K. (Y.P.) (re), Convention Refugee Determination Decisions

 

K. (Y.P.) (Re), Convention Refugee Determination Decisions [1991] C.R.D.D. No. 672 No. U91-02923

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario Panel: B. Riddell and S.S. Bajwa In camera Heard: December 20, 1989, March 8, April 19, May 3, June 14, July 4, July 18, August 27, and September 11, 1990 Decision: May 17, 1991 Sri Lanka (LKA)--Negative--Males--Agents of persecution--Exclusion clauses--Persecution for political opinion--Social group persecution--Terrorism--(Indexed). Appearances:

Hugh Evelyn and Clifford Luyt, for the claimant (s).

Stephen Gold, Refugee Hearing Officer.

REASONS FOR DECISION

These are the reasons for the decision with respect to the Convention refugee claim made by xxxxxxxxxxxxxxxxxxxxxxx also known as "Anton", a thirty-four-year-old citizen of Sri Lanka, which was heard pursuant to section 69.1 of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 18.]. The hearing into this claim required nine sittings in all. The dates of these sittings were December 20, 1989, March 8, 1990, April 19, 1990, May 3, 1990, June 14, 1990, July 4, 1990, July 18, 1990, August 27, 1990, and September 11, 1990. At the first two sittings, the claimant was represented by Hugh Evelyn, an Immigration Consultant. At all subsequent sittings, the claimant was represented by Clifford Luyt, a Barrister and Solicitor licensed to practice in South Africa. Refugee Hearing Officer (RHO), Stephen Gold assisted the panel throughout. On December 19, 1989 the Minister's Representative notified the Refugee Division of the Minister's intention to take part in the proceedings pursuant to section 69.1(5) of the Act as the Minister was of the opinion that matters involving section F (a) and (c) of Article 1 of the (1951) United Nations Convention relating to the Status of Refugees were raised in this claim. Mr. W. A. McIntyre, an Appeals Officer with the Immigration Appeals Office, represented the Minister at the first sitting. Mr. J.D. Taylor, an Appeals Officer, represented the Minister at subsequent sittings. Robert Adamson of the United Nations High Commissioner for Refugees was present at all sittings pursuant to section 69(3) of the Immigration Act. As well, Heather Smith and G. Goodwin-Gill of the Law Reform Commission were present at various times throughout the proceedings pursuant to section 69(3) of the Immigration Act. The sittings of December 20, 1989 and March 8, 1990 resulted in adjournments at the request of the Minister's representative. The first adjournment was to allow sufficient time for the Canadian High Commission in Colombo, Sri Lanka, to research the claimant's activities. on March 8, 1990, a second adjournment was sought as the information requested had yet to be received. The claimant, in his Personal Information Form [Exhibit C-8.] (PIF), states that he has a well-founded fear of persecution for reasons of his political opinion and membership in a particular social group. He identifies the agents of persecution as being:

(1)the Indian authorities in India and the Indian Peace Keeping Force (IPKF) in Sri Lanka;

(2)the Liberation Tigers of Tamil Eelam (LTTE);

(3)other Tamil militant groups; and

(4)the government of Sri Lanka

The issue before the Refugee Division is to determine whether the claimant is a Convention refugee as defined by section 2(l) of the Immigration Act [as enacted by R. S. C. 1985 (4th Supp.), c. 28, s. 1.1, and whether he is a person who is excluded from that provision because he is considered not to be deserving of international protection. This definition reads in part:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country.

(b)has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to the Act;

The Schedule [as enacted by R. S. C. 1985 (4th Supp.), c. 28, s. 34.1 to the Act reads in part:

F.The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)he has committed a serious non-political crime outside the country-of refuge prior to his admission to that country as a refugee;

(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.

On April 19, 1990, May 3,1990, June 14,1990 and July 4, 1990 the claimant, with the aid of an interpreter proficient in the Tamil and English languages, related the following testimony which the panel found credible. The claimant is a Tamil who was born in Anuradhapura, Sri Lanka. The claimant's father was a government employee who was forced to retire in 1962, at age forty, when knowledge of the Sinhalese language became mandatory for government employees. The claimant testified that he joined the LTTE in July 1977, shortly after the organization had been banned by the Sri Lankan government. He remained in the organization, twice being elected to the Central Committee, until March 1981, when according to testimony, he left the movement to concentrate on his studies. The claimant had been attending the University of Jaffna since October 1979 and actively propagating the LTTE using his offices as a student leader. He cut short his university education in October 1982 and fled to India after being sought by the Sri Lankan authorities. At the outset of the April 19, 1990 sitting, the minister's Representative entered into evidence a letter dated March 9, 1990, from the Sri Lanka Police, Criminal Investigation Department [Exhibit M-1.1, which states that the claimant is a "proclaimed offender for attacking the Police Station Chavakachcheri on xxxxx. 82.11 A second letter from the same source dated March 22, 1990, which forms part of the same exhibit, states,xxxxxxxxxxxxxxxxxxxxxxxx was proclaimed in The Government Gazette xxxxxxx of xxxxx. 1983. The claimant denied participating in this attack and stated that he came to the attention of the government of Sri Lanka for his student activities and for seeking medical aid for LTTE combatants in February or March 1982. [Exhibit C-2, Police Report, 82.12.09 at 14.00 hours at Security Forces Headquarters, Gurunagar.] The claimant stayed in India from late 1982 until October 1985, when he returned to Sri Lanka. Shortly after his arrival in India in 1982, the claimant unsuccessfully attempted to obtain political asylum. However, in December 1983, the claimant was approached by Velupillai Prabakaran, the LTTE leader, to establish a Military Research and Study Centre in Madras with the financial assistance of the government of India. The claimant put aside his concerns about Prabakaran's leadership and the internal dissention within the movement and agreed to this task. The centre ultimately employed twenty-three lecturers and researchers under the claimant's direction and taught all aspects of guerrilla warfare. He testified that the LTTE recruits were instructed on the methods of military operations within the confines of the Geneva Convention and in conducting themselves so as to win the hearts and minds of the Tamil people. In June 1985, Prabakaran directed the claimant to take part in talks in Thimpu Bhutan between the Sri Lankan government and the five main rebel movements who had been brought together by the Research and Analysis Wing (RAW) of the Indian Intelligence Service. The talks broke down, following the deaths of forty Tamil civilians at the hands of the Sri Lanka Armed Forces. The claimant returned to his administrative and teaching duties at the military Research and Study Centre until Prabakaran acceded to his request to return to Sri Lanka to visit his family in Jaffna. He remained in Jaffna from October 1985 until January 1986. Following a dispute with the Regional Commander of Jaffna Province, Kiddu, on military strategy, which was mediated by Prabakaran, the claimant resigned his position at the Military Research and Study Centre and began working on an anti-tank weapon designed for use by the LTTE against armoured cars used by the Sri Lankan Armed Forces. The claimant testified that he returned to Sri Lanka in October 1986 and remained until January 1987 (contrary to the PIF, which indicates July 1987), when he returned to India to mass produce the new anti-tank mine. After spending about two months in India, the claimant returned to Sri Lanka to establish a Military and Intelligence Division of the LTTE. His task was essentially to develop a structure to gather information about the location of the Sri Lankan Armed Forces, their activities and movements, and to prepare accurate military maps and recruit intelligence officers. Upon accepting this assignment from Prabakaran, the claimant was promoted to Major. The five regional commanders were appointed Lieutenants-Colonel. The LTTE offensive began in March or April of 1987 and the Sri Lankan Armed Forces countered with Operation Liberation which (according to the claimant) devastated the northern and eastern provinces. The Indian government assisted the Tamil people by airlifting food to the population, and the LTTE by supplying massive amounts of arms. The Indo-Sri Lankan Accord, signed in July 1987, brought an end to the hostilities. At this time, the claimant, who had returned to India for a visit, flew to Jaffna on an Indian air force plane as Prabakaran had instructed. The claimant's new task involved dismantling the Military and Intelligence Centre and relocating it to Jaffna as a Police Academy. The Indo-Sri Lankan Accord had allowed for the formation of a Tamil Police Force for the northern