Date: 20051124
Docket: IMM-238-05
Citation: 2005 FC 1591
Toronto, Ontario, this 24th day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CHINTHAKA JAYAWEERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated December 20, 2004, which determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant seeks an order setting aside the Board's decision and referring the matter for redetermination by a differently constituted panel of the Board.
[3] Chinthaka Jayaweera (the "applicant") is a citizen of Sri Lanka and a former officer of the Sri Lankan Air Force ("SLAF"). He alleged a fear of persecution by the Sri Lankan authorities for his refusal to follow orders, his desertion from the SLAF and his unauthorized departure from Sri Lanka. He also alleged a fear of persecution by the Liberation Tigers of Tamil Ealam ("LTTE") for his role as an intelligence officer with the military.
[4] On September 23, 1998, the applicant voluntarily joined the SLAF as a cadet officer and signed a contract to perform 12 years of service. He joined the air force because he wanted to obtain flight training and eventually become a commercial pilot. However, the applicant took an aptitude test shortly after joining the SLAF that determined that he would not be trained as a pilot.
[5] In June 2000, the applicant was commissioned as a pilot officer. He performed administrative duties from July 2000 to February 2001 and worked as an adjutant to the commanding officer from February 2001 to August 2001.
[6] In December 2001, he was promoted to the rank of flying officer. From May 2002 to December 2002, he performed administrative duties as an adjutant to the commanding officer.
[7] In December 2002 he was assigned to a special operations unit at Mankulam where he had to carry out jungle infantry duties. He alleged that he did not wish to go on this assignment because he did not want to participate in actions that could result in the killing of civilians. He visited a doctor to obtain a report of a neck injury or neck pain, which he used as the basis for his application for a deferment of his assignment. The applicant's request for a deferment was refused and he was ordered to report to Mankulam, where he commanded 40 airmen and monitored LTTE movement in the perimeter of the airbase.
[8] The applicant's troops' duties included gathering intelligence about the LTTE. The applicant met with intelligence officers regularly to exchange information. Four of these officers were allegedly killed, presumably by the LTTE. Intercepted intelligence allegedly indicated that the applicant would be the next target.
[9] On or about February 10, 2003, the LTTE approached the line of defence patrolled by the applicant and his troops. The applicant was instructed by his commanding officer to try to capture the LTTE. However, the applicant was unable to do so because he did not wish to unnecessarily endanger his troops. The applicant sounded an alarm and the LTTE withdrew.
[10] On February 20, 2003, the applicant was ordered by his commanding officer to plant landmines around the lakes and footpaths that the LTTE frequently used. The applicant alleged that he did not carry out this order as he feared that civilian casualties could result. The applicant alleged that he was informed that charges would be submitted against him for refusing to obey orders.
[11] On February 23, 2003, the applicant went home on leave. While on leave, the applicant went into hiding and arranged to leave Sri Lanka with the assistance of an agent. He left Sri Lanka on March 17, 2003, and arrived in Canada the next day.
[12] The applicant claimed refugee protection on March 31, 2003. The applicant's claim was heard on September 2, 2004. The Board dismissed his claim in a decision dated December 20, 2004. This is the judicial review of that decision.
Reasons of the Board
[13] The Board first dealt with the Minister's submission that the applicant should be excluded from protection in Canada under Article 1F(a) of the Convention Relating to the Status of Refugees. The Minister contended that the applicant had been complicit in the crime of torture committed by the Sri Lanka Army ("SLA") because he had exchanged intelligence information with SLAofficers. This information had been obtained by the SLA officers through "interrogations" of LTTE members or suspects. The Board dismissed the Minister's arguments as there was insufficient evidence to implicate the SLAF in acts of torture. The Board noted that a Directorate of Human Rights and Humanitarian Law was created in 2001 to oversee human rights training programs in the SLA. Similar programs were in place for the SLAF by early 2002. In light of these programs, and the improvement in the human rights situation in Sri Lanka in the context of a cease-fire and peace talks, the Board found that the information that the applicant received from SLA officers was not obtained through the regular use of torture.
[14] The Board next dealt with the applicant's submissions concerning inclusion as a Convention refugee or a person in need of protection. The applicant contended that he feared persecution by the Sri Lankan authorities and by the LTTE.
[15] The Board accepted that the applicant would face prosecution by the Sri Lankan authorities for deserting, disobeying orders and leaving the country surreptitiously. The documentary evidence indicated that penalties for desertion from the Sri Lankan armed forces are simple or rigorous imprisonment or dismissal from the armed forces. The applicant testified that he had a friend, an army officer, who had to serve the remaining time of his contract in prison. However, there was no evidence before the Board to show that punishment for deserting the armed forces would amount to persecution. Thus, the Board concluded that the applicant had no well-founded fear of state persecution for deserting the SLAF.
[16] Further, the Board found that the applicant's reason for leaving the SLAF was not credible. The applicant alleged that he left the SLAF because he protested the laying of mines that could kill civilians. The Board noted that this reason was not even mentioned in the applicant's Port of Entry interview notes (the "POE notes") when he was asked why he was seeking refugee status or why he could not return to Sri Lanka. The POE notes indicated that the applicant could not return to Sri Lanka because the LTTE crossed the line of defence, he was ordered to kill the LTTE if they did anything, and he feared that his life was in danger. The Board concluded that the applicant deserted the SLAF because he did not like jungle duty and because he thought he was a target of the LTTE.
[17] With respect to the applicant's allegations of persecution by the LTTE, the Board found that since the applicant is no longer an intelligence officer posted at Mankulam, he would not be of further interest or a target for the LTTE.
[18] Therefore, the Board concluded that the applicant had not established that he would face a serious possibility of persecution at the hands of either the Sri Lankan authorities or the LTTE.
Issues
[19] The applicant raised a number of issues in his memorandum. The issues can be summarized as follows:
Did the Board err in finding that the applicant was neither a Convention refugee nor a person in need of protection?
Applicant's Submissions
[20] The applicant submitted that the Board erred in failing to consider whether punishment for deserting the SLAF per se would constitute persecution. It was submitted that the conduct of the Sri Lankan military has received international condemnation and the applicant objected to the conduct of the Sri Lankan military when he refused to carry out orders to plant mines in an area where Tamil civilians would be put at risk. Thus, the applicant submitted that he qualifies as a conscientious objector (see Bakir v. Canada(Minister of Citizenship and Immigration), 2004 FC 70 at paragraph 30).
[21] The applicant submitted that the Board further erred in finding that the applicant did not face a serious possibility of persecution at the hands of the LTTE. In the applicant's memorandum, the applicant cited evidence that was before the Board that indicated that the LTTE targets both current and former members of anti-LTTE Tamil political parties and alleged Tamil informants for the security forces. The applicant also cited evidence indicating that the head of the Tiger intelligence unit, Pottu Amman, has informed other heads of Tiger intelligence units to kill government intelligence members who have worked against them wherever they live in the world.
Respondent's Submissions
[22] The respondent submitted that the applicant is not a conscientious objector to military service. The POE notes failed to mention the laying of land mines and when the applicant was asked at the hearing about this omission, the applicant explained that it was because he was told to be brief at the port of entry. The respondent submitted that it was open to the Board to find that this explanation was not credible and to conclude that the applicant left the SLAF not because he conscientiously objected to potentially injuring civilians, but because he thought he would be targeted by the LTTE.
[23] Further, the respondent submitted that there was no evidence before the Board that the tasks that the applicant was ordered to perform were condemned by the international community as contrary to basic human rights.
[24] The respondent submitted that with respect to the applicant's submissions concerning persecution at the hands of the LTTE, the applicant had cited evidence of LTTE treatment of anti-LTTE Tamil political groups and Tamil informants. The respondent submitted that this evidence failed to establish that the applicant, a Sinhalese intelligence officer with the SLAF, would be targeted by the LTTE.
Relevant Statutory Provisions
[25] Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection; or . . .
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95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; . . .
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[26] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
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Analysis and Decision
[27] Standard of Review
A determination of whether certain conduct amounts to persecution is a question of mixed fact and law which should be reviewed on a standard of reasonableness simpliciter (see Pruma v. Canada(Minister of Citizenship and
Immigration), 2005 FC 805 at paragraph 39).
[28] A finding of credibility should be reviewed on a standard of patent unreasonableness. This means that findings of credibility must be supported by the evidence and must not be made in a perverse or capricious manner or based on the erroneous findings of facts (see Sivanathan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 500 at paragraph 13; Anthonimuthu v. Canada (Minister of Citizenship and Immigration), 2005 FC 141 at paragraph 45).
