Federal Court Decisions

 

 

 

Date: 20070222

Docket: IMM-1424-06

Citation: 2007 FC 193

Ottawa, Ontario, February 22, 2007

PRESENT:     The Honourable Mr. Justice Shore

 

 

BETWEEN:

SUJEEWA SENANI PRIYANTA JAYASINGHE

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

INTRODUCTION

[1]               It is in Canada’s legitimate interests to avoid becoming a “haven for criminals and others whom we legitimately do not wish to have among us” and who are in violation of its domestic laws and its international obligations, this “to promote international justice and security by fostering respect for human rights…” (Reference is made to: Zazai v. Canada (Minister of Citizenship and Immigration), [2005] F.C.R. 78, [2004] F.C.J. No. 1649 (F.C.) (QL); aff’d [2001] 2005 FCA 303, [2005] F.C.J. No. 1467 (C.A.) (QL); and also, Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), subparagraph 3(1)(i)).

 

JUDICIAL PROCEDURE

[2]               This is an application for judicial review of the decision of the First Secretary of the Canadian High Commission in Colombo, Sri Lanka (Officer), dated February 24, 2006, wherein she determined that the Applicant did not meet the requirements for a temporary resident visa. The Officer found reasonable grounds to believe the Applicant was inadmissible pursuant to paragraph 35(1)(a) of the IRPA. The Officer found reasonable grounds to believe the Applicant had, either personally committed or, was complicit in the commission of torture and mistreatment of prisoners and human rights abuses against civilian populations, during his service with the Special Forces of the Sri Lankan Army between 1992 and 2000.

 

BACKGROUND

[3]               The Applicant, Mr. Sujeewa Senani Priyanta Jayasinghe, is a citizen of Sri Lanka. On January 31, 2006, he submitted an application for a temporary resident visa (visa application) to the Canadian High Commission in Colombo, Sri Lanka to facilitate a visit to Canada as his wife, a Canadian permanent resident, was expected to give birth on February 25, 2006. (Affidavit of Kristin Erickson; Certified Tribunal Record, pp. 1, 21).

 

[4]               On the day of the application, the Officer reviewed the visa application and interviewed Mr. Jayasinghe. The Officer questioned Mr. Jayasinghe about his military career. Mr. Jayasinghe stated that he was, at the time of the interview, a Major in the Sri Lankan Army. He further stated that he joined the Sri Lankan Army in 1990 as a Cadet Officer and then was promoted through the ranks of Second Lieutenant, Lieutenant, Captain and Major, his current rank. The Officer sought further information about Mr. Jayasinghe’s military record and he agreed to provide her with his detailed service record. (Affidavit of Kristin Erickson, paras. 4-5; Certified Tribunal Record, pp. 9, 64).

 

[5]               On February 1, 2006, the Officer interviewed Mr. Jayasinghe for a second time (second interview). He, then, provided his detailed service record. The Officer advised Mr. Jayasinghe that she had concerns in regard to a particular conduct of the Sri Lankan Army and advised him of the possibility that persons who had served in that army may be inadmissible to Canada. (Affidavit of Kristin Erickson, para. 6; Notes from second interview, Certified Tribunal Record, pp. 52-53, 64).

 

[6]               At the interview, Mr. Jayasinghe stated that some of the information he was providing might be restricted and expressed concern that it would be widely available within the visa office. The Officer therefore kept the notes in hard copy in her manager’s safe. (Affidavit of Kristin Erickson, para. 6; Certified Tribunal Record, pp. 66, 73).

 

[7]               Mr. Jayasinghe’s service record indicated, inter alia, that he had been on active duty in the Special Forces of the Sri Lankan Army for approximately eight years. The Officer noted that from January until July 1997, Mr. Jayasinghe was the Second in Command of the F Squadron, 1^st Regiment of the Special Forces with service in Jaffna, Vavuniya, Batticaloa and Mannar. In July 1997, Mr. Jayasinghe was promoted to Commanding Officer, F. Squadron, 1^st Regiment of the Special Forces. He continued serving in that rank until February 1999 with service in Jaffna, Vavuniya, Batticaloa, Mannar, Mankulam, and Elephant Pass. The Officer asked Mr. Jayasinghe detailed questions about his role and actions as a commanding officer of the Special Forces. Mr. Jayasinghe indicated that his regiment was specially trained for jungle warfare and that he and his squadron were involved in most operations during this time, including Operation Jayasikuru, an operation launched by the Special Forces in May of 1997. Mr. Jayasinghe indicated that he, and those under his command, interrogated and killed people whom they identified as Liberation Tigers of Tamil Eelam (LTTE). (Detailed Service Record, letter dated February 1, 2006; Certified Tribunal Record, pp. 55-57; Affidavit of Kristin Erickson, para. 6, Exhibit “C”; Notes from second interview, Certified Tribunal Record, pp. 52-53, 64).

