Date: 20090112
Docket: IMM-4937-07
Citation: 2009 FC 31
Ottawa, Ontario, January 12,
2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
MARY ANTANITA SAVUNDARANAYAGA
LINGADASAN SIVASAMBU
(aka SIVASAMBU LINGADASAN)
and
FINEHA LINGADASAN (a minor)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated October 26,
2007, finding that:
1.
Mary
Antanita Savundaranayaga and Sivasambu Lingadasan, the applicant parents, are
excluded from refugee protection pursuant to Section F(a) and (c) of Article 1
of the United Nations Convention Relating to the Status of Refugees (the
Refugee Convention) under s. 98 of the Immigration and Refugee
Protection Act (IRPA) because they were members of the Liberation Tigers of
Tamil Eelam (LTTE), an organization that has a limited, brutal purpose;
2.
Fineha
Lingadasan, the applicant daughter who was four years old, is excluded from
refugee protection because there is no serious possibility that she would be
persecuted should she be returned to Sri Lanka, s.96 of IRPA and it was not
established that she was a person in need of protection, s.97(1) of IRPA.
[2]
The
application for judicial review does not concern Dyson Lingadasan, the nine
year old applicant son, since he received refugee status because there was a
possibility he would be conscripted by the LTTE as a child soldier if he
returned to Sri
Lanka.
BACKGROUND
[3]
The
applicant parents are citizens of Sri Lanka. The applicant son,
born in Germany, and the
applicant daughter, born in Holland, are also citizens of Sri Lanka. The
applicant parents are Tamils from northern Sri Lanka which is
under the control of the LTTE.
[4]
Both
applicant mother and father allege their respective families in northern Sri Lanka were subject
to harassment and extortion by the LTTE. The applicant mother alleges that in
November 1993, she was forced to work in a LTTE kitchen and compelled to play
music as part of the Hero’s Day celebration in Killinochchi organized by the
cultural wing of the LTTE. The applicant father claims that he and others were
taken by the LTTE from work to clean and decorate roadsides for the Hero’s Day
celebrations. It was then he met the applicant mother.
[5]
The
applicant father says that he was asked in February 1994, to undergo military
training for the LTTE. He refused and was detained until his family agreed to
pay a large sum of money to the LTTE. On pretext of business travel, the
applicant father obtained a pass and traveled to Colombo. The
applicant mother followed and the couple married in Colombo at the end
of March 1994.
[6]
Immediately
after the marriage, the applicant father left Sri Lanka and arrived
at Holland. He applied
for refugee status but was refused. The applicant mother says shortly after
the applicant father departed Sri Lanka she was questioned by
the police. Her mother bribed the police to forestall her arrest and they were
ordered to return to their village.
[7]
In
October 1996, the applicant mother says that she was asked to join the LTTE and
undergo military training. She refused and was detained for three days. She
was released after her parents paid money to the LTTE. With the help of a
smuggler, she left Sri Lanka to join her husband. She was left in Germany by the
smuggler and she applied for refugee status in that country. She then
travelled to Holland to meet her husband but was returned by the Dutch
authorities to Germany six months later. Her son was born in Germany in June
1998. In June 1999, the applicant mother returned to Holland. The
applicant daughter was born in Holland in 2002. The applicants
request for refugee status in Holland was refused in October
2004.
[8]
The
applicants say they opted for voluntary departure and returned to Colombo on March 20,
2005. Upon return to Colombo they were questioned by
the police, and the money they possessed was taken from them. They returned to
their village in northern Sri Lanka where they were
questioned by the LTTE and ordered to pay a very large sum of money. They were
accused of being supporters of the Karuna rebel group which was allied with the
Sri Lankan army. The applicant father was arrested and the applicant mother
threatened with death. The applicant father says he was released upon agreeing
to pay the demanded money in instalments. Later, on April 18, 2005, the
applicant father says he was abducted from their home in the village by four
people who he believed were army personnel and Karuna members. They demanded
payment of a similar amount of money. Following his apprehension, the
applicant mother fled to Colombo with their two
children.
[9]
With
the help of a smuggler the applicant mother and children made their way to Canada, arriving on
October 9, 2005. The applicant father says he was able to persuade a guard to
let him escape and with the assistance of a smuggler left Sri Lanka on November
5, 2005. He travelled through Singapore, Malaysia and Bangkok arriving in Canada some eight
months later on July 18, 2006, where he also claimed refugee protection.