[29] The applicant stated that he deserted the SLAF because he did not believe in laying land mines that could kill or injure civilians, and he had refused to carry out his superior's orders to lay the mines. The Board did not accept this statement because the applicant did not mention this as a reason for leaving Sri Lanka and it was not contained in the POE notes. These notes stated that the applicant fled Sri Lanka because he was ordered to kill the LTTE and because he feared his life was in danger. The Board concluded that the real reason for the applicant leaving the SLAF was because he did not like jungle duty.
[30] The Board's conclusion that the applicant did not leave Sri Lankabecause of his opposition to planting land mines was a reasonable finding based on the fact that he did not disclose this reason at his port of entry interview. In my view, this disposes of the applicant's conscientious objector argument as the Board did not accept the factual basis for this argument.
[31] It was also not unreasonable for the Board to conclude that the applicant left Sri Lanka because of his not wanting to do jungle duty. There is sufficient evidence to support the Board's finding on this point as the applicant tried unsuccessfully to obtain a medical exemption to avoid doing jungle duty.
[32] The following excerpt from the applicant's oral testimony supports the conclusions reached by the Board. That testimony contained at pages 591 to 594 of the tribunal record states:
RPO: There were two problems you had at (inaudible) at Mankulum. The first one was when the LTTE tried to cross the no-man's land, and your commanding officer told you to try to capture them.
CLAIMANT: Yes.
RPO: The second was when your commanding officer ordered you to plant mines around the reservoirs and footpaths.
CLAIMANT: Yes.
RPO: You disobeyed both these commands.
CLAIMANT: No. The first instance, he told me, try to capture them, try to arrange that I was going to capture them.
RPO: Did you try?
CLAIMANT: No.
RPO: So you disobeyed the order.
CLAIMANT: I took the best decision as an officer, as I (inaudible) to that, that time.
RPO: Which one out of these two incidents is more important to you?
CLAIMANT: Are you asking which way is important?
RPO: No. You had two incidents or you had, you know, two different commands were from your commanding officer. Well, they're both - did they both cause you problems?
CLAIMANT: No.
RPO: No? In your - in the questions you gave to the Immigration officer, you only mentioned the incident (inaudible) trying to cross into no-man's land, and you didn't talk about the landmines. So I'm trying to understand if one of these incidents was more important to you than the other.
CLAIMANT: I was asked to be brief, as brief as possible, so I - according to this instructions, I mentioned (inaudible) as brief as possible.
RPO: Mm-hmm. Did you disobey your commanding officer when he told you to plant the - or supervise the planting of landmines?
CLAIMANT: Yes.
RPO: Okay. Will that cause you problems when you go back to Sri Lanka?
CLAIMANT: Yes.
RPO: What kind of problems?
CLAIMANT: Because of this incident, apparently, I have committed three offences or three wrongdoings.
RPO: Yes.
CLAIMANT: One is not carrying out the order. Secondly, I became a deserter. The thirdly, that I have not informed my authorities and then left the country.
RPO: That's due to the - your refusal to plant the landmines?
CLAIMANT: Yes, all these thing happened because of that incident.
RPO: So why wouldn't you tell them (inaudible) about that? It seems pretty important to me.
CLAIMANT: They are (inaudible) because I was told to be brief, so I just mentioned this business with - - -
RPO: And you went back to - you went back to Ratmalana on leave, October 23rd, 2003, correct?
CLAIMANT: I didn't go to Ratmalana. I went home.
RPO: Mirigama?
CLAIMANT: Yes.
[33] The applicant also stated that he would suffer persecution because he would be punished for failing to obey an order, for deserting the SLAF and for leaving the country without informing the authorities. The Board concluded that the applicant would be punished for these actions, but found that this punishment did not amount to persecution. I agree with the Board's conclusion on this point.
[34] As well, it was open to the Board to conclude that the applicant would not be a target of the LTTE since he is no longer an intelligence officer.
[35] The application for judicial review is therefore dismissed.
[36] The applicant requested that I certify the following question as a serious question of general importance:
Where the Board has accepted the state as the named agent of persecution in a refugee claim made by a conscientious objector to the state's practices and/or penalties for conscientious objectors, can the Board rely purely on objective information emanating from the state itself regarding its potential treatment and/or punishment of a conscientious objector to its practices.
[37] I am not prepared to certify this question as the Board did not accept as credible the factual basis for this aspect of the applicant's claim.
ORDER
IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
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