 

[8]               After the second interview, the Officer sent the interview notes and Mr. Jayasinghe’s service record to Citizenship and Immigration Canada, Canada Border Services Agency (CBSA), and the Canadian Security Intelligence Services with a request for routine background security checks and for information they could provide. The Officer sought urgent attention to her request in light of the imminent birth of Mr. Jayasinghe’s child. (Affidavit of Kristin Erickson, para. 7; Certified Tribunal Record, p. 73).

 

[9]               The Officer received open information from CBSA concerning the Sri Lankan army’s activities in Mr. Jayasinghe’s service area and during his time of service. CBSA noted that both the government forces and the LTTE had committed grave human rights abuses and expressed concerns about the use of torture as an investigation technique, Mr. Jayasinghe’s service and position, and Mr. Jayasinghe’s involvement in Operation Jayasikuru. CBSA recommended further questioning and scrutiny of the case. (Certified Tribunal Record, pp. 68-69; Affidavit of Kristin Erickson, para. 7).

 

[10]           The Officer asked Mr. Jayasinghe to attend another interview on February 14, 2006 (third interview). The Officer explained that she was particularly interested in the period of his command from 1997 to 2000 and asked him numerous and detailed questions about that time. Mr. Jayasinghe denied any knowledge about human rights abuses. He indicated that during operations, both, he and his forces would try to avoid civilians but admitted that it was a “main problem” to distinguish between terrorists and civilians. Mr. Jayasinghe stated that he was not involved in many operations; his duties as Second in Command were largely administrative, and that under his command of F Squadron, he and his men mostly trained or conducted sports meets. (Affidavit of Kristin Erickson, para. 9; Notes from third interview, Certified Tribunal Record, pp. 48-51, 66).

 

[11]           The Officer advised Mr. Jayasinghe that his responses were not credible in the face of his previous statements and reliable reports of misconduct perpetrated by the armed forces. The Officer explicitly mentioned reports from human rights organizations and the United States Department of State which cited examples of misconduct committed by the Sri Lankan Army in his station areas and at the relevant time. At the end of the interview, Mr. Jayasinghe suggested that he was “chased out” for not doing what the Special Forces had asked of him. The Officer noted that the Applicant had in fact been promoted. (Affidavit of Kristin Erickson, para. 9; Notes from third interview, Certified Tribunal Record, pp. 48-51, 66).

 

[12]           The Officer sent the notes of the third interview to CBSA with an urgent request for further information. CBSA responded to the Officer’s request on February 17, 2006 with documentary evidence from public sources. (Certified Tribunal Record, p. 70; Affidavit of Kristin Erickson, para. 10).

 

[13]           The Officer reviewed Mr. Jayasinghe’s responses to her questions, the information from CBSA, and the documentary evidence and concluded that Mr. Jayasinghe was not credible due to his denials of any knowledge or involvement in the acts that were known to have been committed at the relevant time and in his station areas. The Officer found reasonable grounds to believe that Mr Jayasinghe committed or was complicit in war crimes, genocide, or crimes against humanity, namely, the commission of torture and mistreatment of prisoners and human rights abuses against civilian populations. (Certified Tribunal Record, pp. 62-63).

 

ISSUES

[14]           1)   Did the Officer breach a duty of fairness to the Applicant?

2)   Did the Officer err in her inadmissibility finding against the Applicant?

 

 

 

STANDARD OF REVIEW

[15]           Credibility findings such as the ones made in this case can be reviewed only if they are erroneous and made in a perverse or capricious manner or without regard for the material before the decision-maker, that is, if they are patently unreasonable.

 

[16]           The question as to whether the facts, as found, establish reasonable grounds to believe an individual is involved in the direct commission of, or is complicit in the commission of, crimes against humanity is reviewable on a standard of reasonableness.

