Date:
20121120
Docket:
IMM-1995-12
Citation:
2012 FC 1340
Ottawa, Ontario,
November 20, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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RAVINDRA
PRIYASHANTHA
WATUDURA BANDANAGE
(AKA RAVINDRA
PRIVASHANTHA WATUDRA BANDANAGE)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the February 2, 2012, decision of the
Refugee Protection Division of the Immigration and Refugee Board (“the Board”)
in which the Board determined that the Applicant was excluded from protection
under sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) on the basis of Article 1(F)(a) of the United Nations
Convention Relating to the Status of Refugees, Schedule to IRPA
(the Convention).
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicant is a Sri Lankan citizen of Sinhalese ethnicity. He arrived in Canada on October 22, 2009, on a 30-day visitor’s visa, and submitted his refugee claim on
November 2, 2009, on the basis of his fear of the police and other government
forces as a result of his exposing corruption in the Sri Lankan government.
[4]
The
Applicant was a commissioned officer in the Sri Lankan army from 1993 to 2009.
The Applicant’s hearing before the Board related entirely to the question
of exclusion from refugee protection on the basis of his potential complicity
in the Sri Lankan army’s commission of crimes against humanity throughout the
course of the country’s civil war.
[5]
While
the Applicant recounted in his Personal Information Form (PIF) that he joined
the army to serve his country, he later testified that he joined the army so as
to allow him to pursue his athletic career. The Applicant is an international
Wushu (kung fu) champion, and an internationally certified Wushu coach. He
competed in many competitions around the world, and also played rugby for a
military team. He held a leadership role within the military athletics
program.
II. Decision
under Review
[6]
The
Board identified that the “reasonable grounds to believe” standard of proof
applies to questions of fact in exclusion cases, citing the Supreme Court of
Canada case Mugesera v Canada (Minister of Citizenship and Immigration),
2005 SCC 40, [2005] 2 S.C.R. 100 as authority. It further established that there
was a two-part test in exclusion cases for crimes against humanity: first,
whether there are serious reasons to believe that crimes against humanity have
taken place during a certain historical period; and second, whether the
Minister has demonstrated that there are serious reasons to believe that a
claimant was complicit in those crimes against humanity (Application Record at page
15).
[7]
The
Board determined that, in the period the Applicant was in the army, the Sri
Lankan military forces committed countless crimes against humanity, including
“ongoing widespread and systematic attacks on the civilian population.” The
Board noted that, while the Applicant stated that he was not aware of the
commission of crimes against humanity before he joined the army, the Applicant
testified that he was aware that civilians had been tortured and other crimes
against humanity committed after he joined.
[8]
The
Board then considered whether the Applicant was complicit in committing crimes
against humanity, because there was insufficient evidence to find that he
directly committed any such crimes. It applied the “personal and knowing
participation” test, identifying that a finding of complicity necessarily
entailed examining whether the claimant shared in a common purpose with those
who ordered or committed the crimes against humanity. Citing the Federal Court
of Appeal decision in Ezokola v Canada (Minister of Citizenship and
Immigration), 2011 FCA 224, [2011] FCJ No 1052, the Board noted that,
to find complicity, personal knowledge of the crimes and an intention to
contribute to their commission was required. The Board further identified the
following factors that inform whether the Applicant possessed the culpable
mental state to be deemed to have shared in the common purpose of the crime:
• Method of
recruitment;
• Nature of organization;
• Length of time in organization;
• Position and rank in organization;
• Opportunity to leave organization; and
• Knowledge of atrocities.
[9]
The
Board assessed each factor in turn. First, the Board remarked that the
Applicant had joined the army voluntarily for an initial term of seven years. The
Board did not find credible the Applicant’s claim to have deserted the army for
two years, between 1999 and 2001. It based its credibility finding on
inconsistencies between the sworn applications submitted by the Applicant,
including his PIF, and his oral testimony at the hearings, as well as on the
insufficient corroborative evidence to support his claim. Specifically, the
Board noted that the Applicant had seven months between the hearings to procure
documentation to support his claim of desertion, and came up only with a single
document that was rife with mistakes. As a result, the Board found that the
claimant voluntarily renewed his commitment to the military after the initial
seven-year period until he made his claim for refugee protection in Canada on November 2, 2009.
[10]
Second,
the Board determined that, while the Sri Lankan armed forces were not an
organization devoted to a single brutal purpose, they were an institution that
“systematically committed human rights abuses against civilians during the
course of its civil war with the LTTE” (Liberation Tigers of Tamil Eelam). It
found on the reasonable grounds to believe standard that the military forces,
including the Applicant’s division, were broadly responsible for crimes against
humanity in the period in which the Applicant was in service.
[11]
Third,
the Board stated that the Applicant served in the army for almost sixteen
years.
[12]
Fourth,
the Board assessed the Applicant’s position and rank in the Sri Lankan armed
forces. It noted that the Applicant was a commissioned officer for the entire
duration of his service, and that he became a captain in 2003, a rank that is
three from the bottom of the ranks of a commissioned officer. The Board
canvassed the Applicant’s training in weapon use, combat, military tactics and
counter insurgency. The Board determined that the Applicant had participated
in combat from 1995 to 1999, as the Applicant had indicated this occurrence on
his PIF and, despite later attempts to distance himself from this statement, the
Applicant had not once amended his PIF to correct this alleged mistake. The
Board further concluded that the Applicant had been asked to lead men into
combat in 1999, though the claimant never admitted to leading soldiers into
combat.
[13]
The
Board concluded that the Applicant physically mapped LTTE attacks and cordon
and search operations on a map of Colombo in the time that he served there,
between 2005 and 2008. While he claims never to have gone on one of these
missions, the Applicant assisted in them by ensuring that there was adequate
food for the soldiers on the mission, and by ordering the transportation
necessary for the missions. The Board determined that the Applicant was a
trusted officer, given the role he played and the fact that he was asked to
place a bomb at the home of a Tamil Member of Parliament. Finally, the Board
determined that the Applicant’s work on an exhibition celebrating the army’s
60th anniversary and the “victory” accomplished by General Fonseca in the
civil war was a glorification of the army’s many crimes against humanity.
[14]
Fifth,
the Board determined that there was no credible evidence that the Applicant
explored leaving the army at the end of his initial seven-year term. The
documentary evidence indicated that military officers could leave their service
early, provided that they repaid the army for training costs. Additionally,
the Board pointed out that the Applicant benefited in many ways by remaining an
officer: he was paid well; he was permitted to practise his athletic pursuits,
competing in competitions all around the world; and he acquired post-graduate
credentials.
[15]
Finally,
the Board concluded that the Applicant had knowledge of the atrocities
committed by the military forces. The Applicant had acknowledged in his
testimony that he knew the army tortured persons, that some soldiers were
raping civilians, and that arrested persons were beaten. Additionally, the
Board pointed to the Applicant’s personal participation in mapping the cordon
and search missions in Colombo, also noting that the Applicant was handed the
names of Tamils who were apprehended in these missions. The Board also relied
on the Applicant’s work to display General Fonseca’s exploits during the war in
the post-war exhibition.
[16]
The
Applicant’s participation in combat, the expectation that he would lead men
into battle, the fact that he was asked to bomb an elected official’s home, his
knowledge of the atrocities committed by the Sri Lankan army, and his
continuous re-enlistment in military service gave the Board reasonable grounds
to believe that the claimant was complicit in crimes against humanity during
his service in the Sri Lankan army.
III. Issues
[17]
The
sole issue raised in this application is whether the Board’s complicity
determination was reasonable.
IV. Standard
of Review
[18]
Whether
the facts of a given case give rise to a finding of complicity in crimes
against humanity is a question of mixed fact and law. As such, complicity
findings are owed substantial deference, and are reviewable on the
reasonableness standard (Ezokola, above, at para 39; Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118, [2010] FCJ No 632 at para
11; Canada (Minister of Public Safety and Emergency Preparedness) v
Muro, 2008 FC 566, [2008] FCJ No 718 at para 30).
[19]
Reasonableness
is concerned “mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
V. Analysis
[20]
The
parties do not contest that the Board applied the correct test for complicity,
rather they disagree as to whether its application of the test to the facts was
unreasonable. The Applicant specifically posits that the Board failed to
explain its conclusion that he was complicit; that there were was an
insufficient nexus between the Applicant and any specific crimes; and that the
connection between the Applicant and war crimes was too remote.
[21]
It
is well-established that findings of complicity are highly dependent on the
specific facts of each case. This Court has further established several
guiding principles over the years for what constitutes complicity for the
purposes of paragraph 1F(a) of the Convention. For example, it is a broad
concept that is not limited to physical participation in crimes or the exercise
of effective control over their commission (Ezokola, above, at para 54).
A complicity finding requires “personal and knowing participation” or
toleration of the crimes (Ramirez v Canada (Minister of Employment and
Immigration) (FCA), [1992] FCJ No 109, 1992 CarswellNat 94 at para 15; Sivakumar
v Canada (Minister of Employment and Immigration) (CA), [1993] FCJ No 1145
at para 13; Ezokola, above, at para 54).
[22]
In
Fabela v Canada (Minister of Citizenship and Immigration), 2005 FC 1028,
[2005] FCJ No 1277 at para 30, Justice Michel Beaudry cites Penate v Canada (Minister of Employment and Immigration) (TD), [1994] 2 FC 79, [1993] FCJ No
1292 at para 6 as follows:
[6] As I understand the jurisprudence, it is
that a person who is a member of the persecuting group and who has knowledge
that activities are being committed by the group and who neither take steps to
prevent them occurring (if he has the power to do so) nor disengages himself
from the group at the earliest opportunity (consistent with safety for himself)
but who lends his active support to the group will be considered to be an
accomplice. A shared common purpose will be considered to exist. I note that
the situation envisaged by this jurisprudence is not one in which isolated
incidents of international offences have occurred but where the commission of
such offences is a continuous and regular part of the operation.
[23]
Given
the jurisprudence on this question, I am satisfied that the Board’s approach
to, and conclusions in respect of, exclusion in this case were reasonable. The
Board applied the facts as it saw them to the six criteria it drew from the
case law - an application that the Applicant does not contest. It was open to
the Board to find that a combination of all of the factors led to a
determination that the Applicant shared a common purpose with the Sri Lankan
army, an organization that undisputedly committed crimes against humanity
during the time in which the Applicant carried out his military service.
[24]
The
Board pointed to the Applicant’s voluntary enlistment in the army, and his
voluntary renewal of his service for almost sixteen years. It was reasonably
open to the Board to find that the Applicant had not deserted the army during
the period he claimed, given the inconsistencies in the record and the mistakes
on the document submitted in support of this claim. The Board further
identified that the Applicant had participated in cordon and search missions by
mapping them and being handed lists of Tamils captured in the missions, and had
been involved in combat during his service in the Sri Lankan military at times
when the Applicant was aware that atrocities were being committed. The Board
also determined that the Applicant held a position of trust in the army, being
asked to bomb an elected official’s home (though he purportedly never carried
this act out) and mapping the cordon and search missions. It was well within
the Board’s expertise to weigh these factors and come to its conclusion that
the Applicant was complicit. I am satisfied that this evaluation constitutes a
sufficient explanation of the Board’s finding, and, furthermore, that the
conclusion falls within the range of possible, acceptable outcomes.
[25]
I
note that the Applicant seeks to certify the same question that was certified
in Ezokola, above, namely, and as reframed by the Federal Court of
Appeal at para 44:
For the purposes of exclusion pursuant to paragraph
1F(a) of the United Nations Refugee Convention, can complicity by association
in crimes against humanity be established by the fact that the refugee claimant
was a senior public servant in a government that committed such crimes, along
with the fact that the refugee claimant was aware of these crimes and remained
in his position without denouncing them?
[26]
The
Federal Court of Appeal answered this question in the affirmative, stating that
“a senior official may, by remaining in his or her position without protest and
continuing to defend the interests of his or her government while being aware
of the crimes committed by this government demonstrate ‘personal and knowing participation’
in these crimes and be complicit with the government in their commission” (Ezokola,
above, at para 72). As I am bound by, and agree with, this current statement
of the law on such matters, I will not certify the question as suggested by the
Applicant.
VI. Conclusion
[27]
I
find that the Board’s conclusions with respect to the Applicant’s complicity in
committing crimes against humanity are defensible in respect of the facts and
law and, as such, its exclusion of the Applicant from refugee protection on the
basis of paragraph 1F(a) of the Convention is reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
this
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“ D. G. Near ”
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