Date: 20110405
Docket: IMM-5002-10
Citation: 2011
FC 409
BETWEEN:
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AWANKI FRANCIS EYAKWE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration Division of the Immigration and Refugee Board (the
Board), dated August 9, 2010 wherein the Board determined that the applicant
was inadmissible to Canada as a person described
in paragraph 34(1)(f) by (b) of the Act.
[2]
The applicant requests that the decision be set aside and the
claim remitted for redetermination by a different member of the Board.
Background
[3]
Awanki
Francis Eyakwe (the applicant) is a citizen of Cameroon. He was a member of the South
Cameroon Youth League (SCYL) since 1999. In 2001, he was elected to the
executive branch and was the head of the Kumba branch of the SCYL for six
years. As a member of the executive, he helped organize rallies and marches and
gave speeches. He also produced and distributed pamphlets. The applicant was
arrested several times and beaten for his participation in the SCYL.
[4]
In
2007, the police issued an arrest warrant for the applicant. He fled Cameroon
and travelled through Nigeria, Morocco, Spain and Sweden
before reaching Canada. The applicant made a refugee claim in Canada in August 2008. This
claim was suspended when the Minister of Public Safety and Emergency
Preparedness issued a report under subsection 44(1) of the Act and referred the
matter to the Board for an admissibility hearing.
Board’s Decision
[5]
The
Board found that the applicant was a member of the SCYL which is an organization
of which
there are reasonable grounds to believe engages, has engaged or will engage in
instigating subversion by force of the government of Cameroon.
[6]
The
Board found that the applicant had conceded his membership in the SCYL, but
that he argued that the SCYL is factionalized into the overseas exiled leaders
and the SCYL membership in Cameroon which remains loyal to
a pacifist approach. The Board found that there was not sufficient evidence for
the applicant’s contention. The Board examined a letter from the Executive
Secretary of the South Cameroon National Council (SCNC), the founding
organization of the SCYL, which describes differences of opinions within the
SCYL but refers to it as a single organization and the youth wing of the SCNC.
The Board also considered a report from the Research Directorate of the
Immigration and Refugee Board (IRB) and determined that the report does not
show the SCYL as factionalized, but as a single organization with a single
leadership hierarchy and offices in different countries. The Board rejected the
applicant’s argument that this information came from an unofficial website of
SCYL individuals, as he did not provide corroborative evidence of this
assertion.
[7]
The
Board then defined “subversion by force of any government” from paragraph
34(1)(b) of the Act. The Board reviewed several cases addressing subversion
from the Federal Court and the Federal Court of Appeal. It determined that
subversion is the use or encouragement of force, violence or criminal means with
the goal of overthrowing any type of government, either in some part of its
territory or in the entire country. The Board rejected that subversion requires
the takeover of power from within, or that it requires deception or activity of
a clandestine nature.
[8]
The
Board assessed the SCYL’s activities against this definition of subversion.
Concerning attacks on military and civil establishments in 1997, the Board
concluded that there was insufficient reputable corroborated evidence to find
that these attacks were engaging in or instigating subversion of the government
by the SCYL.
[9]
However,
the Board did find that the SCYL’s involvement in the takeover of the Radio
Buea in 1999 amounted to engaging in or instigating subversion. The SCYL claims
its members participated in this takeover. During the event, armed activists
disarmed the station’s guards and forced the station to play a taped
“Proclamation of the Restoration of Southern Cameroons Sovereignty and Independence”. It also
called for the “forces of occupation” to lay down their arms and for Southern
Cameroons in the military, police, prison and customs departments to return to
defend the country’s sovereignty and to meet with greater force any forcible
resistance. The Board noted that the Federal Court held in Oremade v Canada (Minister of
Citizenship and Immigration), 2005 FC 1077, that subversion by force
includes “reasonably perceived potential for the use of coercion by violent
means”. The Board found that the station’s takeover met this potential.
[10]
The
Board also found the rhetoric of the SCYL website called for the overthrow of
the power of the Republic of Cameroon and the mission statement is to use
all means including force to bring freedom to Southern Cameroon. The website
also calls for the destruction of the president of Cameroon among other
violence.
[11]
The
Board concluded that the activities of the SCYL fall within the bounds of
engaging in or instigating the subversion by force of a government and this
organization, therefore, falls under paragraph 34(1)(f) of the Act. As the
applicant admitted to being a member of the organization, he was inadmissible
pursuant to paragraph 34(1)(b) of the Act.
Issues
[12]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board err in
finding that the SYCL is a single organization to which the applicant belonged?
3. Did the Board err in
finding that the SCYL had engaged in or instigated subversion by force of the
government of Cameroon?
Applicant’s Written Submissions
[13]
The
applicant submits that the Board ignored relevant evidence when determining
that the SCYL was a single organization. For example, a Canadian Border
Services Agency (CBSA) enforcement officer indicated in a declaration that
there are several factions within the SCYL. A UNHCR and Danish Immigration
Service Report also noted there were several factions in the SCNC.
[14]
The
applicant submits that the Board failed to accept Mr. Justice Frederick Gibson’s
holding in Al Yamani v Canada (Minister of
Citizenship and Immigration) 2006 FC 1457 that subversion requires a
clandestine or deceptive element. Further, the applicant submits that people
who have no intention of committing the offending act must not be included in
the definition of subversion. The Board failed to consider whether the
applicant intended to overthrow the government.
[15]
The
applicant submits that the Board did not have sufficient credible evidence to
find that the SCYL was responsible for the Radio Buea takeover which was the
basis for the finding of subversion.
[16]
Finally,
the applicant submits that the Board erred in giving weight to the rhetoric on
the SCYL website, because the site is created and maintained by Anglophone youths
in the United
States.
The website states that the SCYL is not the youth wing of the SCNC.
Respondent’s Written Submissions
[17]
The
respondent submits that the Board considered and weighed all of the evidence
before it. The Board assessed the applicant’s assertion that the SCYL is split
into factions but found that there was not sufficient evidence of this. The
respondent highlights that the Board is presumed to have taken all of the
evidence and is not required to refer to every piece of evidence before it.
Because the finding that the SCYL is not split into factions was reasonable and
the applicant conceded his membership with a faction of the SCYL, the finding
that the applicant was a member of the SCYL was also reasonable.
[18]
The
respondent submits that the Board’s finding that the SCYL’s activities amounted
to subversion was reasonable. It provided a detailed qualitative analysis of
the SCYL and its activities and supported its conclusion with evidence. The Board
assessed the evidence before it and determined that there were reasonable
grounds to believe that the SCYL had instigated violence and subversion of the
government of Cameroon, both on its
website and in the Radio Buea takeover.
Analysis and Decision
[19]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue, the reviewing court
may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[20]
It
is well established that the standard of review for both the assessment of
membership under paragraph 34(1)(f) and the determination of whether an
organization is one described in paragraphs 34(1)(a), (b) or (c) is
reasonableness (see Poshteh v Canada (Minister of Citizenship
and Immigration), 2005 FCA 85 at paragraph 23; Motehaver v
Canada (Minister of Public Safety and Emergency Preparedness), 2009
FC 141 at paragraph 11). This is due to the critical factual elements to
be decided and the expertise of the officers in assessing applications of
inadmissibility.
[21]
Since
a finding of exclusion is particularly significant to an applicant, “caution
must be exercised to ensure such findings are properly made” (see Alemu v Canada (Minister of
Citizenship and Immigration), 2004 FC 997 at paragraph 41). Where the
analysis and decision are reasonable, the Court will not substitute its
opinion; however, the finding of inadmissibility “should be carried out with
prudence, and established with the utmost clarity” (see Daud v Canada (Minister of
Citizenship and Immigration), 2008 FC 701 at paragraph 8).
[22]
Issue
2
Did the Board err in finding
that the SYCL is a single organization to which the applicant belonged?
The applicant
submits that the Board ignored evidence from CBSA that the SCYL and SCNC are
factionalized. The applicant also noted that several articles discuss the SCYL
leadership from abroad and the problem of disunity in the Anglophone
organizations.
[23]
I
disagree with the applicant that the Board’s finding that the SCYL is not split
into factions was unreasonable. There is a presumption that Board members have
considered all of the evidence before them (see Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ No 1425
(FCTD) (QL)). The Board need not summarize all of the evidence in its decision
so long as it takes into account any evidence which may contradict its
conclusion and its decision is within the range of reasonable outcomes (see Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA)
(QL); Idarraga Cardenas v Canada (Minister of Citizenship and Immigration),
2010 FC 537 at paragraph 22).
[24]
The
Board assessed a letter submitted by the applicant from the Executive Secretary
General of the SCNC and found that the letter refers to the SCYL as a single
organization. The letter does not indicate that more than one group are
claiming to be the “real” SCYL. The Board also considered the IRB report which
does not describe the SCYL as factionalized but as a single organization with
one leadership. The Board directly referred to the applicant’s interview with
CBSA and acknowledged the applicant stated that there are many websites of the
SCYL but reasonably found that the applicant had not provided evidence of this
assertion.
[25]
The
applicant referenced a number of documents during the hearing. However, the
information contained in these documents largely deals with factions of the
SCNC. At issue, however, are the alleged factions of the SCYL and the
applicant’s membership in that organization. The Board was not obligated to
refer to documents which did not address this issue.
[26]
Worth
mentioning, the applicant did not state in his Personal Information Form (PIF)
or amended PIF that the SCYL is factionalized. In fact, he often referred to
the SCYL as a single organization connected to the SCNC. For example, at page
43 of the applicant’s record, he stated:
The SCYL is a part of the SCNC that is
dedicated to bringing young Southern Cameroonians into the struggle for equality
and independence.
[27]
Further,
the applicant readily admitted to being a leader of the SCYL in his interview
with CBSA. At page 24 of the applicant’s record:
Q: You are a leader of the SCYL?
A: Not a leader more head of a section.
Q: Which section?
A: I am head of a branch of a section.
Q: Which section?
A: Kumba.
[28]
I
cannot find that the Board’s conclusion that SCYL is a single organization was
unreasonable. Given that the applicant stated himself that he was a member of
the SCYL, the finding that he was a member was also reasonable.
[29]
Issue
3
Did the Board err in finding
that the SCYL had engaged in or instigated subversion by force of the
government of Cameroon?
Given that the applicant was
found to be a member of the SCYL, the issue for the Board was not whether the
applicant had engaged in or instigated subversion by force, but whether there
were reasonable grounds to believe that the SCYL had done so.
[30]
There
is no single definition of subversion by force found in the jurisprudence or the
Act. The Board reviewed the leading cases from this Court and the Court of Appeal
on subversion. It concluded that the most common definition for subversion is
the changing of a government or instigation thereof through the use of force,
violence or criminal means.
[31]
The
applicant submits that the Board incorrectly interpreted subversion by finding
that it does not require an element of deception. However, I agree with the
analysis of the Board that this Court and the Court of Appeal did not include
deception as part of instigating or engaging in subversion by force in Qu v
Canada (Minister of Citizenship and Immigration), 2001 FCA 399; Suleyman
v Canada (Minister of Citizenship and Immigration), 2008 FC 780; and Oremade
above.
[32]
The
Board provided a detailed analysis of the actions of the SCYL in determining
whether it had engaged in or instigated subversion by force. The Board assessed
the attacks on military and civil establishments which took place in 1997 but
determined that there was not sufficient evidence to find that the purpose of
the attacks was to overthrow the government.
[33]
The
Board then assessed the takeover of Radio Buea in 1999. The finding that this
was subversion was reasonable. The Board found that:
1. members of the SCYL
were armed in the takeover of Radio Buea;
2. there was no
evidence that the guards of the radio station cooperated with the takeover;
3. the SCYL claimed its
members participated in the takeover; and
4. the declaration
played by the SCYL in the takeover called for Southern Cameroonians in the
military, police and prisons to defend the country’s sovereignty and threatened
to meet forcible resistance with greater force.
[34]
The
Board also found that the SCYL website contains rhetoric encouraging Southern
Cameroonians to overthrow the government by force.
[35]
The
Board specifically referred to and relied on the evidence above to find that
there were reasonable grounds to believe that the SCYL had engaged in
instigating subversion by force of the government of Cameroon. This
conclusion was within the range of possible acceptable outcomes based on the
facts and law as per the reasonableness standard in Dunsmuir above.
[36]
The application for judicial review is therefore dismissed.
[37]
The applicant shall have one week to submit any proposed question
of general importance for my consideration for certification. The respondent
shall have one week to make any submissions on the proposed question. The
applicant shall have two days to file a reply if any is to be filed.
“John
A. O’Keefe”
Ottawa, Ontario
April 5, 2011
ANNEX
Relevant Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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34. (1) A
permanent resident or a foreign
national is
inadmissible on security grounds for
. . .
(b) engaging
in or instigating the subversion
by force of
any government;
. . .
(f) being a
member of an organization that
there are
reasonable grounds to believe engages, has engaged or will engage in acts
referred to in paragraph (a), (b) or (c).
72. (1)
Judicial review by the Federal Court
with respect
to any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
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34. (1)
Emportent interdiction de territoire
pour raison de
sécurité les faits suivants :
. . .
b) être
l’instigateur ou l’auteur d’actes visant
au
renversement d’un gouvernement par
la force;
. . .
f) être membre
d’une organisation dont il y a
des motifs
raisonnables de croire qu’elle est,
a
été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
72.
(1) Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au depot d’une demande d’autorisation.
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