 

[17]           Whether a breach of natural justice has occurred is a question of law, reviewable on a standard of correctness.

(Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 39 (QL); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paras. 55-56).

 

1)   Did the Officer breach a duty of fairness to the Applicant?

Identification of sources of reports on human rights abuses

committed by the Sri Lankan Army

 

[18]           Mr. Jayasinghe argues that the Officer breached her duty of fairness by allegedly failing to disclose the particular human rights abuses committed by the Sri Lankan army or by himself, and by allegedly failing to identify the documentary evidence about those abuses upon which she relied.

 

[19]           Contrary to Mr. Jayasinghe’s submissions, he was provided with three interviews, not two, and during those interviews, he was given the opportunity to address the Officer’s concerns about his activities as a commanding officer in the Special Forces. The Officer asked numerous questions which clearly elucidated the kinds of abuses that were of concern. (Certified Tribunal Record, pp. 48-53).

 

[20]           Mr. Jayasinghe, in his Further Memorandum of Argument, states that a contradiction exists between his evidence and that of the Officer with respect to, inter alia, whether she identified to the Applicant the sources of reports on human rights abuses committed by the Sri Lankan Army. (Applicant’s Further Memorandum of Argument dated, January 11, 2007, para. 11).

 

[21]           In Mr. Jayasinghe’s Submissions in Reply, however, he conceded that the Officer gave him the names of organizations publishing the reports on human rights abuses. (Applicant’s Submissions in Reply, dated, June 16, 2006, para. 1).

 

[22]           Even absent, Mr. Jayasinghe’s own former admission that he was told which organizations had published the relevant reports, the Applicant’s current submission that his evidence ought to be preferred to that of the Officer is not tenable.

 

[23]           The Officer’s notes clearly indicate that the reports were from both human rights organizations and the U.S. State Department. Unlike the facts in the case of Najat v. Canada (Minister of Citizenship and Immigration), 2006 FC 1237, [2006] F.C.J. No. 1562 (QL), upon which Mr. Jayasinghe relies, the affidavit evidence of the Officer with respect to the country documentation is merely an elaboration on the evidence already provided by her notes, namely that she referred to human rights organizations during the third interview. (Notes of Visa Officer from third interview, Certified Tribunal Record, p. 50, last full paragraph).

 

Officer was not required to produce reports to Applicant

[24]           Mr. Jayasinghe further argues that the Officer ought to have notified the Applicant of the relevant passages of the reports to which she referred.

 

[25]           Contrary to Mr. Jayasinghe’s submissions on this issue, the decision in Mittal (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 727 (QL), is clearly distinguishable. In Mittal, the visa officer rejected applications for student visas in part because the officer considered evidence of the quality and affordability of private school education in India which the applicants had not provided and which were not even in the visa file (evidentiary record). The applicants in Mittal were completely unaware that the visa officer’s inquiries would be relevant to the decision and, on this basis, the Court found the visa officer’s actions had breached procedural fairness.

 

[26]           The discharge of a visa officer’s duty of fairness must be assessed on a case-by-case basis. In cases, alleging a breach of duty of fairness, based on the failure to disclose reports which exist in the public domain, the question is whether the disclosure of the reports or references to specific passages of the report was required in order to provide the applicant with a “reasonable opportunity in all the circumstances to participate in a meaningful manner in the decision-making process”. (Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 854 (F.C.A.) (QL), at para. 26).

 

[27]           Mr. Jayasinghe clearly had a reasonable and meaningful opportunity. On the very day of the application, the Officer advised Mr. Jayasinghe that his military record was at issue. At the second interview, on February 1, 2006, the Officer advised Mr. Jayasinghe that she was concerned that he may be inadmissible based on his service with the Sri Lankan Army and asked him questions related to that concern. On February 14, 2006, the Officer convoked the third interview, during which she again indicated through her detailed questions, the kinds of human rights abuses that were imputed to the Sri Lankan Army. In that interview, the Officer also referred to the country reports that cite serious misconduct by the Sri Lankan Army. After the interview, Mr. Jayasinghe submitted a letter to the Officer which clearly demonstrates his awareness of the Officer’s concerns about human rights violations and the killing of civilians. (Letter from Officer to the Applicant, dated January 31, 2006, Certified Tribunal Record, p. 9; Affidavit of Kristin Erickson, p. 3, para. 6; Notes from third interview, Certified Tribunal Record, pp. 48-51; Notes from second interview, Certified Tribunal Record, pp. 52-53; Letter from the Applicant to the Officer, dated February 16, 2006, Certified Tribunal Record, pp. 13-14).

