Date: 20000713
Docket: IMM-3394-99
Toronto, Ontario, Thursday the 13th day of July, 2000
PRESENT: The Honourable Mr. Justice Gibson
BETWEEN:
OSARETIN OSAGIE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
This application for judicial review is dismissed. No question is certified.
"Frederick E. Gibson"
J.F.C.C.
Date: 20000713
Docket: IMM-3394-99
BETWEEN:
OSARETIN OSAGIE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that expression in subsection 2(1) of the Immigration Act .1 The decision of the CRDD is dated the 2nd of June, 1999.
The applicant is a citizen of Nigeria. He bases his claim to a well-founded fear of persecution if he is required to return to Nigeria on the grounds of his political opinion and his membership in a particular group, namely, dissenters formerly within the Nigerian military who deserted the military and are perceived to be enemies of the ruling military junta at the relevant time.
The applicant voluntarily joined the Nigerian military in January of 1985. Following entry training, he was assigned to the Finance Corp Base in Lagos and he remained at that base, at the rank of private, throughout his military service until he deserted in March of 1998.
The same military complex that housed the Finance Corp Base was shared with units of the Intelligence Corp and the Military Police. While the areas of the complex occupied by the Finance Corp, the Intelligence Corp and the Military Police were separate and discrete, members of the three units shared common barracks.
Throughout his time in the Nigerian military, the applicant was provided with educational opportunities, he performed guard duties, and upon completion of his education, he served in the library and as an assistant lecturer.
The applicant testified before the CRDD that he privately expressed concerns with human rights abuses committed by the Nigerian military. It was not in dispute before the CRDD that the Intelligence Corp unit and the Military Police unit that occupied portions of the same military complex where the applicant was stationed engaged in atrocities against private citizens and members of the military of Nigeria within the complex and the applicant was aware of this fact.
The applicant also privately expressed dissatisfaction with the fact that he was not promoted through the ranks. He described this failure as discriminatory activity on the part of the military that was directed against him.
Nonetheless, the applicant remained a member serving in the Nigerian military for more than 13 years.
Following an alleged coup plot in December of 1997, two of the applicant"s colleagues were arrested. The applicant was relieved "temporarily", of duties and was directed to report to his superior on a daily basis. The applicant feared that he would suffer the same fate as his two arrested colleagues. In the result, on the 2nd of March, 1998, the applicant deserted, went into hiding and finally left Nigeria on the 12th of April, 1998.
The CRDD concluded that the applicant was a person to whom the United Nations Convention Relating to the Status of Refugees signed at Geneva on July 28, 1951 and the related Protocol signed at New York City on January 31, 1967 does not apply by virtue of paragraph (a) of section F of article 1 of the Convention and was therefore excluded from the definition "Convention refugee" in subsection 2(1) of the Immigration Act . Section F of article 1 of the Convention is set out in the schedule to the Immigration Act and reads in part as follows:
| 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 don"t 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;
...
|
| Counsel for the applicant urged that in so concluding, the CRDD"s overall assessment of the totality of the evidence before it was patently unreasonable, perverse and capricious and was based on a misinterpretation of the relevant case law and therefore involved a reviewable error of law. |
| In granting leave in connection with this application for judicial review, my colleague Mr. Justice Muldoon would appear to have endorsed the concerns of counsel for the applicant. In reasons in support of the grant of leave, Mr. Justice Muldoon wrote: |
| To hold that article 1, section F, paragraph (a) of the Convention operates collectively is to commit an error of law. If the sanction against war crimes were meant to apply to all persons of the same army, regiment or platoon in Canadian law, the provision would have to say so. In fact it is not so written. 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 crime. |
| If that provision applied to anyone who happened to be a member of an army, regiment or platoon some others of whom commit a crime against peace, a war crime, or a crime against humanity and are linked only by administrative or organizational liaison to those criminals, but have no blood on their hands or consciences, then Canadian law would have to say so. But, such collective retribution is contrary to Canadian law. There must be proof of complicity. |
| Here, by applying the Convention provision in such a manner CRDD erred in law, so that leave must be granted. |
| Mr. Justice Muldoon"s views are, of course, not binding on me. If they were, no purpose would have been served in this matter proceeding beyond the leave stage to production of the CRDD"s record and an oral hearing on the merits. Having had the benefit of an opportunity to review the CRDD"s record and to hear the oral submissions of counsel, I reach a different conclusion from that of my colleague. I conclude that the CRDD made no reviewable error in determining that the applicant was excluded from the definition "Convention refugee" and that therefore this application for judicial review must be dismissed. That is not to say that I conclude that everyone who happened to be a member of the Nigerian army or a regiment or platoon thereof at the relevant time falls within the ambit of article 1F(a) of the Convention. It is only to say that, on the facts of this matter, I conclude that the CRDD made no reviewable error in concluding that the applicant fell within the ambit of that paragraph of the article. |
| In Ramirez v. Canada (Minister of Employment and Immigration)2, Mr. Justice McGuigan, for the Court, wrote at pages 326 and 327: |
| On a standard of "serious reasons for considering that ... he has committed a crime against peace, a war crime or a crime against humanity," I cannot see the appellant"s case as even a borderline one. He was aware of a very large number of interrogations carried out by the military, on what may have been as much as a twice-weekly basis (following some 130-160 military engagements) during his 20 months of active service. He could never be classed as a simple on-looker, but was on all occasions a participating and knowing member of a military force, one of whose common objectives was the torture of prisoners to extract information. This was one of the things his army did, regularly and repeatedly, as he admitted. He was a part of the operation, even if he personally was in no sense a "cheering section." In other words, his presence at this number of incidents of persecution, coupled with his sharing in the common purpose of the military forces, clearly constitutes complicity. We need not define for purposes of this case, the moment at which complicity may be said to have been established, because this case is not to my mind near the borderline. The Appellant was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity. |
| I am satisfied that much of the foregoing might be said of the applicant in this matter. In the words of Mr. Justice McGuigan, the applicant here was no innocent by-stander: he was an integral, albeit reluctant, part of the military enterprise that produced those terrible moments of collectively deliberate inhumanity. |
| The documentary evidence that was before the CRDD clearly establishes that at all times relevant to this matter, the Nigerian military was a military enterprise that engaged in detention, torture and murder. One of its "common objectives" was to retain political power unto itself and it was prepared to resort to whatever measures it considered necessary to achieve that objective. |
| The evidence before the CRDD clearly established that the applicant voluntarily joined the military, that he was aware that it was prepared to resort to and did resort to inhumane measures to achieve one of its common objectives, and that he nonetheless remained a member of the Nigerian military for many years during which he had opportunities to disassociate himself. In the end, he only disassociated himself when he felt that he might be personally at risk. Once again in the words of Mr. Justice McGuigan, the applicant "...was a part of the operation, even if he personally was in no sense a "cheering section."" He shared in a fearful common purpose of the Nigerian military. That sharing, from no matter how remote an element of the military, and here the remoteness was not physical but merely operational, clearly constituted complicity. |
| Against the foregoing guidance provided by the Federal Court of Appeal in Ramirez, I conclude that the CRDD made no reviewable error in concluding as it did on all of the evidence before it that the applicant was excluded from the definition "Convention refugee" by reason of article 1 F (a) of the Convention. That conclusion, of itself, was sufficient to support the CRDD"s decision against the applicant. In the result, I need go no further to consider other conclusions of the CRDD. |
For the foregoing reasons, this application for judicial review will be dismissed. Neither counsel before me recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
July 13, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: OSARETIN OSAGIE |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, JULY 11, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: GIBSON J. |
DATED: THURSDAY, JULY 13, 2000
| APPEARANCES BY: Mr. Kingsley Jesuorobo |
| SOLICITORS OF RECORD: Kingsley Jesuorobo |
Barrister & Solicitor
968 Wilson Avenue
3 rd Floor
North York, Ontario
M3K 1E7
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000713
Docket: IMM-3394-99
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
__________________
1R.S.C. 1985, c. I-2.
2[1992] 2 F.C. 306 (C.A.).
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