The Applicant, Hamalraj Handasamy, is a 45 year old citizen of Sri Lanka. He, along with 75 other individuals, arrived off the coast of British Columbia in October 2009 aboard the Motor Vessel Ocean Lady. Mr. Handasamy and all the other individuals on the ship made claims for refugee protection. However, his claim for protection failed because, after the Immigration Division [ID] of the Immigration and Refugee Board [IRB] determined on January 22, 2014 that Mr. Handasamy was inadmissible to Canada on the basis of his involvement in the smuggling of migrants, an immigration officer [the Officer] decided to issue a notice which terminated consideration of his claim for refugee protection.
The Applicant left Sri Lanka for Malaysia in January 2007 due to problems with para-military groups connected to the Sri Lankan Security Forces. The Applicant had no legal status while in Malaysia, which is not a signatory to the Convention relating to the Status of Refugees, 189 UNTS 150. In February 2009, the Applicant’s employer informed him that there was a vessel travelling to Canada and that if he agreed to work as a crew member aboard the vessel he could journey to Canada. In exchange for his work, the Applicant would pay a reduced amount for his passage to Canada; he agreed to pay $20,000.
In May 2009, the Applicant was transported from Malaysia to Indonesia and, on or about June 1, 2009 he boarded the Ocean Lady as the first passenger or crew member. The Applicant received instructions from two individuals with the titles of “Captain” and “First Engineer” on how to operate the ship’s engine and GPS navigational system. After a few weeks on board, these individuals informed the Applicant that another individual who was to navigate the ship to Canada was no longer coming to do so; they then imposed upon him and a few other crew members the responsibility for navigation of the ship. When the Applicant declined this additional responsibility, he was threatened and kicked by the Captain. He and three others took over navigation of the ship in August 2009 after the Captain and the First Engineer left the ship.
As part of their duties to ensure the success of the voyage, the navigational team or crew were to call the organizers of the voyage several times a day by way of a pre-programmed satellite phone to inform them on the status of the ship and its operations, and also to receive instructions on what to do. The crew was alerted to the fact that the vessel would likely be intercepted by Canadian authorities, and that they were to sink the ship upon being intercepted. In late August 2009, the Ocean Lady set sail to Thailand where two boatloads of passengers joined the ship, and in early September 2009 they proceeded from Thailand towards Canada where all those aboard the ship intended to make refugee claims.
The Applicant assisted in navigating the ship to Canada. He was aware that none of the individuals aboard the Ocean Lady had proper documentation to enter Canada. On October 15, 2009, two days before the ship arrived in Canadian waters off the coast of Vancouver Island, a Fisheries Canada plane made radio contact with one of the individuals on board who informed the agents in the plane that the ship contained 76 individuals who intended to make refugee claims in Canada. The agents in the plane instructed the ship to maintain its course to Canada. On the following day, a Canadian naval vessel made contact with the Ocean Lady and guided it into Canadian waters.
Upon arrival in Canada, the Applicant initiated a claim for refugee protection as he originally intended. After numerous interviews with Canadian officials, the Applicant was reported as being inadmissible to Canada on grounds of organized criminality pursuant to paragraphs 37(1)(a) and 37(1)(b) of the IRPA. The Minister of Citizenship and Immigration referred the inadmissibility reports to the ID for an admissibility hearing pursuant to subsection 44(2) of the IRPA.
Federal Court of Canada
The applicant was appealing the decision of the Canadian Immigration Department to deny his application for refugee status on the basis that he was an active participant in the smuggling of migrants (in the form of the vessel that brought him to Canada). The applicant argued that he did not meet the threshold for people smuggling in paragraph 37(b) of the Immigration and Refugee Protection Act as set out in Supreme Court Case of B010 v Canada (Citizenship and Immigration) because he did not meet the “for financial gain” component of the offence. The Canadian Government argued that by accepting a reduced fee and better living arrangements on the voyage was sufficient to satisfy the “for financial gain” requirements. The Court held, in accordance with B010, that financial gain must be the key motivation and not merely incidental as it was for Mr Handasamy
The appeal was allowed and the decision of the Immigration was set aside and returned to the department for consideration by a different staff member.
Federal Court of Canada
This case gives clear interpretation of the definition of people smuggling in Canada where the person accused of people smuggling is also one of the migrants being smuggled. It also clarifies that where there is dual motivations, it is the primary motivation that should be considered not any incidental benefits.