims / Decisions

Defendant:
Nadesan Jeeyananthan
Defendant:
Kunarobinson Christurajah
Statute:
Immigration and Refugee Protection Act, SC 2001, c 27 117
Defendant:
Lesly Jana Emmanuel
Statute:
Immigration and Refugee Protection Act, SC 2001, c 27 117
Defendant:
Thayakaran Markandu
Statute:
Immigration and Refugee Protection Act, SC 2001, c 27 117
Defendant:
Thampeernayagam Rajaratnam
Statute:
Immigration and Refugee Protection Act, SC 2001, c 27 117
Defendant:
Nadarajah Mahendran
Defendant:
Sathyapavan Aseervatham
Defendant:
S Christurajah

Court

Supreme Court of British Columbia

Sources / Citations

B010 v Minister of Citizenship and Immigration [2012] FC 569 (15 May 2012)

B306 v Minister of Public Safety and Emergency Preparedness [2012] FC 1282 (9 November 2012)

Immigration and Refugee Board of Canada, Immigration Division, ID File No B0-0108 (Vancouver, BC, 20 October 2011)

Immigration and Refugee Board of Canada, Immigration Division, ID File No 0003-B1-01147 (Toronto, Ont, 17 February 2012)

JP and GJ v Minister of Public Safety and Emergency Preparedness [2012] FC 1466 (12 December 2012)

Minister of Citizenship and Immigration v B072 [2012] FC 563 (10 May 2012)

Minister of Citizenship and Immigration v B380 [2012] FC 344 (21 November 2012)

Minister of Citizenship and Immigration v B147 [2012] FC 655 (29 May 2012)

SC v Minister of Public Safety and Emergency Preparedness [2013] FC 491

SK v Minister of Citizenship and Immigration Canada [2013] FC 78 (25 January 2013)

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