[10]
The
applicants claim if they are returned to Sri Lanka, they will
be persecuted by both the armed forces and militant groups. They sought
refugee protection pursuant to ss. 96 and 97(1) of IRPA.
[11]
The
Minister served a Notice of Intervention of the Minister’s intention to
participate in the hearing of the applicant parents as matters involving Section
F (a) and (c) of Article 1 of the Refugee Convention may arise.
DECISION UNDER REVIEW
[12]
The
Board accepted the identity of the applicant parents and the fact they were
Tamils from northern Sri Lanka based on their
passports and personal documents. Because of inconsistencies and contradictions
in the applicant parents’ evidence, the Board decided they were not credible
and rejected their account with the exception of a statement by the applicant
mother during the Port of Entry (POE) interview and her declaration in the
initial refugee documentation.
[13]
Before
turning to the applicant mother’s statement and declaration, I take note the
nature of the Minister’s intervention. The Notices of Intervention for both
applicant parents contain the following identical wording:
The
Minister’s counsel relies on the following elements of fact and/or law:
1.
Claimant’s
wife (MAS-05605) has declared at the port of entry, on October 9th,
2005, that her husband (the Claimant) was a high ranking member of the LTTE,
acting as a cultural director.
2.
Documentary
evidence describes the serious violations of human rights committed by LTTE
which can be characterized as crimes against humanity, war crimes by LTTE which
can be characterized as crimes against humanity, war crimes and/or acts
contrary to the purposes and principles of the United Nations.
3.
In this
context the claimant may have participated or may have been an accomplice in
the perpetration of crimes against humanity.
[14]
The
Board began its analysis by noting the issue of exclusion of both applicant
parents based on Article 1 F (a), (b), (c) of the Refugee Convention raised by
the Minister. The issue of the exclusion of the minor children was also
raised. The Board decided section 1 E [sic] of the Refugee Convention does not
apply to the children. The Board proceeded to the question of the membership
of the applicant parents in the LTTE.
[15]
The
Board found the notes from the POE interview of the applicant mother
significant, quoting:
Client declares that her husband was a
high ranking member of the LTTE but that he was a cultural director. She
claims he was responsible for the theatre and Music and that she was an
accordion player. However, they are persecuted by the Sri Lankan Army because
they are accused of supporting the LTTE.
The Board also referred to the applicant
mother’s immigration documents completed the same day in which she answered
that from April 1995 to April 1997 she was a member of the LTTE, a political
organization, and her activities consisted of “cultural/music”.
[16]
The
Board rejected as not plausible the applicant mother’s explanation that she
only said she was a member of the LTTE on the advice of the smuggler to declare
she and her husband were LTTE members. The Board considered the initial
declarations “clear, cogent, and logical.” The Board decided to give more
weight to the applicant mother’s initial declarations as consistent with
jurisprudence: Jumriany v. Canada (M.C.I.), [1997] F.C.J. No. 683. The
Board decided: “I believe that both adult claimants were members of the
cultural wing of the LITTE, even though not necessarily on a very high level.”
[17]
The
Board went on to decide that its conclusion was reinforced by the non-credible
testimony of the applicant father regarding his problems with the LTTE after
refusing to join. The Board drew a similar inference from the rejected
testimony of both applicants about their respective families problems with the
LTTE stating:
I conclude from the above that the male
claimant’s brothers were able to avoid being recruited to the LTTE forces, and
the female claimant’s family to give LTTE money, because they already
contributed in terms of both claimants’ membership in the LTTE.
[18]
The
Board concluded its membership analysis by stating:
Considering all the above, I rejected as
not credible the claimants’ testimony about their alleged problems with the
LTTE and concluded, on the balance of probabilities, that the adult claimants
were members of LTTE.”
[19]
The
Board considered whether the LTTE was an organization with a limited brutal
purpose. The Board stated:
Having established, on the balance of
probabilities, that the adult claimants were members of the LTTE, even though
not necessarily, particularly in the case of the female claimant, that they
played an important role, I have to evaluate, based on the documentary
evidence, if mere membership in the LTTE is sufficient in order to exclude them
from the Refugee protection. According to Ramirez, membership is an
organization is not usually in and of itself sufficient grounds to exclude a
claimant. The exception is when the membership is in limited brutal purpose
organization. Is the LTTE an organization with a limited and brutal purpose?
[20]
The
Board found reports by both governmental and non-governmental organizations
which consistently and clearly documented the LTTE as a terrorist organization
that has a brutal and ruthless record for terrorizing civilian populations and
that routinely commits very serious human rights abuses against Tamils,
Sinhalese, and Muslim civil populations. The Board noted that in April 2006,
LTTE was added to the list of entities considered by Canada as terrorist
organizations. The Board came to the conclusion that the documentary evidence
supports the proposition that the LTTE is an organization with a limited and
brutal purpose.
[21]
The
Board determined that the applicant son who was nine years old faced a serious
possibility that he would be forcefully conscripted by the LTTE or Karuna
faction group as a child soldier and decided that he was a Convention refugee
pursuant to s. 96 of IRPA based on his membership in a particular social
group. The Board decided the applicant daughter who was four years old could
go back with her parents since the parents, as LTTE members or ex-members could
safely live in LTTE areas and because she was too young to be conscripted as a
child soldier by the LTTE.
[22]
The
Board concluded the applicant parents “were, and maybe still are, members of
the LTTE, their mere membership in that organization, is sufficient to exclude
them from Canada’s protection
as per s. 98 of IRPA.” The Board ruled the applicant parents were excluded from
refugee protection, as per Section F (a) and (c) of the Article I of the Refugee
Convention, under s. 98 of IRPA.
ISSUES
[23]
The
applicants raise several issues of which two are most relevant:
1. whether the Board
Member erred in law by presuming an ill-defined membership in an LTTE cultural
group was sufficient to make a determination of exclusion; and
2. whether the Board
Member erred in defining a “limited and brutal purpose” too broadly that the
consistent application of its logic is perverse.
[24]
I
would state the issue as follows:
Was there sufficient
evidence to support a finding that the applicant parents are to be excluded under
s. 98 of IRPA as being complicit in crimes set out in Section F (a) and (c) of Article
1 of the Refugee Convention?
STANDARD OF REVIEW
[25]
The
courts have applied a standard of review of reasonableness simpliciter
in cases involving a question of membership in a terrorist organization. This
standard of review is applicable both to the determination of membership in an
organization: Poshteh v. Canada (MCI), 2005 FCA 85, at paras. 21-24 and
to finding whether the organization is a terrorist organization: Kanendra v.
Canada (MCI), 2005 FC 923, at para. 12.
[26]
Determinations
of complicity in war crimes or crimes against humanity under s. 35 of IRPA are
also subject to a reasonableness standard of review: Harb v. Canada (MCI), 2003
FCA 39, at para. 14; Jayasinghe v. Canada (MCI), 2007 FC 193, at para.
16.
[27]
The
Supreme Court clarified the reasonableness standard of review in Dunsmuir v.
New
Brunswick, 2008 SCC 9. The Supreme Court held that there
was only one standard of reasonableness. In reviewing a Board's decision on a
reasonableness standard the Court will consider "the existence of
justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir at
para. 47.
ANALYSIS
Legislation
[28]
Article
1 F of the Refugee Convention states:
F. The provisions of this Convention shall not apply
to any person with respect to whom there are serious reasons for considering
that.
(a) He has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the international instruments
drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime
outside the country of refuge prior to his admission to that country as a
refugee;
(c) He has been guilty of acts contrary to the
purposes and principles of the United Nations.
[29]
Section
98 of IRPA provides that a person referred to in Section F of Article 1 of the
Refugee Convention is not a Convention refugee or a person in need of
protection:
[30]
Section
112(3)(c) of IRPA provides that a person rejected on the basis of Section F of
Article 1 of the Refugee Convention is not entitled to apply for refugee
protection under the pre-removal risk assessment process under section 112 of
IRPA:
|
Restriction
112.(3) Refugee
protection may not result from an application for protection if the person
c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
|
Restriction
112.(3) L’asile ne
peut être conféré au demandeur dans les cas suivants
c) il a été débouté de sa demande d’asile au titre de la
section F de l’article premier de la Convention sur les réfugiés;
|
Was
there sufficient evidence to support a finding that the applicant parents are
to excluded under s. 98 of IRPA as being complicit to crimes set out in Section
F (a) and (c) of Article 1 of the Refugee Convention?
