Kuruparan v. Canada (Citizenship and Immigration)

Kuruparan v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-06-13
Neutral citation
2012 FC 745
File numbers
IMM-3842-11
Decision Content
Date: 20120613
Docket: IMM-3842-11
Citation: 2012 FC 745
Ottawa, Ontario, June 13, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
NADARAJAH KURUPARAN
BAHMINI KURUPARAN
MAIYURAN KURUPARAN
KIRUSHANTHY KURUPARAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division (the Board), dated May 18, 2011, wherein the applicants were determined to be neither Convention refugees within the meaning of section 96 of the Act nor persons in need of protection as defined in subsection 97(1) of the Act.
[2] This conclusion was based on the Board’s finding that Nadarajah Kuruparan, the principal applicant, was excluded from refugee protection under section 98 of the Act due to his position and involvement in the Sri Lankan Navy, an organization found to have committed crimes against humanity and war crimes within the scope of article 1F(a) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can TS No 6 (the UN Convention). The other applicants’ claims were based on the principal applicant’s claim.
[3] The applicants request that the Board’s decision be set aside and the matter be referred back for redetermination by a differently constituted panel.
Background
[4] The principal applicant is Nadarajah Kuruparan. The other applicants are related to the principal applicant as follows: Bhamini Kuruparan (shown as Bahmini Kuruparan in the style of cause), his wife; Maiyuran Kuruparan, his son; and Kirushanthy Kuruparan, his daughter.
[5] All of the applicants are citizens of Sri Lanka. The principal applicant is of Tamil ethnicity.
[6] The principal applicant is trained as an electrical engineer. He joined the Sri Lankan Navy (the Navy) in 1981 as a service officer cadet and became an acting sub-lieutenant in 1985. By 2008, he had risen to the rank of Commodore, a position third to the Rear Admiral of the entire Navy. During his time in the Navy, the principal applicant never participated in combat. However, as one of only five Tamil officers in the Navy, the principal applicant testified that he faced many challenges. He was suspected by his superiors as being a sympathizer of the Liberation Tigers of Tamil Eelam (LTTE) and was allegedly denied advancement at the rate he earned it.
[7] In 2001, the principal applicant was approached by a Tamil man who sought to engage his help in the LTTE cause, particularly with respect to information about offensive naval operations. Although he refused to support the LTTE, similar requests were later made of him. To protect himself and his family, the principal applicant reduced his involvement in the community, the time he spent with other Tamils and limited his visits to family members.
[8] In 2006, the LTTE relaunched its war against the government and the situation in Sri Lanka worsened. The Sri Lankan government forces retaliated and many Tamil civilians were killed. The Navy was an integral part of the government’s efforts and succeeded in blocking many LTTE supplies.
[9] In 2008, when the LTTE was in dire need of military intelligence to execute their operations, the principal applicant was again contacted by various LTTE supporters requesting his aid. He was also threatened by phone.
[10] In August 2008, the principal applicant was summoned by the Navy’s intelligence unit and questioned about relatives that had visited him. The principal applicant responded to the inquiries and was then permitted to return to his duties. In the same month, the principal applicant’s wife was threatened by youths with handguns. They demanded that the principal applicant assist their movement or face severe consequences. Later, the principal applicant’s close friend, a high ranking Navy officer, allegedly warned him of the risk he faced from paramilitary personnel of the Sri Lankan military and from other Tamil groups. In response, the principal applicant moved his family into the Officers’ married quarters in September 2008.
[11] Between 2001 and 2009, the principal applicant allegedly submitted several requests to be taken from active duty; these requests were all denied. On June 1, 2009, the principal applicant retired from the Navy and joined the Regular Naval Reserve, a mandatory requirement for all retired Navy personnel.
[12] After retirement, a pro-government Tamil group began to threaten the principal applicant. They repeatedly demanded money, which the applicants repeatedly refused. The principal applicant feared the government and pro-government militias for their belief that, as a Tamil, he would divulge sensitive information about the Navy to the LTTE. Subsequently, he also feared the LTTE for his refusal to grant them the information they requested.
[13] On July 3, 2009, armed men abducted the principal applicant’s wife for a short time in a van. She testified that the men identified themselves as belonging to the Karuna group. The men claimed that they knew the principal applicant was aiding the LTTE and demanded payment of a large sum of money within a month else the entire family would be killed. In fear, the principal applicant decided to flee Sri Lanka with his family. Using an unused U.S. visa obtained to visit relatives in 2008, the applicants left Sri Lanka in July 2009. From the U.S., they came to the Canadian border on August 4, 2009 where they claimed refugee status.
[14] The hearings of the applicants’ refugee claims were held on January 26, 2010 and January 11, 2011.
Board’s Decision
[15] The Board released its decision on March 23, 2011. In its reasons, the Board first summarized the facts as presented in the principal applicant’s Personal Information Form (PIF).
[16] The Board then acknowledged two issues that were raised during the hearings: exclusion and inclusion.
Exclusion
[17] Commencing with the exclusion issue, the Board referred to article 1F(a) of the UN Convention. It noted that it is established jurisprudence that the standard of “serious reasons for considering”, as used in article 1F(a), may be understood as “reasonable grounds to believe”. This standard means more than suspicion or conjecture, but less than proof on a balance of probabilities. It applies to questions of fact, whereas whether those facts meet the requirements of a crime against humanity or a war crime is a question of law.
[18] Turning to the definition of “crimes against humanity”, the Board cited the definition under Article 7 of the Rome Statute of the International Criminal Court, signed July 17, 1998 (the Rome Statute) and the endorsement of this definition in Canadian law.
[19] The Board found that the question in this case pertained to whether the principal applicant was legally responsible as an accomplice for the crimes against humanity perpetrated by the Navy during his years of naval service. To analyze this question, the Board referred to the Charter of the International Military Tribunal, 8 August 1945 (the IMT Charter) which states in part at Article 6:
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
[20] The principle of the complicity of an accomplice has been examined in the jurisprudence, and the Board cited relevant sections in its decision before proceeding with its analysis.
[21] The Board acknowledged that the Navy is not characterized as a limited, brutal-purpose organization and therefore, the principal applicant’s mere membership in it was not sufficient to establish that he was complicit in the human rights abuses committed by it. However, the Board found that the evidence did indicate that the principal applicant had been complicit in the crimes against humanity because he had a long service with the Navy; an organization that was known to regularly and systematically commit human rights abuses against the LTTE, the Tamil population and individuals suspected or perceived to be LTTE collaborators or sympathizers. The Board found the following factors particularly notable in its finding that the principal applicant was complicit in crimes against humanity. The principal applicant:
Had been aware of the atrocities committed by the Sri Lankan security forces, including the Navy, since voluntarily joining in 1985;
Had a long service with the Navy;
Received promotions during his long service; and
Did not leave his employment earlier when he had opportunities to do so.
[22] In determining whether the principal applicant was complicit, the Board examined the facts according to the following six factors recognized in the jurisprudence: nature of the organization; method of recruitment; position/rank in the organization; knowledge of the organization’s atrocities; length of time in the organization; and opportunity to leave the organization.
[23] Nature of the Organization
The Board reviewed the jurisprudence and first found that the scope of the organization of reference does not need to be narrowed to the individual unit in which the person was serving. The determining factor is the existence of a shared common purpose and knowing participation in the organization’s commission of war crimes against humanity. The Board referred to examples of war crimes or crimes against humanity committed by the Navy as set out in the documentary evidence. Based on this evidence, the Board found that the Sri Lankan security forces, including its Navy, committed serious human rights abuses whilst the principal applicant was a Navy officer.
[24] Method of Recruitment and Position/Rank in the Organization
The Board noted that the principal applicant voluntarily joined the Navy and was promoted and given numerous awards throughout his long-standing career. By 2009, he had become a senior member of the Navy with a very high position. The Board cited jurisprudence regarding the connection between an individual’s rank or position in an organization and their complicity in international crimes committed by their organization.
[25] The Board found that the principal applicant’s activities as an electrical engineer maintaining and repairing bases and ships and proposing electrical, electronic and communication requirements for the Navy showed that he participated in facilitating the Navy’s operations, which included the darker aspects of those operations. His physical and operational remoteness did not bar him of complicity given that he facilitated the Navy in the commission of atrocities. The Board found that this was further supported by: the principal applicant’s admitted knowledge of the crimes committed by the Navy and security forces during his employment; his positions of importance in the Navy; and his failure to withdraw from the Navy.
