Pushpanathan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 867

Date: 20020903

Docket: IMM-4427-01

Neutral Citation: 2002 FCT 867

Ottawa, Ontario, September 3, 2002

Present: THE HONOURABLE MR. JUSTICE BLAIS

BETWEEN:

VELUPPILLAI PUSHPANATHAN

Applicant

- and -

             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review under the authority of subsection 82.1(1) of the Immigration Act [hereinafter referred to as the "Act"] against the decision of the Convention Refugee Determination Division [hereinafter referred to as the "Refugee Division"] rendered on August 23, 2001 wherein the Refugee Division determined that the applicant is not a Convention refugee.

BACKGROUND FACTS^[1]

[2]                 The applicant was born on March 23, 1955 in Alaveddy, Mallakam, Sri Lanka.

[3]                 The applicant alleges that as a student in Kopay Christian College in 1972, he peacefully agitated against "the discriminatory laws" of the "communal Sinhalese political party in power" and was arrested and held for four (4) days. He claims he was subjected to severe physical harassment during this detention.

[4]                 He further alleges that in September 1975, following the assassination of the Mayor of Jaffna, Mr. Duraiappah, he was assaulted and incarcerated for four (4) days, along with many other Tamils.

[5]                 He also claims that once the Sri Lankan security forces knew he was a member of the Youth League of the Tamil United Liberation Front (TULF) he was "assaulted with batons and butt end of the guns in public."

[6]                 In addition, the applicant alleges that during the "island-wide anti-Tamil riot of August 1977," the Sri Lankan army (SLA) shot and killed two (2) of his farm employees while ransacking and damaging his farm.

[7]                 In March 1981, he alleges that the Sri Lankan security forces entered his personal home, during a massive cordon and search operation that took place after a bank robbery, and he was subjected to a "merciless assault."

[8]                 In April 1983, the applicant states he was the target for assassination by the Liberation Tigers of Tamil Eelam (LTTE) for disobeying their orders and not boycotting the local government elections.

[9]                 He also alleges that he was forced to pay extortion money on five (5) occasions.

[10]            The applicant claims to have had difficulties with the Eelam Peoples Revolutionary Liberation Front (EPRLF) in India, another pro-government Tamil militant group in Sri Lanka.

[11]            Lastly, he claims that the LTTE became aware of his "real identity" and "started watching his movements very closely." It is for this reason that the applicant decided to flee India, where he was residing at the time, to Canada.

THE APPLICANT'S CONVICTION

[12]            In 1987, the applicant was charged, convicted and incarcerated for conspiracy to traffic heroine in Canada. The applicant was complicit in supporting the LTTE by assisting in the raising of funds through trafficking narcotics. The applicant was among eight (8) individuals who were arrested in Toronto. This mission was entitled "Operation Cheap". The applicant was given an eight (8) year sentence of which he served two and a quarter (2¼) years in a federal penitentiary.

THE ORIGINAL REFUGEE DIVISION HEARING

[13]            In September 1991, the applicant claimed Convention refugee status. At the original hearing in January 1993, the Refugee Division concluded that the offence of trafficking narcotics was contrary to the purposes and principles of the Convention Relating to the Status of Refugees - United Nations Convention [hereinafter referred to as the "Convention"], and therefore excluded the applicant's claim from Convention refugee protection under Article 1F(c) of the Convention.

[14]            The Federal Court Trial Division and the Federal Court of Appeal both affirmed the Refugee Division's decision.

THE REFUGEE DIVISION HEARING DE NOVO

[15]            In 1998, the Supreme Court of Canada in Pushpanathan v. Canada, [1998] 1 S.C.R. 982 allowed the applicant's appeal on the basis that the Refugee Division had incorrectly interpreted Article 1F(c) of the Convention. Bastarache J. writing for the majority of the Supreme Court held:

Conspiring to traffic in a narcotic is not a violation of Art. 1F(c). Even though international trafficking in drugs is an extremely serious problem that the UN has taken extraordinary measures to eradicate, in the absence of clear indications that the international community recognizes drug trafficking as a sufficiently serious and sustained violation of fundamental human rights as to amount to persecution, either through a specific designation as an act contrary to the UN purposes and principles, or through international instruments which otherwise indicate that trafficking is a serious violation of fundamental human rights, individuals should not be deprived of the essential protections contained in the Convention for having committed those acts. [...]

