Date:
20111019
Docket:
IMM-6902-10
Citation:
2011 FC 1172
Ottawa, Ontario, October
19, 2011
PRESENT: The Honourable
Mr. Justice Crampton
BETWEEN:
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PONNAMPALAM
KATHIRIPILLAI
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Applicant
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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 JUDGMENT
AND JUDGMENT
[1]
The
Applicant, Ponnampalam Kathiripillai, is a citizen of Sri Lanka. He applied for a permanent resident visa in Canada after serving approximately 26 years
as a member of the Sri Lankan police force. His application was rejected after a
visa officer (“Visa Officer”) determined that there are reasonable grounds to
believe that he was complicit in crimes against humanity.
[2]
Mr.
Kathiripillai submits that the Visa Officer erred by:
i.
failing
to explain how he was complicit in crimes against humanity; and
ii. failing
to identify the crimes in respect of which he was complicit and to address
whether they were systematic and widespread.
[3]
For
the reasons that follow, this application will be dismissed.
I. Background
[4]
Mr.
Kathiripillai is of Tamil ethnicity. He joined the Sri Lankan police force in
1964 as a constable. After serving approximately 20 years in the police force,
he was promoted to the rank of senior constable. In that capacity, he had a
number of supervisory responsibilities, particularly during mobile patrol.
Approximately six years later, he applied for a pension and retired
after the police station where he worked in Jaffna was closed, following
attacks by the Liberation Tigers of Tamil Eelam (“LTTE”). During his
retirement, Mr. Kathiripillai had no further involvement with the police.
[5]
In
2002, after being retired for approximately 11 years, Mr. Kathiripillai applied
to become a permanent resident of Canada. During an initial interview in early
2007, he was asked “standard questions” about his numerous postings over the
course of his police career, the various difficulties that he encountered with
the LTTE during this period, his experience as a member of the Tamil minority
while working with the police, and whether he had ever tortured anyone. He
denied having ever tortured anyone and added that he had never been “part of or
near such events.” At the end of this interview, the notes that were entered
into Immigration Canada’s Computer-Assisted Immigration Processing System
(“CAIPS”) state that his “recounting of events appears genuine, natural and is
consistent with [his] son’s PIF.”
[6]
Following
initial background checks and a “war crimes review,” Mr. Kathiripillai was
requested to attend a second interview in January 2009. During that interview,
he was once again questioned regarding his length of service, his dates of
service at various police stations, his responsibilities and ranks with the
police force, the nature of his work, and whether he or other members of the
police had used torture while he was a member of the force.
[7]
In
the course of that second interview, Mr. Kathiripillai once again denied ever
having personally witnessed torture or beatings of individuals by the Sri
Lankan police. However he acknowledged that he was aware that torture was
routinely used by the Sri Lankan police. When asked how he knew that people had
been tortured by the police, he replied: “Well, since I’m at the station during
my duty hours, I will know if torture is carried out.” When subsequently asked
whether torture was common during his career, he replied: “No. In the places
that I worked there was no torture for the most part. I would say that 70% were
not tortured.”
[8]
Later
in that interview, Mr. Kathiripillai denied that torture had taken place at the
stations where he had been posted. However, he acknowledged that he had
arrested and detained people on a regular basis and had been involved in
interrogations. He also acknowledged that he was permitted to use force during
interrogations, although he stated that he had never personally used any force
during an interrogation, and that he had never arrested members of the LTTE or
anyone supporting the LTTE.
[9]
As
a result of concerns that arose during his second interview, Mr. Kathiripillai
was requested to attend a third interview in July 2009, to provide him with an
opportunity to address those concerns. During that third interview, he was once
again asked if he had ever arrested or attempted to arrest the LTTE members who
had attacked the police station in Jaffna where he worked between 1985 and 1988.
He was found to have been “most evasive in his replies.” He also denied having
been authorized to use force during his interrogations. When the Visa Officer
stated that he had heard many stories that prisoners were tortured, Mr.
Kathiripillai replied that those “stories were not true,” at least not during
the time that he worked with the police. When it was pointed out that he had
contradicted statements made during his second interview, he insisted that he
had not done so. When asked if he was aware of others having used excessive
force without authority, he replied that he had “read about it in the
newspapers.”
[10]
The
Visa Officer found that Mr. Kathiripillai had done “poorly at the [third]
interview.” Among other things, he observed:
Each question had to be asked 2
or 3 times and he was evasive in his replies to many of my questions. It was
difficult to determine if the applicant’s evasiveness was due to the fact that
he knew that an admission of the use of violence could lead to refusal or if he
was in fact hiding something. In any event he has not been able to pass
background.
II. The
Decision under Review
[11]
On
October 20, 2010, the Visa Officer wrote to Mr. Kathiripillai to inform him
that his application had been rejected. In his short letter, the Visa Officer
stated that there were reasonable grounds to believe that Mr. Kathiripillai is
a member of the inadmissible class of persons described in paragraph 35(1)(a)
of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA). Based on this finding, the Visa Officer stated that he had concluded
that Mr. Kathiripillai had not satisfied his statutory burden of establishing
that he is not inadmissible to Canada.
III. Relevant
Legislation
[12]
Paragraph
35(1)(a) is found in Division 4 of the IRPA, which deals with inadmissibility.
That provision states:
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Human
or international rights violations
35. (1) A
permanent resident or a foreign national is inadmissible on grounds of
violating human or international rights for
(a) committing
an act outside Canada that constitutes an offence referred to in sections 4
to 7 of the Crimes
Against Humanity and War Crimes Act;
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Atteinte
aux droits humains ou internationaux
35. (1) Emportent
interdiction de territoire pour atteinte aux droits humains ou internationaux
les faits suivants :
a) commettre,
hors du Canada, une des infractions visées aux articles 4 à 7 de la Loi
sur les crimes contre l’humanité et les crimes de guerre;
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[13]
The
applicable standard of proof in respect of decisions made under Division 4 of
the IRPA is proscribed by section 33, which states:
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Rules of interpretation
33. The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.
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Interprétation
33. Les faits — actes ou omissions —
mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés
sur la base de motifs raisonnables de croire qu’ils sont survenus,
surviennent ou peuvent survenir.
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[14]
Subsection
4(3) of the Crimes against Humanity and War Crimes Act, SC 2000, c 24
defines a “crime against humanity” as follows:
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OFFENCES
WITHIN CANADA
Definitions
4. (3) The
definitions in this subsection apply in this section.
“crime
against humanity”
“crime
against humanity” means murder, extermination, enslavement, deportation,
imprisonment, torture, sexual violence, persecution or any other inhumane act
or omission that is committed against any civilian population or any identifiable
group and that, at the time and in the place of its commission, constitutes a
crime against humanity according to customary international law or
conventional international law or by virtue of its being criminal according
to the general principles of law recognized by the community of nations,
whether or not it constitutes a contravention of the law in force at the time
and in the place of its commission.
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INFRACTIONS
COMMISES AU CANADA
Définitions
4.
(3) Les définitions qui suivent s’appliquent au présent article.
«
crime contre l’humanité »
«
crime contre l’humanité » Meurtre, extermination, réduction en esclavage,
déportation, emprisonnement, torture, violence sexuelle, persécution ou autre
fait — acte ou omission — inhumain, d’une part, commis contre une population
civile ou un groupe identifiable de personnes et, d’autre part, qui
constitue, au moment et au lieu de la perpétration, un crime contre
l’humanité selon le droit international coutumier ou le droit international
conventionnel, ou en raison de son caractère criminel d’après les principes
généraux de droit reconnus par l’ensemble des nations, qu’il constitue ou non
une transgression du droit en vigueur à ce moment et dans ce lieu.
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IV. Issues
[15]
Mr.
Kathiripillai has raised the following two issues in this application:
i.
Did
the Visa Officer err by failing to explain how Mr. Kathiripillai was complicit
in crimes against humanity?
ii. Did
the Visa Officer err by failing to identify the crimes in respect of which Mr.
Kathiripillai was complicit and by failing to address whether those crimes were
systematic and widespread?
V. The
Standard of Review
[16]
When
applying the “reasonable grounds to believe” standard of proof, findings of
fact and findings of mixed fact and law are subject to review on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
at paras 55, 62). That is to say, a visa officer’s decision will stand unless
it does not fall “within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” and is not sufficiently justified,
transparent and intelligible (Dunsmuir, above, at para 47).
[17]
However,
whether those findings meet the requirements of a crime against humanity is a
question of law that is subject to review on a standard of correctness (Dunsmuir,
above, at paras 55, 79; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 44; Smith v Alliance
Pipeline Ltd, 2011 SCC 7, at para 24; Mugesera v Canada
(Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100,
at para 116; Thomas v Canada (Minister of Citizenship and Immigration),
2007 FC 838, at para 15).
VI. Analysis
A. Did the Visa Officer
err by failing to explain how Mr. Kathiripillai was complicit in Crimes against
Humanity?
[18]
In
determining whether a visa applicant has committed crimes against humanity, as
contemplated by paragraph 35(1)(a) of the IRPA, regard must be had to the
following principles:
i.
It
is possible to “commit” a crime against humanity as an “accomplice,” or through
complicity, even though one has not personally engaged in the acts amounting to
the crime (Ramirez v Canada (Minister of Employment and Immigration),
[1992] 2 FC 306, at 314-317 (CA); Sivakumar v Canada (Minister of Employment
and Immigration), [1994] 1 FC 433, at 438 (CA); Canada (Minister of
Citizenship and Immigration) v Ezokola, 2011 FCA 224, at para 50).
ii. Mere
membership in an organization which is not directed to a limited and brutal
purpose, but which from time to time commits international offences, is not
normally a sufficient basis upon which to find that a person was complicit in
such crimes (Ramirez, above, at 317; Sivakumar, above, at 440; Ezokola,
above, at para 52).
iii. Similarly,
mere presence at the scene of a crime, and acts or omissions amounting to
passive acquiescence, are not a sufficient basis upon which to find that
someone has been complicit in the commission of a crime against humanity. A
person is not required to incur a risk of similar treatment by intervening to
stop such a crime (Ramirez, above, at 317; Sivakumar, above, at
441; Ezokola, above, at para 53; Moreno v Canada (Minister of
Employment and Immigration), [1994] 1 FC 298, at 322 (CA)).
iv. To
be complicit in a crime against humanity committed by others, a person must be
shown to have either had “personal and knowing participation” in the crime or
to have tolerated the crimes (Ramirez, above, at 316-317; Sivakumar,
above, at 438, 442; Ezokola, above, at paras 52-58).
v.
Personal
participation in a crime does not require physical participation or presence at
the scene of the crime, and may be established by demonstrating the existence
of a shared common purpose (Ezokola, above, at para 53; Moreno, above, at 323; Sivakumar, above, at 438-439).
vi. A
shared common purpose can be established in various ways, including by
demonstrating that a person (i) is a member of an organization that committed
the crime, (ii) had knowledge of the commission of the crime, (iii) provided
active support to the organization, and (iv) neither took steps to prevent the
crime from occurring (if that was within the person’s power) nor left the group
at the earliest opportunity, having regard to that person’s own safety (Penate
v Canada (Minister of Employment and Immigration), [1994] 2 FC 79, at para 6).
vii.
Presence
coupled with being an associate of the primary offenders may be sufficient to
constitute complicity, depending upon the particular facts in question (Ramirez,
above, at 317).
viii. It is
not the fact of working for an organization that makes an individual an
accomplice to the acts committed by that organization, but rather the fact of encouraging
or knowingly contributing to its illegal activities in any manner whatsoever,
whether from within the organization or from the outside (Ezokola,
above, at para 55; Bazargan v Canada (Minister of Citizenship and
Immigration) (1996), 67
ACWS (3d) 132, at para 11 (CA); Sivakumar, above, at 438).
ix.
A
person who aids in or encourages the commission of a crime, or a person who
willingly stands guard while it is being committed, will usually be found to
have been complicit in the crime (Sivakumar, above, at 438).
x.
The
closer one is to being a leader, as opposed to being an ordinary member, of an
organization that has committed a crime against humanity, the more likely it is
that an inference will be drawn that one knew of the crime and shared the
organization’s purpose in committing that crime (Sivakumar, above, at
440).
xi.
Likewise,
the closer a person is to being involved in the decision-making process and the
less he or she does to prevent the commission of a crime against humanity, the
more likely criminal responsibility will attach (Moreno, above, at 324; Ezokola,
above, at para 53).
[19]
In
addition to the foregoing, the jurisprudence has identified the following other
factors to be considered in assessing whether a person was complicit in the
commission of a crime against humanity:
i.
The
nature of the organization.
ii. The method of recruitment.
iii. The length of time in the organization.
iv.
Opportunity to leave the
organization.
v.
Knowledge
of the organization’s atrocities.
(See Ardila v Canada (Minister of Citizenship and Immigration), 2005 FC 1518, at para 11; Blanco v Canada (Minister of Citizenship and Immigration), 2006 FC 623, at paras 16-21; Ali v Canada (Solicitor General), 2005 FC 1306, at para 10; Rutayisire v Canada (Minister of Citizenship
and Immigration), 2010 FC 1168.)
[20]
Within
the context of the foregoing legal framework, each case will turn on its own
particular facts. The Minister does not have to prove the person’s guilt. The
Minister merely has to show that there are reasonable grounds to believe that
the person is guilty through complicity. In this regard, the standard of proof
to be met by the Minister lies somewhere between mere suspicion and the balance
of probabilities standard applicable in civil matters (Mugesera, above,
at para 114).
i. The Nature
of the Organization
[21]
The
Sri Lankan police force has a legitimate primary function, namely, to enforce the
validly enacted laws of Sri Lanka. However, according to CAIPS notes that
further explain the basis for the Visa Officer’s decision, Mr. Kathiripillai
acknowledged that he was aware that torture was routinely used by the Sri
Lankan police. He also stated that he was permitted to use force when
interrogating people. The Visa Officer further noted that “the brutality of the
SL police force in the time period of employment of [Mr. Kathiripillai] has
been well documented.”
[22]
Given
Mr. Kathiripillai’s statements and the other information that was available to
the Visa Officer regarding the use of torture, it was not unreasonable for the
Visa Officer to conclude that there are reasonable grounds to believe that the
Sri Lankan police force routinely engaged in torture during the period that Mr.
Kathiripillai was a member of the force. Although Mr. Kathiripillai later
stated that “there was not torture” and that he was not permitted to use force,
it was reasonably open to the Visa Officer to prefer to believe Mr. Kathiripillai’s
initial statements, particularly given that Mr. Kathiripillai was found to have
been “both evasive and contradictory” in subsequent interviews.
ii. Method of
Recruitment
[23]
In
his initial interview in early 2007, Mr. Kathiripillai stated that he joined
the Sri Lankan police force in 1964, after participating in a competition. It
was therefore not unreasonable for the Visa Officer to state in his CAIPS notes
that Mr. Kathiripillai had voluntarily joined the police force.
iii. Length of Time
in the Organization
[24]
According
to the materials submitted by Mr. Kathiripillai in support of his application
for a visa, he joined the Sri Lankan police force in November 1964 and retired
at the end of 1990. This evidence demonstrated that Mr. Kathiripillai was
employed by the Sri Lankan police for slightly more than 26 years. Therefore,
the statement in the Visa Officer’s CAIPS notes that Mr. Kathiripillai served
with the Sri Lankan police force for 27 years was approximately correct. I am
satisfied that the slight inaccuracy in this finding did not have any material
impact on the Visa Officer’s decision.
iv. Opportunity to Leave the Organization
[25]
In
his initial interview in early 2007, Mr. Kathiripillai stated that he
retired after the police station where he worked in Jaffna was closed,
following attacks by the LTTE. Later in that interview, he identified the fact that he is a Tamil and may have been
perceived to be a government sympathizer, as being another reason why he
retired from the police force.
[26]
When
asked, during his second interview in January 2009, whether he was forced to
remain with the police, Mr. Kathiripillai replied “no.”
[27]
Based
on the foregoing, I am satisfied that it was not unreasonable for the Visa
Officer to find that Mr. Kathiripillai did not “take any steps to remove
himself from employment, but rather stayed until retirement.”
v. Knowledge
of the Organization’s Atrocities
[28]
For
the reasons explained at paragraph 22 above, I am satisfied that it was
reasonably open to the Visa Officer to conclude that Mr. Kathiripillai was
aware that the Sri Lankan police force engaged in torture during the time of
his employment with the police force.
vi. Shared
Common Purpose
[29]
As
discussed above, Mr. Kathiripillai was a member of the Sri Lankan police force
for slightly longer than 26 years, was aware that torture was routinely used by
the police force, and failed to leave the police force when he became aware
that such torture was being practiced. There is no evidence that he took any
steps to prevent any torture from occurring. However, he did state that he had
arrested and detained people on a regular basis and had been involved in
interrogations. In short, he provided active support to the Sri Lankan police
while he was employed by them. He also acknowledged that he was permitted to
use force during interrogations, although he stated that he had never
personally used any force. In addition, when asked how he knew torture was
being carried out, he replied: “Well since I am at the station during my duty hours,
I will know if torture is carried out.”
[30]
The
persons who were tortured were individuals who had been brought to the station
for inquiry and subjected to initial questioning. Mr. Kathiripillai stated that
70% of the persons who were brought in for inquiry were not tortured. The
logical inference to be made is that the remaining 30% were tortured. Although
Mr. Kathiripillai later stated that no torture occurred at any of the stations
where he worked, for the reasons discussed at paragraph 22 above, I am
satisfied that it was not unreasonable for the Visa Officer to conclude that
Mr. Kathiripillai’s initial statements “carry more credibility in that he was
aware that torture was taking place, he was responsible for interviewing (maybe
ont [sic] all cases, but certainly some), [and] that he had permission to use
force when interviewing.”
[31]
Based
on the foregoing, I am satisfied that Mr. Kathiripillai shared a common purpose
with the Sri Lankan police force in respect of the torture that it committed
while he was employed with the force. In my view, he was an associate of the
persons who engaged in torture and contributed to the activities of those
persons in at least some manner.
vii. Conclusion
[32]
Given
my findings above, I am satisfied that the Visa Officer did not err by failing
to explain how Mr. Kathiripillai was complicit in crimes against humanity.
[33]
Even
though Mr. Kathiripillai did not hold a senior rank within the Sri Lankan
police force, it was reasonably open to the Visa Officer to conclude that there
exist reasonable grounds to believe that Mr. Kathiripillai was complicit in
crimes against humanity committed by that organization. That conclusion was
based on the Visa Officer’s reasonable findings that (i) the Sri Lankan police
force had routinely engaged in torture while Mr. Kathiripillai was employed by
the force, (ii) he voluntarily joined the force and served for approximately 27
years, (iii) he was aware that torture was routinely used by the force, (iv)
approximately 30% of the detainees at one or more of the locations where he
worked were tortured, (v) he arrested and detained people on a regular basis, and
(vi) there was no evidence that he opposed the use of torture or that he took
any steps to remove himself from the Sri Lankan police force during the period
that it engaged in torture on a routine basis. There was also no evidence that
Mr. Kathiripillai would have faced a risk of being a victim of torture or
similar violence, had he intervened to oppose the use of torture at the
stations where he worked, or elsewhere.
[34]
The
Visa Officer’s conclusion was reinforced by his finding that (i) Mr.
Kathiripillai likely was responsible for interviewing at least some of the
people who wound up being tortured by his colleagues, and (ii) he was “both evasive
and contradictory” over the course of his follow-up interviews. As in Penate,
above, at para 11, the Visa Officer clearly believed that Mr. Kathiripillai
knew much more about the torture that was committed by the Sri Lankan police
force than he admitted.
[35]
By
making the various findings mentioned above, the Visa Officer’s conclusion
regarding Mr. Kathiripillai’s complicity in crimes against humanity committed
by the Sri Lankan police force were appropriately justified, transparent and
intelligible. The Visa Officer was not obliged to state the legal test against
which he had reached that conclusion, so long as his factual findings
reasonably supported the conclusion that Mr. Kathiripillai was complicit in
crimes against humanity, as defined in the jurisprudence (Thomas, above
at para 30; Ponce Vivar v Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 286, at para 30).
[36]
For
the reasons discussed at paras 29-31 above, the Visa Officer’s findings
establish that Mr. Kathiripillai shared a common purpose with the Sri Lankan
police force. The Visa Officer’s findings also provide a reasonable and
sufficient basis for concluding that Mr. Kathiripillai was not an innocent
bystander in respect of the routine use of torture by the Sri Lankan police at
the places where he worked, but rather knowingly contributed in at least
some way to its illegal activities (Bazargan, above, at para 11; Sivakumar,
above, at 438). This is sufficient to meet the test of “personal and knowing
participation” in the widespread use of torture by the Sri Lankan police (Sivakumar,
above, at 438-439; Ezokola, above, at para 53; Moreno, above, at
323; Penate, above, at para 6; Bazargan, above, at para 11). In
turn, personal and knowing participation in a crime against humanity is
sufficient to constitute the commission of that crime (Ramirez, above,
at 316-317; Sivakumar, above, at 438, 442; Ezokola, above, at
paras 52-58).
[37]
Considering
the foregoing, I am satisfied that the Visa Officer’s conclusion that there
exist reasonable grounds to believe that Mr. Kathiripillai was complicit in
crimes against humanity fell well “within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). The Visa Officer did not err by failing to further explain
the basis for reaching that conclusion.
[38]
In
my view, Mr. Kathiripillai’s position throughout the relevant period was much
closer to that of a person who acted as a guard during the torturing of
prisoners (Sivakumar, above, at 438-439; Moreno, above, at para
47) than to that of a person who (i) was forcibly recruited into the army at
the age of 16, (ii) believed he would be killed if he intervened during the
interrogations, (iii) did not share the military’s purpose in perpetrating the
torture, and (iv) deserted from the army after 33 months of service (Moreno,
above, at paras 4-6, 55-56).
[39]
Mr.
Kathiripillai’s position was also closer to that of the applicants in Penate,
above, Ponce Vivar, above, Ali v Canada (Solicitor General), 2005
FC 1306, and Rutayisire v Canada (Minister of Citizenship and Immigration),
2010 FC 1168, than to that of the applicant in Rueda v Canada (Minister of
Citizenship and Immigration), 2006 FC 754.
[40]
In
Penate, above, at paras 11-13, the applicant was a “middle ranking” career
soldier in the Salvadoran army who (i) knew that atrocities were being
committed by the army in which he served, (ii) heard at least some of the gun
shots that killed the victims of the army’s crimes, (iii) accepted positions of
higher responsibility within the army, (iv) appeared to accept the
counter-insurgency approach taken by the army, and (v) failed to disassociate
himself from the army at any time. In Ponce Vivar, above, at paras 9 and
19, the applicant was a lieutenant in Peru’s Republican Guard who personally
arrested and delivered individuals to other members of the Republican Guard,
who then tortured them (see also Rueda, above, at paras 32-33). In Ali,
above, at para 48, the applicant was an activist in Pakistan’s Muttahida Quami
Movement (“MQM”), who was found to have embraced the MQM’s goals and to have
been aware of the atrocities committed by the MQM. In Rutayisire, above,
at para 48, the applicant, who was a sub-prefect, was found to have facilitated
genocide through both his specific administrative duties and delegations as
well as more generally by ensuring the continuing functioning of the
prefecture, the apparatus of which was used to perpetuate genocide in Rwanda. I
embrace Justice Pinard’s observation in the latter case that “those who, with
knowledge of the crimes being perpetrated, acted or acquiesced in
administrative positions that facilitated violence and normalized brutality are
complicit in that violence and brutality” (Rutayisire, above, at para
50).
[41]
In
contrast to the foregoing cases, and the case at bar, the applicant in Rueda,
above, at paras 33-36, who was a member of the Peruvian Navy, expressed
disapproval of the atrocities perpetrated by the Navy and then attempted to
disassociate himself from the actions of his colleagues by transferring to a
different unit within the Navy.
[42]
This
case is also very different from the cases cited by Mr. Kathiripillai in which (i)
there was no evidence that would support a finding that the applicant shared a
common purpose with the perpetrators of the crimes against humanity in question
(see, for example, Merceron v Canada (Minister of Citizenship and Immigration),
2007 FC 265, at para 30), (ii) the applicant made it clear to his superiors
that he wanted no part of any human rights violations and never did anything to
assist others in the commission of such violations (see, for example, Valère
v Canada (Minister of Citizenship and Immigration), 2005 FC 524, at paras
32-35; Baqri v Canada (Minister of Citizenship and Immigration),
[2002] 2 FC 85, at paras 32-34), (iii) the factual findings required to support
a finding of complicity in crimes against humanity were never made (see for
example, Thomas, above, at para 31), or (iv) there was insufficient
evidence to establish that the organization in which the applicant was a member
had committed crimes against humanity (Blanco v Canada (Minister of
Citizenship and Immigration), 2006 FC 623, at para 32).
B. Did the Visa Officer
err by failing to identify the crimes in respect of which Mr. Kathiripillai was
complicit and by failing to address whether those crimes were systematic and widespread?
[43]
Mr.
Kathiripillai submitted that the Visa Officer erred by failing to explicitly
state the specific crimes in respect of which he was allegedly complicit. In
this regard, Mr. Kathiripillai observed that, aside from general references not
supported by any documentary evidence, the Visa Officer failed to identify the
specific documents upon which he relied in reaching his conclusions, and failed
to identify specific incidents.
[44]
On
the particular facts of this case, it was not necessary for the Visa Officer to
refer to specific documents to support either (i) his observation that “the
brutality of the SL police force in the time period of employment of [Mr.
Kathiripillai] and in the locations where [he] was employed has been well
documented”, or (ii) his conclusion that there exist reasonable grounds to
believe that Mr. Kathiripillai was complicit in crimes against humanity.
[45]
The
Visa Officer reasonably found that Mr. Kathiripillai’s acknowledgment that he
was aware that torture was routinely used by the Sri Lankan police force
was more credible than his subsequent denials of this fact. The Visa Officer
reached a similar reasonable finding with respect to Mr. Kathiripillai’s
statement that “70% [of the detainees where he worked] were not tortured,”
which implied that approximately 30% of such individuals were in fact tortured.
In addition, the Visa Officer reasonably found that Mr. Kathiripillai was
responsible for interviewing at least some of the persons who were subsequently
tortured by other members of the Sri Lankan police force.
[46]
Upon
making those findings, and having regard to the fact that torture is defined as
a crime against humanity in subsection 4(3) of the Crimes against Humanity
and War Crimes Act, above, it was open to the Visa Officer to conclude that
there were reasonable grounds to believe that the Sri Lankan police force had
committed the crimes against humanity in respect of which it found Mr.
Kathiripillai to have been complicit. In my view, this conclusion fell well
“within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, above, at para 47). It was also
appropriately justified, transparent and intelligible.
VII. Conclusion
[47]
The
application for judicial review is dismissed. No question was proposed for
certification and none arises.
JUDGMENT
THIS
COURT’S JUDGMENT is that the
application for judicial review is dismissed.
“Paul S. Crampton”
________________________________
Judge
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