The federal government's definition of which migrants aboard the MV Sun Sea are members of the Tamil Tigers is so broad that, if it was accepted, ongoing hearings to determine membership in the terrorist group would be meaningless, says an adjudicator with the Immigration and Refugee Board.
On Friday, Marc Tessler chided a lawyer for the Canada Border Services Agency during a hearing for a Sri Lankan refugee claimant who is accused of being a member of the Tigers, also known as the Liberation Tigers of Tamil Eelam, or LTTE.
The man, who can't be identified, told border officers he was a rice farmer and sold his crops to the Tigers, and was also paid to load and unload trucks at local farms. He admitted working as a waiter in a Tiger-owned restaurant.
On several occasions, he built decorations for the LTTE, but he said he was forced to do that work and he never joined the group.
In the end, Tessler concluded the man wasn't a member of the Tigers and allowed him to proceed with his refugee claim.
The federal government has argued that pretty much anyone who did business with the Tigers, from rice farmers to garage workers, should be considered part of the terrorist group that is banned in Canada and ordered deported.
Government lawyers have noted such people can then apply to the public safety minister for an exemption if they can prove they're not a threat to Canada.
But Tessler said it's not fair to force refugee claimants to ask the federal government for an exemption when the same government is alleging they are Tamil Tigers and ought to be deported.
"There's a certain impropriety that's apparent in this argument," Tessler said.
"It's the minister who's brought the allegations that the person is a member of a terrorist organization, and then it's the same minister who decides whether to exempt the person. It creates this very strange situation. Can any person who arrived on the MV Sun Sea really expect that they're going to receive a ministerial exemption in light of the way CBSA has prosecuted these cases?"
Tessler then added: "Why bother having a hearing if it is so broad and unrestricted that everybody's a member?"
The rice farmer was among 492 Tamil migrants who arrived in B.C. last August aboard the MV Sun Sea. Everyone aboard the ship has made refugee claims, but the federal government has argued 45 of them should be deported for allegations that include human smuggling, war crimes and membership in the Tigers.
Last month, Tessler rejected the government's claim that a man who briefly worked in a Tiger-owned garage was a member of the group.
At the time, Tessler pointed out everyone living in the Tiger-controlled regions of Sri Lanka would have had dealings with the LTTE, from paying bus fare to teaching children in a Tiger-created school. He also raised similar concerns that the government's definition of membership was too broad.
On Friday, he offered similar reasons when he concluded the rice farmer didn't belong to the Tigers.
"To argue that the contribution made by (the migrant) amounts to membership seems remarkably disconnected to the context with persons living in a war zone trying to survive," said Tessler.
"The LTTE was the de facto government, and from the information presented here, obviously an important employer in the area. For civilians living in LTTE-controlled areas, there was certain and inescapable interaction with the LTTE."
The migrant, who was ordered released earlier this year and is no longer in custody, watched the hearing in a striped blue dress shirt, smiling when he heard the decision.
The Canada Border Services Agency lawyer at Friday's hearings didn't respond to Tessler's concerns, saying he wasn't there to debate the legislation.
Azeem Lalji said anyone who did work for the Tigers is guilty of helping the group's bloody campaign for independence, which ended in 2009 when Sri Lankan government forces defeated the rebels.
"An organization like the LTTE would not have succeeded or achieved legitimacy in the Tamil areas of Sri Lanka without individuals like the (migrant) providing support," Lalji said.
The cases in which the government alleges connections to the Tigers or other crimes are proceeding to admissibility hearings to determine whether the refugee claimants should be allowed to remain in Canada.
So far, there have been a dozen other such hearings, although decisions have only been released on three of those cases.
Two migrants were ordered deported for joining the Tigers' military wing, while the garage owner was allowed to continue his refugee claim and ordered released.
James Keller