Date:
20131025
Docket: IMM-8892-12
Citation: 2013
FC 1076
Toronto, Ontario,
October 25, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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AMITHA LAL DASANAYAKE
DASANAYAKE MUDIYANSELAGE
(A.K.A. AMITHA LAL DASA
DASANAYAKE MUDIYANSE)
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Applicants
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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 ORDER AND ORDER
[1]
The
Applicant’s claim for refugee protection is based on his evidence that, as a
citizen of Sri Lanka, he has a well-founded fear of persecution from government
authorities in Sri Lanka because he has been accused of being an LTTE
supporter. In the present Application, the Applicant challenges the August 1,
2012 Decision of the Refugee Protection Division of the Immigration and Refugee
Board (RPD) in which the determination was made pursuant to s. 98 of the Immigration
and Refugee
Protection Act that he is excluded from the status of a Convention
Refugee and from the status of a person in need of protection.
[2]
In
the Decision the RPD found that, with respect to Article 1F(a) of the United
Nations Convention Relating to the Status of Refugees, there are serious
reasons for considering that because between 1992 and 2003 the Applicant was a
police officer in the Sri Lankan Police Force (SLPF), and because during that
period the SLPF committed crimes against humanity in specifically targeting
ethnic Tamils, the Applicant was complicit in the commission of the crimes. An
important feature of this conclusion is the weight that the RPD placed on the
Applicant’s mid-level management position in the SLPF.
[3]
The
paramount issue in the present Application is whether it is fair and just to
set the Decision aside because the RPD rendered it on an application of a legal
standard set by the Federal Court of Appeal in Ezokola v. Canada (Minister
of Citizenship and Immigration), 2011 FCA 224 with respect to complicity
under Article 1F(a) that has been “clarified” by the Supreme Court of Canada in
its appeal decision of July 19, 2013 (Ezokola v. Canada (Minister of Citizenship
and Immigration), 2013 SCC 40).
[4]
Justice
Noël in
the Federal Court of Appeal decision at paragraph 72 provides the following
answer to a certified question:
I therefore find that the
certified question as reformulated must be answered in the affirmative. In my
view, 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.
It is useful to remember, however, that the final outcome will always depend on
the facts particular to each case (Ramirez, p. 220; Bazargan, para. 12).
[5]
In
reaching the exclusion decision presently under consideration, the RPD applied
the Federal Court of Appeal’s opinion by concluding “the FCA found that the
‘personal and knowing participation’ test should be applied more broadly than
requiring personal participation of the claimant” (Decision, para. 36). After
an examination of the evidence with respect to the Applicant’s denials of
knowledge of crimes against humanity committed by the SLPF, the RPD made a
finding of negative credibility and further came to the broad conclusion as follows:
Based on the negative inference
drawn the Panel finds on a balance of probabilities that the claimant was
aware of the human rights violations committed by the SLPF and was complicit in
them. The claimant worked in many areas of Sri Lanka, in many different
stations and detachments and by failing to protect the civilians targeted by
the SLPF, he contributed to the human rights violations. In the alternative the
claimant was wilfully blind to the atrocities, especially given that according
to this testimony he was trained in human rights and that the SLPF gave human
rights training internationally.
[Emphasis added]
(Decision, para. 64)
On appeal, the Supreme Court of Canada
has provided the following clarification of the Federal Court of Appeal’s
approach:
By answering "yes" to
the certified question, the Federal Court of Appeal's reasons could be seen as
having endorsed an overextended approach to complicity, one that
captures complicity by association or passive acquiescence (para. 79).
[…]
Accordingly, the decision of the Federal Court of Appeal should
not be taken to leave room for rank-based complicity by association or passive
acquiescence. Such a reading would perpetuate a
departure from international criminal law and fundamental
criminal law principles (para. 83).
[Emphasis added]
And, in addition to making it clear
that an overextended approach to complicity is to be avoided, the Supreme Court
decided to set a new test:
In light of the foregoing reasons, it has become necessary to
clarify the test for complicity under [Article] 1F(a). To exclude a claimant
from the definition of "refugee" by virtue of [Article] 1F(a), there
must be serious reasons for considering that the claimant has voluntarily
made a significant and knowing contribution to the organization's crime or
criminal purpose (para. 84).
[Emphasis added]
[6]
In
my opinion, the Supreme Court of Canada’s efforts to bring clarity to
complicity under Article 1F(a) has the effect of impugning the RPD’s decision.
This is so because the legal test applied by the RPD has been effectively extinguished
as a matter of law.
[7]
Nevertheless,
Counsel for the Minister advances the following argument:
While the RPD did not have the
benefit of the SCC Ezokola decision, the impact on the ultimate decision
was minimal because in effect the RPD found that the Applicant has voluntarily
and with knowledge provided significant contribution to the crimes and criminal
purpose of the Sri Lankan Police Force (SLPF).
(Respondent’s Memorandum of
Argument, September 20, 2013).
In my opinion, the argument has no
weight because it is directed at a specific request with which I cannot comply:
a determination by me of the Applicant’s claim on an application of the
evidence on the record before the RPD to the new test stated by the Supreme
Court of Canada. In my opinion
this is the sole responsibility of
the RPD on a redetermination of the present Application. I find that the fair
and just result in the present Application is to require the RPD to exercise
its responsibility.
ORDER
THIS
COURT ORDERS that for the reasons provided, the decision
under review is set aside and the matter is referred back for redetermination
before a differently constituted panel. There is no question to certify.
“Douglas R. Campbell”
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