 

[28]           Mr. Jayasinghe takes issue with the fact that the Officer did not draw his attention to specific passages from the country reports and did not mention a few news reports that were also before her. Mr. Jayasinghe cannot demonstrate, however, that the impugned actions of the Officer prevented the Applicant from participating meaningfully in the decision-making process. Mr. Jayasinghe was well aware of the kinds of allegations of misconduct imputed against the Sri Lankan Army and was given a fair opportunity to respond to the inadmissibility concerns. In response, he simply denied all reports. (Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461, [1998] F.C.J. No. 565 (QL); Khwaja v. Canada (Minister of Citizenship and Immigration), [2006] FC 522, [2006] F.C.J. No. 703 (QL), paras. 17-18).

 

Visa Officer was not required to produce communication received from CBSA

[29]           Mr. Jayasinghe further argues that the Officer ought to have produced a copy of the communication received from Canada Border Services Agency (CBSA response). Mr. Jayasinghe compares the Officer’s decision to a Ministerial danger opinion and therefore relies on the reasoning of the Federal Court of Appeal in the case of Canada (Minister of Citizenship and Immigration) v. Bhagwandass, 2001 FCA 49, [2001] F.CJ. No. 341 (QL).

 

[30]           A visa officer’s decision, however, differs significantly in both nature and procedure from that of a Ministerial danger opinion. Firstly, visa officers make determinations in an institutional setting. The tasks of visa officers include reviewing applications and making decisions based on the parameters set out in the IRPA. Secondly, unlike a danger opinion, the processing of an application for a temporary resident visa is not a procedure that is “adversarial from outset and remains so until its conclusion.” (Bhagwandass, above, at para. 31).

 

[31]           Thirdly, danger opinions are made by the Minister or a Minister’s delegate after consideration danger assessments and risk assessments prepared by departmental officials. Hence, in cases such as Bhagwandass, the Courts have found that disclosure of the department officials’ opinions for reply evidence and submissions by the person concerned was required since the Minister or Minister’s delegate likely gave decisive weight to those assessments. The reasoning in Bhagwandass is therefore specific to the danger opinion context and is not applicable to the present case. (Bhagwandass, above; Chowdhury v. Canada (Minister of Citizenship and Immigration), 2002 FCT 389, [2002] F.C.J. No. 503 (QL), at para. 18; Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 172(2); Immigration Manual (Enforcement) Chapter ENF 28, Ministerial Opinions on Danger to the Public and to the Security of Canada).

 

[32]           The facts of the present case are also distinguishable from cases in which a risk opinion is provided to an officer, determining an application for landing based on humanitarian grounds (H&C officer). In such cases, the H&C officer specifically requires a risk opinion in assessing risk. In the present case, the CBSA response, which was based on publicly available country documentation, only confirmed the opinion of the Officer who did, in fact, have the jurisdiction and expertise to make inadmissibility findings, and who ultimately did so. (Haghighi, above; Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 266, [2002] F.C.J. No. 341 (QL), at para. 14; Immigration Manual (Inland), Chapter IP 5, Immigrant Applications made in Canada on Humanitarian or Compassionate Grounds).

 

[33]           Given that the CBSA response provided only assistance to the Officer, rather than a decisive opinion, Mr. Jayasinghe has failed to establish that the disclosure of the CBSA response was necessary in order for him to address the Officer’s concerns about his inadmissibility.

[34]           The Officer did not breach any duty of fairness to Mr. Jayasinghe.

 

2)   Did the Officer err in her inadmissibility finding against the Applicant?

INADMISSIBILITY – APPLICABLE LEGISLATIVE CRITERIA

[35]           Paragraph 35(1)(a) of the IRPA provides that:

 

[36]           Subsections 4(3) of the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24,  ss. 4(3) (in part) provides the following definitions:

 

[37]           Subsection 6(1.1) of the Crimes Against Humanity and War Crimes Act provides that the commission of a crime includes inchoate offences:

 

[38]           Section 7 of the Crimes Against Humanity and War Crimes Act provides that a military commander can also be responsible for the acts or omissions of those acting under his or her command.

 

[39]           Section 33 of the IRPA serves to further clarify section 35 and plainly states that the standard of proof with respect to paragraph 351(1)(a) is “reasonable grounds to believe”:

 

[40]           In Chiau v. Canada (Minister of Citizenship and Immigration), [1998] 2 F.C. 642, [1998] F.C.J. No. 131 (T.D.) (QL); affirmed [2001] 2 F.C. 297, [2001] F.C.J. No. 2043 (C.A.) (QL); leave to appeal to the Supreme Court of Canada dismissed, [2001] S.C.C.A. No. 71 (QL), Justice Jean-Eudes Dubé explained the standard of “reasonable grounds” as follows:

[27]      The standard of proof required to establish "reasonable grounds" is more than a flimsy suspicion, but less than the civil test of balance of probabilities. And, of course, a much lower threshold than the criminal standard of "beyond a reasonable doubt". It is a bona fide belief in a serious possibility based on credible evidence.

 

(Reference also is made to: Zazai, above; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298, [1994] F.C.J. No. 912 (QL); Qu v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 3, [2002] F.C.J. No. 1945 (C.A.) (QL), at para. 28.

[41]           Subsection 35(1)(a) reflects Canada’s right and duty to refuse entry to certain non-citizens. It is in Canada’s legitimate interests to avoid becoming a “haven for criminals and others whom we legitimately do not wish to have among us” and who are in violation of its domestic laws and its international obligations, this “to promote international justice and security by fostering respect for human rights…” (Zazai, above, at para. 41, citing Chiarelli, above; and also, IRPA, ss. 3(1)(i)).

 

FINDING OF COMMISSION OF ACTS PROPERLY MADE

[42]           The jurisprudence of the Federal Court of Appeal makes it clear that where someone personally commits physical acts that amount to a crime against humanity, that person is responsible. In Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, [1993] F.C.J. No. 1145 (C.A.) (QL), Justice Allen Linden, speaking for the Federal Court of Appeal, stated that:

[5]        …It is clear that if someone personally commits physical acts that amount to a war crime or a crime against humanity, that person is responsible. However, it is also possible to be liable for such crimes-to "commit" them-as an accomplice, even though one has not personally done the acts amounting to the crime…

 

 

[43]           In the present application, the Officer found reasonable grounds to believe that Mr. Jayasinghee had personally committed, or those under his command had committed, violations of human rights, war crimes, genocide or crimes against humanity, pursuant to subsection 35(1)(a) of the IRPA.

 

[44]           The Officer considered the legislation and identified the specific crimes and abuses in question, namely torture and mistreatment of prisoners and human rights abuses against civilian populations:

Specifically, there are reasonable grounds to believe that you committed or were complicit in torture and mistreatment of prisoners and human rights abuses against civilian populations. I have reached this conclusion because you were a commanding officer of the government forces operating in times and locations where massive abuses of both prisoners and civilian populations occurred.

 

(Certified Tribunal Record, p. 63).

 

[45]           The Officer thereby satisfied the specificity requirement regarding crimes against humanity and war crimes, as set out by the Court of Appeal in Sivakumar, above, at para. 33. (Certified Tribunal Record, pp. 62-63).

 

[46]           In making her decision, the Officer reviewed Mr. Jayasinghe’s statements made at the three interviews. In the course of being interviewed by the Officer, the Applicant had made the following relevant admissions:

(a)        Between January 1997 and February 1999, he was a commanding officer of a specialized force within the Sri Lankan Army;

(b)        The Special Forces engaged in active service including small group operations, deep penetration operations, infiltration, screening, blocks, and ambushes;

(c)        During ambushes he and those under his command fired their guns at people who entered the “killing area”;

(d)        He and those under his command killed people they identified as LTTE members;

(e)        It was a “main problem” to distinguish civilians from terrorists; and

(f)         He conducted interrogations, or supervised those under his command to conduct interrogations of terrorists and civilians.

(Certified Tribunal Record, pp. 48-53).

 

[47]           The Officer properly found Mr. Jayasinghe’s responses to her questions about torture and mistreatment of prisoners and abuses against civilian populations to be inconsistent, implausible, and lacking credibility. (Affidavit of Kristin Erickson; Certified Tribunal Record, pp. 62-63).

 

[48]           For example, Mr. Jayasinghe’s evidence on the nature of his service was equivocal and inconsistent. Mr. Jayasinghe advised that his regiment was specially trained for jungle warfare. At the second interview, he stated that he was involved in all kinds of active operations, including ambushes that involved opening fire in “killing areas”.

What kind of action was group involved in?

Small group operations, deep penetration, infiltration.

Were you doing that personally?

Yes.

Where involved in deep penetration actions?

Many areas.

Can you give me an idea?

FDS, Forward Defence Line, from there were are penetrating into their bunkers, collecting information and sometimes we do ambushes…

When did you do on ambushes?

When they come to killing area, we fire at them…

What about the others?

They are terrorists, no.

So you were killing?

Yes, of course, if we identified as LTTE.

 

(Certified Tribunal Record, pp. 52-53).

 

 

[49]           At the third interview, Mr. Jayasinghe attempted to minimize his involvement in active operations. He directly contradicted the information provided in both his military record and his second interview, suggesting that he was engaged in administration while Second in Command, and that during 1997-1999, he was mostly involved in training and organizing sports meets for those under his command.

Second in command and command, resp for intelligence gathering?

Second in command means resp for administration…

When we spoke before, you told me you were in command of 36 men as second in command and 130 as command, resp for small group operation, deep penetration, infiltration and screening, blocks, ambushes, everything. Why telling me different info now?

When I am squadron commander, these are resp, when I am second in command, all admin…

Why are there so many credible and reliable reports about misconduct of special forces?

That can not be, we are separate kind of unit, most of time we are not fighting.

If you are not fighting most of the time, what are you doing?

Training.

Form 97 to 99, during command of F squadron, you are training?

When we have leisure time, we are training. Sports meets for their benefits.

 

(Certified Tribunal Record, pp. 48, 50, 52-53).

 

[50]           Mr. Jayasinghe also admitted that either he or those under his command conducted interrogations of prisoners or handed them over to other units for questioning. His evidence about the interrogation procedure applied to captured persons, was implausible and included the following responses:

What happened to prisoners after hand over to commander?

Handed over to ICRC, we are maintaining books and who was handed over. What did ICRC do with them?

After we hand over, we don’t know anything about this, we are handing over will all the documents.

…

What wd you do if you captured one of terrorists during your operation?

Hand over to high command.

Even if in middle of operation, wd stop operation and take them back?

We have some separate teams, for administration party and we hand over to them…

How did you question them?

When battle is going on, don’t have time to question, just relax time, with permission of higher authorities, we are questioning them.

…

What do you if they do not answer questions?

We try to get them with asking, saying that we are not doing anything, saying that we have good intentions to them and we are questioning.

What if they do not accept good intentions and do not want to answer questions?

Then we can’t do anything.

What do you do with them if they will not answer?

We have some specialized trained soldiers to somehow motivate them.

(Certified Tribunal Record, pp. 48-49).

 

[51]           Likewise, Mr. Jayasinghe’s evidence on his interactions with civilians was inconsistent and implausible. During the second interview, he had stated:

Was sq ever involved in operations where civilians were affected?

No, if there is main operations, we don’t know, but we are not doing.

To the best of your knowledge, none of your operations ever had an effect on civilians?

No.

 

(Certified Tribunal Record, p. 53).

 

[52]           During the third interview, however, Mr. Jayasinghe admitted that he had encountered civilians during his service.

During operations, did you ever encounter civilian populations?

Yes.

What did you do when encountered civilians?

Most of time we try to avoid bc we can’t fire on, bc of civilians we have sacrificed so many lives, we try to protect them…

What wd you do if you were on operation in jungle and there are civilians in middle of operations?

We try to avoid, if they are in the way, we hand them over to rear operations.

How wd you determine whether they are terrorists or not?

That is main problem. They are in civils, we have to treat as civilians, after they are giving all details of everything.

 

(Certified Tribunal Record, pp. 49-50).

 

[53]           At the end of the third interview, Mr. Jayasinghe provided new information that was further inconsistent with his previous statements about his activities in the Special Forces.

Says he was chased out of special forces bc not doing what they asked of him. Promotion and movement to Army HQ is hardly being chased out?

They are not wanting me, and bc of my good record, that is why I request for HQ for admin, in SF most of time I did administration bc I am not well in operations.

 

(Certified Tribunal Record, p. 51).

 

[54]           The Officer evaluated Mr. Jayasinghe’s inconsistent evidence gathered over the course of three interviews and weighed it against the credible country reports which indicated that massive abuses had been committed by the Sri Lankan Army in the areas and during the times and locations where Mr. Jayasinghe was in service as a commanding officer in the Special Forces. Mr. Jayasinghe’s evidence and his attempts to revise his answers with implausible explanations and blanket denials about operations and interrogation techniques, were not credible. Based on the evidence before her, including the inconsistencies and implausibilities, Mr. Jayasinghe’s statements, her credibility finding was not patently unreasonable and should not be disturbed by this Court. (Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, at para. 38; Zazai, above, at para. 14; Certified Tribunal Record, pp. 22-44).

[55]           On the basis of her findings of fact, the Officer concluded that there were reasonable grounds to believe that Mr. Jayasinghe was a member of the inadmissible class described in paragraph 35(1)(a) of the IRPA.

 

[56]           Given the standard of proof for establishing “reasonable grounds to believe”, and based on the evidence outlined above, the Officer did not err in finding that there were serious reasons for considering that Mr. Jayasinghe had committed, either personally or (as discussed below) through the exercise of control of his men, human rights abuses, war crimes or crimes against humanity. (Sivakumar, above, at para. 18).

 

COMPLICITY FINDING PROPERLY MADE

[57]           The Officer’s complicity finding was reasonable and consistent with the jurisprudence. (Harb, above; Kasturiarachchi v. Canada (Minister of Citizenship and Immigration), 2006 FC 295, [2006] F.C.J. 407 (QL)).

 

[58]           Mr. Jayasinghe suggests that the Officer found him complicit in crimes against humanity and human rights abuses by the sole and simple reason of his rank. This is contradicted by the Officer’s finding that she had reasonable grounds to believe that Mr. Jayasinghe, himself, had committed torture and mistreatment of prisoners and human rights abuses against civilians. Mr. Jayasinghe’s own evidence demonstrated he was an active participant in military operations, as described above. As he rose through the ranks, Mr. Jayasinghe not only commanded officers in the field but also trained officers and soldiers in the Special Forces. In addition, he remained in the forces as of the date of the application. (Certified Tribunal Record, pp. 55-57).

 

[59]           Mr. Jayasinghe’s reliance on this Court’s decision in Hamidi v. Canada (Minister of Citizenship and Immigration), 2006 FC 333, [2006] F.C.J. No. 402 (QL), does not assist him. In Hamidi, the principal issue was whether the decision-maker provided supporting reasons for concluding that the Applicant was inadmissible both under IRPA 35(1)(a) and 35(1)(b) as a trainer in KhAD, which had been found to be an organization with a limited, brutal purpose. No evidence supported a direct commission of offences. Hamidi had only (and improperly) been found complicit. Notably, the decision-maker in that case had also failed to consider Hamidi’s refusal to command troops and his disengagement from the organization.

 

[60]           The Officer, in this case, never found that the Special Forces of the Sri Lankan Army had a limited, brutal purpose, nor was this necessary to find Mr. Jayasinghe inadmissible, given his descriptions of active participation and command over his squadron. Nor is there any evidence to demonstrate that the Officer confused her review of the IRPA 35(1)(a) with the inadmissibility of senior officials from designated regimes under the IRPA 35(1)(b) as Mr. Jayasinghe’s mere rank was not determinative.

 

[61]           The decisions in Murcia v. Canada (Minister of Citizenship and Immigration), 2006 FC 287, [2006] F.C.J. 364 (QL) and Ardila v. Canada (Minister of Citizenship and Immigration), 2005 FC 1518, [2005] F.C.J. 1876 (QL), do not assist Mr. Jayasinghe, either. In Murcia, this Court properly found that there must be a link between the person concerned and the crimes committed in order to establish complicity. The decisions in Murcia and Ardila both concerned Colombian refugee claimants who had been members of that country’s armed forces. The panels of the Refugee Protection Division failed to focus on the specific acts committed by the claimants in both cases since there was no evidence to connect them to any unit which had been known to have committed atrocities. (Reference is also made to: Bedoya v. Canada (Minister of Citizenship and Immigration), 2005 FC 1092, [2005] F.C.J. No. 1348 (QL).

 

[62]           Mr. Jayasinghe fails to show how it was necessary for the Officer to identify the name of the Applicant’s squadron in her Reasons since he was a member of the Special Forces, a particular subset of the army, and since he had described the activities of his squadron in some detail in the second and third interviews. The Officer did not merely situate Mr. Jayasinghe in the Sri Lankan Army, and, at a particular time where widespread human rights abuses were occurring, and, then make an inadmissibility finding. The evidence before the Officer included Mr. Jayasinghe’s own descriptions of his active participation in the Special Forces operations and his supervision and command over a squadron of 130 men during those operations, including Operation Jayasikuru. This evidence, preferred by the Officer and which came from Mr. Jayasinghe himself, coupled with evidence of similar activities and human rights abuses in the country reports, supported her conclusion. (Certified Tribunal Record, pp. 48-53 and pp. 22-44).

 

[63]           The Officer properly concluded that Mr. Jayasinghe was also complicit. Mr. Jayasinghe is a long-standing member of the Sri Lankan Army and a commanding officer in regions of Sri Lanka where human rights abuses were known to have been committed. Mr. Jayasinghe demonstrated a personal and knowing control and participation in military operations, beyond mere membership, and a shared, common purpose by reason of his role and training of others. He demonstrated relevant knowledge of specialized military operations and the commission of specific offences. He was promoted repeatedly and was still an active member of the forces at the time of his application. Mr. Jayasinghe only sought to minimize this evidence and, indeed, his relationship with the army, after the Officer made it clear to him that he could be found inadmissible to Canada. The Officer did not err in finding Mr. Jayasinghe complicit as well as directly responsible for the commission of crimes. (Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306, [1992] F.C.J. No. 109 (C.A.) (QL); Kasturiarachchi, above; Certified Tribunal Record, pp. 22-44 and 48-53).

 

[64]           Mr. Jayasinghe’s reliance on Andeel v. Canada (Minister of Citizenship and Immigration), 2003 FC 1085, [2003] F.C.J. No. 1399 (QL), does not assist him because the Officer in this case specifically mentioned the crimes which she had reasonable grounds to believe he had committed or that the Special Forces had committed. In Andeel, the visa officer provided insufficient explanation as to how the Applicant’s wife’s radio monitoring work for the South Lebanese Army rendered her complicit in crimes against humanity. Further, the visa officer simply mentioned the IRPA paragraph 35(1)(a) and a general reference to the Crimes Against Humanity and War Crimes Act without any further elaboration on how she could be complicit. The same cannot be said in this case.

 

[65]           The question arises how documentary evidence of human rights abuses by the Special Forces in 1997 and 1998, but the lack of documentary evidence of human rights abuses in 1999 and 2000, somehow counters the Officer’s concerns about Mr. Jayasinghe’s overall service between 1997 and 2000. Second, Mr. Jayasinghe refers to the documentary evidence of a Special Forces operation that took place while he was receiving training in India but fails to consider the documentary evidence of Special Forces activities in the north when he was stationed there. Third, Mr. Jayasinghe assumes that if the Sri Lankan government did not confirm that human rights abuses have taken place, then no human rights abuses must have taken place (despite the human rights reports to the contrary). Fourth, the fact that Operation Jayasikuru did not intentionally target civilians does not diminish the outcome of the indiscriminate attacks and their impact on civilians during this time. Based on his answers to the interview questions, Mr. Jayasinghe, as a commanding officer of his squadron, would reasonably be expected to understand the consequences or implications of indiscriminate attacks on civilians.

 

[66]           The evidence supported the Officer’s inadmissibility finding. This finding is not unreasonable.

 

CONCLUSION

[67]           For all the above reasons, this application for judicial review is dismissed.

 

JUDGMENT

THIS COURT ORDERS that

 

1.                  The application for judicial review be dismissed;

2.                  No serious question of general importance be certified.

 

 

“Michel M.J. Shore”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-1424-06

 

STYLE OF CAUSE:                          SUJEEWA SENANI PRIYANTA JAYASINGHE

                                                            v. THE MINISTER OF CITIZENSHIP

                                                            AND IMMIGRATION

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      February 13, 2007

 

REASONS FOR JUDGMENT:       SHORE J.

 

DATED:                                             February 22, 2007

 

 

 

APPEARANCES:

 

Mr. Ronald Shacter	FOR THE APPLICANT
Ms. Linda Chen Ms. Matina Karvellas	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ronald Shacter Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANT
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT