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Monitor: Canadian government is getting tougher on refugee claimants, even if there's danger at home

A Tamil asylum seeker who came to Canada aboard the MV Sun Sea says she’s hopeful her husband’s deportation order will be suspended after news that one man deported to Sri Lanka was tortured and another was jailed and has since disappeared.

A Tamil asylum seeker who came to Canada aboard the MV Sun Sea says she’s hopeful her husband’s deportation order will be suspended after news that one man deported to Sri Lanka was tortured and another was jailed and has since disappeared.

“I think it’s going to be good for us because my lawyer can show if we get sent back to the country it will happen the same thing to us,” the woman said in an interview last week. Her name is not being published to protect her identity — she said it’s even dangerous to be in contact with her parents because Sri Lankan officials have been questioning them on her whereabouts.

She’s not surprised at allegations of torture by the Sri Lankan army, which she said is common against ethnic-minority Tamils.

The risks are even greater for asylum-seekers known to have fled to Canada on the MV Sun Sea, which arrived in Canada Aug. 13, 2010, with 492 Tamils on board.

Immigration lawyers are arguing that any failed refugee claims for people on the MV Sun Sea should be reopened after a federal court judgment found Canadian government representatives withheld evidence that two Tamils deported to Sri Lanka faced persecution.

The husband’s refugee claim was deemed admissible by the Immigration and Refugee Board, but the Canadian Border Services Agency has appealed that decision, alleging the man has ties to the Tamil Tigers. Their Vancouver-based immigration lawyer, Gabriel Chand, is fighting to get that decision overturned.

The woman said until they are granted admissibility to submit their refugee claims, the prospect of being removed to Sri Lanka is hanging over their heads.

“I’m doing everything I can to stop his removal,” said Chand, who said he can’t release further details about the case because of confidentiality rules. “With the MV Sun Sea migrants, when I win a case, the government is doing everything in their legal means to get them removed.”

The Canadian government has taken an aggressive approach in preventing the 492 asylum seekers on the MV Sun Sea, which arrived off Victoria Aug. 13, 2010, from being accepted into Canada, part of a larger effort to deter future smuggling operations.

Officials with the Department of Citizenship and Immigration and the CBSA had a signed affidavit from a Tamil man detailing how he was detained for a year and tortured.

Officials also knew that another MV Sun Sea passenger, identified as B005, was immediately detained after he was deported to Sri Lanka in September 2012, even though a Sri Lankan judge had previously determined he did not have a criminal record and was not a member of the Tamil Tigers. The man has since disappeared.

This information was presented to the Immigration and Refugee Board in some cases but not others.

“It is most important to have as much information as possible as to the treatment of others on board the ship Sun Sea who have returned to Sri Lanka in order to consider their risk of persecution,” federal Judge Sean Harrington wrote in a Sept. 6 judgment. “At a bare minimum, if the Minister chooses to disclose evidence, that disclosure must be complete.”

Sathyapavan (Sathi) Aseervatham was deported in July 2011 because of a gun-smuggling conviction in Thailand. Aseervatham was wanted by the RCMP, who believed he had a key role in the MV Sun Sea human-smuggling operation.

Aseervatham wrote that after CBSA officials escorted him to Sri Lanka, he was jailed for over a year and repeatedly beaten and interrogated, according to a signed affidavit dated Oct. 29, 2012.

“I was punched and kicked in my face and body. I was beaten with plastic pipes and no food for many days. My body was thirsty and when I asked for water they beat me. They blindfolded my eyes and I was locked in a small cage with my hands tied up behind my back and no clothes for many days.”

Aseervatham said Sri Lanka’s terrorist-investigation division asked him over and over for names of people on the MV Sun Sea, trying to get information about members of the Liberation Tigers of Tamil Eelam (LTTE) in Canada and Thailand.

Aseervatham wrote that he made false confessions to stop the beatings. He was eventually released after his parents paid a bribe. But he remained fearful for his life.

“I think they will kill me one day.”

Aseervatham was reportedly killed in northern Sri Lanka on Sept. 6 when he was hit by a truck. People in the Tamil community speculate he was murdered.

Chand, who also represented Aseervatham, said he gave his affidavit to officials in the Department of Citizenship and Immigration.

In November 2012, Aseervatham was summoned to a meeting where he was confronted by Sri Lankan authorities, as well as two CBSA officers, about whether he had signed the affidavit.

“They [the CBSA] are working together with known torturers,” Chand said.

Chand said several family members of other MV Sun Sea refugee applicants, who were going to send letters saying that Sri Lankan authorities are still looking for them in their home country, have changed their minds, worried that anything they send to Canada could wind up back in the hands of the Sri Lankan government.

The Canadian Council for Refugees has filed a formal complaint over CBSA’s apparent co-operation with Sri Lankan officials on the Aseervatham case.

“Newly publicized information about the fate of one of the passengers on the Sun Sea raises deeply troubling questions about the relationship of the Canadian government to the Sri Lankan authorities,” the council said in a statement. “Did the Canadian government share a confidential affidavit alleging torture to the very authorities alleged to have committed the torture?”

The council’s executive director, Janet Dench, said the government also needs to answer whether it provided a list of names of Sun Sea passengers to the Sri Lankan government.

Prime Minister Stephen Harper announced this month he is boycotting a Commonwealth summit hosted by Sri Lanka because of the ongoing human-rights violations in that country. “The absence of accountability for the serious violations of human rights and international humanitarian standards during and after the civil war is unacceptable,” Harper said in a statement.

Dench said the actions by the CBSA seriously contradict the prime minister’s statement.

“There is a complete disconnect between on the one hand the denunciation of human rights abuses in Sri Lanka and on the other hand the effort by the Canadian government to prevent people fleeing those very human rights abuses from getting protection in Canada,” Dench said. “The biggest concern for us is the actions of the Canadian government in trying to prevent Sri Lankans from getting protection and worse, communicating in ways that expose people to torture in Sri Lanka.”

Deportation orders have been issued against 29 passengers on the MV Sun Sea. The majority of deportation orders are for being part of the ship’s crew, and nine deportation orders were issued because the passengers were found to be members of an organization “engaging in terrorism.” Deportation orders have been issued against four passengers on the Ocean Lady.

The Canadian government planned to take a more aggressive approach toward the asylum seekers on the MV Sun Sea compared with the treatment of the 76 Tamil migrants on the Ocean Lady, which arrived 10 months earlier.

“It appears that the CBSA’s approach for dealing with the last marine arrivals in October 2009 may have been less effective than it could have been,” according to an internal memo obtained by the Canadian Council for Refugees through access-to-information legislation. The memo is undated but appears to have been sent when the government received intelligence that the MV Sun Sea was en route to Canada.

“For the next arrivals, the CBSA is proposing a more aggressive approach to create a deterrent for future arrivals.”

The memo said refugee-determination hearings would be “dealt with aggressively” and it would intervene in “each case” that comes before the Immigration and Refugee Board.

“Nonetheless, the CBSA plans to build standard evidence packages that would be used for each case to show why the person is not a refugee.”

Vancouver immigration lawyer Douglas Cannon said it’s disturbing the government had decided the migrants were not refugees before the boat even reached Canada’s shores.

“I’ve never seen such aggressive attempts to ensure that as few people as possible gain refugee status,” Cannon said.

When asked by a CTV reporter about the two deportation cases, former immigration minister Jason Kenney said he was not aware of any mistreatment of Canadian deportees in Sri Lanka.

This was despite the minister taking an unusual and “adversarial” approach to the MV Sun Sea refugee claims, which is not typical in other refugee proceedings, according to Harrington’s judgment.

“For them to say they didn’t know about it is laughable,” Chand said.

Cannon said an investigation should be launched into why this information was withheld from the Immigration and Refugee Board in some cases.

“The minister knew this and withheld this from the refugee protection division. What Justice Harrington has exposed was misconduct on the part of the minister in his interventions on the refugee cases,” Cannon said. “The process in this case was manipulated by the withholding of very relevant information to the board.”

The CBSA would not answer questions as to whether the agency worked with Sri Lankan officials on the Aseervatham case, citing privacy rules.

CBSA said a “temporary suspension of removals” is imposed on a country “when the entire civilian population faces a generalized risk as a result of a catastrophic event, such as a natural disaster, armed conflict or other extraordinary disruption.”

The five countries Canada to which Canada will not deport people are Afghanistan, the Democratic Republic of Congo, Haiti, Iraq and Zimbabwe.

An administrative deferral of removals can be issued by the CBSA when immediate action is needed in response to a humanitarian crisis.

“Individuals with criminal records, those deemed to be serious security risks, war criminals or individuals who committed crimes against humanity or those persons who voluntarily choose to return home can be removed from Canada notwithstanding [temporary suspension of removals or administrative deferral of removals]” the CBSA said in a statement.

“Immigration legislation specifies that those under removal must be removed as soon as possible.”

CBSA said 124 people were deported back to Sri Lanka in 2012.

Chand said the Canadian government is playing with people’s lives for the sake of sending a political message to human smugglers.

“All of my clients who are facing removal to Sri Lanka are terrified of what’s going to happen to them,” Chand said, adding the Canadian government should stop deporting people back to Sri Lanka. “We know they torture their own citizens.”

 

•••

 

The RCMP’s case against the men who organized the MV Sun Sea human-smuggling operation could fall apart if the B.C. Court of Appeal upholds a decision that the law is unconstitutional.

Kunarobinson Christhurajah, 33, is waiting for the judge’s decision from behind bars.

“The RCMP, they say: ‘You’re a people-smuggler.’ I’m not a people-smuggler,” Christhurajah said in a phone interview with the Times Colonist from prison earlier this month.

Christhurajah, listed as the owner of the ship, is one of six men charged with human smuggling in connection with the operation that brought 492 Tamils to Canada on Aug. 13, 2010.

Those prosecutions are in limbo after a B.C. trial judge in January dismissed human-smuggling charges against the four men accused of bringing 76 Tamil migrants into Canada on the Ocean Lady, which arrived 10 months earlier in October 2009.

Justice Arne Silverman struck down section 117 of the Immigration and Refugee Protection Act, saying it is unconstitutional based on findings that the law is overly broad. He said it could criminalize the actions of humanitarian workers or family members bringing in refugees.

The federal government took the case to the B.C. Court of Appeal, which heard arguments on both sides Oct. 8 and 9. It could be weeks before the judge renders a decision.

If he agrees with Silverman that the law is constitutional, the six MV Sun Sea charges will likely be thrown out.

Denied bail, Christhurajah has been held in Fraser Regional Corrections Centre in Maple Ridge since the ship arrived. Every night he calls his wife, Mary Petrecia Christhurajah, 26, and their two-and-a-half-year-old daughter, Bynnthavy, who live in Vancouver on social assistance. Mary Petrecia has been accepted as a refugee.

“I only got to hold my baby one time,” he said, breaking into tears. “I’m a hard worker, but my family is living alone.”

Bynnthavy was born April 25, 2011, so nurses believe the child was conceived during the 12-week voyage from Thailand to Canada.

On their visits to see Christhurajah in prison, Mary Petrecia said Bynnthavy presses her tiny hand up against the glass to connect with her father.

“She puts her cheeks against the glass and she kisses him on the other side of the glass,” she said, speaking through a Tamil translator.

Christhurajah maintains he’s a refugee, not a criminal.

He said when he was nine years old, he and his brother were imprisoned for nine months because the Sri Lankan army was looking for his father, who they suspected was fighting with the Liberation Tigers of Tamil Eelam.

In 2008, while Sri Lanka was still in the grip of a bloody civil war between the Sri Lankan government and the Tamil Tigers, Christhurajah and his wife fled for Thailand. Mary Petrecia was accepted as a refugee by the United Nations High Commission for Refugees and was told to wait for resettlement.

Mary Petrecia said she waited two years but no countries offered resettlement.

She said the couple faced constant harassment from Thai officials, who would threaten imprisonment unless a bribe was paid. Thailand is not a signatory to the Refugee Convention, so refugees there are considered illegal immigrants and are subject to arbitrary and indefinite detention.

The couple heard about a cargo ship heading to Canada, Christhurajah said.

Christhurajah claims that the ownership documents of the MV Sun Sea were written in Thai, and he didn’t understand he was taking ownership. He said he thought he was agreeing to be a crew member to reduce the cost of the voyage on the ship to $25,000 for him and his wife, which his father paid, instead of $25,000 each.

“I didn’t know when I sign it, it says I’m the owner,” Christhurajah said. “They said: ‘You go as a crew member.’ ”

According to the National Post, Christhurajah had been identified as a suspect in the Sun Sea operation even before the ship left Southeast Asia. He was the director of the Sun & Rashiya Co., which was registered in Thailand in 2008 for “trading and agricultural products” and later purchased the Sun Sea, then named the Harin Panich 19, the newspaper reported.

Christhurajah was among four men arrested when Thai police raided an apartment building in June 2010. Police seized supplies and engine parts they believed were being stockpiled for the voyage of the Sun Sea, including more than 500 litres of engine lubricant oil, the National Post reported.

The men were fined and handed over to immigration police for deportation, but Christhurajah disappeared and made it onto the ship.

After the arrival of the MV Sun Sea, RCMP carried out a complex international investigation that required more than 700 interviews and co-ordination among police forces in Thailand, Australia, France and Norway.

In May 2012, Christhurajah, Lesly Jana Emmanuel and Thayakaran Markandu were charged with human smuggling, which carries a possible life sentence and $1-million fine. Markandu was arrested in France, and Canadian authorities were trying to extradite him here.

A month later, RCMP charged three more men, two Canadians from the Toronto area, Thampeernayagam Rajaratnam and Nadarajah Mahendran, and a Sri Lankan man, Sathyapavan Aseervatham. Aseervatham had already been deported to Sri Lanka in July 2011.

Aseervatham signed an affidavit in 2012 saying he was tortured and held in custody for a year. He has since died in a motorcycle accident, which people in the Tamil community suspect was a murder.

Emmanuel, the alleged captain of the ship, Mahendran and Rajaratnam have been released on bail with conditions.

“They released them. I don’t know why they don’t release me,” Christhurajah said.

He said after his name was first published in the media, Sri Lankan officials went to his parents’ house and interrogated them. He has since not been in touch with his family in that country for fear his criminal charges are putting them at risk.

Christhurajah said his brother, who also came on the ship, is living in Vancouver, and his refugee claim is being processed.

Christhurajah said he has written letters to the Red Cross, Amnesty International and the United Nations High Commission for Refugees with no response.

“My lawyer told me: ‘This is a political game,’ ” Christhurajah said.

His lawyer, Greg DelBigio, did not return calls for comment.

The RCMP said in a statement it would be inappropriate “to speculate on the implications of a court decision or to comment on this matter while it is before the courts.”

The prosecutor for the case, Peter LaPrairie, said if the human smuggling law is found unconstitutional, the ruling would affect the cases against 95 people across the country.

kderosa@timescolonist.com