Neutral citation: 2003 FCT 680
BETWEEN:
SUTHARSAN KATHIRAVEL
Applicant
et
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
A. INTRODUCTION and BACKGROUND
[1] Sutharsan Kathiravel (the "applicant") is a 24-year-old Tamil male from northern Sri Lanka, his country of citizenship. On December 12, 2001, the Refugee Division of the Immigration and Refugee Board (the "tribunal") decided he had a well-founded fear of persecution from both the Tamil Tigers and the Sri Lankan Army ("SLA") but determined he had committed crimes against humanity and, therefore, was excluded from the definition of "Convention refugee" by article 1(F)(a) of the Geneva Convention incorporated into the Immigration Act (the "Act").
[2] Counsel for the applicant, in oral argument, raised two grounds of challenge:
(1) the applicant did not receive a fair hearing from the tribunal; and
(2) the tribunal misapplied the defence of duress to the applicant's actions as a forced masked identifier of Tamil Tigers.
[3] The crux of the fairness issue centres on the way the single member tribunal conducted the hearing where it was the tribunal who, at the start of the hearing, raised the possibility of a crimes against humanity exclusion. At the applicant's hearing (August 17th and October 17, 2001), there was no Refugee Claim Officer ("RCO") and no Minister's representative in attendance. The applicant was represented by legal counsel. The central complaint by the applicant under this head is that the tribunal acted as judge and prosecutor.
[4] The background to the exclusion relates to the fact, accepted by the tribunal, the applicant, who had been held by the Tamil Tigers for three months at various Tiger secret military camps was then captured by the SLA and tortured to acknowledge he had been held in those camps. That admission led to the belief by the SLA the applicant could identify Tamil Tigers.
[5] As a prisoner at the Palaly SLA camp, he would be taken out, wearing a mask, to lineups of suspected Tigers for the purpose of identifying persons he had seen in the Tiger camps.
[6] The applicant testified, at first, he could recognize no one which he said was a true fact. He had said the same thing when, immediately after his arrest, he had been taken to the Jaffna SLA camp and shown photos of Tamil Tiger leaders. He would then be taken back to the Palaly camp, beaten and deprived of food. This pattern of non-recognition, beatings and punishment occurred several times to the point the applicant stated he feared for his life. Because of this treatment, he started identifying innocent Tamils as persons he had seen in the Tiger camps but, back at the SLA Palaly camp, he testified he would recant during each debriefing after identification. He would say to the SLA he was not sure the person he had just identified was really somebody he had seen in the Tiger camps-the person in the lineup looked like a person he had seen in one of the Tiger camps but he was not sure. For this backtracking, he was beaten because the SLA thought he was lying.
[7] He testified he was in captivity for some forty-four months and none of the persons he identified by nodding behind his mask were actually Tigers; and each time he identified one as a Tiger, he recanted.
[8] The defence of duress was addressed by Justice MacGuigan, on behalf of the Federal Court of Appeal, in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 at 327 and 328:
¶ 40 The appellant did not argue the defence of superior orders, and his arguments as to duress and remorse are insufficient for exoneration. On duress, Hathaway, supra, at page 218, states, summarizing the draft Code of Offences Against the Peace and Security of Mankind, in process by the International Law Commission since 1947:
Second, it is possible to invoke [as a defence] coercion, state of necessity, or force majeure. Essentially, this exception recognizes the absence of intent where an individual is motivated to perpetrate the act in question only in order to avoid grave and imminent peril. The danger must be such that "a reasonable man would apprehend that he was in such imminent physical peril as to deprive him of freedom to choose the right and refrain from the wrong". Moreover, the predicament must not be of the making or consistent with the will of the person seeking to invoke the exception. Most important, the harm inflicted must not be in excess of that which would otherwise have been directed at the person alleging coercion.
If I were to accept this as the state of international law, as the appellant urged, I could find that the duress under which the appellant found himself might be sufficient to justify participation in lesser offences, but I would have to conclude that the harm to which he would have exposed himself by some form of dissent or non-participation was clearly less than the harm actually inflicted on the victims. The appellant himself testified as follows as to the punishment for desertion ...:
A. Well, the punishment is starting with very, very hard training exercises and then after that they will throw you in jail for five to ten years
This is admittedly harsh enough punishment, but much less than the torture and death facing the victims of the military forces to which he adhered.
¶ 41 As for the remorse he no doubt now genuinely feels, it cannot undo his persistent and participatory presence. [emphasis mine]
[9] Justice MacGuigan had previously written the following at pages 319 and 321 of the reported case:
¶ 22 One must be particularly careful not to condemn automatically everyone engaged in conflict under conditions of war. Probably most combatants in most wars in human history have seen acts performed by their own side which they would normally find reprehensible but which they felt utterly powerless to stop, at least without serious risk to themselves. While the law may require a choice on the part of those ordered actually to perform international crimes, it does not demand the immediate benevolent intervention, at their own risk, of all those present at the site. Usually, law does not function at the level of heroism.
[10] Of this statement, Justice Linden in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 at 441, wrote:
Thus, people cannot be required, in order to avoid a charge of complicity by reason of association with the principal actors, to encounter grave risk to life or personal security in order to extricate themselves from a situation or organization. But neither can they act as amoral robots.
B. THE LEGISLATION
[11] "Convention refugee" is defined in subsection 2(1) of the Immigration Act (the "Act") as follows:
| "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, . . . 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 this Act; 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 this Act; [emphasis mine]
|
|
« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: . . . Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
|
|
|
|
[13] Article 1(F)(a) of the Convention which is set out in the Schedule to the Act
reads:
| 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;
|
|
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser_: a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un crime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; |
|
|
|
|
[14] Paragraph 69.1(5) of the Act reads:
69.1 (5) At the hearing into a person's claim to be a convention refugee, the Refugee Division
(a) shall give
(i) the person a reasonable opportunity to present evidence, question witnesses and make representations, and
(ii) the Minister a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and
(b) may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the person making the claim and any other witnesses and to make representations concerning the claim.
69.1 (5) À l'audience, la section du statut:
a) est tenue de donner :
(i) à l'intéressé, la possibilité de produire des éléments de preuve, d'interroger des témoins et de présenter des observations,
(ii) au ministre, la possibilité de produire des éléments de preuve, d'interroger l'intéressé ou tout autre témoin et de présenter des observations, ces deux derniers droits n'étant toutefois accordés au ministre que s'il l'informe qu'à son avis, la revendication met en cause la section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la présente loi;
b) peut, dans tous les cas, si elle l'estime indiqué, autoriser le ministre à interroger l'intéressé ou tout autre témoin et à présenter des observations.
[15] Section 9 of the Convention Refugee Determination Division Rules (the "Rules") state:
| 9. (1) Where the Minister informs the Refugee Division pursuant to subparagraph 69.1(5)(a)(ii) of the Act that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of the Act are raised by the claim, the Minister shall specify the grounds and the parts of section E or F or of subsection 2(2) that in the opinion of the Minister are relevant to the claim and shall set out briefly the law and facts on which the Minister relies. 9(2) (2) Where, before the commencement of a hearing, the refugee hearing officer or the Refugee Division is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary. 9(3) (3) Where, during a hearing, the refugee hearing officer or a member is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer or the member shall so inform the presiding member and, if the presiding member so directs, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary. 9(4) (4) The refugee hearing officer shall serve the person concerned forthwith with a copy of all written information that the refugee hearing officer provides to the Minister pursuant to subrules (2) and (3). [emphasis mine] |
|
9. (1) Lorsque le ministre, conformément au sous-alinéa 69.1(5)a)(ii) de la Loi, informe la section du statut qu'à son avis la revendication met en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, il fait état des motifs et des éléments des sections E ou F ou du paragraphe 2(2) qui, selon lui, sont pertinents et expose brièvement le droit et les faits sur lesquels il s'appuie. 9(2) (2) Lorsque, avant le début d'une audience, l'agent d'audience ou la section du statut est d'avis qu'une revendication dont elle est saisie pourrait mettre en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, l'agent d'audience en informe sans délai le ministre et lui fournit les renseignements nécessaires. 9(3) (3) Lorsque, au cours d'une audience, l'agent d'audience ou un membre est d'avis qu'une revendication dont est saisie la section du statut pourrait mettre en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, il en informe le président de l'audience et, si ce dernier l'ordonne, l'agent d'audience en informe sans délai le ministre et lui fournit les renseignements nécessaires. 9(4) (4) L'agent d'audience signifie sans délai à l'intéressé une copie de tous les renseignements écrits qu'il a fournis au ministre conformément aux paragraphes (2) et (3).
|
|
|
|
|
B. THE TRIBUNAL'S DECISION
(i) Inclusion
[16] The tribunal's reasons for recognizing the applicant as having a well-founded fear of persecution is contained in a single paragraph of the tribunal's decision:
Although the panel has some questions about the claimant's credibility regarding certain details of his allegations, the panel accepts the basic facts of the claimant's allegation. The panel believes that the claimant was held by the Tigers for a significant period and forced to paint for them. The panel also believes that the claimant was held for an extended period by the army and was forced to act as a masked man and did identify innocent Tamils as Tigers. Therefore, the panel agrees with the claimant's analysis that should he return to Sri Lanka, he would be targeted both by the Tigers and the government security forces and he would therefore have a well-founded fear of persecution for Convention reasons if he returned to Sri Lanka. The Tigers would persecute him for having been an informer. The SLA would persecute him for fleeing Sri Lanka and not reporting to the SLA every two weeks as instructed. [emphasis mine]
(ii) Exclusion
[17] While accepting the basic elements of the applicant's story, the tribunal did not believe all of it finding lack of credibility particularly in respect of those portions of his testimony related to his role as an informer. The tribunal thought the applicant was attempting to minimize the extent of his cooperation with the SLA, a conclusion which it reached based on internal contradictions in his testimony, evasive responses and the tribunal's specialized knowledge (which I would characterize as cumulative experience in Sri Lankan cases).
[18] Based on the applicant's testimony and the duration of his imprisonment at Palaly, the tribunal estimated he was taken out four to five hundred times in order to act as a masked identifier. The applicant's counsel used a figure of approximately 200 to 300 times the applicant had been taken out to identify.
[19] The tribunal rejected his testimony that during the forty-four month period of imprisonment, he identified only ten to fifteen innocent Tamils on his forced sorties. It stated:
Therefore the panel does not believe that the claimant only identified ten to fifteen people over a four-month period. The panel does not believe this for two reasons: firstly, because of the contradictions in the claimant's own testimony; and secondly, as the panel indicated during the hearing, according to the panel's specialised knowledge, the panel does not believe that the army would hold someone for forty-four months and parade him out several hundred times to act as a masked man and get such little results from him without either releasing him earlier or subjecting him to more abuse than the claimant alleges.
[20] The tribunal did not entirely accept the applicant's story that whenever he identified someone as a Tiger, he would afterwards tell the army he may have made a mistake. It stated:
Given the contradictions within the claimant's own testimony and given his proclivity for evasive responses, the panel believes the claimant's initial statement that he identified forty to fifty people over the forty-four months that he was held. The panel does not believe that he retracted his statement each time that he identified someone. As stated during the hearing, in the panel's specialised knowledge, the panel does not believe that the army would keep someone for forty-four months who never positively identified someone as a Tiger. Furthermore, according to the documentation as cited below, anyone suspected by the army to be a Tiger, and particularly someone who is identified as a Tiger, is subject to the most cruel forms of torture and to extra-judicial killing. [emphasis mine]
[21] The tribunal referred to a photo of the applicant taken for the purpose of obtaining a national identity card just a few days after his release from the forty-four months of detention. The tribunal, examining the photo, asked "how it was possible that after forty-four months of detention when he was beaten so many times and deprived of food, he would be able to take a picture in which his face looked filled out and healthy". The tribunal rejected his explanation that his agent asked him to "puff out his face a bit and to put on some kind of powder". The tribunal rejected that explanation because in answer to his counsel, he added he was not beaten during the last three months of his detention. The tribunal concluded:
This is another example of the claimant adding contradictory or evasive testimony in order to minimise the perception of collusion with the army in identifying innocent Tamil victims. This statement regarding not being beaten or food deprived during the last three months of his detention was mentioned only at the end of his hearing.
[22] The tribunal added:
However, in the context of the claimant's testimony and his pattern of altering subsequent testimony to minimise the perception of his collusion with the Army, the panel does not believe that the claimant was in such good condition upon his release because it was only the last three months that he was not beaten. It is more likely in the panel's view, that the claimant was released because he was more co-operative in identifying victims than he has admitted to and therefore there was no need for further beatings.
[23] The panel's central finding on duress is contained in the following paragraph:
The panel accepts that the claimant did not volunteer for this assignment with the Sri Lankan army and that he was acting under duress. The panel does not accept that a defence of duress is sufficient to exonerate the claimant from exclusion in this particular case. The defence of duress may be sufficient when the harm that the claimant was threatened with was on balance greater than or equal to the harm which he or she inflicted or caused to be inflicted on the victim. In this particular case, the panel believes that the claimant was subjecting innocent people to cruel and inhuman torture and that given the documentary evidence, the panel has serious reasons to consider that some of the people the claimant identified would have been killed and certainly tortured in a worse fashion than the claimant. [emphasis mine]
[24] Referring to the Federal Court of Appeal's decision in Ramirez, supra, dealing with the degree of complicity required in order for accomplices to be subject to exclusion, the tribunal found "[A]lthough the claimant in this case was not a willing accomplice, he was an accomplice nonetheless".
[25] The tribunal touched upon evidence in the form of a psychological evaluation report by Mr. Woodbury who concluded the applicant "was unable to formulate intention in regard to his acting as an informant" because he was "desperately attempting to avoid further torture at the hands of his captors".
[26] The tribunal rejected that evidence in the following words:
The claimant testified very clearly that he knew full well what he was doing, that he was identifying innocent Tamils to be detained on suspicion by the Army and to be beaten and tortured. The claimant also testified that he himself was beaten and deprived of food whether or not he identified someone, given the retractions that he alleges he made following each identification. In the panel's analysis, Mr. Woodbury's comment is not pertinent. The claimant acted in full knowledge and awareness of what he was doing. Given that this occurred so many times and the claimant himself was beaten whether or not he identified someone, it is difficult to understand how the claimant could have been attempting to avoid further beatings at the hands of his captors. According to his own testimony, he was beaten no matter what he did. It is also clear to the panel that the claimant's intent was clear and well formulated.
[27] The tribunal then went on to consider country documentation which said "make it painfully clear that the identification of someone as a Tiger or a suspected Tiger is likely to lead to the most inhumane torture if not extra-judicial killing".
[28] The tribunal concluded its duress analysis by finding:
The claimant suffered beatings and food deprivation according to his testimony whether or not he identified innocent Tamils as Tigers. Given the above-mentioned documentation, the panel has more than serious reason to consider that anyone the claimant would have identified as a Tiger, even with a subsequent retraction on the claimant's part, would have been subject to torture far worse than the claimant himself did or would have suffered. Furthermore, based on the documentary evidence, the panel also has more than serious reason to consider that some of the people the claimant would have identified would have either died from torture or have been intentionally executed by the army.
[29] The tribunal then referred to Justice Linden's quote in Sivakumar, supra, and concluded:
Particularly given that according to his testimony his treatment did not differ whether he named someone as a Tiger or he did not name someone as a Tiger, the claimant acted in an entirely immoral manner, with full knowledge and awareness of the torture or worse, which he caused to be inflicted on innocent civilians.
C. ANALYSIS AND CONCLUSIONS
[30] As noted, counsel for the applicant, who was not counsel before the tribunal or counsel who filed the applicant's record, limited his argument to unfairness in the proceeding and error in the application of the defence of duress. Specifically, counsel for the applicant did not seek to impugn the tribunal's factual findings underpinning its application of the defence of duress.
(1) Were the proceedings conducted unfairly
[31] Counsel for the applicant's overarching argument was the single person tribunal (and I note again the absence of an RCO or a Minister's representative), dominated the proceedings acting as a prosecutor entering the fray when his role was that of an impartial observer and decision-maker.
[32] An element of this argument touched upon the statutory scheme surrounding the intervention of the Minister's representative when issues of exclusion potentially arise. The Minister's right to intervene is covered by paragraph 69.1(5) of the Act and the obligation of the Immigration and Refugee Board's Refugee Division to notify the Minister in a specific case, either before or during a hearing, the refugee claim may involve exclusion, is addressed in the Rules and, in particular, in subsection 9(2) and (3).
[33] In reply argument, counsel for the applicant said the tribunal should have, during the hearing, notified the Minister, pursuant to subsection 9(3) of the exclusion issue so that the Minister could have intervened taking off the tribunal's shoulders the burden which it took upon itself to lead the questioning on the exclusion issue.
[34] I note, at the commencement of the hearing, the issue of exclusion was identified in these terms, the tribunal addressing counsel for the applicant at the beginning of the August 17, 2001 hearing which commenced the proceedings:
Of course credibility is consideration in this case, as in every refugee claim. However, of equal importance, an issue I discussed with you previously in regards to his claim is the question of considering exclusion under Article 1F(b) [sic].
The claimant alleges that he was forced to act as a masked man for the army over a considerable period of time, practically three years, and it's not quite clear from his personal information form as to whether he actually did identify, or from the Exhibit P-7 as to whether he actually did identify Tigers or Tiger leaders for the army, and if he did, what happened to those people, if he does know, or what he might presume would have happened to them.
And of course the question comes up of, it's evident that he was acting under duress by being held by the army altogether, but I think it would be appropriate to really have some very pointed questions as to whether he did identify people and what this may ... or what this, to his knowledge or to his presumption, brought about for those people, and then look at the issues if, assuming that he did name people, look at the issues of duress as to what might have happened to him had he not cooperated with the army. And I think those same questions would probably go a long way towards the issues of credibility as well.
[35] The Federal Court of Appeal discussed the statutory scheme surrounding the intervention by the Minister's representative in exclusion cases in Arica v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 670, where Robertson J.A. said this at paragraph 8:
[8] It should also be noted that the general framework of analysis with respect to invocation of the exclusion clause is found in Rule 9 of the Convention Refugee Determination Division Rules. Rule 9(2) dictates that if the refugee hearing officer or members of the panel hearing the claim are of the opinion that Article 1F might be applicable, the former shall notify the Minister of such. If the matter of exclusion should, however, arise during the hearing then, pursuant to Rule 9(3), the presiding member has a discretion as to whether to direct the refugee hearing officer to notify the Minister. Should the presiding member decide against giving notice to the Minister then it is clear in law that the Board can make a determination with respect to the exclusion clause based on the evidence presented. The fact that the Minister does not participate in the hearing, either because he does not wish to do so or because he is not entitled to notice under Rule 9(3), does not alter the right of the Board to render a determination on the issue of exclusion. [emphasis added] [references omitted]
[36] I note that in Malouf v. Canada (Minister of Ciizenship and Immigration), [1995] 1 F.C. 537 (F.C.T.D.), my colleague Justice Gibson, in a case decided before Arica, supra, set aside a CRDD finding of exclusion on the following basis:
¶ 48 I am satisfied that this failure to effectively give notice and provide an opportunity to present evidence and make representations at any stage of the proceeding, tied as it was to the failure on the part of the CRDD and the refugee hearing officer to give notice to the Minister and an absence of involvement of the Minister on the Minister's own initiative, amounted to a failure to observe a principle of procedural fairness that goes to the heart of this matter.
[37] My examination of the certified tribunal record leads me to the following conclusions:
(1) There is no indication the RCO (it seems one had initially been assigned) gave notice to the Minister exclusion was an issue;
(2) the Minister did not, on his own initiative, intervene;
(3) The tribunal member was the one who raised the issue of exclusion as he states in his reasons "[G]iven the claimant's role in identifying innocent Tamils who were subsequently beaten and tortured, the issue of exclusion under Article 1F(a) - Crimes Against Humanity was raised by the panel";
(4) The possibility of exclusion was identified by the tribunal at the start of the applicant's refugee claim hearing;
(5) Counsel for the applicant discussed the issue of exclusion with the applicant before he gave his testimony. In answer to a question by the tribunal at page 427 of the transcript, counsel for the applicant stated:
I did not discuss with him the technical terms with regards to exclusion itself, but I told him that there was a concern with regards to a possible commission of crimes by virtue of his having working "as a masked man". He's aware of the issue that concerns the panel.
(6) Counsel for the applicant first examined his client and began his questioning as follows at transcript page 427:
As I've told Mr. Chairperson, you've had the opportunity, or we've had the opportunity to discuss this issue, so why don't we go right to it. When were you arrested by the army?
(7) Counsel for the applicant then examined his client and was interrupted many times by the tribunal. As I see it, the tribunal was sometimes seeking clarification, at other times seeking from the applicant more information after a particular answer was given and in other instances took over an entire line of questioning particularly as to the factual foundation in aid of the duress issue (see transcript pages 430 through 445);
(8) At no time did counsel for the applicant object. As a matter of fact, at page 445 of the transcript, the tribunal said "[O]kay, Counsel, I'll be quiet now... I can't promise for how long, but ..." to which counsel for the applicant responded "[A]ctually I'm going to ask you not to be quiet for a second". At transcript page 446, counsel for the applicant asked the tribunal to effectively define what it was that the tribunal considered to be the crime against humanity "in order that we might be able to address that as an issue".
[38] I cannot conclude the unfolding of the applicant's refugee claim proceeding was unfair to him.
[39] In terms of a breach of the Rules governing notice to the Minister that exclusion was a possibility, it appears from the record there was no RCO to which a duty of giving notice arose under paragraph 9(2) of the Rules.
[40] In terms of the Chairperson of this single member tribunal, the record appears to show that prior to the hearing, the Chairperson identified the issue to counsel for the applicant who discussed the matter with his client. Nothing is known of the circumstances governing the exercise of the Chairperson's discretion under subsection 9(3) of the Rules because both the tribunal and counsel for the applicant were content with the way in which the exclusion issue was to be handled. Specifically, there is no indication in the record the Chairperson was asked to exercise his discretion under subsection 9(3) of the Act.
[41] Quite apart from a breach of the Rules, counsel for the applicant's submission engages paragraph 18.1(4)(b) of the Federal Court Act, the failure to observe a principle of natural justice or procedural fairness.
[42] This is not a case like Singh v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1228, where counsel was not permitted to examine the applicant more fully. This is not a case like Malouf, supra, where the applicant was ambushed. This is not a case where the tribunal member interrupted the applicant when he was giving his answers. This is not a case where the applicant was denied the right to adduce the evidence which he felt was required to establish his claim.
[43] As I see it, what when on at the hearing was consensually agreed to between counsel for the applicant and the tribunal. In my view, in the circumstances, the applicant had a fair hearing.
(2) Was there an error in the application of the defence of duress
[44] Counsel for the applicant did not argue the tribunal erred in the choice of the legal components to the defence of duress. It would be difficult for him to do so, in my view, because the tribunal applied the test defined by the Federal Court of Appeal in Ramirez, supra, which is binding on the tribunal and this Court.
[45] Where the tribunal erred, in the applicant's submission, was in the application in the correct legal test to the facts of this particular case by failing to give due weight to the fact the applicant was a prisoner, was not an accomplice and there was nothing willing about his identifying persons in the lineup since his failure to do so led to beatings and food deprivation and a concern for his life and safety. In this context, counsel for the applicant argued the tribunal wanted him to be a hero.
[46] As I see it, the defence of duress as adopted by Ramirez, supra, (a test reflected recently in the Rome Statute of the International Criminal Court (see article 31(d)) has two components. First, in order for the defence of duress to apply, the act which the applicant was compelled to take must be driven by a grave and imminent peril which is sought to be avoided (or as Justice Linden put it in Sivakumar, supra, "to encounter great risk to life or personal security in order to extricate themselves from a situation".)
[47] While the tribunal did not specifically discuss this element of the defence of duress, it accepted the applicant acted under duress which leads me to conclude it was satisfied, as the record bears out, the applicant was at serious risk if he did not identify someone from the lineup.
[48] The second necessary element to the application of the defence of duress incorporates the notion of proportionality, that is, the harm inflicted on the victim, the innocent Tamils he identified as resembling ones he had seen in the Tamil military camps, must not be in excess of that which would otherwise have been directed at the applicant.
[49] The tribunal found as a fact, as Justice McGuigan had similarly done in Ramirez, that the applicant's victims would suffer more than what was actually inflicted on him either as a result of not identifying people in the lineup or identifying them but recanting.
[50] My review of the evidence leads me to the conclusion it was reasonably open to the tribunal to reach this conclusion especially taking into account its credibility findings, its appreciation of the documentary evidence and the applicant's own testimony as to the atrocities the SLA could perpetrate which is precisely why he told the tribunal why he recanted. He said this at page 441 of the transcript:
If I don't say ...tell him that manner, they will be shot and killed. I say this ... if I say sure it's so-and-so then they'll be ... that person will be shot and killed and their body will be put on the road. It is because of that I said the other way.
[51] Although counsel for the applicant did not argue the tribunal erred in rejecting Mr. Woodbury's assessment that the applicant did not have the required intent, my review of the transcript leads to the view the applicant knew full well the consequences of his identifying someone in the lineup when he was behind his mask even if he recanted afterwards.
[52] For all of these reasons, this judicial review application is dismissed. I indicated to both counsel that depending upon the structure of my decision, certified questions might be proposed.
[53] Counsel should exchange proposed certified questions between themselves on or before Friday, June 6, 2003. After such exchange, counsel should address submissions to the Court to be received no later than June 18, 2003, on the questions proposed for certification and the reasons why I should certify or not the questions.
"François Lemieux"
J U D GE
OTTAWA, ONTARIO
MAY 29, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-204-02
STYLE OF CAUSE: Sutharsan Kathiravel and the Minister of Citizenship
and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 30, 2003
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE LEMIEUX
APPEARANCES:
Me Stephen Fogarty FOR APPLICANT
Me Guy Lamb FOR RESPONDENT
SOLICITORS OF RECORD:
Stephen J. Fogarty FOR APPLICANT
Montreal, Quebec
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada