Nagalingam v. Canada (Citizenship and Immigration)

Nagalingam v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-02-08
Neutral citation
2012 FC 176
File numbers
IMM-1711-11
Decision Content
Federal Court
Cour fédérale
Date: 20120229
Docket: IMM-1711-11
Citation: 2012 FC 176
Ottawa, Ontario, February 29, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PANCHALINGAM NAGALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of a Minister’s Delegate (Delegate) dated 23 February 2011 (Decision) in which the Delegate found that the Applicant had committed acts of substantial gravity within the meaning of paragraph 115(2)(b) of the Immigration and Refugee Protection Act (Act). The Decision permits the Applicant’s refoulement to Sri Lanka notwithstanding his status in Canada as a convention refugee.
BACKGROUND
[2] The Applicant is a Tamil citizen of Sri Lanka currently living in Canada under house arrest. He is married and has a one-year-old daughter with his wife, Niranjala Rajanayagam (Rajanayagam). He also has a nine-year-old son who lives in Canada with Seuranie Persaud (Persaud) the Applicant’s former common-law wife. The Applicant first entered Canada on 31 August 1994. At that time, he claimed refugee status under the former Immigration Act. He was recognized as a convention refugee by the Convention Refugee Determination Division (CRDD) without a hearing on 2 March 1995. The Applicant went on to become a permanent resident of Canada on 13 March 1997.
[3] Between 1999 and 2001, the Applicant accumulated four criminal convictions in Canada. He was convicted of assault, failure to comply with a recognizance, and two counts of mischief under $5000. His conviction for assault was related to an incident at the India Theatre in Toronto where he struck several other people with a meat cleaver during a brawl. The two mischief convictions were related to an incident at the Tamil Community Center, also in Toronto, where the Applicant and two accomplices overturned tables of food, damaged sound equipment, smashed windows and damaged property with metal pipes. At the time of these incidents the Applicant was a member of the AK Kannan gang in Toronto.
[4] In October 2000, two teenaged men were shot to death while they were sitting in a car in Scarborough, Ontario. The deceased were members of the Sellapu gang, which is affiliated with VVT, a rival gang to AK Kannan. At that time, two witnesses identified the Applicant to police as one of the gunmen. However, the Applicant was neither charged or convicted of any offence in relation to this incident.
[5] In December 2000, Persaud, the Applicant’s son, and Persaud’s friend were sitting in the Applicant’s car when unknown persons fired several gunshots at the car (Driveway Shooting). In March 2001 the Applicant was shot six times as he was leaving the Mimico Correctional facility where he was serving an intermittent sentence for his assault conviction (Mimico Shooting).
[6] On 24 August 2001, the Respondent issued a report which alleged the Applicant was inadmissible for involvement in organized criminality, based on his AK Kannan membership. The Applicant was arrested and detained on 18 October 2001 because of the Minister alleged he was a danger to the public and unlikely to attend his admissibility hearing. The Applicant was referred to an admissibility hearing under section 24 of the former Immigration Act. The Immigration Division of the Immigration and Refugee Board (ID) found on 28 May 2003 that the Applicant was inadmissible to Canada under paragraph 37(1)(a) of the Act because he was involved in organized criminal activity. On that date, the ID also issued a deportation order against the Applicant.
[7] The Applicant applied for leave and judicial review of the ID’s admissibility decision on 11 June 2003. On 29 June 2004, Justice Elizabeth Heneghan granted leave, and on 12 October 2004, Justice Heneghan dismissed the application for judicial review (see Nagalingam v Canada (Minister of Citizenship and Immigration) 2004 FC 1397.)
[8] After the Applicant returned to Canada in 2009 (see below) the CBSA scheduled him for removal between 23 and 26 March 2011. The removal was to be based on the deportation order issued against the Applicant in 2003. The Applicant challenged the continuing force of the 2003 deportation by an application for leave and judicial review dated 15 March 2011. Justice Robert Barnes granted leave on 28 July 2011 and the application is currently before the Court (IMM-1715- 11).
[9] Because the Applicant is a Convention refugee, the Minister or his delegate had to issue a danger opinion against him under subsection 115(2) of the Act in order to return him to Sri Lanka. The Minister first issued a danger opinion under paragraph 115(2)(b) on 4 October 2005 (2005 Danger Opinion). The Applicant applied for judicial review of that opinion on 25 October 2005. After removal proceedings were initiated by the Respondent in 2005, the Applicant made a motion for a stay of removal in this Court. This motion was denied by Justice Eleanor Dawson on 2 December 2005.
[10] The Applicant then asked the Ontario Court for an injunction to stop his deportation. During that proceeding, the Respondent undertook to assist the Applicant to return to Canada if his application for judicial review of the danger opinion was successful. Justice Wilson of the Ontario Court of Justice dismissed the motion for a stay on 5 December 2005. The Canada Border Services Agency (CBSA) removed the Applicant to Sri Lanka on 7 December 2005.
[11] On the day he was returned to Sri Lanka, Sri Lankan authorities detained the Applicant at the Colombo Airport. After interrogating him for a day, they released him. During a visit to his family in Colombo in 2006, the Applicant says that he, his brother, and their friend were surrounded by approximately 25 soldiers while they were out driving. They were released unharmed after being questioned. Also in 2006, Sri Lankan authorities arrested the Applicant at an army checkpoint because his National ID card showed he was a Tamil from Jaffna. He was detained and interrogated, but was allowed to call a lawyer, and was released after one week.
[12] In a judgment dated 28 February 2007, Justice Michael Kelen dismissed the application for judicial review of the 2005 Danger Opinion (Nagalingam v Canada (Minister of Citizenship and Immigration), 2007 FC 229). Justice Kelen also certified two questions. The Applicant pursued an appeal to the Federal Court of Appeal and, on 24 April 2008, the Federal Court of Appeal quashed the 2005 Danger Opinion and remitted the matter to the Minister for reconsideration (see Nagalingam v Canada (Minister of Citizenship and Immigration) 2008 FCA 153 [Nagalingam FCA]).
[13] On 16 December 2008, while the Applicant was still in Sri Lanka, the CBSA served him with notice that the Minister intended to seek a new danger opinion under paragraph 115(2)(b) of the Act. The Minister provided disclosure at this time and invited the Applicant to make submissions. The disclosure package included among its 2,195 pages a statutory declaration from Detective Constable Crisanto Fernandes, a member of the Toronto Police Service. In this declaration, Detective Fernandes provided a narrative overview of his involvement in the Tamil Task Force – a joint operation of the Toronto, York, Peel and Durham regional police services and the RCMP – and the Applicant’s suspected involvement in gang activities.
[14] The Applicant says that several men came to his house in Sri Lanka early on the morning of 30 January 2009. They banged loudly on his door and, when he answered, the men demanded to see his identification. They blindfolded and handcuffed him and put him in the back of a white van. He says they detained him for approximately three days and, while he was detained, they shackled him to a hook on the floor of his room, beat him with fists, threw cold water on him at night and tortured him with electric shock. He says his captors released him on 1 February 2009 with an apology, after they checked with authorities at the Colombo airport and determined that his story was confirmed.
[15] After repeated requests by the Applicant to return him to Canada pursuant to the undertaking the Respondent had given before the Ontario Court of Justice in 2005, the Respondent issued the Applicant a Temporary Resident Visa (TRV) in February 2009. On 24 February 2009, the Applicant returned to Canada. The CBSA detained him on arrival and placed him in immigration detention. He remained in immigration detention until April 2009, when he was released to house arrest.
[16] The Applicant made his initial submissions for the new 115(2)(b) danger opinion on 7 August 2009. These submissions included an expert report from Professor Anthony Good, a Professor Emeritus in Social Anthropology at the University of Edinburgh. They also included a report from Dr. Gerald M. Devins, a consulting and clinical psychologist and Professor of Psychology and Psychiatry at the University of Toronto, on risk to the Applicant in Sri Lanka. The Applicant also submitted a statutory declaration (2009 Declaration) and certified copies of notices of complaints his brother had filed with the Committee to Monitor Investigations into Abductions and Disappearances in Sri Lanka (CMIAD) and the Human Rights Commission of Sri Lanka (HRCSL) related to the 30 January 2009 incident. In these submissions, the Applicant asked for the opportunity to cross-examine Detective Fernandes. He also asked for the chance to cross-examine Paranirupan Ariyaratnam (Ariyaratnam), a man who had been interviewed by police in connection with the Mimico Shooting.
[17] The Applicant also made submissions to the Delegate in December 2010 (2010 December Submissions). He provided the Delegate with a statutory declaration (2010 Declaration), a declaration from Rajanayagam, a supplementary expert report from Professor Good, and some other documents. He also reiterated his objection to Detective Fernandes’ affidavit and noted that the CBSA had not responded to his request to cross-examine Detective Fernandes.
[18] The Applicant made further submissions in January 2011. These submissions included several emails related to the Applicant’s return to Sri Lanka in 2005, news articles on Tamil gangs in Toronto and his arrest, and a letter from Amnesty International which said that Amnesty International was concerned that the Applicant would be detained and tortured if he were returned to Sri Lanka (Amnesty International Report). Gloria Nafziger, the Refugee Coordinator at the Toronto office of Amnesty International, wrote the Amnesty International Report.
[19] Prior to making her Decision, the Delegate noted that there was a discrepancy between the Applicant’s PIF, filed in 1994 in support of his refugee claim, and his 2009 Declaration. In the PIF from 1994, the Applicant said he was detained and forced to work by the LTTE on several occasions between 1989 and 1994, before he came to Canada. In the 2009 Declaration, he said he left Sri Lanka for Germany, where he remained until coming to Canada in 1994. She invited the Applicant to make submissions on this discrepancy, which he did on 15 February 2011. These submissions consisted of a letter from counsel, and another statutory declaration from the Applicant (2011 Declaration).
[20] The Delegate reviewed the materials before her and gave her opinion in the 70-page Decision signed on 23 February 2011. She found that the Applicant could be deported despite subsection 115(1) of the Act and that this would not violate his rights under section 7 of the Charter of Rights and Freedoms.
DECISION UNDER REVIEW
[21] The Delegate began by reviewing the Applicant’s immigration history, his criminal record, and his involvement in organized crime. She noted that this Court had reviewed the Applicant’s involvement in gang activity in Canada (Minister of Citizenship and Immigration) v Nagalingam 2004 FC 1757 [Nagalingam 2004 FC 1757]. She quoted sections of that decision which indicate the police alleged the Applicant was a member of the AK Kannan street gang. She also quoted sections of Nagalingam 2004 FC 1757 which referred to the Driveway Shooting, the Mimico Shooting, and the incident at the India Theater.
[22] The Delegate also referred to Nagalingam 2004 FC 1757 and portions of the transcript of an interview between Detective Constable Glen Furlong of the Toronto Police Service, Detective Constable Vernon Ward of the York Regional Police Service (Constable Ward) and Ariyaratnam. In that interview, Ariyaratnam identified the Applicant as a member of the AK Kannan gang. The Delegate quoted paragraph 9 of Nagalingam 2004 FC 1757 where Justice John O’Keefe wrote that Ariyaratnam knew the Applicant would be shot at Mimico because he had been recruited to carry out the shooting.
[23] The Delegate then noted that the ID found the Applicant inadmissible under paragraph 37(1)(a) of the Act in 2003. She quoted extensively from that decision in her reasons and reviewed the evidence given at the admissibility hearing by Constable Ward. In his evidence, Constable Ward said that he had been assigned the cases of the Applicant and Persaud. Constable Ward had informed the Applicant about the pending attempt on his life, but noted that the Applicant seemed unconcerned. The ID noted in 2003 that the transcript of the interview with Ariyaratnam, was the most persuasive piece of evidence in its determination that the Applicant was inadmissible.
[24] The Delegate then quoted at length from the transcript of the Ariyaratnam interview including a discussion about the Applicant’s membership in AK Kannan. The Applicant is also mentioned as a person who scares little people and who tried to beat up Ariyaratnam on one occasion. The quoted portion also includes a discussion of the circumstances surrounding the Mimico Shooting.
[25] The Delegate noted that the Applicant had applied for judicial review of the ID’s determination that he was inadmissible under paragraph 37(1)(a) of the Act. She also noted that Justice Heneghan had dismissed the judicial review in Nagalingam 2004 FC 1397. The Delegate found that the Applicant was still inadmissible under paragraph 37(1)(a) of the Act.
The Original 115(2)(b) Decision and the Comments of the Federal Court of Appeal
[26] The Delegate also quoted from Nagalingam, above, where the Federal Court of Appeal held that acts committed which support a positive opinion under 115(2)(b) could be acts which the subject committed himself or acts of a criminal organization in which the subject was complicit. The Federal Court of Appeal also said that when considering liability arising from complicity, delegates must apply Canadian law, including the Criminal Code RSC 1985 c. C-46 (Code) and other federal statutes. The Federal Court of Appeal also noted that paragraph 37(1)(a) of the Act contained a definition of “organized criminality” that was different from that in subsection 467.1(1) of the Code. Further, the Federal Court of Appeal held that only acts of substantial gravity would meet the threshold required to justify refoulement under section 115 of the Act.
Nature and Severity of the Applicant’s Acts
[27] The Delegate then determined whether the Applicant’s acts were of a nature and severity which would justify refoulement. In doing so, she considered the Applicant’s submissions. In his August 2009 submissions, the Applicant said that his relatively few criminal convictions where not of sufficient severity to meet the threshold established by the Federal Court of Appeal for a positive opinion under paragraph 115(2)(b) of the Act. He also pointed out that it had been eight years since his last criminal conviction, that his involvement in the AK Kannan gang had only been for four years, and that the gang had been defunct for nearly eight years. The Delegate characterized the submissions in her Decision as the Applicant presenting himself as reformed and no longer a threat to Canadians.
[28] The Delegate also noted the Applicant’s objection to a number of documents that had been disclosed to him by the Minister. In his submissions, the Applicant said that neither the Project 1050 Overview – a report prepared by Detective Constable Rob Takeda of the Toronto Police Street Violence Task Force – nor the Media Package – a collection of news articles gathered by the CBSA – was evidence because neither was authored or signed. He also said that the Media Package was unreliable and should not be considered.
[29] The Delegate also noted that the Applicant objected to the police occurrence reports which had been placed before her. He thought that these should be given no weight at all. He similarly objected to the transcript of the Ariyaratnam interview, saying that Ariyaratnam had lied and made statements that were self-serving.
[30] Finally, the Delegate noted the Applicant’s objection to Detective Fernandes’s affidavit. The Applicant said that Detective Fernandes’s assertions were little more than expressions of opinion.
[31] After reviewing all the Applicant’s objections, the Delegate said she agreed with him that the evidence before her had varying degrees of reliability and that, where she had given more or less weight to pieces of evidence, she had noted this in her reasons. While the Applicant had indicated that she should given the police occurrence reports no weight, he noted in his submissions that Sittampalam v Canada (Minister of Citizenship and Immigration) 2006 FCA 326 [Sittampalam FCA] showed that they could be used, so long as they were not used as evidence of an individual’s criminality.
[32] On the Applicant’s objection to the transcript of the Ariyaratnam interview, the Delegate said that the interview had been relied on by the ID at the Applicant’s admissibility hearing in 2003 and that she had no reason to disregard it. She also noted that the Applicant had made similar objections to the same pieces of evidence at his admissibility hearing and that the ID had carefully reviewed the evidence and found it was reliable.
[33] The Delegate also reviewed the Applicant’s December 2010 submissions in which he said that there were no reasonable grounds to believe that he had committed acts of substantial gravity to justify his refoulement. He said that the affidavit of Detective Fernandes, which was the focus of the CBSA’s case against him, had no probative value because it was neither signed nor commissioned. The Delegate considered this argument and rejected it, saying that a signed and dated copy had been disclosed to the Applicant with the Minister’s notice of intent to seek an opinion on 16 December 2008. She also noted that Detective Fernandes had been found credible with respect to similar testimony on the activities of the AK Kannan gang at the admissibility hearing of Jothiravi Sittampalam, the leader of the AK Kannan gang. The Delegate found that she had no reason to doubt Detective Fernandes’s testimony.
[34] The Delegate also noted the Applicant’s objection to portions of the CBSA’s Memorandum to the Delegate in support of the 115(2)(b) opinion. The Delegate said that she had taken his objections into account, along with the CBSA’s memorandum, in coming to her own conclusion based on the evidence before her.
Analysis of the Nature and Severity of the Applicant’s Acts
[35] The Delegate began her analysis of the nature and severity of the Applicant’s past acts by instructing herself on the task before her. She said that it was incumbent upon her to make a fresh determination on the evidence. She also noted that the standard of proof was low, requiring only that she be satisfied, based on reasonable grounds to believe, that the Applicant’s past acts were substantially grave.
[36] The Delegate found that the ID’s reasons at the admissibility hearing provided a solid account of the oral evidence, written statements, opinions of law enforcement officials and texts referred to. She noted that the Applicant had had the opportunity to provide evidence and to call and cross-examine witnesses at the admissibility hearing. She found that the ID’s findings of fact were a useful backdrop to her analysis, noting that the Applicant’s application for judicial review of the ID’s inadmissibility finding had been denied.
[37] The Delegate again noted that the evidence before her had varying degrees of reliability and she analyzed it accordingly.
Evidence at the Beyond a Reasonable Doubt Standard
[38] The Delegate noted that the Applicant has four criminal convictions, including two for mischief and one for assault. She reviewed the circumstances of the mischief conviction which is arising from the incident at the Tamil Community Center described above.
Other Documentary Evidence
[39] The Delegate again took note of the Applicant’s submission that the only elements of proof she should consider were his criminal convictions. Over this argument, however, she found other facts from other sources were evidence she had to consider.
[40] First, in 1997, a man named Santhirakumar Fernando identified the Applicant as one of three men who knocked on his door and demanded entry. During the incident, the Applicant was in possession of a handgun. For this incident, the Applicant was charged with, but not convicted of, several offences. The Delegate based this finding on a supplementary arrest report related to the incident.
[41] Second, the Applicant was an enforcer for AK Kannan who intimidated witnesses in the past, based on a showcase report contained in a supplementary record of his arrest from 22 November 1998.
[42] Third, the AK Kannan gang, of which the Applicant was a member, was known to carry heavy weapons and a store of weapons found behind a gas station was being tested to see if any of the guns were linked to shootings in the Toronto area. This finding was based on the “Pilot Project Report – Tamil Organized Crime” which was prepared by the Metropolitan Toronto Police Tamil Task Force.
[43] Fourth, Project 1050 was a joint task-force of CIC and the Toronto Police service based on the Project 1050 Overview prepared by Detective Takeda. Project 1050 had targeted the AK Kannan gang.
[44] Fifth, Ariyaratnam had identified the Applicant as someone who scared little people, including Ariyaratnam. He also said that the Applicant would be the subject of an assassination attempt which came about on 5 March 2001 at the Mimico Correctional Center. Ariyaratnam had said that this assassination attempt was retaliation against AK Kannan.
[45] The Delegate also found that Detective Fernandes had been found reliable by the ID at the admissibility hearing for Jothiravi Sittampalam, the leader of AK Kannan. She then quoted from Detective Fernandes’s declaration which he had provided for the case against the Applicant. Detective Fernandes said that the Applicant was a high-ranking member of AK Kannan and was an enforcer for the gang. He also said that the Applicant was known to intimidate witnesses to prevent them from testifying against gang members. Detective Fernandes also said that the Applicant was identified as one of the shooters in an incident where two teenaged men were killed in Scarborough, Ontario, even though he was not charged. Detective Fernandes further said that gang members often retaliate and do not often report violence out of fear of reprisal.
[46] The Delegate noted that the Applicant denied any involvement in the shooting of the two teenagers referred to by Detective Fernandes in his declaration. The Delegate said that in the 2010 Declaration the Applicant had said he was at home with his girlfriend at the time of the shooting. The Delegate found the Applicant’s expression of shock at seeing this allegation in Detective Fernandes’s affidavit was disingenuous because the homicide investigators notes implicated him in the shooting.
[47] The Delegate referred to a number of newspaper articles that told the story of how, on 19 October 2010, officers from the Project 1050 task force arrested 51 people suspected of involvement in AK Kannan and its rival gang, VVT. She quoted The Toronto Sun as saying that “Among those arrested was AK Kannan boss Panchan Naga… At the time [of the Mimico shooting] detectives said the attack was possibly in retaliation for his alleged link to the murders of Sajeevan Sritharan, 18, and Riskitresan Selvarajah, 17, a year ago.” [brackets in original].
[48] The Delegate also referred to an exchange from the Applicant’s admissibility hearing where the Applicant had said that he thought the Mimico Shooting occurred because the media misquoted him after he spoke following the Driveway Shooting. He also said that he asked “why do they kill me?” when Constable Ward told him that there was an assassination attempt plotted against him. Based on this evidence, the Delegate found, on a balance of probabilities, that the Applicant knew the reason he was targeted and that his explanation that he was targeted because he was misquoted was implausible.
[49] The Delegate referred to the ID’s finding that the Applicant was shot in retribution for what he had done to rival gang members. She quoted the ID’s reasons to this effect and noted that the Applicant had said in his submissions to her that his actions showed only that he was an immature youth with a chip on his shoulder who could not control his anger when he was drunk. The Delegate contrasted this assertion with the CBSA’s characterization of the Applicant as a well-known gang enforcer who was one of AK Kannan’s main decision-makers. She noted the Applicant’s objection that the CBSA’s memo contained assertions and dramatic hypothesizing, but she found that the conclusions in the memo were a plausible depiction of the Applicant’s actions.
[50] The Delegate then summarized her conclusions on the nature and severity of the Applicant’s acts.
[51] First, she found that he had taken part in violent assaults as a member of the AK Kannan gang. Her reasonable grounds for this finding were based on the police occurrence reports related to his convictions for assault and mischief. She also based this finding on Ariyaratnam’s statement that the Applicant picked on little people, a statement which the ID had found credible at the Applicant’s admissibility hearing.
[52] Second, the Delegate found that AK Kannan was a gang that had committed serious crimes, including murder. She did not find that AK Kannan was either a highly organized criminal enterprise or a loose association of youths, the alternative theories which had been advanced by the CBSA and the Applicant, respectively. This conclusion was based in part on an excerpt from Cold Terror, a book written by Stewart Bell of the National Post.
[53] Third, the Delegate found that the Applicant was an enforcer for AK Kannan who had intimidated witnesses. She said that her reasonable grounds for this belief were based on “police information available at the time,” which included Detective Fernandes’s declaration and a supplementary arrest report from 22 November 1998.
[54] Fourth, the Applicant was targeted twice for assassination by a rival gang. This spoke to the seriousness with which he was pursued by the rival gang. VVT leadership believed he had committed serious acts against them. The Delegate found that the evidence gave her reasonable grounds to believe that the Applicant knew why he was targeted and that he did not want to share this knowledge with the police. He knew that this evidence revealed that he had been involved in a serious crime. The Delegate based these findings on the evidence given at the Applicant’s admissibility hearing and Ariyaratnam’s statement.
[55] Fifth, the Applicant had been a suspect in a double homicide investigation and could have been prosecuted had witnesses been willing to testify. She found that notes made by police officers at the same time as the investigation into the shooting indicated that witnesses identified the Applicant as one of two shooters. Though the credibility of these witnesses was not tested and they did not testify at any trial, the Delegate found that unwillingness to testify is a hallmark of Tamil gang members, as described in Cold Terror, above, and in Detective Fernandes’s declaration.
[56] Sixth, the Applicant was a member of AK Kannan from 1997 to 2001. He was an adult and became a father during this period. She referred to an academic article in the CBSA memo which said that rank-and-file members rarely remained in gangs past their teens but that key members remained into their twenties. The Delegate found that the Applicant’s age while he was a gang member was relevant and revealing of his position in the gang.
Conclusions on Nature and Severity
[57] The Delegate concluded that there were reasonable grounds to believe that the Applicant committed violent acts against rival gang members. She found that there was evidence he had personally committed violent acts, including participating in a shooting that resulted in two deaths. She concluded that there were reasonable grounds to believe that the Applicant’s past acts were serious. He was not a misguided, angry youth, but an enforcer and adult who consciously identified himself with the gang. The Applicant took part in inter-gang warfare as a member of a gang which is known to have committed murders and possessed firearms. The Applicant’s past acts were of substantial gravity.
Risk on Return to Sri Lanka
[58] Once she had determined that the Applicant had committed acts that were substantially grave, the Delegate turned her attention to the risk he would face if he were returned to Sri Lanka. She noted that paragraph 115(2)(b) of the Act creates an exception to the general principle of non-refoulement. She also noted that she was required to examine the factors under section 97 of the Act and that, under paragraph 97(1)(b), the risk faced by the Applicant must not be one generally faced by people in every part of Sri Lanka. She said that she also took into account the risk of persecution under section 96 of the Act, though section 97 was the principal guide to her inquiry.
[59] The Delegate noted that the Applicant had said in his 2009 Declaration that he was born in Jaffna in 1973 and had traveled to Germany to seek asylum in 1989. His German asylum claim was denied in 1992. She then noted that in his 1994 PIF he had said that he was arrested by the Indian Peace Keeping Force (IPKF) in Jaffna in 1988, taken from his family’s farm in 1991 by the LTTE, and then released after his father paid a bribe. He also said that he had been forced to return to the LTTE camp to work once a month until 1994. In 1994, he said he had received military training and was threatened with death unless he joined the LTTE. He said that, at that time, he was afraid for his life and so fled to Canada.
[60] The Delegate said that the Applicant had not explained the discrepancy between these two accounts in his initial submissions. She also noted that she had invited him to make submissions on this issue and that he had replied that he was surprised she was raising the issue, given that CIC had his German Driver’s License since 2001.
[61] The Delegate noted that the Applicant had said in his February 2011 submissions in response to the discrepancy that, when he came to Canada, he had employed a translator who had advised him that his failed asylum claim in Germany would hurt his Canadian claim. He said the translator had invented the story about his troubles with the LTTE between 1988 and 1994. The Applicant had said that, though the specific events cited in his PIF were untrue, he genuinely feared the IPKF, the LTTE, and the Sri Lankan Army, and it was this fear that had grounded his refugee claim.
Submissions on Risk
[62] The Delegate next reviewed the Applicant’s submissions on risk. She noted that his August 2009 submissions referred to his arrests in Sri Lanka in 2006 and the allegation that he was tortured between 30 January and 1 February 2009. She also noted his reference to Professor Good’s report.
[63] The Delegate quoted at length from the Applicants 2009 statutory declaration in which he described the arrest and torture he experienced in January and February of that year. The Applicant’s account did not strike Professor Good as “unusual, implausible, or at odds with what is generally known about Sri Lanka.”
[64] The Delegate also noted that, in his December 2010 submissions, the Applicant drew attention to a letter written from the Criminal Investigation Division of the Sri Lankan Police to the CBSA in 2008 (CID Letter). He said that letter was irrefutable evidence that the Sri Lankan Police took the position that he was a member of the LTTE and that AK Kannan was an LTTE Cadre. In those submissions the Applicant also requested an opportunity to cross-examine diplomatic officials who had produced reports included in the package provided to the Delegate by the CBSA, and who said they were unaware of mistreatment of people returning to Sri Lanka from Canada. The Applicant said that objective evidence left no doubt that people like him who were suspected of LTTE involvement were at risk of torture. The Delegate noted that the Applicant also submitted an updated affidavit, an updated report from Professor Good, the Amnesty International Report, and country condition reports to support his position on risk.
Analysis of Risk
[65] The Delegate acknowledged that the Applicant’s refugee claim had been accepted by the CRDD without a hearing in 1995. She found that, although at that time the LTTE was at war with the Sri Lankan government, the north of Sri Lanka is now under government control. She noted the Applicant’s submission that he would likely be persecuted because he would be identified as a former LTTE member by the authorities in Sri Lanka. The Applicant supported this assertion with country condition evidence and his own past experiences.
Country Condition Information
[66] The Delegate examined the Amnesty International Report, which said that
In our opinion the CID letter allows [sic] that Mr. Nagalingam will almost certainly be detained on or shortly after arrival in Sri Lanka, and as such faces a grave risk of arbitrary and incommunicado detention and torture in that country and should not be removed to Sri Lanka.
[67] The Delegate noted that Ms. Nafsziger had not provided any credentials to prove her expertise other than that she was employed by Amnesty International. It was unclear to the Delegate how much of the record Ms. Nafsziger had seen, and she had not identified any sources for her information and opinion.
[68] The Delegate reviewed the two reports provided by Professor Good. She noted that his 2009 report indicated: that the quality of official record keeping in Sri Lanka is high; that the background of returning asylum seekers was likely known to authorities there; and that Sri Lankan authorities would likely know the Applicant’s background. Professor Good also said in his report that: the law in Sri Lanka allowed arrest and lengthy detention without charge; that torture is routinely used by security forces and goes unpunished; and that abductions and disappearances had been carried out by paramilitary proxies. The Delegate noted that Professor Good’s 2009 report was inconclusive as to how the defeat of the LTTE by government forces in 2009 would affect the level of risk to returnees.
[69] In his 2010 report, Professor Good said that the Sri Lankan government was actively pursuing those who were suspected of involvement with the LTTE. The Delegate contrasted this report with a quotation from the 5 July 2001 – UNHCR Guidelines on Sri Lanka (UNHCR Guidelines) which said that the Sri Lankan government had relaxed the Emergency Regulations that had permitted some of the more questionable practices. The UNHCR Guidelines also said that some adults who had been detained for LTTE involvement had been released following completion of rehabilitation programs. The UNHCR Guidelines noted allegations of torture and death of LTTE suspected detainees in prison and that persons suspected of having links to the LTTE may be at risk of persecution in Sri Lanka. The UNHCR Guidelines also said that links to the LTTE could exclude some people from refugee status, though those same people could be at risk of persecution because of their LTTE membership.
[70] The Delegate found that LTTE involvement was a factor to consider, but that country documentation did not indicate large scale mistreatment of former LTTE affiliates.
[71] The Delegate reviewed the UK Home Office Operation Guidance Note Sri Lanka: August 2009 which indicated that low level supporters of the LTTE would not generally be of interest to the Sri Lankan authorities. While high-profile LTTE members would be wanted by the authorities, the Delegate found that there was no evidence that the Applicant was such a person. She also referred to the UK Home Office – Country of Origin Information Report for Sri Lanka, dated 11 November 2010 which said that, while many LTTE supporters had been detained in Protective Accommodation and Rehabilitation Centers (PARCS), those with low-level involvement were generally released after completing community reintegration programs.
[72] The Delegate also noted that the Sri Lankan government had instituted a reconciliation commission. She found, based on an article from the Integrated Regional Information Networks – a news service of the UN Office for the Coordination of Humanitarian Affairs – that a trend of Sri Lankan refugees returning home had developed. She found that the Tamil diaspora believed there was increasing normalcy and stability in Sri Lanka and that the likelihood of persecution had decreased.
The Applicant’s Past Experiences
[73] The Delegate found that the Applicant had spent the period from 2005 to 2009 in Sri Lanka practically without incident. She referred to his interview at the Canadian High Commission in Colombo in 2008, where he said he had been arrested and released after two weeks in 2006. At that interview, he also said that, apart from this arrest and detention, he had not been jailed or severely mistreated. He said that he was tortured at a camp in Jaffna before he came to Canada. The Delegate noted that the High Commission did not issue a Temporary Resident Permit immediately after the interview as it determined that further checks were needed. She also noted that the Applicant had been served with a notice of the Minister’s intent to seek a new 115(2)(b) decision on 23 January 2009 and that, on 9 February 2009, he told officers at the High Commission about his alleged abduction and beating. For the Delegate, the timing of his latest allegation of mistreatment gave rise to credibility concerns. She examined a medical report from Dr. Ellawalla, a Consultant Trauma and Orthopedic Surgeon at the Asiri Central Hospital in Colombo, which said that the Applicant had soft tissue contusions on his shoulder and wrist and that X-rays did not show any bone injuries.
[74] The Delegate also quoted from the CID Letter which said that
On Interrogation [the Applicant] admitted committing the following crimes in Canada:
1) Assaulting a security officer on duty at a cinema hall in Canada
2) creating a commotion and causing damages to a restaurant in 1999
3) being a member of LTTE cadre, AK Kannan’s group
The letter also said that there were no records showing that the Applicant was a member of “Vambottas Gang.”
[75] The Delegate considered the fact that the Applicant’s alleged abduction between 30 January and 1 February 2009 took place after he was served with notice of the Minister’s intent to seek a