and eastern provinces. Following the breakdown of the Accord, the LTTE declared all-out war against the IPKF, who had been in Sri Lanka as part of the Accord, and the Sri Lankan Armed Forces. The plans for the Police Academy were abandoned and the claimant was ordered by Prabakaran, because of the death of a military commander in Jaffna, to take charge and organize the defence of Jaffna Town. The claimant and his troops were able to hold Jaffna Town for fifteen days, before they were driven into the suburbs and eventually the jungle where they continued their guerrilla attacks. In early December, following an unilateral cease-fire declaration by the IPKF, informal negotiations began with the LTTE. Following a dispute with Prabakaran's second-in-command, Maththaiya, the claimant was ordered to return to India by Prabakaran. The claimant testified that these differences were largely a result of his strongly-held conviction that negotiations with India and the IPKF should be without pre-condition. During the period February to July, 1988, the claimant and Kiddu with others participated in peace talks in India with RAW representing the Indian government. These talks, despite the claimant's efforts [Exhibit C-7, The Island, June 26, 1988.] were doomed to failure, according to the claimant, due to the intractable position of Prabakaran and continued confrontations between the IPKF and the LTTE. At this time, the claimant became, once again, dissatisfied with the leadership of the LTTE. He could see no further advantage in fighting the IPKF and the Sri Lankan Armed Forces. Frustrated by his inability to obtain instructions from Prabakaran that would result in a reopening of the peace process and in hiding in India following the breakdown of talks in July 1988, the claimant made his feelings known to Prabakaran. As a result, he was expelled from the LTTE in December 1988. The claimant remained underground, avoiding the authorities, in India until January 1989, when he travelled to Canada on a false Malaysian passport via Singapore and the United States. The foregoing is a precis of the claimant's testimony which took approximately three sittings. Throughout the proceedings, the panel, RHO, counsel and Minister's Representative agreed on consensus as to the conduct of the proceedings, which follows closely the precedent set in CRDD claim No. T89-02190. First, the panel will consider the inclusionary aspects of the claim. The claimant states that he fears the government of India and the IPKF. As the claimant is a citizen of Sri Lanka, and only Sri Lanka, and as the IPKF is no longer in Sri Lanka, the panel need not consider this issue further. With respect to the claimant's fear of the LTTE, the panel has considered the Ward [A.G. Canada v. Ward, (1990) 2 F.C. 667 (C.A.).] decision. However, the facts of this claim differ substantially from that of Ward. Firstly, the LTTE controls much of northern and eastern Sri Lanka and are not simply a terrorist group but a de facto government. Secondly, according to the documentary evidence [Exhibit R-11, Amnesty International Report 1989, Sri Lanka.] before the panel, it is clear that all parties to this conflict, including the Sri Lankan government, have employed terror as a tool of war. All parties have been responsible for atrocious acts committed against both civilians and combatants. For these reasons, the panel considers that Ward is not, applicable. The claimant has been a member of the LTTE for close to a decade. His disagreements with Prabakaran, Kiddu and Maththaiya have been previously documented. However, the claimant testified as to reconciliations after bitter disagreements with Prabakaran in the past. It is evident, from his testimony, that Prabakaran has respect for the claimant's abilities and commitment to the cause in these circumstances. The panel concludes that there is a mere possibility as opposed to serious possibility of persecution at the hands of the LTTE. The claimant's fears of rival groups such as the Eelam People's Revolutionary Liberation Front (EPRLF), People's Liberation Organization of Tamil Eelam (PLOT), and Tamil Eelam Liberation organization (TELO), are as a result of long standing rivalries. The battle for supremacy has been won by the LTTE. [Exhibit R-13, "After the Flowers and Kisses, Friction", Asia Week, September 20, 1987.] As a result, the panel concludes that rival militant organizations no longer constitute a threat to the claimant. Lastly, the claimant expresses a fear of the government of Sri Lanka. As per Exhibit M-1, partially quoted supra, the claimant is wanted by the Sri Lankan authorities for his involvement in attacking a police station at Chavakachcheri in xxxxxxx of 1982. The claimant's PIF (Exhibit C-8.1 confirms that he last attended university that same month prior to being sought by the Sri Lankan government for other activities with the LTTE. The panel considers that the allegation put forward by the Sri Lankan police may well be true. While the claimant may fear prosecution for this politically motivated act, nonetheless he has, according to documentary evidence ["Exhibit R-6, "Sri Lanka Continuing Human Rights Violations", Amnesty International, May 1989.], good grounds to fear the Sri Lankan government.

Both the Emergency Regulations and the Prevention of Terrorism Act permitted long term detention without charge or trial. While Emergency Regulations are no longer in force, the Prevention of Terrorism Act remains in force as part of the normal law of Sri Lanka. Under both laws detainees have commonly been kept incommunicado for long periods of time; many have been tortured, and some have died in custody or "disappeared". [Exhibit R-6, supra.]

While the panel recognizes that it is a government's responsibility to determine criminal responsibility and bring those responsible to justice, it cannot accept that abuses by opposition groups such as the LTTE absolve governments of their responsibilities under international law to respect and protect fundamental human rights. [see Chaudri v. M.E.I. (1986), 69 N.R. 114 (C.A.).] The panel determines that the claimant's primary fear is persecution, not prosecution at the hands of the Sri Lankan government because of his political opinion as expressed by his acts while a member in the LTTE [see Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, paragraphs 84 and 85.]. The panel will now deal with the matter of the applicability of section F(a) of Article 1 of the Convention [Schedule to the Immigration Act, as enacted by R.S.C. 1985 (4th Supp.), c. 28, s. 34.]. The Minister chose not to pursue Article 1 F (c). The claimant asserted that the armed struggle by Sri Lankan Tamils was justified. While the panel accepts that Tamils constitute a distinct and oppressed minority within the country, it is beyond our scope to determine whether the actions of the LTTE and other militant groups accurately reflect the aspirations of their constituents and further whether the use of force in a guerrilla movement is justified in the historical context of Sri Lanka. International law with respect to liberation movements is exceedingly complex and, by its nature, open to political considerations from the international community. [The Right to Self Determination, Heather Smith, Law Reform Commission, 1990.] With respect to crimes against peace and war crimes, the panel accepts the assertion that these crimes are by and large perpetrated by the state or persons specifically acting as agents thereof in an international context [Legal Project, UNHCR Branch office in Canada, Paper No. 6, page I and 2.]. Therefore, the panel determines that these provisions of section F(a) of Article I do not apply to the claimant. We will however consider the claimant's actions with respect to crimes against humanity. [Ibid, page 3, 4 and 5.] The claimant was a member of the LTTE for close to ten years. During this time, atrocities were committed by all parties against the civilian population, rival organizations and opposing armed combatants. The claimant testified that he never harmed an unarmed person, that he taught the rules of war according to the Geneva Convention to his recruits in madras and that he interceded with Prabakaran to ensure that LTTE cadres who committed crimes against civilians were severely punished. It is evident to the panel, that although the claimant may have been motivated by a higher ideal, this war of liberation degenerated into a battle whose tactics were abhorrent to a reasonable observer. The claimant had opportunities to leave the movement and did on two occasions. You are, however, known by the company you keep and an individual such as the claimant, who occupies a position of authority and who continues to participate, regardless of motivation, must be held individually accountable for the inhumane actions of his trainees, his subordinates and his movement. The following excerpt was meant to apply to post-World War II Axis countries with reference to crimes against peace, war crimes and crimes against humanity, but is also germane to the panel's reasoning with respect to the claimant's activities.

Leaders, organisers, 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 person in execution of such plan. [Annex V, Excerpt from the Charter of the International Military Tribunal, as quoted in Handbook on Procedures and Criteria for Determining Refugee Status.]

Therefore, the panel believes that there are serious reasons for considering that the claimant, in his leadership position, must be held individually responsible for crimes against humanity committed by the LTTE and documented elsewhere in these reasons. As such, the Refugee Division determines that although the claimant has demonstrated that he has a well-founded fear of persecution on the basis of his political opinion, the activities of the claimant and his subordinates within the LTTE fall clearly within the confines of the exclusion clause, section F(a) of Article 1 of the Convention. Therefore, the Refugee Division determines xxxxxxxxxxxxx xxxxxxxxx not to be a Convention refugee. DATED at Toronto, this 17th day of May 1991. "Brian Riddell" Concurred in by: "Shiv S. Bajwa"