Date: 20061005
Docket: IMM-1770-06
Citation: 2006 FC 1189
OTTAWA, ONTARIO,
October 5, 2006
PRESENT: THE HONOURABLE MR. JUSTICE STRAYER
BETWEEN:
SOLOMON OREMADE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
This
is an application for judicial review of an order of the Immigration Appeal
Division (“IAD”) dated March 9, 2006 in which the IAD found the Applicant to be
inadmissible to Canada pursuant to paragraph 34(1)(b) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27. That paragraph provides as
follows:
|
34. (1) A permanent resident or a
foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or
an act of subversion against a democratic government, institution or process
as they are understood in Canada;
(b) engaging in or instigating the
subversion by force of any government;…
|
34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
a) être l’auteur d’actes d’espionnage
ou se livrer à la subversion contre toute institution démocratique, au sens
où cette expression s’entend au Canada;
b) être l’instigateur ou l’auteur
d’actes visant au renversement d’un gouvernement par la force;…
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Facts
[2]
According
to the IAD, the following facts as drawn from a Judgment of Justice Michael
Phelan in judicial review on a previous decision of the IAD in this matter were
agreed to by the parties and are as follows:
[4]
In 1994, individuals who were plotting to overthrow the then Nigerian
government approached Oremade at a Christmas party. Oremade agreed to take part
in the proposed coup and the planning to stage the coup took place from
December 1994 until February 1995. During the months of January and February,
the coup plotters met at Oremade's house on several occasions. It was finally
determined that the coup should occur March 11, 1995.
[5]
As an ex-military officer, Oremade's planned role in the coup was to don an
army lieutenant’s uniform and lead a group of fifty (50) armed soldiers to the Lagos International
Airport on March 11, 1995.
Oremade and his men were to seize and secure the airport, ensuring that no
planes were allowed to take off. (The Applicant described their function as one
of ensuring that no vandalism took place at the airport). To the date of the
aborted coup, Oremade never met any of the soldiers he was to lead.
[6]
On March 9, 1995 - two days before the scheduled coup - the plotters were
betrayed and the majority arrested. Oremade, however, managed to escape and
made his way to Germany. Had the coup succeeded, Oremade says
that he was to have been appointed Governor of Lagos State.
[7]
The Applicant insisted throughout his case that the plan was for a bloodless
coup. He argued that it was reasonable to believe that a bloodless coup would
succeed based on past examples of coups in Nigeria
in 1983 and 1986. It was expected that when the coup was announced, the
government would step down because it had no popular support.
[8]
The Applicant argued before the Immigration Division that there was no
evidence of any intended use of force, and that he did not instigate or
encourage any subversion since he was recruited by others. He also argued that
the Nigerian government was a despotic government and that use of the phrase
"any government" in paragraph 34(1)(b) of IRPA could not have been
intended to be interpreted so broadly as to include a despotic government.
[9]
The Immigration Division held that Oremade was involved in
"instigating" but not in "engaging in the subversion of a
government". The Division accepted Oremade's evidence that the coup was
planned to be bloodless and therefore was not "subversion by force".
[10]
The IAD, in overturning the Division's decision noted that counsel for Oremade
conceded that his client was instigating the subversion of the Nigerian
government, given Oremade's own admission that he participated in several
meetings to plan the overthrow. However, the Applicant based his case on the grounds
that there never was any intention to use "force" to subvert the
Nigerian government.
[3]
In
an initial decision of the Immigration Division (“ID”) dated July 16, 2003, the
ID found the Applicant not to be inadmissible under paragraph 34(1)(b) on the grounds
that there was no evidence of intent to use force to effect the coup. The Minister
appealed that decision to the IAD and it rendered a decision on September 10,
2004 which found the Applicant to be inadmissible. That decision was open to
the interpretation that the panel considered the intent of the Applicant to use
or not use force to be irrelevant, relying on objective facts that would
indicate a possible use of force. The Applicant sought judicial review of that
decision on the basis that it was wrong in law to consider intent to use force
to be irrelevant to a determination under paragraph 34(1)(b). Justice Phelan
on August 9, 2005 set aside the decision of the IAD because it was open to the
interpretation
that the Applicant’s intention was irrelevant.
While he confirmed that intention to use force is an essential element in the
application of this paragraph, he stated that:
[30]
It is the Board's function to weigh all the subjective and objective evidence
related to the impugned act. Subjective intent is but one element albeit, a
relevant one. In assessing all of the evidence of intent, it is appropriate to
presume that a person knows or ought to have known and to have intended the
natural consequence of their action.
[4]
He
also held that the words “by force” in paragraph 34(1)(b):
…includes
coercion or compulsion by violent means, coercion or compulsion by threats to
use violent means, and, I would add, reasonably perceived potential for the use
of coercion by violent means. (Oremade v. Canada ((Minister of Citizenship and Immigration),[2005] F.C.J. No. 1330; 2005 FC 1077, paragraph 27.)
Justice Phelan quashed the IAD decision and
sent the matter back for re-hearing.
[5]
A
second hearing was held by a differently constituted panel of the IAD and in a
decision of March 9, 2006 it again held that the Applicant was not admissible,
finding that he had engaged in or instigated the subversion by force of the
Nigerian government.
[6]
The
Applicant seeks judicial review of that decision on several grounds. He
asserts that the IAD erred in certain findings of lack of credibility of the
Applicant and in not giving sufficient weight to the Applicant’s evidence as to
events or probabilities. He argues that the objective evidence did not clearly
demonstrate that the Applicant intended to use force. He further argues that
the panel erred in law by rejecting his argument that paragraph 34(1)(b) could
not be interpreted to prescribe the use of force to overthrow a despotic or
“terrorist” government which he asserted the Nigerian government to be. His
argument is that since there is no other way but the use of force to overthrow
a despotic government, Parliament should not be taken to have precluded the use
of force against such governments.
[7]
On
the morning of September 28, 2006 when this matter was scheduled to be heard, I
was informed that counsel for the Applicant was ill and could not proceed. I
offered to adjourn the hearing until the week commencing October 23, 2006.
However, the Applicant who was present wished to proceed with the hearing in
the absence of his counsel. On questioning, he confirmed that this was his
wish. While counsel for the Respondent was doubtful that this could be done
without written notice to the Applicant’s lawyer terminating his services, I
was of the view that such notice was only required to terminate his role as
solicitor of record. In my view, it was open to the client to act as his own
counsel in Court even if his lawyer remained as solicitor of record. We then proceeded
with the hearing. I also carefully reviewed the Memorandum of Argument
prepared by his solicitor.
Analysis
[8]
I
am satisfied that the application for judicial review should be dismissed.
[9]
With
respect to findings of credibility and of fact, it is agreed by the parties,
and I accept that the standard of review is patent unreasonability.
[10]
The
Applicant takes issue with a number of negative findings of credibility by the
panel. I have reviewed these with care having regard to the written
submissions of Applicant’s counsel and his oral presentation in Court. For the
most part, although the Applicant does not agree with the IAD’s findings of
inconsistency in his evidence, there were reasonable grounds in the record for
the IAD to find inconsistencies. In one or two cases where this may not be the
case, the matters could not have been of any importance in the conclusions reached.
Certainly I can find no patent unreasonability in the IAD conclusions as to
credibility.
[11]
Nor
can I find any such patent unreasonability in the findings of fact made.
Reviewing these findings of fact essentially as the application of evidence to
the law of paragraph 34(1)(b) as interpreted by Justice Phelan, a matter which
is reviewable on the standard of reasonableness, I find that it was certainly
open to the IAD to conclude on the basis of objective evidence that there was
an intention on the part of the Applicant and his coup colleagues to engage in or
instigate the subversion by force of the Nigerian government. This is entirely
consistent with Justice Phelan’s conclusion that “a person knows or ought to
have known and to have intended the natural consequences of their action” and
that “by force” includes “reasonably perceived potential for the use of
coercion by violent means”. It was agreed by the parties before the IAD in the
language quoted above that the Applicant and his colleagues plotted to
overthrow the Nigerian government in a series of meetings from December, 1944
until February, 1995. It was also agreed that the Applicant was to put on an
army lieutenant’s uniform and lead a group of fifty armed soldiers to the Lagos International Airport on March 11,
1995 in order to seize and secure the airport and ensure that no planes were
allowed to take off. It was certainly open to the IAD to conclude that there
would be armed security personnel at the airport and that the sight of fifty
armed men led by a man in uniform would be seen by reasonable observers as an
organized effort to take over the airport by force in the furtherance of a
coup. A reasonably foreseeable consequence would be armed resistance and
counter-resistance. There was supplementary evidence to indicate an organized
effort to plan the airport take over and to confirm that the Applicant must
have been aware of the potential for violence. This being the case it would
have been open to the IAD to find against the Applicant, even without doubts
about his credibility, because his evidence for the most part pertained to his
subjective intent which in the circumstances could not have been solely determinative.
[12]
As
for the question of law involved, namely that the words “by force” in paragraph
34(1)(b) make the paragraph inapplicable to a coup planned to overthrow a
despotic government, there is no support in section 34 for that
interpretation. I respectfully agree with Justice Phelan where he stated in
paragraph 24 of his reasons that while paragraph 34(1)(a) of the Act only
applies to acts of espionage or subversion against a “democratic government”,
paragraph 34(1)(b), proscribing those who have engaged in subversion “by force
of any government” applies regardless of the kind of government which is the
target of the subversion. The standard of review on a question of law being
correctness, the IAD’s interpretation is correct.
Disposition
[13]
The
application for judicial review will, therefore, be dismissed with costs.
JUDGMENT
THIS COURT ADJUDGES that
the application for judicial review of the IAD decision of March 9, 2006 be
dismissed with costs.
"B.
L. Strayer"
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