[26] Knowledge of Organization’s Atrocities
On this point, the Board sought guidance from the Supreme Court of Canada’s decision in Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100 at paragraphs 172 to 177. The Board highlighted the principal applicant’s admission that he had been aware of the atrocities committed by the Navy as early as 1985. He was aware of these atrocities through the media and fellow naval officers and discussed them with his peers. Further, the principal applicant testified that he was involved in strategy meetings to input on equipment capacity as it was his duty to ensure maximum ship performance. The Board found that although the principal applicant stated he did not support or tolerate the Navy’s behaviour, his failure to disengage from the Navy at the earliest opportunity indicated otherwise. As such, the mens rea element for complicity was satisfied.
[27] Length of Time in the Organization
The Board reiterated the principal applicant’s length of service in the Navy and his long-time knowledge of the atrocities committed by it. Despite this knowledge, the principal applicant supported the Navy’s activities for over twenty years and received promotions throughout his career. The Board found the principal applicant’s tolerance of the Navy’s crimes, his continued association with the Navy and his rank as indicated the common purpose that he shared with the Navy in the commission of the crimes.
[28] Opportunity to Leave the Navy
The Board acknowledged the principal applicant’s attempt to leave the Navy in 2001, although he had prior knowledge of the Navy’s crimes as early as 1985. Further, no documentary evidence was provided to support his claim that he was refused discharge from the Navy. The principal applicant testified that there was a mandatory service period of 20 years and 2001 was therefore his first opportunity to leave the Navy. However, the Board rejected this claim on the basis that the principal applicant did not join the Navy until 1985, after completing his four-year engineering degree. Therefore the twenty-year time limit would not have ended in 2001, but instead in 2005 and there was no documentary evidence to suggest that the principal applicant had sought discharge from the Navy in 2005.
[29] Further, although the principal applicant testified that he actively pursued retirement from the Navy between 2007 and 2009, the Board found no persuasive documentary evidence to support this claim. The certificate of service describing the principal applicant’s employment with the Navy did not indicate any discharge attempts. The Board therefore found that the principal applicant had not persuasively established that he attempted to leave the Navy as alleged. Instead, the Board found that the principal applicant had fabricated his story about attempting to leave for the sole purpose of his refugee claim.
[30] The principal applicant indicated that if he left the Navy without permission, his actions would have amounted to absence without leave or desertion. The maximum punishment listed under Sri Lankan law for these crimes is two years imprisonment or death (if cowardice is shown), respectively. However, the Board acknowledged recent documentary evidence that indicated that the punishment for desertion was not as severe as set out in the legislation. Further, in 2005, the principal applicant would have served twenty years. Therefore, on a balance of probabilities, the Board found that the principal applicant would not have been liable for any punishment for leaving the Navy in 2005 since he was allowed to do so given he had completed his obligations by that time.
[31] In addition, the principal applicant had several opportunities between 1993 and 2006, when he had visited other countries, to defect and seek refugee protection abroad. He testified that he did not do so because he did not wish to be a deserter. However, the Board found that he could have done so without being a deserter on any of his trips abroad after 2005.
[32] Based on the totality of the evidence before it, the Board concluded that there were serious reasons for considering that the principal applicant was an accomplice in the war crimes and crimes against humanity committed by the Navy and the Sri Lankan security forces. Therefore, the Board found that the principal applicant was excluded from protection in Canada pursuant to article 1F(a) of the UN Convention.
Inclusion
[33] Turning to the issue of inclusion, the Board found that the determinative issues were credibility, subjective fear and whether the applicants’ fear of persecution was objectively well founded. The principal applicant indicated that he feared groups from both sides of the conflict: the People's Liberation Organization of Tamil Eelam (PLOTTE), LTTE, Karuna group and the Sri Lankan government paramilitaries and intelligence agency.
[34] No evidence was adduced on PLOTTE and the Board therefore did not find that the applicants had an objective fear of persecution at the hands of this group. With regards to the LTTE, the Board noted that the LTTE was defeated by Sri Lankan security forces in May 2009 and there was no persuasive documentary evidence that LTTE targeted ex-military for execution. The Board reviewed documentary evidence dated post-May 2009 that suggested that the LTTE forces had emerged in different forms. However, there was no indication that these different forms would threaten or target former Navy or military personnel.
[35] On the applicants’ fear of the government groups, the principal applicant indicated that in 2008, one of his close friends warned him that the government paramilitary group and intelligence may try to eliminate him. The principal applicant did not provide any affidavit from his friend to corroborate this statement. Although the principal applicant is Tamil, the Board found that based on his clean records and good standing in the Navy, it was not plausible that these government groups would have an interest in eliminating him for sympathizing with the LTTE. The Board found that the principal applicant’s fear of a false report being written against him was purely speculative; particularly as he had been informed while in Canada that he was not on a “wanted list”. Therefore, the Board did not find that the principal applicant had any objectively well-founded fear of persecution by government groups if he returned to Sri Lanka.
[36] The principal applicant indicated that his grounds for claiming refugee protection did not arise until July 2009 when his wife was abducted at gunpoint by men claiming to be from the Karuna group. The men demanded a large sum of money and threatened the applicants should they not pay. The Board reviewed extensive documentary evidence that indicated that the Karuna group and paramilitaries had in the past abducted suspected LTTE members and supporters for ransom and had committed other violent attacks against civilians.
[37] Based on this evidence, the Board found that on a balance of probabilities, the leaders of the Karuna group (notably Vinayagamoorthi Muralitharan (VM)) were aware of their group’s extortion activities. However, there was no evidence to suggest that these leaders had refused to do anything about it. Therefore, the Board found that some individual members extorted money from civilians on their own initiative. In addition, there was insufficient evidence to find that the leader’s power was used to sanction extortion by persons claiming to be members of the Karuna group. Therefore, the principal applicant’s claim that members of the Karuna group who were trying to extort money from him were doing so under the authority and power of VM was uncorroborated and the power structure of VM would not be used against him to ensure success of extortion. The Board held that the applicants’ fear of extortion by a group involved in criminal activities did not provide them with a nexus to a Convention refugee ground.
[38] The Board also found that the principal applicant’s fear of being kidnapped if returned to Sri Lanka is a generalized fear faced by all Sri Lankans. The Board noted there was no persuasive evidence that anything other than money had motivated the perpetrators to target the applicants. The principal applicant’s fear was of a generalized risk of persecution by some members of the Karuna group involved in criminal activities. Therefore, the principal applicant did not fall within the protection of paragraph 97(1)(b) of the Act. In addition, as the Board had found that the principal applicant’s fear of state agencies in Sri Lanka had no objective basis, his claim did not fall within the scope of paragraph 97(1)(a) of the Act.
[39] Finally, as the other applicants’ claims were based on the principal applicant’s claim, the Board denied their claims as well.
Issues
[40] The applicants submit the following points at issue:
1. Is there any evidence which supports the applicants’ submissions with respect to the issues set out below, and are any of these issues, either singly or in combination, serious ones?
2. Did the Board err in fact, err in law, breach fairness or exceed jurisdiction in determining the applicants as not Convention refugees in that state protection was reasonably forthcoming?
[41] I would phrase the issues as follows:
1. What is the appropriate standard of review?
2. Did the Board err in excluding the principal applicant on the basis of being complicit in crimes against humanity under article 1(F)(a) of the UN Convention?
3. Did the Board err in denying the applicants’ refugee claims?
Applicants’ Written Submissions
[42] The applicants submit that the task before the Board was to: identify which units of the Navy were involved in crimes; identify the crimes as crimes against humanity; and link the principal applicant to the units that had committed those crimes.
[43] The applicants refer to Marinas Rueda v Canada (Minister of Citizenship and Immigration), 2009 FC 984, [2009] FCJ No 1203, in which they submit that this Court found the Board over-generalized in finding that the Navy as a whole was the relevant organization responsible for crimes against humanity.
[44] On the unit responsible for the acts, the applicants submit that the case of Canada (Minister of Public Safety and Emergency Preparedness) v Cortez Muro, 2008 FC 566, [2008] FCJ No 718, demonstrates that the relevant unit to be analyzed is the one specified by the Minister; in this case that unit was the Navy. However, the applicants submit that the evidence the Board relied on showed that specific units, rather than the Navy as a whole, committed the human rights abuses.
[45] Further, the applicants submit that this Court has found that large military branches in democratic countries cannot be entirely responsible for human rights abuses. In support, the applicants point to this Court’s finding on the Columbian army in Ardila v Canada (Minister of Citizenship and Immigration), 2005 FC 1518, [2005] FCJ No 1876 (at paragraph 12).
[46] Next, the applicants submit that the Board erred in failing to identify crimes against humanity in which the principal applicant had a shared common purpose. The applicants submit that the Board’s analysis contains an extensive list of crimes and atrocities, some of which are not crimes against humanity. This included, for example, a report of torture against Tamil fisherman, presumably citizens of India, who accidentally crossed into Sri Lankan waters.
[47] The applicants submit that the Board was required to identify crimes using proper legal principles and then proceed to determine whether these crimes amounted to crimes against humanity based on the elements specified by the Supreme Court in Mugesera above, at paragraph 119.
[48] In assessing whether the principal applicant belonged to the units that had committed the crimes against humanity, the applicants submit that leaders, organizers, instigators and accomplices participating in the formulation and execution of a common plan or of a conspiracy to commit crimes, are responsible for them. Criminal responsibility will more likely attach to an individual that is deeply involved in the decision-making process or that does little to thwart the planning or the commission of the relevant act.
[49] Turning to the principal applicant’s role in the Navy, the applicants submit that it pertained to the performance of ships, as per his electrical engineering and business education. The principal applicant’s career did not involve combat and he only served on a ship early in his career when he was a junior engineer. His long service was predominantly spent in the dockyard or in military schools. He was also one of only five Tamil officers in the Navy where the majority of the officers were Sinhalese (there was also a very small percentage of Muslim officers). The applicants submit that the Board erred in not considering that the principal applicant’s leadership position was not close to the crimes or the planning of them but rather pertained to technical, teaching and administrative duties.
[50] The applicants submit that the analysis of complicity starts with the definition of individual criminal responsibility as set out in article 25 of the Rome Statute. Next, the Board must link the applicant to specific crimes. In support, the applicants distinguish the facts in this case from Penate v Canada (Minister of Employment and Immigration) (TD), [1994] 2 FC 79, [1993] FCJ No 1292, a case relied on by the Board in its analysis of an individual’s complicity in an army’s actions based on an embracement and effective support of the army and its goals. The applicants highlight the fact that in Penate above, the applicant was a career soldier in the Salvadoran army who knew of the atrocities committed and had witnessed at least one international offence. Contrary to this case, the applicant in Penate above, therefore had a sufficient degree of complicity to be found guilty of crimes against humanity.
[51] Instead, the applicants point to Loordu v Canada (Minister of Citizenship and Immigration), 199 FTR 308, [2001] FCJ No 141, in which the applicant was a Tamil and a low-ranking member of the police force. This Court found that although elements of the Sri Lankan police force committed crimes against humanity, there was no evidence that the police force was an organization with a limited brutal purpose.
[52] The applicants also refer to this Court’s decision in Bonilla Vasquez v Canada (Minister of Citizenship and Immigration), 2006 FC 1302, [2006] FCJ No 1627; a case pertaining to an army Major who had served fifteen years in the Colombian military. In Vasquez above, this Court found that due to the applicant’s high rank, leadership position and long-term service, he had to be aware of the operations that were undeniably penetrating crimes against civilians. He thereby lent his support and “knowingly participation” to those crimes (at paragraph 15). The Court in Vasquez above, stated that the law on “complicity” was two fold: (1) a shared common purpose and (2) knowledge. The shared common purpose must constitute a crime against humanity, as defined in paragraphs 151, 154 to 156 and 161 of Mugesera above. As mentioned previously, the applicants submit that in this case, the Board erred by not determining which crimes were crimes against humanity.
[53] The applicants submit that the Board erred in fact and in law in basing its complicity finding on a common purpose with the Navy. The applicants submit that there is no jurisprudence in which this Court has upheld exclusions based on belonging to a Navy that has been found to be complicit in crimes against humanity. Conversely, in Ruiz Blanco v Canada (Minister of Citizenship and Immigration), 2006 FC 623, [2006] FCJ No 793, this Court quashed a Board’s decision excluding a twenty-year non-commissioned Navy officer on the basis that there was too little evidence on crimes committed by the Navy.
[54] The applicants submit that although the principal applicant testified that he was aware of human rights abuses, mere knowledge of atrocities does not equate to shared purpose and complicity. The applicants submit that the Board erred in finding that the principal applicant’s participation in strategy meetings for improving equipment performance was relevant to him being involved with crimes of any kind. The Board erred by failing to: make findings on the evidence that civilians who were wrongly believed to be LTTE members were killed by accident; not clarifying whether the principal applicant’s knowledge of civilian deaths by Navy shelling was a crime against humanity; making no reference as to whether the shelling was in relation to legitimate actions or not; and not referring to Navy complicity in the military and police actions against civilians in Colombo in 2006.
[55] The applicants also distinguish El-Kachi v Canada (Minister of Citizenship and Immigration), 2002 FCT 403, [2002] FCJ No 554, a case relied upon by the Board, on the basis that it did not concern a member of a national army. Rather, that case pertained to a militia independent of the government.
[56] In addition, the applicants submit that the Board erred in finding that the principal applicant’s knowledge of the crimes led to his complicity in them. Mere knowledge of atrocities is not determinative of complicity in them.
[57] The applicants submit that the Board erred in finding that the principal applicant had fabricated his efforts to leave the Navy between 2007 and 2009 solely on the basis of lacking corroborative documentation. Similarly, the Board erred by making a negative inference from the lack of an affidavit from the principal applicant’s friend corroborating the claim that he had notified him of the risk he faced from paramilitary groups. In refugee claims, the applicants submit that it is an error to reject evidence or impugn credibility solely for reason of lacking corroborating evidence. The principal applicant should have been granted the benefit of the doubt. Therefore, the Board’s inferences were unreasonable and should not stand.
[58] The applicants submit that the Board erred in finding that the leaders of the various paramilitary-political parties are not known to have sanctioned the human rights abuses by their organizations. The applicants also submit that the Board erred by failing to recognize that extortion can be persecution. Failure to consider the reason for extortion and the motivation for paying extortion is a reviewable error.
[59] Finally, the applicants submit that the risk they face is not generalized, rather, they have been directly affected.
Respondent’s Written Submissions
[60] The respondent submits that the issue of whether the facts support the principal applicant’s exclusion from refugee protection under article 1F(a) of the UN Convention is reviewable on a reasonableness standard. Similarly, the Board’s decision on whether the applicants are Convention refugees or persons in need of protection under sections 96 and 97 of the Act attracts a standard of review of reasonableness.
[61] The respondent notes that the principal applicant’s refugee claim was rejected on two grounds: exclusion from refugee protection under article 1F(a) of the UN Convention and failure to establish a well-founded fear of persecution or personal risk.
[62] To succeed on judicial review, the respondent submits that the applicants must establish errors on both of these findings.
[63] The respondent submits that the principal applicant was reasonably excluded under article 1F(a) of the UN Convention. The proper approach to the application of the exclusion clause is first, by reference to existing jurisprudence and second, by reference to the clear intent of the signatories of the UN Convention. It is irrelevant whether the principal applicant was complicit in one atrocity or several, at one time or over a period of time. What matters is whether the principal applicant belonged to an organization that had repeatedly been involved in the commission of crimes against humanity in a systemic or widespread fashion.
[64] The respondent submits that like all crimes, crimes against humanity consist both of a criminal act and a guilty mind. An individual may be found to have “committed” a crime against humanity where they have been complicit in the commission of the offence. A determination of complicity must be made on a case-by-case basis. Complicity can be based on “personal and knowing participation” or on the existence of a “shared common purpose”.
[65] The respondent submits that the Federal Court of Appeal has held that the “personal and knowing” participation test is broader than merely requiring the personal participation of the individual in the alleged crimes, be it by carrying them out personally or facilitating their commission.
[66] A shared common purpose will arise where an individual has knowledge that his organization is committing crimes against humanity and does not take steps to prevent them from occurring or disengage from the organization at the earliest opportunity consistent with his or her safety, but rather lends active support to the organization.
[67] The respondent submits that in this case, the documentary evidence establishes that the Navy was directly involved and provided material support to the other security forces in committing atrocities.
[68] Relying on general principles on “complicity” that have emerged from the jurisprudence, the respondent submits that the Board correctly interpreted and applied the law on article 1F(a) of the UN Convention. The respondent submits that the Board considered the relevant six factors, as required.
[69] The first factor pertains to the nature of the organization. The respondent submits that the Board reasonably found that the Sri Lankan Navy had committed, on its own or jointly with other security forces, acts considered to be war crimes or crimes against humanity. These acts were committed whilst the principal applicant was a Navy officer. The respondent submits that the Board also reasonably assessed the second factor, the method of recruitment, and found that the principal applicant had voluntarily joined the Navy in 1985, after having already served as an officer cadet.
[70] Turning to the third factor, the position or rank in the organization, the respondent highlights the principal applicant’s acknowledgement that he was a high ranking officer and indispensable to the operation of the Navy. The Board reasonably found that the principal applicant’s activities as an electrical engineer facilitated the Navy operations, which included the darker aspects of those operations.
[71] Fourthly, the respondent submits that the Board made a reasonable finding on the knowledge of the organization’s atrocities. The principal applicant admitted his awareness of the atrocities from the media and fellow naval employees. Further, although the principal applicant testified that he was not personally involved, he was occasionally involved in strategy meetings to provide input on equipment capacity. The respondent submits that the Board reasonably found that the principal applicant’s behaviour and failure to disengage from the Navy indicated that he supported or tolerated the Navy’s behaviour.
[72] On the fifth factor, the length of time in the organization, the respondent submits that the Board reasonably found that the principal applicant’s length of service (over twenty years) was indicative of a common purpose shared with the Navy in the commission of the crimes.
[73] Finally, the respondent submits that the sixth factor, opportunity to leave the organization, was also reasonably assessed by the Board. The Board considered the principal applicant’s testimony and his military documents and reasonably found that he fabricated his story about attempting to leave the Navy. Further, the principal applicant’s testimony indicated that his primary concern was with his career development and he only left for fear of his and his family’s safety. The Board reasonably sought corroborating evidence of his attempts to leave after noting that the principal applicant would not have been liable for punishment after 2005 and had had several opportunities to travel abroad; opportunities during which he had never applied for refugee protection. The principal applicant failed to produce any such evidence and did not withdraw or protest at the first reasonable opportunity.
[74] Based on its analysis of these factors, the respondent submits that the Board’s decision that the principal applicant was complicit in crimes against humanity was a finding that was reasonably open to it.
[75] The respondent also submits that the Board’s decision that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Act was reasonable. The respondent submits that risk was not established on either the principal applicant’s former position in the Navy or on the threat of extortion.
[76] On the risk associated with his former position in the Navy, the respondent submits that the Board reasonably found insufficient evidence that remnants of the LTTE and sympathizers are targeting former military personnel. It also reasonably found no persuasive evidence that government paramilitaries or intelligence would have any interest in the principal applicant especially due to his clean record, numerous promotions and good standing. A false report implicating the principal applicant in providing intelligence to the LTTE was reasonably deemed purely speculative. Further, if he had been a suspected LTTE supporter, the principal applicant would have faced problems at the airport; problems that he testified that he did not face. The principal applicant also confirmed that his contacts in Sri Lanka had told him that he was not on a “wanted list” of the government or paramilitaries. Based on this evidence, it was reasonable for the Board to search for corroborating evidence to support the claim of possible threats from the government or paramilitaries. The principal applicant did not provide such evidence.
[77] The respondent also submits that the Board made a reasonable finding that the risk of extortion faced by the applicants was a risk generally faced by others in the country. There was no inconsistency in the Board’s initial reference to the principal applicant’s or his wife’s past targeting of extortion and its final determination that the nature of this risk is faced generally by other individuals in or from Sri Lanka.
[78] Further, the jurisprudence has established that the ability to distinguish a subcategory from the citizenry at large does not remove that group from the generalized risk category. In this case, the Board reasonably determined that the risk faced by the applicants in the identified subcategory was prevalent and widespread and thereby faced generally by other individuals. The evidence also showed that money was the sole motivation of the perpetrators targeting the applicants. As recognized by the Board, victims of crime do not qualify as at risk under subsection 97(1) of the Act. In particular, wealth or perceived wealth does not constitute personalized risk and extortion alone does not amount to persecution unless it is linked to a Convention ground. Therefore, the respondent submits that the Board reasonably concluded that the extortion faced by the applicants was generalized and random crime, not personalized crime. There was therefore no nexus to a Convention ground.
Analysis and Decision
[79] Issue 1
What is the appropriate standard of review?
Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 57).
[80] In Canada (Minister of Citizenship and Immigration) v Ekanza Ezokola, 2011 FCA 224, [2011] FCJ No 1052, the Federal Court of Appeal stated the standard of review as follows at paragraph 39:
The fundamental issue identified by the applications judge is the scope of the concept of complicity by association for the purposes of applying Article 1F(a) of the Convention. As he indicates, this is a question of law subject to the standard of correctness. Once the test has been properly identified, the issue of whether the facts in this case trigger the application of Article 1F(a) is a question of mixed fact and law with respect to which the Panel is entitled to deference (Canada (Minister of C