[16]            At the second Refugee Division hearing, which formed the basis for this application for judicial review, the applicant alleged a well-founded fear of persecution should he be returned to Sri Lanka on the basis of his race (Tamil), religion (Hinduism), nationality (Sri Lankan Tamil), political opinion (imputed) and membership in a particular social group (Young Tamil).

[17]            The Refugee Division found the applicant to be excluded from Convention refugee protection under Article 1F(a) and Article 1F(c) of the Convention for crimes against humanity and his complicity in terrorist activities associated with the Liberation Tigers of Tamil Eelam (LTTE).

IMPUGNED DECISION

[18]            The Refugee Division's decision is an extensive, detailed document, reflective the six (6)-part hearing.    Presided over by James C. Simeon and concurred in by M. Clive Joakim, the Refugee Division came to the following conclusion at page 23 of the decision:

CONCLUSION

Thus, having considered the evidence presented, and for the reasons stated above, the Refugee Division determined that Veluppillai Pushpanathan is excluded from consideration to Convention refugee status under both Article 1F(a) and Article 1F(c) of the Convention. Accordingly, the Refugee Division determines that Veluppillai Pushpanathan is not a Convention refugee.

APPLICABLE LEGISLATION

[19]            Article 1F of the Convention denies refugee Convention protection to certain defined persons.

APPLICANT'S POSITION

[20]            The applicant challenges the Refugee Division exclusion finding on the basis that: a) the Refugee Division used too low a standard of proof as Pushpanathan, supra elevated the standard; b) the LTTE is not a terrorist organization with a limited and brutal purpose; c) the applicant was not complicit in crimes against humanity; and d) improper inferences were made regarding the applicant's complicity.

RESPONDENT'S POSITION

[21]            The respondent's position is that: a) Pushpanathan, supra has not changed the standard of proof in Article 1F exclusion cases; b) LTTE is an organization with a limited and brutal purpose, even if the LTTE is categorized differently, the applicant's activities still fall within the ambit of Article 1F; c) the applicant's case was complicit in crimes against humanity; and d) the Refugee Division's treatment of the evidence was within its area of expertise and jurisdiction as a trier of fact.

ISSUES

[22]            1.         Did the Refugee Division err in determining the standard of proof?

2.         Did the Refugee Division err in concluding that the LTTE was a terrorist organization with a limited and brutal purpose?

3.         Did the Refugee Division err in finding that the applicant was complicit in crimes against humanity?

4.         Did the Refugee Division err in making improper inferences regarding the applicant's complicity?

ANALYSIS

Standard of review applicable to the Refugee Division

[23]        First and foremost it is necessary to define the standard of review applicable by this Court in regards to the Refugee Division. Generally, the standard of review for questions of fact and fact and law is patently unreasonable, whereas for questions of pure law it is correctness.

[24]            In Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Evans J., as he then was, stated:

[para 45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.

[25]            Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), is a decision which also touches on the applicable standard of review. In Conkova, supra Pelletier J., as he then was, held:

[para 5] The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.

[26]        In Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (F.C.T.D), Jerome A.C.J., as he then was, stated:

[para 6] Furthermore, the Refugee Division is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn can be reasonably said to exist. Negative findings with respect to an individual's credibility are properly made, provided the tribunal gives reasons for its decision in clear and unequivocal terms.

1.    Did the Refugee Division err in determining the standard of proof?

[27]            No, the Refugee Division did not err in determining the standard of proof.

Standard of proof for Article 1F of the Convention

[28]            This Court has consistently maintained that the standard of proof for Article 1F of the Convention is less than proof on a balance of probabilities.

[29]            In Ramirez v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 109 (F.C.A.), the Federal Court of Appeal concluded that the term "serious reasons for considering" found in Article 1F have the effect of establishing a standard of proof less than the balance of probabilities. Stone, MacGuigan and Linden JJ.A. held:

[para 5] The words "serious reasons for considering" also, I believe, must be taken, as was contended by the respondent, to establish a lower standard of proof than the balance of probabilities.

[para 6] While I see no great difference between the phrases "serious reasons for considering" and "reasonable grounds to believe," I find no necessity exactly to equate the one with the other, although I believe both require less than the balance of probabilities. "Serious reasons for considering" is the Convention phrase and is intelligible on its own.

[30]            The case of Ramirez, supra has been followed in Moreno v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 912 (F.C.A.) and Sivakumar v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1145 (F.C.A.).

[31]            The phrase "serious reasons for considering" in Article 1F confirms that the international community was willing to lower the standard of proof in order to ensure that undeserving individuals were denied safe havens. This was eloquently stated by the Federal Court of Appeal in Ramirez, supra:

The words "serious reasons for considering" must be taken to establish a lower standard of proof than the balance of probabilities. This was consistent with the fact that in the aftermath of World War II atrocities, the signatory states to the 1951 Convention intended to preserve for themselves a wide power of exclusion from refugee status where perpetrators of war crimes were concerned. The parties agreed that the burden of establishing "serious reasons for considering" rested on the Government.

[32]            Also in Canada (Minister of Citizenship and Immigration) v. Hajialikhani, [1998] F.C.J. No. 1464 (F.C.T.D.), Reed J. held:

[para 12] These cases discussed the burden of proof applicable when considering an Article 1F(a) exclusion. Instead of requiring a determination as to whether, on the balance of probabilities, there exist serious reasons for considering that a crime has been committed, the phrase "serious reasons for considering" has been interpreted as describing the burden of proof to be applied to a determination of whether the individual has committed or been complicit in one or more of the crimes. That burden of proof is lower than that required by a finding on the balance of probabilities.

[33]            Counsel for the applicant however, relies on the case of Pushpanathan, supra and asserts that the Supreme Court of Canada "disapproved of the Federal Court of Appeal's approach to exclusion and that therefore it is no longer tenable to hold that the standard of proof in exclusion is merely 'reasonable grounds' which equates to a less than a balance of probabilities test."^[2] In response, the Refugee Division held at page 13:

A careful reading of the SCC decision in Pushpanathan, leads the panel to conclude, with respect, that counsel's position cannot be sustained.

The panel finds the Minister's counsel's submissions on the issue of the standard of proof in exclusion cases to be more persuasive. This panel finds our colleague's reasoning in U97-01474/5 to be thorough and sound and adopts it in this case at bar. At page 22 of our colleague's reasons, they state as follows:

This is the specific issue the Court addressed ["how wide should the net be cast in defining the phrase 'purpose and principles of the United Nations' in Article 1F(c) of the Convention."] in its treatment of the rules of interpretation and the travaux préparatoires. The panel finds it a leap too far to extend that reasoning to other aspects of determination in exclusion not specifically addressed by the Court. In particular, it sees no indication in Pushpanathan that the Court intended to raise the standard of proof for exclusion, and accordingly, it respectfully rejects the interpretation of the author of the articles that the standard of proof in exclusion cases has been raised to that of the civil standard.

[34]            It is my opinion that the Refugee Division correctly ascertained the standard of proof under Article 1F of the Convention.

2.         Did the Refugee Division err in concluding that the LTTE was a terrorist organization with a limited and brutal purpose?

[35]            No, the Refugee Division did not err in concluding that the LTTE was a terrorist organization with a limited and brutal purpose.

United States of America

[36]            In October 1997, the United States Department of State formally declared the LTTE a terrorist organization. This designation makes it illegal in the United States to procure funds from the LTTE and other front organization including the World Tamil Movements and Federation of Association of Canadian Tamils.

[37]            The U.S. State Department website^[3] profiles the LTTE as follows:

Description: The most powerful Tamil group in Sri Lanka, founded in 1976. Uses overt and illegal methods to raise funds, acquire weapons, and publicize its cause of establishing an independent Tamil state. Began its armed conflict with the Sri Lankan Government in 1983 and relies on a guerrilla strategy that includes the use of terrorist tactics.

[...]

External Aid: The LTTE's overt organizations support Tamil separatism by lobbying foreign governments and the United Nations. Also uses its international contacts to procure weapons, communications, and bombmaking equipment. Exploits large Tamil communities in North America, Europe, and Asia to obtain funds and supplies for its fighters in Sri Lanka. Some Tamil communities in Europe also are involved in narcotics smuggling.

(my emphasis)

[38]            This Court first considered the LTTE organization in the case of Sivakumar, supra. Based on the testimony of the applicant, Linden J.A. held that the LTTE was responsible for crimes against humanity.

[39]            Also in Suresh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 5 (F.C.A.), the Federal Court of Appeal addressed the brutal and violent methods of the LTTE:

[para 40] In short, there is sufficient and conclusive evidence that the LTTE engages in indiscriminate killing and torture of innocent civilians amounting to what are classified under international law as "crimes against humanity". I hasten to add that this was firmly established by this Court as early as 1994 in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.).

[40]            The Refugee Division in the case at bar came to the same conclusion as in Suresh, supra. The LTTE is responsible for brutal and calculated acts. The applicant however suggests that an organization must be one that engages "solely and exclusively in acts of terrorism" in order to be an organization with a limited and brutal purpose. To do so, he relies on the case of Balta v. Canada, [1995] F.C.J. No. 146 (F.C.T.D.). I am unable to agree. Rather the two cases of Mehmoud v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1019 (F.C.T.D.) and Shakarabi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 444 (F.C.T.D.) illustrate that where there is no evidence that political objectives can be separated from militaristic activities, an organization could still be found to have a limited, brutal purpose. There is no evidence to suggest that the LTTE's terrorist activities can be separated from other objectives it may have. The LTTE resorts to terrorist methods to reach their objectives and this suggests that the LTTE is an organization with a brutal and limited purpose.

Complicity

[41]            This Court has held that the first step in determining complicity is to look at the purpose of the organization in question. If the main objective of the organization is achieved by crimes against humanity or is directed towards a limited and brutal purpose, membership is generally sufficient to establish complicity.

[42]            In Ramirez, supra, MacGuigan J.A. held:

However, where an organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts. Nor was mere presence at the scene of an offence enough to qualify as personal and knowing participation, though presence coupled with additional facts could well lead to a conclusion of such involvement.

[43]            In addition, the Federal Court of Appeal in the case of Moreno, supra added to the notion of complicity by stating:

[para 51] [...] Equally important, however, is the fact that complicity rests on the existence of a shared common purpose as between "principal" and "accomplice". In other words, mens rea remains an essential element of the crime. [...]

[44]            In the case of Gutierrez v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1494 (F.C.T.D.), MacKay J. held:

Essentially then, three prerequisites must be established in order to provide complicity in the commission of an international offence: (1) membership in an organization which committed international offenses as a continuous and regular part of its operation, (2) personal and knowing participation, and (3) failure to disassociate from the organization at the earliest safe opportunity.

Soliciting funds equals complicity

[45]            In Hajialikhani, supra, Reed J. cited a claimant's involvement in soliciting funds in Canada from Iranians for support of the Mujahdeen as a factor in establishing complicity:

[para 41] I agree with counsel for the Minister's argument that the Board did not analyze this evidence, and applied an incorrect test by asking whether the claimant was personally involved in the crimes alleged, in the sense of being physically present, rather than whether his involvement was such as to encourage and enable the commission of the alleged crimes by others. There is no doubt that financing crimes makes one complicit therein.

(my emphasis)

[46]            Moreover, Article 2(3) of the International Convention for the Suppression of the Financing of Terrorism does not require specific funds to be traced to specific offences.

2.(3) For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs (a) or (b).

[47]            Article 2(1) of the International Convention for the Suppression of the Financing of Terrorism states:

2.(1) Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: [...]

[48]            The applicant, through the trafficking of narcotics - which is essentially the financing of crimes - makes him complicit in supporting the LTTE. The jurisprudence makes it clear that formal membership and direct involvement is not required to establish complicity where the organization has a limited, brutal purpose. In addition, the applicant was complicit because his criminal activities in Canada demonstrate that he had a "personal knowing participation" and "shared a common purpose " with the LTTE.

[49]            The Refugee Division considered the abundant documentary evidence presented to it in regards to the LTTE and their terrorist activities. At page 20 of the decision, the Board members state:

Given the documentary evidence before the panel, it is clear that the LTTE has an international reputation as a terrorist organization with a limited and brutal purpose; [...]

(my emphasis)

[50]            This Court finds that the Refugee Division acted reasonably when it came to the conclusion that the LTTE is a terrorist association with a limited and brutal purpose.

3.         Did the Refugee Division err in finding that the applicant was complicit in crimes against humanity?

[51]            No, the Refugee Division did not err in finding that the applicant was complicit in crimes against humanity.

[52]            In Sivakumar, supra, Suresh, supra and Hajialikhani, supra, this Court concluded that the LTTE is a terrorist organization that systematically commits crimes against humanity through the deliberate torture and murder of innocent civilians. There is also documentary evidence which is conclusive that the LTTE commits crimes against humanity.

[53]            In Bazargan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1209 (F.C.A.), Décary J.A. on behalf of the Federal Court of Appeal held:

[para 11] In our view, it goes with that saying that "personal and knowing participation" can be direct or indirect and does not require formal membership in the organization that is ultimately engaged in the condemned activities. It is not working within an organization that makes someone an accomplice to the organization's activities, but knowingly contributing to those activities in any way or making them possible, whether from within or from outside the organization. At p. 318, MacGuigan J.A. said: "[a]t bottom, complicity rests [...] on the existence of a shared common purpose and the knowledge that all of the parties in question may have of it." Those who become involved in an operation that is not theirs, but that they know will probably lead to the commission of an international offence, lay themselves open to the application of the exclusion clause in the same way as those who play a direct part in the operation.

(MacGuigan J.A. is referring to the case of Ramirez, supra.)

[54]            In Sumaida v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1794 (F.C.T.D), Simpson J. raised an interesting point on the issue of conduct that amounts to a crime against humanity, but rightfully dismissed the issue:

[para 12] The difficulty suggested by the applicant is that there was no evidence that any of the Targets or members of their families were actually harmed. The applicant says that there can be no crime against humanity without proven harm. In this regard, the applicant relies on Sivakumar at page 440 where the Federal Court of Appeal states that the Board would make an error of law if it did not include in its decision findings of fact as to specific crimes against humanity. The applicant submits that this holding means that, without specific harm to identified individuals, there cannot be a crime against humanity.

[para 13] I disagree with this interpretation of the decision and have concluded that it stands only for the proposition that, when specific crimes are alleged, they should be discussed in the Board's reasons.

[55]            Similarly in the present matter, there lacks evidence of actual harm that came about due to the applicant's involvement with the LTTE. However, there is overwhelming evidence that the LTTE is a terrorist organization that commits crimes against humanity through a myriad of activities. It has been established that the applicant is complicit due to his financing of crimes through the trafficking of narcotics in Canada and that the LTTE is infamous for committing crimes against humanity, accordingly, this Court can infer that the applicant was complicit in crimes against humanity.    Therefore, I conclude that the Refugee Division did not err when it reached the following conclusion at page 20 of its decision:

[...] The panel finds that these terrorist acts committed by the LTTE over the years to be crimes against humanity.

4.         Did the Refugee Division err in making improper inferences regarding the applicant's complicity?

[56]            No, the Refugee Division did not err in making improper inferences regarding the applicant's complicity.

[57]            The Refugee Division was dubious of the applicant's credibility in regards to certain aspects of his testimony. The Refugee Division is entitled to decide adversely with respect to a claimant's credibility as the determination of the claimant's credibility is the heartland of the Refugee Division's jurisdiction since it is the trier of fact.

[58]            The jurisprudence of this Court has found that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility of an applicant. This Court cannot intervene with the findings of fact made by the Board, unless it is demonstrated that the conclusions drawn are unreasonable or that they are capricious, made in bad faith or not supported by the evidence.

[59]            This was recently confirmed in the case of Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.), where this Court held:

[para 38] It is trite law that the Board has the discretion, and indeed is in the best position, to assess the credibility of an applicant: Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).

[60]            In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.), the Court held:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

[61]            As was stated in Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (F.C.A.), by Stone J.A.:

If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility.

[62]            In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) Evans J., as he then was, stated:

It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence".

[63]            In Boye, supra Jerome A.C.J., as he then was, wrote:

The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it.

In light of this collection of jurisprudence, it is evident that the Refugee Division's treatment of the evidence is within its area of expertise and jurisdiction.

The credibility of the applicant

[64]            The applicant was tried and convicted for trafficking narcotics in Canada along with five (5) other Tamils. However, the applicant denied his association with members of the LTTE. In this regard, the Refugee Division stated at page 21 of its decision:

It is evident that the claimant was closely associated in criminal activities with members of the LTTE in Canada. It is not reasonable that he would not have been aware of this at the time. The claimant denies that he ever knowingly associated with members of the LTTE. The panel does not find this to be credible in light of the overwhelming evidence presented in the police reports and by the Minister's counsel's witness Sergeant Bill Neadles, TPS, on "Operation Cheap."

(my emphasis)

[65]            In terms of the nature of the activities in Canada, the applicant also denied that he knew that the illegal profits would serve to support the LTTE's terrorist activities. The Refugee Division held at page 21 of its decision:

The circumstantial evidence presented overwhelmingly indicates that the claimant was associated with members of the LTTE, as an active and willing participant, while in Canada, at the time of his drug trafficking arrest and conviction. It is not reasonable for the panel to accept that the claimant would not have known his accomplices were with the LTTE. Further, it is not reasonable to accept the claimant did not know that some of the profits from the illegal drug sales were diverted to the LTTE to support their terrorist activities. Accordingly, the panel finds that there are serious reasons for considering that the claimant was complicit in crimes against humanity and is therefore, excluded from consideration for Convention refugee status under Article 1F(a) and 1F(c) of the Convention.

(my emphasis)

[66]            And further along at page 22 of the decision, the Refugee Division commented on the lack of credibility of the applicant as follows:

[...] Hence, the panel concludes that the claimant had a "personal and knowing participation" in the international crimes and crimes against humanity attributed to the LTTE. Indeed, the claimant's PIF narrative alleges that he left Sri Lanka and, later, India, because he had disobeyed the LTTE and that they targeted him for disobeying their orders. The panel does not accept that the claimant presented credible or trustworthy evidence in this regard. Nonetheless, it does reveal that the claimant is well aware, as is virtually every other Sri Lankan adult Tamil, that the LTTE targets and kills civilians who disobey their orders. The claimant knowingly and willingly participated in supporting the LTTE by conspiring to traffic in narcotics and thereby raise funds for the LTTE's campaign of terrorism. Accordingly, the panel finds that the claimant is guilty of acts contrary to the purposes and principles of the United Nations, and should be excluded pursuant to Article 1F(c) of the Convention.

(my emphasis)

[67]            The Refugee Division has broad discretion as to their preference for certain evidence over other evidence. In Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.), Rouleau J. held:

[para 15] Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.

[68]            Therefore, it was within the ambit of the Refugee Division to consider the documentary evidence before it. It was also completely within the jurisdiction of the Refugee Division to find that the applicant's testimony was not credible with respect to his association with the LTTE. The Refugee Division came to the conclusion that the applicant has been complicit in participating in crimes against humanity after considering all of the evidence before it, including documentary evidence, official police reports and the testimony of experienced police officers^[4] and expert witnesses.

[69]            Furthermore, in their dissent in Pushpanathan, supra, Cory and Major JJ. held:

Here, the appellant was an important participant in a major drug operation with an organized group trafficking in heroin. He trafficked on a large scale in the most debilitating of drugs. While not every domestic narcotics offence will provide a basis for exclusion under Art. 1F(c), in light of the seriousness of the appellant's crime he should, as a result of his actions, be excluded.

[70]            The Refugee Division correctly concluded that the seriousness of the applicant's crime warranted his exclusion from Convention refugee protection.

[71]            The Refugee Division conducted a formidable analysis in the present matter; the decision is written in a comprehensive and thorough manner. The Refugee Division, therefore, did not err in finding that the applicant was excluded from Convention refugee protection under Article 1F(a) and Article 1F(c) of the Convention for crimes against humanity and his complicity in terrorist activities associated with the Liberation Tigers of Tamil Eelam (LTTE).

[72]            This Court finds that the Refugee Division made no error in holding that there are serious reasons for considering that the applicant committed an offence under Article 1F(a) and Article 1F(c) of the Convention and is, therefore, excluded from the protection afforded by recognition as a Convention refugee.

[73]            Therefore, this application for judicial review is dismissed.

[74]            Counsel for the applicant suggested questions for certification:

1.        Has the decision of the Supreme Court of Canada in Pushpanathan, supra altered the standard of proof to be applied in exclusion cases?

2.        Can an organization be characterized as an organization with a limited brutal purpose in circumstances where the organization engages in crimes against humanity but also engages in legitimate political activities?

3.        Can a person be excluded based on his membership in an organization with a limited brutal purpose absent a clear finding that he is a member of that organization?

4.        In circumstances where a person is not a member of an organization with a limited brutal purpose and is not in a command position within the organization, must the tribunal identify specific crimes for which the person is complicit in order to exclude him or her under Article 1F of the Convention?

5.        Can a person be found to be complicit in crimes against humanity or in crimes against the purposes and principles of the United Nations if the only nexus between him and the crimes committed is the fact that he raised funds on behalf of an organization and those funds are not linked to the commission of any specific crime?

[75]            Counsel for the respondent opposed certification of all five (5) questions.

[76]            Both counsel submitted extensive written submissions in this regard. I carefully reviewed these submissions.

Question 1        Has the decision of the Supreme Court of Canada in Pushpanathan, supra altered the standard of proof to be applied in exclusion cases?

[77]            I agree with counsel for the respondent that the standard of proof to be applied will not assist the applicant in this case given the very strong evidence demonstrating the applicant's involvement with the trafficking of heroin in a Tamil-Tiger controlled drug-dealing organization and the Refugee Division's emphatic implausibility finding concerning the applicant's professed ignorance of the Tamil-Tiger control of this organization. Therefore, this question will not be certified.

Question 2         Can an organization be characterized as an organization with a limited brutal purpose in circumstances where the organization engages in crimes against humanity but also engages in legitimate political activities?

[78]            In my view, the jurisprudence has already addressed this question and the applicant failed to raise a serious question of general importance. Therefore, this question will not be certified.

Question 3         Can a person be excluded based on his membership in an organization with a limited brutal purpose absent a clear finding that he is a member of that organization?

[79]            The question of membership in an organization has to be assessed by the Board pursuant to the evidence. The question as to whether there is a clear or unclear finding of that membership is a question of fact that could be different in each case. In the case at bar, the question is not determinative of the case and, in my opinion, the applicant has failed to raise a serious question of general importance.

Question 4         In circumstances where a person is not a member of an organization with a limited brutal purpose and is not in a command position within the organization, must the tribunal identify specific crimes for which the person is complicit in order to exclude him or her under Article 1F of the Convention?

[80]            This is a purely hypothetical question that is not determinative of the case at bar; therefore, it is not a serious question of general importance.

Question 5         Can a person be found to be complicit in crimes against humanity or in crimes against the purposes and principles of the United Nations if the only nexus between him and the crimes committed is the fact that he raised funds on behalf of an organization and those funds are not linked to the commission of any specific crime?

[81]            Based on the reasons provided by counsel for the respondent, the findings of the Board will depend on the particular facts and this question is not of general importance and will therefore not be certified.

Pierre Blais                                          

Judge

                          FEDERAL COURT OF CANADA

                   Names of Counsel and Solicitors of Record

DOCKET:                   IMM-4427-01

STYLE OF CAUSE:VELUPPILLAI PUSHPANATHAN

                                                                                                     Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

                                                                                                 Respondent

PLACE OF HEARING:                                   TORONTO, ONTARIO

DATE OF HEARING:                                     MONDAY JULY 29, 2002

REASONS FOR ORDER

AND ORDER BY:    BLAIS J.

DATED:                      September 3, 2002

APPEARANCES BY:                                       Mr. Lorne Waldman

For the Applicant

Mr. Jamie Todd

For the Respondent

SOLICITORS OF RECORD:                        Lorne Waldman

Waldman and Associates

Barristers & Solicitors

281 Eglinton Ave E

Toronto, ON

M4P 1L3

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent