Date: 20211110

Docket: IMM-1620-21

Citation: 2021 FC 1220

Ottawa, Ontario, November 10, 2021

PRESENT: Madam Justice Pallotta

JUDGMENT AND REASONS

I. Introduction

[1] The applicant Minister of Public Safety and Emergency Preparedness (Minister) seeks judicial review to set aside the decision of a three-member panel of the Immigration and Refugee Board of Canada’s Immigration Appeal Division (IAD). The respondents are Emeka Stanley Edom, his wife Cynthia Nkiruka Edom, and their four children.

II. Background

[2] The respondents came to Canada in October 2015 and made refugee claims. Their claims were suspended when a Canada Border Services Agency (CBSA) officer issued a report under subsection 44(1) of the Immigration and Refugee Protection Act, SC 1991, c 27 [IRPA], alleging that Mr. Edom is inadmissible to Canada pursuant to paragraph 34(1)(f) of the IRPA because he is a member of the Movement for the Actualization of the Sovereign State of Biafra (MASSOB). The CBSA officer considered the MASSOB to be an organization that engaged in subversion by force of the Nigerian government according to paragraph 34(1)(b) of the IRPA:

Security

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 in, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

[3] Mr. Edom concedes that he is a member of the MASSOB, and that the MASSOB is “an organization”. Allegations that the MASSOB engages in or instigates the subversion by force of the Nigerian government are based on these events: 1) interception of oil tankers in 2001; and 2) attacks on police stations and resistance to the national census in 2005-2006.

[4] The CBSA officer referred the matter to the Immigration Division (ID) for an admissibility hearing. The ID found Mr. Edom and his family are not inadmissible due to Mr. Edom’s membership in the MASSOB.

[5] The Minister appealed the ID’s decision and the IAD allowed the appeal in September 2018. The IAD member found Mr. Edom to be inadmissible to Canada pursuant to paragraphs 34(1)(b) and (f) of the IRPA, and his family to be inadmissible by virtue of paragraph 42(1)(b) of the IRPA.

[6] The respondents successfully challenged the IAD’s 2018 decision on judicial review to the Federal Court. Justice Boswell found the decision to be unreasonable and returned the matter for reconsideration by a different IAD member: Edom v Canada (Minister of Public Safety and Emergency Preparedness), 2019 FC 958 [Edom 2019].

[7] A panel of three IAD members reconsidered the inadmissibility appeal. The sole issue before the IAD was whether the MASSOB is an organization that engages in, has engaged in, or will engage in the subversion by force of the Nigerian government. In its decision dated February 22, 2021, the IAD found there was insufficient evidence to establish reasonable grounds to believe that the MASSOB engaged in or instigated subversion by force of the Nigerian government. As a result, the IAD concluded Mr. Edom is not inadmissible to Canada by reason of his membership in the MASSOB.

[8] The IAD’s 2021 decision is the decision under review in this proceeding.

[9] The Minister submits the IAD’s 2021 decision is unreasonable as the IAD applied an incorrect standard of proof in assessing the evidence, ignored certain evidence, and drew improper conclusions.

[10] The respondents submit the IAD thoroughly evaluated thousands of pages of evidence using the correct standard of proof before concluding that Mr. Edom is not inadmissible. They submit the IAD’s reasons are intelligible, transparent, and justified in light of the evidence and the history of proceedings that led to the reconsideration.

III. Issue and Standard of Review

[11] The issue on this application for judicial review is whether the IAD’s 2021 decision is reasonable, which I will address by dividing the analysis into two sub-issues:

1. Did the IAD elevate the standard of proof required to find the MASSOB to be an organization falling within the scope of paragraph 34(1)(b) of the IRPA?

2. Did the IAD ignore evidence and reach improper conclusions in finding that there are not reasonable grounds to believe that the MASSOB engaged in or instigated the subversion by force of the Nigerian government?

[12] Reasonableness review is conducted according to the guidance set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. It is a deferential but robust form of review: Vavilov at paras 12-13, 75 and 85. The reviewing court does not ask what decision it would have made, attempt to ascertain the range of possible conclusions, conduct a new analysis, or seek to determine the correct solution to the problem: Vavilov at para 83. Instead, the reviewing court must focus on the decision actually made, and consider whether the decision as a whole is transparent, intelligible and justified: Vavilov at paras 15 and 83. In this regard, it is not enough for the outcome of a decision to be justifiable; the decision must be justified by the decision maker, by way of the reasons: Vavilov at para 86. A reasonable decision is based on an internally coherent and rational chain of analysis and it is justified in relation to the facts and law that constrain the decision maker: Vavilov at para 85.

IV. Analysis

[13] For the reasons explained below, I find the IAD’s 2021 decision to be reasonable.

[14] The standard of proof that applies to an inadmissibility determination under section 34 is “reasonable grounds to believe”: section 33 of the IRPA. “Reasonable grounds to believe” is more than mere suspicion, but less than the civil standard of a balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114 [Mugesera]; Thanaratnam v Canada (Minister of Citizenship and Immigration), 2004 FC 349 at paras 11-13. Reasonable grounds will exist where there is an objective basis for the belief, based on compelling and credible information: Mugesera at para 114. In other words, reasonable grounds to believe are established where there is a bona fide belief of a serious possibility, based on credible evidence: Hadian v Canada (Minister of Citizenship and Immigration), 2016 FC 1182 at para 16, citing Chiau v Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 FC 297 at para 60, 195 DLR (4th) 422 (FCA) among other cases.

[15] In coming to its conclusion, the IAD considered a number of articles and commentaries about the MASSOB and its activities, and made the following findings:

• The source of allegations against the MASSOB about oil tanker interceptions is elusive and not based on reliable and credible evidence to satisfy the “reasonable grounds to believe” standard.

• A close examination of documents that refer to the MASSOB’s seizure of oil tankers as a statement of fact shows that there is little or no reliable source or foundation for that “fact” and it is simply repeated over time.

• News reports about police clashes and census resistance have limited reliability due to unsourced information, debatable details of the events, and biased or inflated opinions that colour the reporting of events.

• Reliable opinion evidence undermines allegations of the MASSOB’s involvement in census resistance and police clashes for subversive purposes.

• Reliable sources, such as the 2006 Norway fact-finding mission, support the proposition that journalistic integrity cannot be presumed in Nigeria.

[16] The Minister submits that the IAD articulated the correct standard of proof but actually applied an elevated standard to determine whether the MASSOB is an organization that falls within paragraph 34(1)(b) of the IRPA. As a result, the IAD’s decision is not justified in relation to this legal constraint, and is unreasonable. According to the Minister, the IAD made sweeping generalizations about journalistic integrity in Nigeria and erred by equating underreporting about the MASSOB with inaccurate reporting. The IAD’s conclusion that journalistic integrity cannot be presumed in Nigeria results in a higher onus on the Minister than “reasonable grounds to believe”. In Edom 2019, the Federal Court was critical of the 2018 IAD member for failing to engage with evidence attesting to the non-violent nature of the MASSOB, and referring only to those portions of the evidence that supported its conclusion without addressing the evidence that contradicted it. The Minster argues that the 2021 three-member panel of the IAD went too far the other way, making the same error with respect to evidence capable of supporting a conclusion that the MASSOB has engaged in acts of subversion by force.

[17] The Minister submits that the IAD’s reservations about the reliability of source information in news reports and in a well-researched academic thesis by a PhD candidate amount to a requirement for corroboration, which raises the standard of proof above the criminal standard. The Minister points out that in Canada (Minister of Citizenship and Immigration) v USA, [1] 2014 FC 416 at paragraph 24 [USA], this Court rejected the suggestion that the test for “reasonable grounds to believe” requires corroboration:

The respondent also argued that the test should include the term “corroborated”. This was the third element of the standard as it was stated in the Sabour decision, i.e. “compelling, credible and corroborated information”, to which case the Supreme Court made reference above. However, the Court clearly did not include the term “corroborated” when adopting the test from Sabour. To add the requirement of corroboration would set too high a standard, such as where there exists credible and compelling evidence of torture from an individual, which cannot be corroborated by other sources. Indeed, by requiring corroboration, the court would be imposing a standard higher than that required in criminal law to convict someone beyond a reasonable doubt. …

[18] In my view, the IAD did not elevate the standard of proof. “Reasonable grounds to believe” is based on credible evidence. The IAD’s assessment of the reliability of the evidence was a pertinent factor in assessing its credibility and probative value. As the respondents correctly note, the IAD assessed whether the available evidence was credible using the framework set out in Re Almrei, 2009 FC 1263 [Re Almrei]. In Re Almrei, Justice Mosley stated that the five criteria used in library and information science to determine the reliability of information—authority, accuracy, objectivity, currency, and coverage—provide an appropriate framework to assess the credibility and reliability of a document: Re Almrei at para 340. This framework was endorsed in Kablawi v Canada (Minister of Citizenship and Immigration), 2010 FC 888 at paragraph 43, and Demaria v Canada (Minister of Citizenship and Immigration), 2019 FC 489 at paragraphs 139-140.

[19] I disagree with the Minister that the IAD made sweeping generalizations about journalistic integrity in Nigeria. The IAD raised concerns about journalistic integrity after assessing and weighing the evidence on this point: while the IAD found some of the respondents’ evidence about a lack of journalistic integrity to have “marginal probative value”, a report from a 2006 Norway fact-finding mission was found to be a reliable source for the proposition that journalistic integrity cannot be presumed in Nigeria. The 2006 Norway report describes the MASSOB as a separatist group and threat to the political elite, and states that information about the MASSOB may be underreported in the press. The IAD found this opinion to be supported by and consistent with the source information relied on by the authors, which included a statement by the vice president of Nigeria that the MASSOB’s activities are treasonable, and a warning to the media to “shun publishing the group’s antics”.

[20] The IAD described two types documentary evidence before it: 1) news reports, and 2) academic or opinion articles about the MASSOB and its activities. The IAD found that a lack of journalistic integrity undermines the news reports about specific MASSOB activities and, by extension, many of the academic or opinion articles that rely on the news reports. For example, the IAD reviewed the PhD candidate’s thesis in detail, and did not accept its “strongly worded opinions about the MASSOB as a violent organization”. In addition to noting that the thesis contains unsourced allegations, the IAD found it lacks objectivity and a logical and coherent foundation for the “sweeping opinions” expressed by the author.

[21] The IAD’s assessment of the reliability of source information does not amount to a requirement for corroboration. Rather, the IAD assessed the documentary evidence to determine the extent to which it could rely on the claims that were being made. In my view, this is a fundamental principle of assessing evidence, particularly when the evidence is reported through a secondary source.

[22] As noted in Vavilov at paragraph 94, a reviewing court must read the decision maker’s reasons in light of the context of the proceedings in which they were rendered. The IAD panel was tasked with making a determination based on conflicting evidence from the parties, as objectively as possible. The voluminous record comprised thousands of pages of documentary evidence and witness testimony. The Re Almrei framework presents a reasonable framework for assessing the reliability of the evidence and the IAD assessed all of the evidence consistently, guided by the framework.

[23] In summary, it is my opinion that the IAD assessed the available evidence in a reasonable manner. The IAD correctly described the “reasonable grounds to believe” standard of proof under section 33 of the IRPA and did not apply a higher standard of proof. Rather, the IAD used the Re Almrei framework to determine the reliability of the evidence, which was within its role in weighing the evidence. The IAD’s assessments of the reliability of source information to support statements made in the documentary evidence or by witnesses do not amount to a requirement for corroboration that elevates the standard of proof above the criminal standard.

[24] The term “subversion by force” in paragraph 34(1)(b) is not defined in the IRPA: Najafi v Canada (Minister of Citizenship and Immigration), 2014 FCA 262 at para 65 [Najafi]. Parliament intended “subversion by force of any government” to have a broad application: Najafi at para 78. Paragraph 34(1)(b) applies no matter what type of government is involved: Oremade v Canada (Minister of Citizenship and Immigration), 2005 FC 1077 at para 24 [Oremade]. The intention to subvert by force is critical, but is not based solely on subjective intention; it may be presumed that a person knows or ought to have known and to have intended the natural consequences of their actions, and the actions of an organization or its members might lead to a reasonable conclusion that force would or could be used if necessary, despite a hope or expectation that it would not: Oremade at paras 25-26 and 29-30. Furthermore, “by force” is not simply the equivalent of “by violence”, and includes coercion or compulsion by threats to use violent means and a reasonably perceived potential for the use of coercion by violent means: Oremade at para 27.

[25] The Minister submits the IAD ignored evidence that showed the MASSOB was involved in subversion by force of the Nigerian government.

[26] The IAD found the allegation that the MASSOB intercepted oil tankers in 2001 was not established on the “reasonable grounds to believe” standard.

[27] The Minister submits the IAD ignored key parts of the evidence that pointed to the MASSOB’s intention to intercept oil tankers in 2001, and took a narrow view of the relevant period for assessing evidence of oil tanker interceptions by discounting evidence that post-dated April 2001. The Minister contends the IAD discounted and disregarded evidence “directly from MASSOB leaders that indicated their intention to intercept all fuel tankers loaded from Eastern Nigeria”; for example, the IAD did not address an article in Nigeria World (April 24, 2001) where the MASSOB leader is quoted as saying they would stop all loaded fuel tankers from leaving Eastern Nigeria from May 1, 2001.

[28] The Minister contends the IAD did not adequately consider the reliability of the media sources themselves, relying on generalizations about journalistic integrity to discount a statement in a March 2001 article from the Vanguard—a publication the Immigration and Refugee Board itself relies on for the purposes of National Documentation Packages and Responses to Information Requests—that the MASSOB intended to intercept fuel tankers beginning in April 2001. Furthermore, the IAD failed to engage with the Minister’s submissions that the evidence did not establish the relevant media reports were “fake news”, or that issues around the media’s integrity applied to the 2001 to 2006 timeframe in question, since issues about corruption in journalism were from articles in 2015 and later.

[29] Finally, the Minister submits that while each case must be determined on its own facts, the Federal Court’s findings in the precedent decision USA, that the MASSOB had accepted responsibility for the seizure of oil tankers, was “compelling and credible evidence to support the contention that this oil tanker incident occurred, and that this amounted to conduct intended to overthrow a government”.

[30] With respect to the evidence that was allegedly ignored, I agree with the respondents that the IAD’s failure to explicitly mention the Nigeria World article is not sufficiently central or significant to render the decision unreasonable: Vavilov at paras 91, 94 and 100. A tribunal is presumed to have considered all of the evidence before it unless the contrary is shown (Sekhon v Canada (Minister of Citizenship and Immigration), 2018 FC 700 at para 13, citing Rahman v Canada (Minister of Citizenship and Immigration), 2016 FC 793 at para 17) and a tribunal is not required to refer to every piece of evidence (Burai v Canada (Minister of Citizenship and Immigration), 2020 FC 966 at para 38 [Burai]). The respondents also note that the Nigeria World article was written by a citizen journalist, the IAD reasonably considered all evidence that was responsive to the Minister’s allegations that “between December 2000 and April 2001, MASSOB members forcefully seized northbound fuel tankers passing through Igbo states”, and the IAD did consider events post-April 2001, finding no evidence of oil tanker interceptions after April 2001. While the respondents’ additional points are valid, the key point for the purposes of this judicial review is that the Minister has not established that the failure to mention the Nigeria World article is a sufficiently serious shortcoming in the IAD’s decision, so as to call into question the IAD’s conclusion that “there are not reasonable grounds to believe the MASSOB engages, has engaged in, or will engage in, the subversion by force of the Nigerian government”: Vavilov at para 100; Burai at para 38.

[31] With respect to the Vanguard article, the IAD considered the statement purportedly made by a man named Mr. Okwukwu that the MASSOB intended to intercept fuel tankers beginning in April 2001. The IAD found the article to be an unreliable source for the allegation as there was no evidence the MASSOB intercepted fuel tankers after this date. The IAD also identified a debate in the evidence as to whether Mr. Okwukwu made the statement that was attributed to him, and whether he was a spokesperson for the MASSOB. The IAD found that even if Mr. Okwukwu stated on behalf of the MASSOB that they intended to intercept fuel tankers beginning in April 2001, the statement was irrelevant because the allegations on appeal were about fuel tanker interceptions before April 2001, Mr. Okwukwu’s statement cannot be presumed to represent the MASSOB’s position before April 2001, and there were no reports of fuel tanker interceptions after April 2001. I agree with the respondents that the IAD reasonably assessed the statement and the document.

[32] Turning to the Minister’s submission regarding the Federal Court’s findings in USA, the IAD specifically stated that it had considered USA as well as a previous IAD decision (Benneth v Canada (Minister of Public Safety and Emergency Preparedness), 2013 CanLII 65198 (CA IRB) [Benneth]), both of which found the MASSOB to be an organization that engages in subversion by force based on similar facts and evidence. However, the IAD noted key elements that differ. Contrary to concessions that were made in Benneth and in USA, Mr. Edom had denied the MASSOB was involved in hijacking oil tankers. The IAD wrote:

Every IAD decision, with associated findings of fact, rests in the foundational evidence before the decision maker. Thus, we do not rely on the factual determinations from other cases for this appeal. The onus remains on the [Minister] to establish how the evidence in this appeal supports the allegations on which his case relies.

[33] As noted above, the appeal before the 2021 IAD panel was a reconsideration. The Federal Court had set aside the IAD’s 2018 decision on judicial review, on the basis that the 2018 IAD member unreasonably relied on factual determinations in USA to find that the MASSOB seized oil tankers (Edom 2019 at paras 22-24):

[22] In my view, the IAD unreasonably relied upon factual determinations in other decisions in finding that the MASSOB seized oil tankers. “Subject to judicial notice, the answer to a question of fact, as it rests wholly on the evidence in a particular case, cannot be presumed to be true for any situation outside the specific one before the trial court” (R v Daley, 2007 SCC 53 at para 86). Put another way, an individual case does not establish binding factual precedents or eliminate the necessity of proving facts in each individual case.

[23] In this case, the IAD considered itself “bound” by the fact conceded in U.S.A. that the MASSOB high jacked oil tankers and, because the evidence presented by the Minister was similar to that presented in Benneth, the IAD found Benneth was “persuasive” in showing there were reasonable grounds to believe the MASSOB high jacked oil tankers. Aside from these two decisions, the only other evidence referenced by the IAD in making its finding concerning the seizure of oil tankers were two news articles and the testimony before the ID concerning the seizure of oil tankers.

[24] Essentially, the IAD determined in this case that, because it was accepted as a fact in U.S.A. and in Benneth that the MASSOB high jacked oil tankers, and since the Minister presented similar evidence in Benneth as in this case, this supported and bolstered its finding that the MASSOB seized oil tankers in Nigeria. This finding is problematic for two reasons. First, it cannot be verified; the record in Benneth was not before the IAD and, although the Minister submitted that the record in this case was similar to that in Benneth, this does not establish that it was. Second, not all of the evidence in this case was the same as in Benneth and U.S.A.

[34] I find the IAD did not err in noting a key difference in the factual record that required the IAD to make its own findings about whether the MASSOB was involved in hijacking oil tankers. Indeed, if the IAD had treated the finding in USA that the MASSOB had accepted responsibility for the seizure of oil tankers as “compelling and credible evidence” when Mr. Edom’s position is opposite to that of the respondent in USA on the point, the 2021 IAD panel would have fallen into the same error identified in Edom 2019. The Minister has not established that the IAD’s decision is unreasonable based on this alleged error.

[35] The IAD found the evidence insufficient to show that in 2005-2006 the MASSOB instigated census resistance and police attacks that constitute subversion by force of the Nigerian government. The IAD concluded that the evidence “does not show reasonable grounds to believe the events can be attributed to the MASSOB or, to the extent it was involved, that its actions convey the MASSOB’s intention to subvert the government by force.”

[36] The Minister submits that the IAD erred by ignoring the totality of the evidence relating to incidents of police clashes and census resistance in 2005-2006, and by failing to reconcile evidence that contradicted its conclusion and showed the MASSOB’s willingness to engage in violence.

[37] The respondents submit the IAD specifically referred to 10 of the 14 documents that the Minister relied on, and the Minister does not specify the evidence that was ignored or how it amounts to a sufficiently central or significant shortcoming. The respondents contend the Minister is effectively asking this Court to reweigh the evidence.

[38] I agree with the respondents. The Minister has not established that the IAD ignored relevant evidence.

[39] In contrast to the reports about oil tanker interceptions, the IAD found the news reports about police clashes and census resistance to be more numerous and include more reliable information. The IAD recognized longstanding tensions between the MASSOB and the Nigerian authorities; however, it found there was insufficient reliable evidence to believe the MASSOB acted to subvert the government of Nigeria through census resistance and clashes with the police. The IAD found that the MASSOB, like many other representative groups in Nigeria, sought to protest against or influence government policy, and the evidence did not provide reasonable grounds to believe that the MASSOB intended to oust the Nigerian government by force, coercion or compulsion by violence or threats of violence.

[40] In my view, it was open to the IAD to find that it was not satisfied, on the reasonable grounds to believe standard, that the MASSOB’s involvement in the alleged events amounted to subversion by force. The IAD’s reasons are transparent, intelligible, and justified based on the record. The Minister has not established that the IAD’s decision is unreasonable based on this alleged error.

[41] The Minister argues the IAD’s analysis was influenced by an undue emphasis on the self-professed, non-violent philosophy of the MASSOB, and on the relatively less violent nature of the MASSOB’s allegedly subversive acts of oil tanker interceptions, police clashes and census resistance when compared to bombings and other extremely violent means used by other organizations that have been found to engage in acts of subversion against a government. The Minister contends that the IAD effectively adopted a threshold of extreme violence, comparing the MASSOB to other organizations that had been found to have engaged in subversion by force by using extreme and violent means. While the MASSOB has not overtly declared an intention to subvert the Nigerian government, and declares itself to be a non-violent organization, that should not overshadow evidence that supported their willingness to engage in violence or threats to use violence against the government.

[42] In my view, the comparisons to other organizations does not render the IAD’s decision unreasonable. The IAD listed examples of subversive organizations to put the MASSOB’s alleged level of associated violence into perspective, and not as examples of the threshold for establishing subversion by force. The IAD’s determination that the MASSOB does not fall under paragraph 34(1)(b) of the IRPA is not based on a relatively less violent nature or philosophy. Instead, the IAD’s determination is based on a central finding that the evidence was insufficient to establish reasonable grounds to believe that the MASSOB had engaged in acts to subvert the government of Nigeria by intercepting fuel tankers in 2001, or through census resistance and clashes with the police in 2005-2006.

[43] In addition, the Minister asserts that the IAD did not engage in an adequately meaningful analysis of the decision in USA so as to justify reaching an outcome that is inconsistent with that decision. For the reasons explained above, the IAD reasonably distinguished the decision based a key difference in the factual record, particularly considering the error identified by this Court in Edom 2019.

V. Conclusion

[44] In my view, the IAD’s decision is reasonable. The IAD recited the correct framework to assess the reliability of the evidence, applied this framework consistently to the evidence, articulated the reasons for the decision in a transparent and intelligible way, and came to a conclusion that was justified in view of the record.

[45] This application for judicial review is dismissed.

[46] Neither party proposes a question for certification and I find there is no question to certify.

JUDGMENT in IMM-1620-21

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed.

2. There is no question to certify.

"Christine M. Pallotta"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

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