Docket: IMM-1366-13
Citation:
2014 FC 524
Ottawa, Ontario, May 30, 2014
PRESENT: The
Honourable Madam Justice Gagné
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BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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A76
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Respondent
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JUDGMENT AND REASONS
[1]
The Minister of Citizenship and Immigration [Minister] seeks judicial
review of a decision by the Refugee Protection Division of the Immigration and
Refugee Board [the Board], dated February 5, 2013, whereby it determined that
the respondent, a Sri Lankan Tamil refugee who arrived in Canada aboard the Ocean
Lady, was not excluded from refugee protection under section 98 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act]. The Board allowed the
applicant’s sur place refugee claim and so found that he qualified as a Convention
refugee within the meaning of its section
96.
[2]
In recent months, this Court has rendered
several decisions involving refugee claims made by Sri Lankan Tamil passengers
aboard the Ocean Lady and Sun Sea ships that landed on our shores in
late 2009 and mid-2010 (see Justice Gleason’s decision in Canada (Minister
of Citizenship and Immigration) v A068, 2013 FC 1119 for an overview of
recent jurisprudence (as of November 2013) on the matter).
[3]
While the Minister had originally sought to also
challenge the Board’s inclusion determination, he has since desisted from that
argument. The Minister now exclusively seeks to challenge the Board’s exclusion
determination, arguing that there are serious reasons to believe that the
respondent is complicit in a crime against humanity pursuant to Article 1F(a)
of the Convention, as he has links with the Liberation Tigers of
Tamil Eelam [LTTE]. As a matter of reference, Article 1F(a) of the Convention
is
incorporated into the Act - the Board’s enabling statute - by its section 98. Since the Board’s decision, the Supreme
Court of Canada has refined the test for complicity, barring its application to
instances of “mere association” or “passive acquiescence” (Ezokola v Canada (Minister of Citizenship and Immigration), 2013 SCC 40 [Ezokola]).
[4]
For the reasons discussed below, this
application for judicial review will be dismissed.
Background
[5]
The respondent’s refugee claim was based on his alleged fear of
persecution and risk of torture at the hands of the Sri Lankan authorities due
to his possible involvement and association with the LTTE.
[6]
The respondent and his family allegedly had been arrested and
interrogated on various occasions by Sri Lankan authorities regarding their
possible involvement and knowledge of the LTTE. In April 2008, the respondent moved
to Colombo hoping to eventually travel to Saudi Arabia to find a job as a
carpenter. While in Colombo, he claimed to have lent his cell phone to a man with
whom he shared a room and about whom he knew very little. This man allegedly used
his cell phone during the period from April to September 2008. According to his
landlady at the time, in early September 2008, the police came looking for the
respondent in Colombo while he was away. He managed to avoid the police, and
moved to another house briefly before leaving for Singapore on September 11,
2008.
[7]
The respondent remained in Singapore for 11 days before leaving for Malaysia. He then remained in Malaysia until August 2009.
[8]
While in Malaysia, the respondent learned from his mother that his
photograph had appeared in a newspaper along with ten others for suspicion of
importing electronic communications equipment for the LTTE. It was alleged that
his twin brother was, as a result of his photograph being published, arrested,
tortured and questioned about his whereabouts.
[9]
In January 2009, the respondent applied for refugee status with the
United Nations’ office in Malaysia, and was accepted in July 2009. Without
permanent resident status or permission to work, the respondent made
arrangements to travel to Canada aboard the ship Ocean Lady. He boarded it
on September 5, 2009 and arrived in Canada in October 2009.
[10]
At the hearing of the respondent’s refugee claim, the Minister of Public
Safety and Emergency Preparedness [MPSEP] intervened and made submissions
relating to the exclusion of the respondent under Article 1F(a) of the Convention.
He maintained that the respondent was complicit in war crimes or crimes against
humanity because of his association with the LTTE, an organization which the
Canadian government has identified as being involved in terrorism. The MPSEP
based his submissions on the following evidence:
1.
A warrant of arrest, dated May 19, 2009, against the respondent for
“aiding and abetting the LTTE organization”;
2.
An Interpol red notice indicated that the respondent is wanted for
“aiding and abetting the LTTE organization”;
3.
A photograph of the respondent with the listing of “terrorism” under the
heading “offenses”;
4.
A copy of Sri Lankan state regulations describing a ban on the import of
certain goods, specifically explosive detection equipment, with these items
circled in text;
5.
A transcribed statement made by one Anthony Pullay Tony Gerai [Gerai], following
his arrival in Colombo with banned equipment, namely high tech
telecommunication equipment. It is this statement that led the Sri Lankan
police to seek the arrest of the respondent;
6.
A Sri Lankan Criminal Investigation Department Final Report;
7.
The respondent’s identification of his own cell phone number which was
identical to that of a certain “Karthik,” Gerai’s contact;
8.
Alleged similarities between the respondent’s name and Karthik, which
the applicant contends are one and the same individual, and;
9.
The overall credibility of the respondent’s account with respect to the
use of his cell phone by his roommate, to his description of his roommate, and more
generally, to the overall account of his stay in Colombo.
[11]
The applicant conceded at the hearing before the Board that if the
respondent was not excluded from refugee protection, then the evidence was
sufficient to establish risk upon return to Sri Lanka.
[12]
One of the articles included in the Minister’s disclosure before the
Board specifically referred to the fact that Sri Lankan authorities were aware
that the respondent was in Canada, had travelled aboard the Ocean Lady, and
had made a refugee claim in Canada. It further noted that he was “being hunted
down” by the Sri Lankan authorities. Documentary evidence also made clear that
those perceived by Sri Lankan authorities to have links with the LTTE are at
risk of persecution in Sri Lanka.
The Impugned
Decision
[13]
The Board determined that the Minister had not met its burden of proof
within the meaning of Article 1F(a) of the Convention, and found
that the claimant was not excluded from refugee protection. The Minister had to
prove that “there [were] serious reasons for considering” that the claimant had
committed a crime described at Article 1F(a) of the Convention. However,
there was insufficient trustworthy evidence to conclude that the claimant himself
has been involved with the LTTE.
[14]
Notably, the Board found that there were substantial differences between
the name “Karthik” and the claimant’s name such that the Minister’s conclusion
that Karthik and the respondent were one and the same person was not supported
by the evidence. There was also no evidence to indicate that Karthik was either
a code name or an alias for the claimant.
[15]
Meanwhile, the charges against the claimant had been laid pursuant to
the Emergency Regulations, which were repealed in August 2011. As such, the
offense alleged is null and void.
[16]
Moreover, the Board assigned little weight to Gerai’s statutory
declaration since there was no signature or date, and there were numerous
discrepancies in dates and spelling found therein (for example, there were
three different spellings of the name of the officer who allegedly prepared the
notes), and this, “especially in light of available evidence that Sri Lankan
forces are known to use torture during interrogation.”
[17]
The Board did have certain concerns with the claimant’s credibility,
especially with respect to his contention that he did not communicate with his
roommate, considering they shared a one room dwelling for months. Nonetheless,
the Board further concluded, notably based on the Minister’s concessions, that
if the claimant was not excluded from refugee protection, then the evidence was
sufficient to establish risk upon return to Sri Lanka. Accordingly, the claimant
was deemed to be a refugee sur place as described by the UNHCR Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status on
the basis of having travelled to Canada aboard the ship Ocean Lady and
the associated media coverage.
Issues and Standard
of Review
[18]
As discussed, the applicant has abandoned his argument with respect to
inclusion. Accordingly, this application raises the following issues:
1.
Did the Board reasonably conclude that the Minister had not met the
requisite onus regarding exclusion with credible and trustworthy evidence?
2.
Did the Board provide adequate reasons?
3.
Are there special reasons for the Court to order costs against the
applicant?
[19]
The issue of the adequacy of reasons can be subsumed under question 1.
[20]
The parties agree that the applicable standard of review for issue 1 is
reasonableness. The Court has held that findings of complicity in crimes
against humanity is a question of mixed law and fact and so is owed
“substantial deference” (Watudura Bandanage v
Canada (Minister of Citizenship and Immigration), 2012 FC 1340 at para 18; Dunsmuir
v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 47, Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43).
Analysis
Did the Board reasonably conclude that the Minister had not met the
requisite onus regarding exclusion with credible and trustworthy evidence?
[21]
The applicant argues that the Board was presented with sufficient
evidence linking the respondent with the LTTE for exclusion under Article 1F(a)
of the Convention, even if one were to apply the new test laid out by
the Supreme Court of Canada in Ezokola. There, the Court reframed the
test for complicity such that mere association or passive acquiescence is no
longer sufficient to warrant exclusion (Ezokola at para 29).
[22]
The MPSEP had submitted several key pieces of evidence to support an
exclusion finding. Of particular note, the applicant argues that the respondent
was personally named and identified in an Interpol Red Notice as well as a Sri
Lankan arrest warrant, both of which indicated that he was sought for “aiding
and abetting the LTTE organization.” This Court has acknowledged that, in some
cases, proof of a valid warrant issued by a foreign country may be persuasive
that the threshold for “serious reasons for considering” has been met. In those
cases, where evidence of a warrant is the sole evidence relied upon, the Board
must go further and determine whether the claimant is credible. Considering the
issues the Board had with the respondent’s credibility, the applicant is thus of
the view that it erred when not determining the applicant excluded (Gurajena
v Canada (Minister of Citizenship and Immigration), 2008 FC 724 at para 1).
[23]
The applicant further states that the Board failed to provide reasons
for dismissing the Interpol Red Notice.
[24]
Finally, the applicant maintains that Gerai’s reference to his contact
“Karthik” was in fact to the respondent, based on the fact that the respondent
recognizes Karthik’s cell phone number as his own.
[25]
As for the respondent, he submits that the Board carefully assessed the
Minister’s evidence regarding exclusion and reasonably concluded that the
Minister had not met the requisite onus with credible and trustworthy evidence,
and provided adequate reasons in doing so. He adds that the applicant is asking
this Court to re-weigh evidence. For instance, the Board’s decision to give
Gerai’s statement little weight was entirely reasonable given its dubious
provenance and the Court’s guidance regarding affidavits and statutory declarations
(Toma v Canada (Minister of Citizenship and Immigration), 2006 FC 779). He
concludes that the Minister’s allegations against the respondent lacked a
credible, trustworthy evidentiary basis and reminds the Court that the Federal
Court of Appeal stated in Chiau v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 297 at para 60 that reasonable grounds to believe
require a “serious possibility based on credible evidence.”
[26]
On the whole, I find the Board’s decision to be reasonable. It carefully
pondered all of the evidence before it, and its decision “falls within a range
of possible, acceptable outcomes which are defensible in light of the facts and
law” (Dunsmuir, at para 47). Serious concerns were raised with respect
to the trustworthiness of the evidence submitted by the MPSEP at the hearing
before the Board, and so it was open to the Board not to exclude the
respondent, despite his credibility issues.
[27]
The documentary evidence shows that the Interpol Red Notice emanates
from its National Central Bureau for Sri Lanka and was issued at the sole request
of the Sri Lankan Criminal Investigation Department. Meanwhile, the Sri Lankan
authorities issued their own arrest warrant after having obtained a statutory declaration
made by Gerai. Not only was that declaration undated and unsigned, but it
contained a certain number of inconsistencies as well as sufficient information
to support the finding that the respondent and the person referred to by Gerai
as Karthik, are two different individuals. For example, Karthik had travelled
to India and eventually migrated to France. However, the MPSEP’s verifications
with the authorities of these countries revealed that the respondent has never
visited either country. This seriously weakens the MPSEP’s evidence.
[28]
A finding that a claimant is excluded from the possibility of presenting
an asylum claim based on Article 1F(a) of the Convention is a severe
one. It has to be based on a serious and convincing finding of fact.
[29]
Having applied the proper pre-Ezokola test, it was open to the
Board to find that the Minister had not adduced sufficient evidence to support
the exclusion of the respondent. Moreover, the applicant’s burden would only become
more difficult to meet should this case be sent back to the Board, as the latter
would be bound to apply the new test.
Are there special reasons for the Court to order costs
against the applicant?
[30]
Now that the applicant has withdrawn his challenge of the Board’s
finding that the respondent, if not excluded, would be considered a sur
place refugee, the respondent bases his request for costs on the simple
fact that the Board’s decision was reasonable. According to him, the Minister’s
decision to challenge it in these particular circumstances was unfair,
oppressive and improper.
[31]
Rule 22 of the Federal Court Immigration and Refugee
Protection Rules, SOR/93-22 provides that the Court may only award
costs for “special reasons.” This threshold is high. Costs may be granted “if
one party has unnecessarily or unreasonably prolonged proceedings, or where one
party has acted in a manner that may be characterized as unfair, oppressive,
improper or actuated by bad faith” (Johnson v Canada (Minister of
Citizenship and Immigration), 2005 FC 1262 at para 26). This
application for judicial review raised arguable issues (leave was, after all,
granted by this Court), and so does not meet that threshold.
Conclusion
[32]
The applicant has not convinced the Court that the Board’s
decision was unreasonable and so this application for judicial review will be dismissed.
No question of general importance was proposed by the parties and none will be
certified.
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