Date: 20110321
Docket: IMM-2489-10
Citation: 2011 FC 339
Ottawa, Ontario, March 21,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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SASIKUMAR THIYAGARAJAH
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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 an order setting aside the decision of the Immigration Division
of the Immigration and Refugee Board of Canada (the Board), finding him to be
inadmissible to Canada because he was a person described in subsection 34(1)(f)
of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA), namely, a member of a
terrorist organization. The Board rejected the applicant’s defence of duress.
It is this finding that the applicant seeks to set aside.
[2]
The
Board also found that although the applicant provided material support to the Liberation
Tigers of Tamil Eelam (LTTE), he did not occupy a position of power or command,
and was not complicit in war crimes or crimes against humanity. The Minister’s
claim of inadmissibility pursuant to subsection 35(1)(a) of IRPA was
therefore dismissed. For the reasons that follow, the application for judicial
review is dismissed.
The Context
[3]
The
applicant is a 33-year old male (ethnic) Tamil from Sri Lanka. In May
2000 he fled from Sri Lanka to the United Kingdom where he
filed a refugee claim. He left the U.K. for Canada before a
decision on his refugee claim there was rendered and arrived at Pearson International Airport in Toronto on July 28,
2007 where he made a refugee claim. His U.K. refugee
claim was ultimately denied. Admissibility hearings were conducted in Canada and the
applicant eventually became subject to a Deportation Order by the Immigration
Division of the Board. It is this order that is the subject of this
application for judicial review.
[4]
The
applicant claimed to have been recruited at a young age to perform manual
labour, to post leaflets, to assist at a hospital, to march in processions,
among other similar duties, for the LTTE. He further claimed that he was
coerced into performing these acts and others, and, under the threat of duress,
agreed to perform them. The Board noted that neither the applicant nor the
record made it entirely clear as to the nature of the threats which compelled
him to perform these activities, nor as to the consequences he would have
allegedly suffered for non-compliance.
The issue before this Court
[5]
There
is a single issue in this judicial review; whether the Board erred in its
finding that the defence of duress was not established. There is no question
that the Board applied the correct legal principles to its assessment of the
evidence of duress; rather the precise error alleged is that the Board, in its
decision, made no reference to certain country condition reports for Sri Lanka,
and in particular, those passages which described the extent to which the LTTE
resorted to threatened and actual violence to coerce Tamils into supporting
their cause. Before this Court counsel for the applicant conducted a comprehensive
and detailed review of the documentary evidence before the Board which
described the LTTE tactics.
[6]
In
this context, counsel put particular emphasis on the April 2009 United Nations
High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the
International Protection Needs of Asylum-Seekers from Sri Lanka (the “UNHCR
Report”). The UNHCR Report documents the restrictions on movement, the
restriction of civilians from fleeing battle zones; the retention of family
members should one family member leave the Tamil controlled area, reprisals for
refusal to support, including torture and killing. The UNHCR Report concludes
that many individuals are forced to join the LTTE, necessitating close examination
of the defence of duress. The UNHCR Report also notes that given the highly
secretive nature of the LTTE and the absence of independent monitoring in LTTE
controlled areas, limited information is available regarding the precise nature
and organization of the LTTE. Given this lack of information, the UNHCR
cautions that it “… does not consider it appropriate to presume that all
persons who join the LTTE were heavily and individually involved in acts giving
rise to exclusion.”
[7]
This
UNHCR Report, together with two Human Rights Watch Reports: Complicit in Crime
(2007) and Trapped and Mistreated (2008) were entered into evidence before the Board.
The applicant’s argument is that, in the light of this evidence, the Board’s
decision should be set aside as unreasonable. The alleged error arises from
the failure to make reference to these reports and to assess the applicant’s
evidence, and the defence of duress, in the context of these reports.
The Decision of the Board
[8]
The Board
found that the applicant had supported the LTTE under pressure. The Board
found it plausible and consistent with the documentary evidence that the
applicant had supported the goals of the LTTE but would have preferred not to.
The Board noted further that “The environment in which service was provided
left little room for refusal without some degree of consequences, either to
oneself or one’s family.”
[9]
Despite
these findings, the Board concluded that “…the evidence does not establish that
non-compliance would have put him in a serious and imminent physical risk to
his person.” The Board noted that “The possibility that at some point in the
future he may have to dig trenches on the front lines is insufficiently
imminent to absolve him of responsibility.” In sum, the Board concluded that
while the applicant faced pressure to serve “… he did not face a danger of imminent
physical harm such as would deprive him of freedom to choose between right and
wrong.” In consequence, the Board concluded that “[b]ased on all the facts of
this case, the degree of pressure experienced by the Respondent is insufficient
to rebut the presumption that he was a member of the LTTE for purposes of
paragraph 34(1)(f) of the Act.”
[10]
The
operative issue is whether this is a reasonable finding by the Board and if
not, whether it constitutes a reviewable error.
[11]
The
applicant does not quarrel with the test of duress adopted by the Board. It
applied the correct test, as expressed in Ramirez v Canada (Minister of Employment and Immigration) [1992] 2 FC 306. The Board analyzed the defence
of duress and reasoned, based on case law, that the applicant could be excused
for his actions if he could show that he acted to avoid imminent peril. Relying
on Ramirez, para 40, the Board found that:
Conceptually,
duress serves as a defence to the allegation that the Respondent engaged in war
crimes or crimes against humanity under paragraph 35(l)(a). For purposes of
paragraph 34(l)(f), it serves to establish a lack of the requisite mens rea
necessary to impute membership. The Federal Court of Appeal considered duress
from the point of view of paragraph 35(1)(a) in Ramirez. In Poshteh [Poshteh
v Canada (Minister of Citizenship &
Immigration), 2005 FCA
85 [2005] 3 FCR 487], the Federal Court of Appeal
noted that duress or coercion may be relevant to the paragraph 34(l)(f) issue
under consideration. For purposes of a paragraph 34(1) determination, I accept
that the principles that the Federal Court of Appeal articulated in Ramirez
are equally applicable to both allegations of inadmissibility, notwithstanding
the functional differences.
[12]
In
reaching this conclusion, the Board cited some, but not all, of the contextual
evidence which the applicant says it ignored:
The documentary evidence filed indicates that the LTTE engaged in recruitment
of child soldiers. According to a July 2007 BBC News article entitled Tamil
Tiger “forced recruitment”: “People in rebel-held Kilinochchi say that
Tamil Tigers have introduced a policy of demanding one person from each
family… If a representative of the family doesn’t join, they will come and get
him or her instead.” Human Rights Watch has noted that “Throughout the
two-decade long civil war in Sri Lanka, the Liberation Tigers of Tamil Eelam
(LTTE), an ethnic Tamil armed separatist group, has consistently recruited and
used children in armed combat… It has used them is infantry soldiers, security
and intelligence officers, medics, and even suicide bombers.” Recruitment
continued after the February 2002 cease-fire.
[13]
The Board
was aware of the coercive tactics of the LTTE and assessed the issue of duress
in that context. After a review of the organization of the LTTE, the Board
noted:
A
1996 Amnesty International report subsequent to a visit to Sri Lanka concluded that the LTTE was guilty of deliberate and
arbitrary killings of Sinhalese civilians, summary executions of Tamil
“traitors”, torture and ill-treatment of prisoners, and the forced recruitment
of children. A similar conclusion was reached by the U.S. Department of State
in 2004: “The LTTE was responsible for politically motivated killings,
arbitrary arrests, torture, harassment, abduction, disappearances, extortion
and detention.
A
Jane’s World Insurgency and Terrorism 2007 report documents LTTE assassinations
of twelve senior members of the government between 1991 and 2006. The 2007
Jane’s report also states that the LTTE “escalated its use of improvised
explosive devices (IEDs) against security forces and civilian targets.” About
30 such attacks were recorded in 2006.
[…]
The
Minister’s submissions refer to examples of the exhibits of LTTE attacks on
non-combatants. The Respondent’s counsel does not contest the characterization
of the LTTE as being an organization that has engaged in acts of terrorism.
The documentary evidence provides credible and trustworthy evidence that the
LTTE has engaged in widespread and systematic acts of violence directed against
non-combatants in order to influence public opinion and government policy to
achieve the political goal of an independent Tamil state in Sri Lanka. Tactics include the use of improvised explosive devises,
suicide bombings, targeted assassinations, kidnapping and torture. The LTTE is
an organization for which there are reasonable grounds to believe has engaged
in acts of terrorism and crimes against humanity.
[14]
The Board
concluded that the applicant’s involvement in the LTTE was neither minor nor
marginal and that membership was established for the purpose of subsection 34(1)(f)
of the IRPA. Indeed, the applicant admitted that he had been a member
of the LTTE since 1988 and supported its aims and goals. The Board also found
that the applicant was able to understand the nature and effect of his work on
behalf of the LTTE.
[15]
The Board
then assessed the facts as it found them against the test in Ramirez,
above and concluded:
The
remaining question is whether the degree of coercion deprived the Respondent
with the requisite mens rea to be considered a member of the LTTE for
purposes of paragraph 34(1)(f) of the Act. The danger sough to be
avoided must be serious, imminent and physical. An objective “reasonable
person” standard is used, not the subjective fear of the person concerned. The
situation must not be of the person’s own making, nor consistent with his or
her own will. The harm inflicted on others must not be greater than the risk
to the person concerned. In this case, the evidence does not establish that
non-compliance would have put him in a serious and imminent physical risk to
his person. The possibility that at some point in the future he may have to
dig trenches on the front lines is insufficiently imminent to absolve him if
responsibility. […] A reasonable person in his situation may have feared
community scorn and social consequences, but not serious and imminent physical
harm. Although the Respondent may have felt some level of pressure to serve,
he did not face a danger of imminent physical harm such as would deprive him of
freedom to choose between right and wrong. Any sanctions that he would have
faced for non-compliance were less than the harm done by actively supporting
LTTE operations. Based on all of the facts of this case, the degree of
pressure experienced by the Respondent is insufficient to rebut the presumption
that the was a member of the LTTE for purposes of paragraph 34(1)(f) of the Act.
[Emphasis added]
Analysis
[16]
The
application of a legal standard (the defence of duress) against a given set of
facts is a question of mixed fact and law, and as such, is assessed on a
standard of reasonableness: Poshteh above. In reviewing a
decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision making process
and whether the decision falls within a range of possible outcomes that are
defensible in light of the facts and law.
[17]
In
this context the Board examined the pressure and coercion the applicant felt
and assessed it against the harm done by his continued active participation and
support of the LTTE. This assessment is one which could reasonably give rise
to different interpretation. The existence of another view on the evidence
however, does not mean that the interpretation reached by the Board on these
facts, is unreasonable. There is no reviewable error.
[18]
As
noted, no issue is taken with the legal framework applied by the Board to
assess the question of membership or duress. Rather, the applicant contends
that the factual conclusions would have been different had reference been made
to the specific country condition reports. This argument, in effect, asks the
Court to re-weigh the evidence and re-determine the facts as previously found.
The applicant does not point to any particular findings of fact which he says
would have been determined differently. Nor does the applicant point to any
particular aspect of the country condition reports, which if expressly
referenced, would have produced a different finding, nor to any gaps in the
analysis or reasoning in respect of the facts as found; rather the applicant
argues for a different conclusion.
[19]
As
noted earlier, the reasons of the Board indicate that it was fully aware of the
oppressive and brutal methodology of the LTTE and how it may have resulted in
coerced participation. The fact that the specific passages cited by counsel before
me were not expressly referenced in the section dealing with duress does not
support the inference that the Board ignored their import or effect on the
question of the voluntariness of the applicant’s participation in the LTTE.
Indeed, as noted, they were not.
[20]
The
jurisprudence is clear that the Board need not make express reference to all
the materials before it. It must however, deal with evidence which is
inconsistent with or casts doubt on its evidentiary findings. That is not the
situation here, where the evidence which was not referred to reinforced, or
reiterated, perhaps with stronger language, a point that the Board clearly had
in its grasp when it assessed the particular facts of the case before it. The
case stands on a different footing than those cases cited before me where
material evidence was ignored or minimized. I also note, parenthetically, that
counsel for the applicant before the Board (who was not counsel before this
Court) did not make reference to these materials in the course of lengthy and
thorough submissions on the very question of duress.
Other Grounds
[21]
The
applicant also argues that the decision contains contradictory findings of the
same fact, and hence is illogical and does not meet the standard of cogency and
intelligibility.
[22]
The
applicant also says the decision is unreasonable by reason of its inconsistency
with the decision of another Board member that the applicant’s younger brother
was a Convention Refugee. In that case, no issue was taken by the Minister
with respect to either his inadmissibility or exclusion. There is nothing,
apart from their relationship as brothers that links these two cases, and that
relationship does not dictate a similar result. Each case is assessed necessarily
on its own merits. The fallacy of this argument is best demonstrated by
testing it in the inverse; it would not necessarily follow that had his
brother’s claim been rejected, the applicant’s would necessarily be rejected as
well. Again, each case must be assessed on its individual merits.
[23]
The
applicant also contends that the finding under subsections 35(1)(a) and
34(1)(f) of the IRPA are inherently contradictory. The same facts
cannot, according to the applicant, give rise to a conclusion of membership in
an organization, without engaging the Crimes Against Humanity and War Crimes Act (2000, c. 24).
In essence, the applicant contends that the same facts establish both. Taken
to its logical conclusion this argument entails that a finding of membership
under subsection 34(1)(f) necessarily means that a person falls within
subsection 35(1)(a). This argument cannot succeed, if only because the
constituent elements of an offence under the Crimes Against Humanity and War
Crimes Act are different than the elements of membership under subsection
34(1)(f).
[24]
Accordingly,
the application for judicial review is dismissed.
[25]
No
question is proposed for certification and, in the opinion of the court, none
arises.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review be and is hereby dismissed. No question for certification
has been proposed and none arises.
"Donald
J. Rennie"
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