[31]
A
s.98 IRPA exclusion based on Section F of Article 1 of the Refugee Convention
is fraught with significance. For example, s.112(3) specifically disentitles
excluded refugee claimants from seeking protection under the section 112
pre-removal risk assessment process. In Ledezma v. Canada (MCI), [1997]
F.C.J. No. 1664, Justice Simpson wrote:
Exclusion by Canada under Article 1F(a) of the Convention is
a serious matter which could affect the Applicant for the rest of his life. In
these circumstances, it is my view that an exclusion order should be reviewed
to ensure that it is error-free, even if, as is the case here, the decision
about exclusion would not be dispositive of the judicial review application.
[32]
In
Ramirez v. Canada (MEI), [1992] F.C.J. No. 109, the Federal Court of
Appeal set out several propositions for considering cases involving application
of Section F of Article 1 of the Refugee Convention. Briefly summarizing,
Justice MacGuigan stated that:
1. the language
of Section F of Article 1 “serious
reasons for considering” establishes a lower standard of proof than the balance
of probabilities;
2. the burden of
proof is on the Government;
3. the meaning
of the word “committed” in Section F of Article 1 requires a mens rea
interpretation of personal and knowing participation;
4. with regard to
the degree of complicity of an accomplice or abettor:
i.
mere
membership in an organization which from time to time commits international
offences is not normally sufficient for exclusion from refugee status,
ii.
where
an organization is principally directed to a limited, brutal purpose, there is
a rebuttable presumption that mere membership may by necessity involve personal
and knowing participation in persecutorial acts.
[33]
In
Moreno v. Canada (MCI), [1993] F.C.J. No. 912 (C.A.), Justice Robertson
revisited the issue of guilt by association:
45 It is well settled that mere
membership in an organization involved in international offences is not
sufficient basis on which to invoke the exclusion clause; see Ramirez, at page
317, and Laipenieks v. I.N.S., 750 F. 2d 1427 (9th
Cir. 1985), at page 1431. An exception to this general rule arises where the
organization is one whose very existence is premised on achieving political or
social ends by any means deemed necessary. Membership in a secret police
force may be deemed sufficient grounds for invoking the exclusion clause; see
Naredo and Arduengo v. Minister of Employment and Immigration (1990), 37
F.T.R. 161 (F.C.T.D.), but see Ramirez at page 318 et seq.
Membership in a military organization involved in armed conflict with guerrilla
forces comes within the ambit of the general rule and not the exception. (underlining
added)
[34]
In
Bazargan v. Canada (MCI), [1996] F.C.J. No. 1209, (C.A.), Justice
Décary said that the Court expressly refused to make formal membership in an
organization a condition for the exclusion clause to apply. He repeated
Justice MacGuigan’s comments in Ramirez, specifying that it was
undesirable
to go beyond the criterion of personal and knowing participation in
persecutorial acts in establishing a general principle. The rest should be
decided in relation to the particular facts.
Justice Décary added:
Membership in the
organization will, of course, lessen the burden of proof resting
on the Minister because it will make it easier to find that there was
"personal and knowing participation". However, it is important
not to turn what is actually a mere factual presumption into a legal condition.
(underlining added)
[35]
In
Harb, the Federal Court of Appeal again addressed the issue of exclusion
under Section F of Article 1 of the Refugee Convention and the question of
membership. Justice Décary wrote:
Once those organizations have committed
crimes against humanity and the appellant meets the requirements for
membership in the group, knowledge, participation or complicity imposed by
precedent (see inter alia, Ramirez …), the exclusion applies even if the
specific acts committed by the appellant are not crimes against humanity as
such. (underlining added)
[36]
Justice Décary later went on to restate:
“As the Court noted in Bazargan at 286, membership
in a group makes it easier to conclude that there was personal and knowing
participation – which remains the first test – than when there was no
membership, but the difference affects the evidence, not the principles.”
(underlining added)
[37]
I
take from the above decisions that a finding of membership is one element that
may or may not lead to a finding of personal and knowing participation in
international crimes. The underlying first test remains that evidence must
establish personal and knowing participation in the proscribed crimes on the
standard of “serious reasons for considering”; a standard lower than the
balance of probabilities.
[38]
The
only positive evidence relating to the applicants’ membership in the LTTE is
the evidence of the applicant mother’s initial refugee declarations. The Board
chose to give this evidence “greater weight” and found, somewhat equivocally,
that the applicant parents were members. To reiterate its conclusions, the
Board stated:
“Consequently, I believe that both adult
claimants were members of the cultural wing of LTTE, even though not
necessarily on a very high level.”
And also:
“Having established, on the balance of
probabilities, that the adult claimants were members of the LTTE, even though
not necessarily, particularly in the case of the female claimant, that they
played and important role, …”
[39]
The
Board found, with the above exception, that the applicant parents were not
credible. In my view, the Board had ample basis to impugn the applicants’
credibility. However, having dismissed the applicants’ testimony in the main,
the Board went on to use this negative finding to support its finding that the
applicants were members of the LTTE. The burden of proof in considering a
Section F of Article 1 exclusion remains on the respondent. While I have
reservations about how far the Board can go in using its negative finding about
the applicants’ credibility as proof of the kind required for exclusion, I note
that the Board’s inferences from the negative credibility finding do not
substantially advance its finding that the applicants’ role with the LTTE
involved low level cultural and musical activity.
[40]
The
Board found that the LTTE was an organization with a limited, brutal purpose.
Its analysis focussed on the many reports documenting the international crimes
by LTTE against civilian populations and non-combatants. The Board referred to
LTTE control of northern Sri Lanka, mentioning control by
authoritarian military rule and operation of an unfair court system. It also
referred to a LTTE network of publicity and propaganda activities with offices
in at least 54 countries. Finally, the Board referred to the LTTE leadership
organization on a two tier structure: a military wing and a subordinate
political wing. Nowhere does the Board refer to a cultural division or
consider the role such a body may have in the LTTE organization.
[41]
Membership
in an organization that has a limited brutal purpose does not automatically
result in exclusion by itself. Rather, it creates a rebuttal presumption of
complicity or of the two criteria for complicity - a personal and knowing
participation and a sharing of a common purpose.
[42]
In
Ramirez, the excluded applicant was an officer of the Salvadorian military,
who was aware of the large number of interrogations during his active service.
He was a participating and knowing member of military, one of whose common
objectives was to gain information by torture. His presence, coupled with his
sharing of the common purpose of the military, constituted complicity. In Moreno, the successful
appellant was also a member of the Salvadorian military but had been forcibly
conscripted. There was one occasion where he witnessed the torture of a
prisoner while on guard duty. Notwithstanding his membership, he was not
considered to be complicit in a crime against humanity. In Harb, the
excluded applicant was a member of the Amal movement, and an informant for
money but not a member of the South Lebanon Army. His actions were such that he
was complicit in the actions of the South Liberation Army which he was collaborating
with. In Petrov, the excluded applicant was a member
of the apparatus/machinery of the Russian Ministry of the Interior and
the FSB whose objectives were often achieved through the commission of human
rights abuses and violations of international law, such as civilian and
criminal brutality, beatings, torture and death. He was found to be a knowing
and active participant of an organization that was committing gross human rights
abuses against civilians on a systematic and widespread basis.
[43]
In
this case, the Board, in finding membership in a cultural wing, failed to go further
and consider the nature of this membership and how such membership gave rise to
the presumption of complicity in the LTTE’s atrocities. The Board did not
state how this finding of membership supported the conclusion that the applicant
parents had personal and knowing participation and a shared common purpose with
the LTTE. As a result, the Board did not link the applicants’ membership in a
cultural wing with a sharing of the LTTE’s common purpose of achieving its
goals through brutality and violence against civilians.
[44]
In
my view, there is simply not enough evidence to support a finding that the
applicant parents had the requisite personal knowledge and participation in the
LTTE’s crimes against humanity. In other words, there is not enough evidence
to meet the threshold of “serious reasons for considering” that the applicant
parents are guilty of those crimes for which they should be excluded under Section
F(a) and (c) of Article 1 of the Refugee Convention.
[45]
I
am of the opinion that the Minister has not met his burden of proof. I find
the Board’s decision with respect to the applicant parents to be unreasonable.
[46]
The
applicant daughter’s application rests on that of her parents. Having found
the Board’s decision with respect to the parents flawed, the Board’s decision
with respect to the applicant daughter is also flawed.
CONCLUSION
[47]
The
Board’s decisions with respect to the applicant parents and the applicant
daughter are quashed. I remit this matter back for re-determination by a
differently constituted Board.
[48]
The
applicants pose two questions for certification:
1. Whether the term
“terrorist organization” as used in the Supreme Court decision in Suresh
equates with the term “brutal, limited purpose”.
2. Whether the
LTTE has a “limited brutal purpose”.
[49]
Finding
as I have, I see no reason to certify a question of general importance.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application for judicial review is allowed and the matter is remitted for
re-determination by differently constituted Board.
2.
No
serious question of general importance is certified.
“Leonard S. Mandamin”
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