Toronto, Ontario, March 7th, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
RAJA WIJENDRA TILAK KASTURIARACHCHI
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant is a member of a Sri Lankan family that claimed refugee status in Canada. Mr. Kasturiarachchi, who was the principal applicant, was found to be excluded as a result of section F(a) of Article 1 of the United Nations Convention Relating to the Status of Refugees (the Refugee Convention). His wife and children were determined to be Convention refugees. The Refugee Protection Division (RPD) of the Immigration and Refugee Board concluded that if it had not excluded Mr. Kasturiarachchi, it would have found him to be a Convention refugee. Mr. Kasturiarachchi seeks judicial review of the board's exclusion finding. No issue is taken, by either party, with the inclusion finding.
1. Facts
[2] Distilled, the relevant facts, in relation to exclusion, are that Mr. Kasturiarachchi was a member of the Sri Lankan National Police Force (the Force) from 1977 until 2002. Over the 25 years, he served in various roles in a number of locations. He rose steadily through the ranks and was a Chief Inspector at the time he departed for Canada.
[3] The Minister participated at the refugee hearing to address the issue of exclusion on the basis of Mr. Kasturiarachchi's long-time membership in the Force. While the Minister conceded that there was no evidence to indicate that Mr. Kasturiarachchi personally committed a crime against humanity, the Minister alleged that he nonetheless met the test for exclusion because the documentary evidence conclusively established that the Force was known to have committed crimes against humanity on a regular ongoing basis during the period that Mr. Kasturiarachchi was a member of the organization. By virtue of his membership and activity with the Force, he shared in its common purpose or objectives and was therefore complicit in the commission of crimes against humanity.
[4] The Minister's position was that Mr. Kasturiarachchi did not take steps to distance himself from the Force although he was aware that at least some of its members were committing crimes against humanity. Relying upon the criteria articulated in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (C.A.), the Minister emphasized that Mr. Kasturiarachchi joined the Force voluntarily, had a lengthy career that ended with a senior position, and had been the officer in charge of police stations in several locations.
[5] The Minister could not link Mr. Kasturiarachchi to any specific incident and acknowledged that his work record did not place him at any of the stations where documented torture occurred at a time when he was there. However, the Force's crimes were systematic, widespread, disproportionate, and routinely committed throughout the country with impunity. If not directly in front of Mr. Kasturiarachchi, many of these incidents occurred very close to the locations where he was working. The main function of the Force was not restricted to a brutal purpose, but the multitude and magnitude of abuses made it impossible that Mr. Kasturiarachchi did not have personal knowledge of the acts committed.
[6] The Minister contended that Mr. Kasturiarachchi deliberately attempted to distance or dissociate himself from the abuses in order to escape responsibility for the crimes of the Force. He disconnected himself from the organization only when he believed that he and his family were at personal risk rather than at the earliest opportunity he might safely have done so and notwithstanding that he understood the nature of the crimes being committed. From the Minister's standpoint, although Mr. Kasturiarachchi may never have inflicted pain or torture, he had to have had personal knowledge and he was therefore complicit in crimes against humanity.
[7] Mr. Kasturiarachchi testified that no questionable activities or incidents occurred on his watch. He spoke of a major deterioration in professional standards having occurred in the years after he joined the Force. He maintained that this degradation was the result of institutional problems that included: too rapid recruitment; lack of enforcement; lack of proper training; the calibre of the recruits; and the militarization of the police force with the escalation of the civil conflict.
[8] Mr. Kasturiarachchi's counsel urged that Mr. Kasturiarachchi was the "straight man" or the "honest cop" in a corrupt police force. Some rotten apples should not be found to taint the whole basket. Mr. Kasturiarachchi should not be excluded simply on the basis of his membership in the Sri Lankan Police Force because the type of evidence cited could be collected for any number of forces throughout the world. Where there is no evidence of knowing participation in crimes against humanity, mere membership does not automatically amount to proof of complicity in serious crimes where the organization is not principally directed to a limited brutal purpose.
2. The Decision
[9] The RPD concluded that it was impossible to believe that Mr. Kasturiarachchi was not aware of the practices of so many of the members of the Force. Indeed, he had admitted his awareness because of the media and because of having read internal reports, but maintained that he had never tolerated any such behaviour under his command.
[10] Ultimately, the RPD concluded that the Minister met the burden of proof articulated in the jurisprudence. The evidence established Mr. Kasturiarachchi's personal and knowing participation in the Sri Lankan Police Force's crimes against humanity.
3. Issue
[11] The sole issue is whether Mr. Kasturiarachchi was properly excluded from the definition of Convention refugee by virtue of section F(a) of Article 1 of the Refugee Convention.
4. Relevant Statutory Provisions
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. ...
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES
F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
Loi sur l'immigration et la protection des réfugiés, L.C. 2001, ch. 27
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. [...]
98. La personne visée aux sections E ou F de l'article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
ARTICLE 1 DE LA CONVENTION DES NATIONS UNIES RELATIVE AU STATUT DES RÉFUGIÉS
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. |
5. The Standard of Review
[12] The standard of review on issues of exclusion under Article 1(F)(a) of the Refugee Convention has been determined by the Federal Court of Appeal in Harb v. Canada(Minister of Citizenship and Immigration) (2003), 302 N.R. 178 (C.A.) (Harb). Findings of fact can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division, that is, if they are patently unreasonable. The question as to whether the facts, as found, establish that the individual was complicit in crimes against humanity is reviewable on a standard of reasonableness.
6. Analysis
[13] The jurisprudence of this court with respect to complicity in war crimes and crimes against humanity includes, but is not limited to: Ramirez; Gonzalez v. Canada (Minister of Employment and Immigration), [1994] 3 F.C. 646 (C.A.) (Gonzalez); Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.) (Moreno); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (C.A.) (Sivakumar); Bazargan v. Canada (Minister of Citizenship and Immigration) (1996), 205 N.R. 282 (F.C.A.) (Bazargan); Sumaida v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 66 (C.A.) (Sumaida); and Harb. The trilogy of Ramirez, Moreno and Sivakumar provides the foundation upon which the jurisprudence rests.
[14] The burden of establishing that crimes against humanity have been committed is on the Minister and, with respect to exclusion from refugee status, it must be shown that there are serious reasons for considering that a claimant committed the crimes in question: Ramirez.
[15] Accomplices as well as principal actors may be found to have committed crimes against humanity. The court accepted the notion of complicity, defined as a personal and knowing participation, in Ramirez and complicity through association, whereby individuals may be rendered responsible for the acts of others because of their close association with the principal actors, in Sivakumar. Complicity rests on the existence of a shared common purpose and the knowledge that all of the parties may have of it: Ramirez; Moreno.
[16] Madam Justice Reed in Penate v. Canada(Minister of Employment and Immigration), [1994] 2 F.C. 79 (T.D.) synthesized the trilogy principles at pages 84 and 85:
The Ramirez, Moreno, and Sivakumar cases all deal with the degree or type of participation which will constitute complicity. Those cases have established that mere membership in an organization which from time to time commits international offences is not normally sufficient to bring one into the category of an accomplice. At the same time, if the organization is principally directed to a limited, brutal purpose, such as a secret police activity, mere membership may indeed meet the requirements of personal and knowing participation. The cases also establish that mere presence at the scene of an offence, for example, as a bystander with no intrinsic connection with the persecuting group will not amount to personal involvement. Physical presence together with other factors may however qualify as a personal and knowing participation.
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and 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 (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[17] In Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, the Supreme Court of Canada discussed the mental element of a crime against humanity. Although the court was dealing with crimes against humanity in the context of admissibility, the discussion, in my view, is equally applicable to the issue of exclusion. At paragraphs 174 and 175, the court noted that motive is irrelevant and even if the person's motive is purely personal, the act may be a crime against humanity if the relevant knowledge is made out. Knowledge may be factually implied from the circumstances. In assessing whether [an individual] possessed the requisite knowledge, "the court may consider the accused's position in a military or other government hierarchy, public knowledge about the existence of the attack, the scale of the violence and the general historical and political environment in which the acts occurred. The individual need not know the details of the attack".
[18] Complicity is not a crime; it is a method of committing a crime: Zazai v. Canada(Minister of Citizenship and Immigration) (2005), 339 N.R. 201 (F.C.A.).
[19] It is within the context of these principles that the decision of the RPD must be examined. It was neither alleged nor adjudged that the Sri Lankan National Police Force constitutes an organization that exists for a limited brutal purpose. Consequently, membership in the organization, in and of itself, is not determinative.
[20] The RPD considered "voluminous documents" pertaining to the activities of the Sri Lankan police. The documentation revealed the serious nature and level of involvement of the Sri Lankan Police Force in human rights abuses, most notably torture. It disclosed a multitude and magnitude of abuses perpetrated by the Force over many years. Since the early 1970s, Sri Lanka has experienced a period of violence that transformed the police force from a crime detection and law enforcement agency to an insurgency suppression mechanism. The documentary evidence established, and the board accepted, that the Force commits international offences as part of its regular operations. Mr. Kasturiarachchi does not take issue with that finding.
[21] The RPD determined that Mr. Kasturiarachchi was aware of the reprehensible conduct of the Force. Its finding in this respect is not disputed.
[22] The board described Mr. Kasturiarachchi as thoroughly straightforward, dutiful, conscientious, a man of integrity, a man committed to his profession. In agreeing with the Minister's position that Mr. Kasturiarachchi was deemed to have shared in a common purpose in "work that ran the gamut from street policing to the suppression of terrorism", the RPD determined that Mr. Kasturiarachchi:
• could clearly have left his career earlier without harm;
• did not speak out against what he had to have known was happening on the Force;
• applied for transfers to be able to do work that made him less vulnerable;
• clearly focused on himself, his own promotions, saving himself from harm and perhaps avoiding moral decisions he should have made.
Mr. Kasturiarachchi has not challenged those findings.
[23] At the end of the day, the RPD concluded that Mr. Kasturiarachchi was complicit in the Sri Lankan Police Force's commission of crimes against humanity because of his knowledge of the commission of the offences, his long-term membership in the organization, his high-level rank (one that only 400 out of 100,000 members attained) and his failure to leave the organization when he could have done so free of risk.
[24] Mr. Kasturiarachchi does not articulate any precise error on the board's part. Rather, he refers to three authorities and submits that the RPD erred in a manner similar to the boards that were reviewed in those cases.
[25] The similarity between Loordu v. Canada(Minister of Citizenship and Immigration) (2001), 199 F.T.R. 308 (F.C.T.D.) and this matter is that Mr. Loordu was a member of the Sri Lankan Police Force. The court, there, concluded that he was a "mere member" who did not have personal and knowing participation in persecutorial acts. Here, Mr. Kasturiarachchi pursued a career in an organization that he knew perpetrated atrocities, attained a high-level status within its ranks and did not dissociate himself from the organization when he could have done so. Moreover, his evidence was to the effect that, as a member of the Special Task Force, he personally provided anti-terrorist services that assisted the operations of the army in Jaffna (tribunal record at pp. 40, 41).
[26] In Saftarov v. Canada(Minister of Citizenship and Immigration) (2004), 38 Imm. L.R. (3d) 246 (F.C.), the applicant was a low-ranking member of the Azerbaijan police force. The evidence before the board was that the applicant made repeated efforts to expose misconduct within the force and was subject to various dismissals and subsequent reinstatements in relation to those efforts. That is not the situation here.
[27] ValPre v. Canada(Minister of Citizenship and Immigration) 2005 FC 524, 138 A.C.W.S. (3d) 914 was concerned with a short-term, junior-rank officer with no decision-making power in the Haitian National Police. Mr. Kasturiarachchi was a long-term veteran and Chief Inspector of the Sri Lankan Police Force with several men under his command.
[28] The reasonableness standard of review is described in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 55 and 56 as follows:
¶ 55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
¶ 56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[29] Having subjected the board's reasons to the scrutiny of a somewhat probing examination, I find that the board's reasons are tenable and are grounded in the evidence. The RPD understood the legal test, it asked itself the proper questions, it analysed the evidence and it arrived at a conclusion. It is evident, from its reasons, that the board did not regard its task as an easy one. It is not for the court to intervene in a decision that was reasonably open to the board to make on the evidence that was before it.
[30] Counsel did not suggest a question for certification and I agree with them that this matter turns on its facts.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2952-05
STYLE OF CAUSE: RAJA WIJENDRA TILAK KASTURIARACHCHI
Applicant
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 23, 2006
AND ORDER: Layden-Stevenson J.
APPEARANCES:
| Kumar Sriskanda
|
|
| Bernard Assan |
SOLICITORS OF RECORD:
| Kumar Sriskanda Barrister and Solicitor Scarborough, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |