Date: 20051117
Docket: IMM-22-05
Citation: 2005 FC 1554
Montréal, Quebec, November 17, 2005
PRESENT: THE HONOURABLE JUSTICE JOHANNE GAUTHIER
BETWEEN:
NAGAMANY, SIVANESAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
_1_ Mr. Nagamany seeks judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (RPD) rejecting his claim as a refugee or as a person in need of protection on the basis that he was a person excluded from consideration pursuant to section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) because there were serious reasons to consider that he was complicit in the crimes against humanity committed by the Liberation Tigers of Tamil Eelam (LTTE).
BACKGROUND
_2_ Mr. Nagamany is a 36-year-old Tamil from Jaffna, Sri Lanka. He claims that he fears persecution by the Sri Lankan authorities particularly the army, and by the LTTE. The Sri Lankan army would allegedly persecute him because of imputed political opinions, his alleged membership in the LTTE, his nationality and race (Tamil). The LTTE would also harm him, particularly because he identified two of its members while he was detained and tortured by the Sri Lankan army. This particular fact is not included in his PIF but it was raised during one of his three hearings.
_3_ Mr. Nagamany testified that in 1986 while he was completing his studies or had just finished them (19 years old), he was forcibly recruited to work with the LTTE's student unit called the S.O.L.T. He worked with them every weekend for two years, that is until September 1988 when he was arrested and detained by the Indian Peace-Keeping Forces (IPKF) until April 1989. He believes that they arrested him and a friend to obtain information about another one of their friends who was a member of the LTTE or a close collaborator. During his seven months in jail, he was tortured but was finally released when his mother bribed his jailors. As he was injured, Mr. Nagamany allegedly went to Nalur and then to Colombo because he was afraid of the IPKF.
_4_ In March 1990, he returned to his village in Chankanai where he lived with his parents in the house of his sister and her husband until July 1995. During that time, he would have continued to farm on his property and to work for the LTTE. His work with the LTTE consisted of "making some propaganda" more particularly distributing propaganda work. He also sold "Palmira wood produce" and was remitting the product of his sales to the LTTE.
_5_ Because he allegedly feared the LTTE, he made no attempt to leave Chankanai and get away from them at any time before June 1995. He claims that his first opportunity to leave occurred when the Sri Lankan army marched to war in the North that summer.
_6_ He then lived in Vavuniya, until June 1997. During that time, he lived with his girlfriend and worked with her uncle. He also helped refugees from his village by trying to find them rooms in the homes of people he knew.
_7_ On June 30, 1997, he and his girlfriend would have been arrested by the army after being accused by a rival organization of being LTTE spies. They were both detained and tortured. It is during that period that he would have identified two members of the LTTE. After his release, he fled to Colombo.
_8_ In October 1997, he learned that his girlfriend had again been arrested. He immediately left Sri Lanka for France where he made a refugee claim which was ultimately denied. In April 2000, he attempted to come to Canada on a false passport but was caught by the Austrian authorities and returned to France. He tried a second time but was caught again and returned to France. On his third attempt, he succeeded in coming to Canada and filed his claim upon his arrival on October 1, 2002.
_9_ At the port of entry, he initially lied to the immigration officer by denying that he had been refused refugee status in France.
_10_ The RPD held three hearings in this case. The Minister was not represented and the matter of the exclusion was raised by the RPD during the first hearing after Mr. Nagamany had testified that he had worked many years for the LTTE. It was then decided that the merits of his claim would be reviewed during that hearing and the matter would be adjourned to give him time to prepare for a hearing on the exclusion (Section 98 of the Act which refers to subsection 1F of the Refugee Convention).
_11_ In its decision, the RPD first reviews various issues which affected the credibility of Mr. Nagamany with respect to the merits of his claim. For various reasons, the RPD did not believe that Mr. Nagamany was arrested and detained in 1988 nor that he lived in Vavuniya from 1995 to 1997. It did not believe either that he identified members of the LTTE.
_12_ Despite those important findings (five pages), the RPD does not come to any conclusion with respect to Mr. Nagamany's claim under sections 96 and 97 (inclusion). It did not reject his claim on the basis of non-credibility and the overall lack of credible evidence. Instead, the RPD proceeded to review the facts relevant to the exclusion and concluded that the claimant should be excluded because there were serious reasons for considering that he was complicit in the crimes against humanity committed by the LTTE.
_13_ Before coming to its conclusion in that respect, the RPD made several findings which are relevant to the issues raised by the applicant:
1) The applicant worked for at least seven years with the LTTE. He contributed, perhaps in a significant manner, to their operation.
2) The applicant worked voluntarily with the LTTE and not out of fear, as claimed.
3) Although he did not directly participate in any of the crimes against humanity committed by the LTTE, he had knowledge of those crimes at the relevant time.
4) The LTTE is an organization with a limited and brutal purpose.
5) The applicant did not try to disassociate himself from the LTTE at the first opportunity.
_14_ Finally, the RPD rejected the objection raised by the applicant that the RPD's failure to require the intervention of the Minister affected its ability to decide impartially the issue of exclusion. The RPD held that according to its rules of procedures, the decision to call the Minister was purely discretionary.
ISSUES
_15_ The applicant alleges that the RPD erred:
i) by not providing him with a fair hearing;
ii) in concluding that the LTTE was an organization with a limited and brutal purpose;
iii) in misconstruing and ignoring the evidence with respect to his level of contribution to the operations of the LTTE and his knowledge of the atrocities committed by them;
iv) in finding that the exclusion applied to him.
_16_ The respondent argues that even if the RPD had erred in respect of one or all the issues listed above, such error would not be material because of the RPD's implicit decision that Mr. Nagamany had not produced any credible evidence supporting his claim under sections 96 and 97 of the Act.
_17_ As indicated at the hearing, I cannot agree with this argument. In effect, even if the RPD did not believe the most crucial parts of the applicant's story, it simply did not make any conclusion with respect to the validity of his claim under sections 96 and 97 of the Act.
ANALYSIS
_18_ The standards of review applicable to the various findings of the RPD, in the context of exclusion under article 1F of the Convention, were set out by the Court of Appeal in Harb v. Canada (M.C.I.), _2003_ F.C.J. No. 108 (F.C.A. )(QL).
_19_ Credibility findings and findings of facts will be set aside if patently unreasonable.
_20_ The issue of whether or not the applicant was complicit in the crimes committed by the LTTE is a question of mixed facts and law to which I will apply the standard of the reasonable decision. This standard will also apply to the mixed question of facts and law of whether the LTTE was an organization with a limited and brutal purpose. ( Atabaki v. Canada (M.C.I.), _2005_ F.C.J. No. 1192 (F.C.)(QL), Hussain v. Canada (M.C.I.), _2004_ F.C.J. No. 1430 (F.C.)(QL) at paragraph 30, Pushpanathan v. Canada (M.C.I.), _2002_ F.C.J. no 1207 (F.C.)(QL) at paragraphs 35 to 40.)
_21_ If there was a breach of procedural fairness as alleged, the decision will be set aside (Ha v. Canada (M.C.I.), _2004_ F.C.J. No. 174 (C.A.), at paragraphs 42 to 45).
A) Fairness
_22_ I will deal first with the question of whether or not the applicant was given a fair hearing in the absence of the Minister, given that according to the applicant, the RPD and the Refugee Protection Officer (RPO) assumed the role of the Minister and thereby lost their impartiality.
_23_ This argument was raised in the applicant's first memorandum but it was not discussed at the hearing. Given that the applicant has not formally waived this argument, I will briefly comment on it.
_24_ In Ashari v. Canada (M.C.I.), _1999_ F.C.J. No. 1703 (F.C.A.)(QL), the Federal Court of Appeal dismissed the appellant's argument that a bias or a reasonable apprehension of bias existed because the RPD had itself considered the issue of exclusion in the absence of the Minister. In that case, the appellant also argued that in doing so, the RPD compromised the non-adversarial nature of the proceeding before it.
_25_ In this decision, the Federal Court of Appeal reaffirmed the principle set out in Arica v. Canada (M.E.I.), _1995_ F.C.J. No. 670 (F.C.A)(QL) that the RDP has the discretion to decide whether are not it would notify the Minister when an issue of exclusion arose during a hearing, and that the absence of the Minister did not alter the right of the RPD to determine this issue.
_26_ In Ashari, above, at paragraph 7, the Court made it clear that there was no reason in principle why the RPD could not be satisfied on the basis of the evidence filed by the RPO and by a claimant that the letter falls within the exclusion clause.
_27_ Thus, the mere fact of holding the hearing in the absence of the Minister does not establish a reasonable apprehension of bias. Having carefully reviewed the transcript of the three hearings, I am satisfied that there is absolutely no reason to believe that in this particular case, the RPD was actually biased.
B) Organization with a limited and brutal purpose
_28_ The applicant has not challenged the finding that the LTTE was involved in many crimes against humanity, probably because there is ample evidence on file to support it. However, he challenges the RPD's conclusion that it was an organization with a limited and brutal purpose because, in his view, the documentation on file makes it clear that the LTTE has a real political agenda (separatism of Tamil dominated areas), is involved in conventional warfare and runs a parallel administration to that of the elected government in the north and the east of Sri Lanka.
_29_ The respondent submits that this finding is well-founded and is in line with the decision of Blais J. in Pushpanathan, above, where the Court confirmed that it was reasonable for the RPD to conclude that the LTTE is a terrorist organization with a limited and brutal purpose.
_30_ The respondent also says that this was not the first time that the Federal Court has had to look at the activities of the LTTE.
_31_ As noted in Pushpanathan,above, the Federal Court of Appeal in Sivakumar v. Canada (M.C.I.), _1993_ F.C.J. No. 1145 (F.C.A.)(QL), _1994_ 1 F.C. 433 (C.A.) found more than ten years ago, that the LTTE was responsible for crimes against humanity.
_32_ In Suresh v. Canada (M.C.I.), _2000_ F.C.J. No. 5 (F.C.A.)(QL), the Federal Court of Appeal again noted that the LTTE engages "in indiscriminate killing and torture of innocent civilians amounting to what are classified under international law as crimes against humanity".
_33_ The applicant, before Blais J. in Pushpanatham, above, had raised the same argument that the applicant raises here, that is that the LTTE does not engage solely and exclusively in crimes against humanity or terrorism. Therefore, it cannot be an organization with a limited and brutal purpose. This argument was rejected because there was no evidence to suggest that the LTTE's terrorist activities can be separated from other objectives it may have. The Court said
"that the LTTE resorts to terrorist methods to reach their objectives and this suggests the LTTE is an organization with a brutal and limited purpose".
_34_ The reasoning of Blais J. in Pushpanathan, above, is in that respect, perfectly in line with the views of the Federal Court of Appeal in Moreno v. Canada (M.E.I.), _1993_ F.C.J. No. 912 (F.C.A.)(QL). Although the general rule is that membership in an organization involved in crimes against humanity is not sufficient to establish guilt by association, the Court said at paragraph 45 of this decision that an exception may apply to "the organization whose very existence is premised on achieving political or social ends by any means deemed necessary".
[35] In this case, not only is there no evidence that the LTTE's reprehensible activities could be separated from other objectives it may have, but it also appears from the list found at pages 305 and 306 of the Certified Record, referred to by the applicant, that the LTTE's political wing, if we can call it that, is completely separated from it since 1989 and is referred to as the People's Front of the Liberation Tigers (PFLT).
_36_ Very recently, in Kanendra v. Canada (M.C.I.), _2005_ F.C.J. No. 1156 (F.C.)(QL), S. No_l J. also concluded that the LTTE was engaged in subversive or terrorist activities. Although the Court in that case was dealing with a person excluded pursuant to section 34(1)(f) of the Act, this finding may still be relevant if the Court was referring to the relevant period of activities.
_37_ I say this because it must be kept in mind that one should assess the nature of an organization on the basis of its activities at the time the particular claimant was allegedly involved. If for example the LTTE had been a peaceful organization between 1986 and 1995, the relevant period in this case, it would be irrelevant that it became a terrorist organization after the claimant ceased to be involved with it. In the same way, it would also be irrelevant if an organization with a brutal and limited purpose became a peaceful organization or a purely political organization after a claimant ceased its relationship with it.
_38_ In Kanendra, above, the claimant had been involved with the LTTE between 1994 and 2001. In Pushpanathan, above, the claimant had been involved with the LTTE between 1975 and 1987. In Sivakumar, above, the Court looked at the LTTE activities between 1982 and 1988.
_39_ Although the RPD in its decision does refer to events which took place after June 1995, it also refers to the fact that killings and mistreatments of civilians were taking place since before 1986. It also deals with other types of activities of the LTTE such as the massive deportation of Muslims (60,000 to 100,000) which it calls an "ethnic cleansing" in 1990.
_40_ Having carefully reviewed the documents referred to by the applicant, including the chronology of events in the Country Report of April 2004 cited by the RPD, I am satisfied that there was evidence on which the RPD could reasonably conclude that the LTTE was at the
relevant time an "organization whose very existence is premised on achieving political or social ends by any means deemed necessary".
_41_ Therefore, even if the decision of the RPD could have been better structured[1], its finding that the LTTE was an organization with a limited and brutal purpose was reasonable and should not be set aside.
C) The applicant's knowledge of the activities of the LTTE
_42_ The applicant argues that the RPD erred by using vague and general evidence as to the applicant's knowledge of the LTTE's activities without inquiring as to exactly how he came to know about them.
_43_ It is agreed that there is no evidence that the applicant directly participated in any of the alleged crimes against humanity committed by the LTTE.
_44_ However, I cannot agree that his testimony as to what he knew was too general to be considered for the purpose of analyzing whether he shared a common purpose with this organization .
_45_ Having carefully reviewed the transcript of the hearings, I am satisfied that the applicant clearly testified that he knew very well that the LTTE was murdering civilians and members of other Tamil movements even before 1986 (Certified Record at pages 475 to 479, 503 and 504). He also knew about the massive expulsion of Muslims when it happened in 1990 (page 488).
[46] Moreover, the applicant relied on his knowledge of the violent methods used by the LTTE to justify his willingness to work for them for more than 7 years.
_47_ The Court finds that the RPD's conclusion that the applicant was fully aware of the violence unleashed by the LTTE to achieve its aims is not unreasonable and certainly not patently unreasonable.
D) Duration of the applicant's association with the LTTE
_48_ The applicant did not challenge the finding that he was associated with the LTTE for at least 7 years. The Court also notes that in light of the fact that the RPD did not believe that the claimant lived in Vavuniya for 2 years (June 1995 to June 1997), he may well have worked more than 9 years with this organization.
E) Failure to disassociate
[49] Before dealing with the RPD's findings with respect to the applicant's role in the LTTE, the Court will comment on another important finding by the RPD, which is that Mr. Nagamany did not try to disassociate himself from the LTTE at the earliest opportunity and that he indeed voluntarily returned to an area controlled by them in March 1990.
_50_ Having received all the evidence, the Court is satisfied that this finding was reasonably open to the RPD. The decision maker duly considered all the various explanations given by the applicant and made no reviewable error when it exercised its discretion to reject them, having properly explained its reasoning in that respect.
F) The applicant's role in the LTTE and his complicity
_51_ The applicant argues that the RPD's most significant error is its finding that "the claimant contributed, perhaps in a significant manner, to the operations of the LTTE".
[52] He submits that without clear evidence establishing that he contributed in a significant or substantial manner to the activities of the LTTE, the RPD could not conclude that he was complicit in their crimes. This is an issue on which the RPD could not speculate.
_53_ The parties referred the Court to several decisions of the Federal Court and the Federal Court of Appeal on complicity (Penate v. Canada (M.E.I.), _1994_ 2 F.C. 79 (T.D.), Ramirez v. Canada (M.E.I.), _1992_ 2 F.C. 306 (C.A.), Moreno v. Canada (M.E.I.), _1994_ 1 F.C. 298 (C.A.), Sivakumar, above, Sumaida v. Canada (M.C.I.), _2000_ 3 C.F. 66 at 79 (C.A.) and Bazargan v. Canada (M.E.I.) (1996), 205 N.R. 282 (F.C.A.) They also discussed the impact of recent documents issued by the UN Refugee Agency in September 2003 (Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, September 4, 2003, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, Office of the United Nations High Commissioner for Refugees, Geneva, September 2003).
_54_ Finally, after the hearing, the applicant asked the Court to consider the recent decision of the Federal Court of Appeal in Zazai v. Canada (M.C.I.), _2005_ F.C.J. No. 1567 (F.C.A.)(QL) which deals with the following certified question:
Does the definition of "crime against humanity" found at subsection 6(3) of the Crimes Against Humanity and War Crimes Act include complicity therein?
_55_ The applicant does not argue that the law has changed in Canada for the Refugee Convention has never been amended, rather he submits that the more recent commentaries and decisions in Europe on the issue show an evolution of the concept of "complicity" and now provide more specific guidance as to the type of participation one should consider sufficient to bring about the application of section 98 of the Act.
_56_ I shall first deal with another more factual error raised by the applicant in respect of this finding. The decision under review indicates that the word "perhaps" was included because the RPD was not sure if the claimant was lying about his real contribution to the LTTE or if he was just trying to embellish his story when he mentioned that he had been offered a rank of colonel by the LTTE.
[57] The transcript shows that the applicant did testify that such an offer was made to him but it appears that the RPD misconstrued the evidence as to when this offer was put forward. The applicant said that it was at the very beginning when the LTTE was trying to convince him to join as a soldier. The RPD misunderstood this to have happened somewhat later in the course of the applicant's relationship with the LTTE.
[58] This is indeed an error but it is not sufficiently material to justify setting the decision aside because there was no need in this particular case to find that the applicant's contribution was indeed significant. The Canadian case law is clear that when dealing with an organization with a limited and brutal purpose, a person who has knowledge of the activities of the group, who neither takes steps to prevent them from occurring if he has the power to do so, nor disengages himself from the group at the earliest opportunity and who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. (Penate, above, at paragraph 6)
[59] In my opinion, the law in this respect has not been changed by the recent decision of the Federal Court of Appeal in Zazai, above.
[60] It is true that in reviewing the concept of complicity in that case, Létourneau J., writing for the Court, acknowledges the fact that this concept exists in International Criminal Law and refers to various decisions of the International Criminal Tribunal for the former Yugoslavia (ICTY). At paragraph 16, the judge also cites a passage of the Trial Chamber's decision in Prosecutor v. Miroslov Kvocka et al., [2001], case No. IT-98-30/1, where the Tribunal among other things refers to "acts that substantially assisted or significantly affected the furtherance of the goals of the enterprise".
[61] However, in that case, the Court did not have to decide the issue that is before me and I do not construe this reference as an indication that Canadian law now requires evidence of a substantial or significant participation in the activities of an organization of a limited and brutal purpose as a prerequisite or an essential ingredient for a finding of complicity. This is especially so when one considers that the decision cited by Létourneau J. in Kvocka, above, has now been reviewed by the Appeal Chamber of the ICTY (decision of February 28, 2005). The Appeal Chamber was specifically asked to comment on the level of contribution required to show participation and joint criminal enterprise. It said at paragraph 97:
The Appeal Chamber notes that, in general, there is no specific legal requirement that the accused make a substantial contribution to the joint criminal enterprise. However, there may be specific cases which require, as an exception to the general rule, a substantial contribution of the accused to determine whether he participated in the joint criminal enterprise. In practice, the significance of the accused's contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.
[62] With respect to comments on this issue found in the 2003 documentation prepared by the United Nations Refugee Agency, one must note that it also relies heavily on decisions which have now been reviewed by the Appeal Chamber.
[63] Moreover, it is important to remember that the context in which those criminal cases are decided is somewhat different from the one before the RPD.
[64] There is little doubt that in order to better carry out its mandate, the RPD should keep abreast of international developments and would be well advised to consider this documentation as well as recent decisions of other immigration tribunals. For example, the decision of the English Immigration Appeal Tribunal in Gurung v. The Secretary of State for the Home Department, [2002] UKAIT 04870 provides excellent information as to how a decision-maker should approach a case involving subsection 1F) in the Refugee Convention.
[65] As noted in that decision, because of the very serious consequences flowing from a finding that one is excluded under 1F) of the Refugee Convention, the RPD must be very careful in its evaluation of the evidence and it must apply a strict analytical approach. This is especially so when it decides to proceed with such a determination in the absence of the Minister.
[66] In this case, it would have been preferable to seek more details with respect to the applicant's contribution to the activities of the LTTE. But, I am not satisfied that here the failure to do so amounts to a reviewable error.
[67] One must consider the fact that propaganda and finance are two of the most vital functions in any organization such as the LTTE. The applicant's contribution was not passive such as providing a safe house for LTTE's members. Mr. Nagamany voluntarily and actively participated in those two vital functions for several years.
[68] The applicant had the opportunity to clarify his involvement and to establish, if this was so, that his role was very minor and that his activities did not really contribute to the financing of the organization. He did not.
[69] Therefore, it was not unreasonable for the RPD to conclude after determining that the LTTE was an organization of limited and brutal purpose and that the claimant actively and voluntarily supported them over several years, that he shared a common purpose with this organization. This mental element could be inferred from the valid factual findings of the RPD.
[70] Moreover, in his testimony (at page 475 of the Certified Record), the applicant did say that despite his knowledge of their violent methods, he knew that the LTTE was "fighting for freedom" and that this was why they were forcibly recruiting civilians. It may well be that he was the victim of the propaganda he was distributing for so many years. However, this does not render the finding of the RPD unreasonable.
[71] The Court is satisfied that the RPD's conclusion, that Mr. Nagamany was complicit in the crimes against humanity of the LTTE, was open to it and was reasonable.
[72] The parties have not presented any question for certification and the Court finds that this case turns on its own facts.
ORDER
THIS COURT ORDERS that:
The application is dismissed.
"Johanne Gauthier"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE:
NAGAMANY, SIVANESAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 12, 2005
REASONS FOR ORDER AND ORDER: GAUTHIER J.
APPEARANCES:
Pia Zambelli FOR THE APPLICANT
François Joyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Pia Zambelli FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
[1]The fact that the LTTE was only listed by the British Home Office as a terrorist organization in February 2001 is not relevant. That organization had already been proscribed in India since 1991 following the assassination of Prime Minister Rajiv Gandhi. It was banned in Sri Lanka in January of 1998 on the basis of its activities since the early 1980s.