Date: 20071116
Docket: IMM-6680-06
Citation: 2007 FC 1197
Ottawa, Ontario, November 16,
2007
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
SATKUNANANTHAN
NALLAIYA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In 2006, Mr. Satkunananthan Nallaiya was found to be a refugee from Sri
Lanka by a panel of the Immigration and Refugee Board. The Minister of
Citizenship and Immigration argues that the Board made a number of errors when
it found that Mr. Nallaiya was not legally excluded from making that claim. The
Minister submitted to the Board that Mr. Nallaiya had been active in the
Liberation Tigers of Tamil Eelam (LTTE) and, therefore, should be excluded from
obtaining refugee protection as a person who had been complicit in the
commission of crimes against peace, war crimes, crimes against humanity, or
other acts contrary to the purposes and principles of the United Nations.
[2]
The Minister asks me to order a new hearing before a different panel of
the Board. I agree that the Board erred and that a new hearing is justified.
Therefore, I will grant this application for judicial review.
I.
Issues
- Did the Board fail to apply the
proper test when it found that Mr. Nallaiya was not excluded from obtaining
refugee protection?
- Was the Board’s conclusion that
Mr. Nallaiya’s evidence was credible out of keeping with the evidence
before it?
II. Analysis
[3]
I can overturn the Board’s decision if it was based on an error of law
or was out of keeping with the evidence before it.
1. Did
the Board fail to apply the proper test when it found that Mr. Nallaiya was not
excluded from obtaining refugee protection?
(a) Factual
Background
[4]
The Board considered numerous versions of Mr. Nallaiya’s account of events
in Sri Lanka. Mr. Nallaiya had been interviewed a number of times, provided a
written narrative, filed amendments to his narrative, and testified before the
Board. This evidence contained numerous inconsistencies and contradictions. In
essence, Mr. Nallaiya conceded that he was associated with the LTTE from 1988
to 1990. At that point, he fled to India and returned in 2002 after the
cease-fire took effect in Sri Lanka. He had further contact with the LTTE on
his return.
[5]
At a minimum, Mr. Nallaiya’s activities on behalf of the LTTE included
putting up posters, delivering food, raising flags to honour LTTE heroes and,
when he was working in a telephone shop, providing information to the LTTE
about persons requesting new telephones (in doing so, he would identify new residents
whose assistance the LTTE could then solicit or demand). He claimed the Sri
Lankan Army arrested him, questioned him about his dealings with the LTTE and
beat him. In turn, he says, the LTTE wanted to know why he was talking to the
army. He also claimed that his assistance to the LTTE was forced. He fled to Canada
to avoid having to provide any further service to the LTTE or to expose his
children to further risks.
(b) The
Board’s Decision
[6]
The Board noted that the LTTE was “arguably the most lethal and
organized terrorist group in the world”. However, it found that Mr. Nallaiya
was not directly involved in any violence. Nor did his actions result in any
brutal violence being inflicted on any individuals by the LTTE. Further, he did
not volunteer for the LTTE; his actions were coerced. Therefore, the Board
found that Mr. Naillaiya should not be excluded from refugee protection.
[7]
The Board went on to find that there was a reasonable chance that Mr.
Naillaiya would be persecuted on his return to Sri Lanka and, therefore, that
he was entitled to refugee protection in Canada. The Minister does not
challenge this aspect of the Board’s decision.
(c) The
Test for Exclusion
[8]
According to section 98 of the Immigration and Refugee Protection
Act, S.C. 2001, c 27 (see Annex), a person who is referred to in paragraphs
1F(a) or (c) of the United Nations Convention Relating to the Status of
Refugees is not a refugee. Those provisions state:
1F. The provisions of this
Convention shall not apply to any person with respect to whom there are serious
reasons for considering that:
(b) He has committed a
crime against peace, a war crime, or a crime against humanity
. . .
(c) He has been
guilty of acts contrary to the purposes and principles of the United Nations.
[9]
Based on these provisions, it fell to the Board to determine whether
there were grounds for considering that Mr. Nallaiya had committed serious
crimes or acted contrary to the purposes and principles of the United Nations.
[10]
The Board correctly cited the leading authority on the
interpretation of these provisions in situations where, as here, the refugee
claimant is alleged to have furthered the objects of an organization involved
in acts contrary to the Refugee Convention: Ramirez v. Canada
(Minister of Employment and Immigration), [1992] 2 F.C.
306, 89 D.L.R. (4th) 173, 135 N.R. 390 (F.C.A.).
[11]
According to Ramirez, a person should be
excluded from refugee protection only if there is evidence of the person’s
“personal and knowing participation” in the group’s unlawful objects (at para.
15). Complicity in the group’s conduct involves having “a shared common purpose
and the knowledge that all of the parties in question may have of it” (at para.
18). However, where the group has a “limited, brutal purpose”, one can infer
that the person knowingly participated in the group’s activities from the mere
fact that the person was a member of it (at para. 16). A person who claims to
have been coerced into assisting the group must show that he or she did so to
avoid serious and imminent harm, and that the harm avoided was equal to or
greater than the harm caused to others (at para. 40).
(d) Applying
the test to Mr. Nallaiya
[12]
The Minister argues that the Board erred in failing to determine whether
the LTTE was an organization with a “limited, brutal purpose” and whether Mr.
Nallaiya was a member of it. The Minister also submits that the Board failed to
apply the proper test for coercion or duress.
[13]
True, the Board never stated whether it found the LTTE to be an
organization with a “limited, brutal purpose”. However, it seems to have
arrived at an equivalent finding when it said that the LTTE was “arguably the
most lethal and organized terrorist group in the world”. Having made that
finding, it was open to the Board to then go on to consider whether Mr.
Nallaiya was a member of the LTTE. If he was, then he would be excluded from
refugee protection.
[14]
At one point in its reasons, dealing with the question whether Mr.
Nallaiya had a well-founded fear of persecution if returned to Sri Lanka, the
Board stated that there was insufficient evidence to establish that he was a
member of the LTTE. However, this finding was not contained in the part of the
decision dealing with the issue of exclusion, nor was there any reference to
the evidence on this point.
[15]
Still, in my view, the Board was not obliged to determine whether Mr.
Nallaiya was a member of an organization with a “limited, brutal purpose”.
According to Ramirez, the main issue in these cases is whether the
person was complicit in the activities of a group involved in serious crimes or
conduct contrary to the purposes and principles of the United Nations. Finding
that a person is a member of an organization singularly devoted to brutal
conduct is one route to a conclusion on the issue of exclusion, but it is not
the only one.
[16]
In my view, however, the Board did not make a clear finding on the issue
of complicity either. It concluded that Mr. Nallaiya had not personally
committed any violent acts or engaged in any conduct that enabled the LTTE to
carry out violent acts against others. But this conclusion did not answer the
question whether Mr. Nallaiya was a “personal and knowing participant” in a
group whose conduct was contrary to the Convention.
[17]
In addition, the Board went on to conclude that Mr. Nallaiya’s actions
on behalf of the LTTE were coerced. Again, however, the Board did not analyze
this issue according to the criteria set out in Ramirez. It simply
stated that Mr. Nallaiya was “coerced into being involved with the LTTE and at
no time volunteered to be part of their organization”.
[18]
In light of these ambiguities in the Board’s decision, I conclude that
it failed to apply the criteria for exclusion as set out in Ramirez. This
failure amounts to an error of law and I must, therefore, allow this application
for judicial review on that basis.
2. Was
the Board’s conclusion that Mr. Nallaiya’s evidence was credible out of keeping
with the evidence before it?
[19]
In light of my conclusion on the first issue, it is unnecessary to
address this issue fully. However, I wish to note that it might have been
possible for me to order a reconsideration of the issue of exclusion on the
basis of the existing record if the Board’s credibility findings had been
clearer. After setting out the various versions of the facts that Mr. Nallaiya
had provided, the Board simply concluded that it had “mainly accepted the
claimant’s explanations for his inconsistencies”. Of course, it was open to the
Board to make that finding. However, the Board did not state which aspects of
Mr. Nallaiya’s evidence were accepted and which were not. That being the case,
I believe it is necessary for a new hearing to be convened before a different
member of the Board so that specific findings on the issues of complicity and,
if necessary, duress can be made.
III. Disposition
[20]
This application for judicial review is allowed and a new hearing
before a different panel of the Board shall be held on the issue of exclusion
under s. 98 of IRPA. Neither party proposed a question of general importance
for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1. The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel;
2. No question
of general importance is stated.
“James
W. O’Reilly”
Annex
|
Immigration and Refugee Protection Act, S.C. 2001,
c. 27
Exclusion — Refugee Convention
98. A person
referred to in section E or F of Article 1 of the Refugee Convention is not a
Convention refugee or a person in need of protection.
|
Loi sur l’immigration et la protection des réfugiés,
L.C. 2001, ch. 27
Exclusion par application de la
Convention sur les réfugiés
98. La personne visée aux sections E ou F de l’article premier de la
Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne
à protéger.
|
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