Date: 20020306
Docket: IMM-2111-01
Neutral citation: 2002 FCT 251
Toronto, Ontario, Wednesday the 6th day of March 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
OJERE OSAKPAMWAN ARIRI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Ojere Osakpamwan Ariri, a citizen of Nigeria, claims a well-founded fear of persecution in Nigeria by reason of his perceived political opinion. He brings this application for judicial review from the March 27, 2001 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") that he is excluded from the application of the United Nations Convention Relating to the Status of Refugees ("Convention"), due to the application of paragraph (a) of section F of Article 1 of the Convention.
[2] The definition of Convention refugee in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") states that a Convention refugee "does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof".
[3] The relevant portion of section F of Article 1 of the Convention is 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.
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F. Les dispositions de cette Convention ne seront aps applicables aux personnes don't on aura des raisons sérieuses de penser :
a) Qu'elles ont commis un crime ocntre 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.
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THE FACTS
[4] Mr. Ariri testified as follows. In 1984 he voluntarily joined the Nigerian Navy, signing on for a period of 16 years. In July, 1985 he made a report against his commanding officer for bringing teenage girls on board ship for sexual purposes in contravention of regulations. As a result, Mr. Ariri was arrested, detained in inhumane conditions for three months, and on the threat of court-martial told never to make accusations against senior officers again. His promotion to Able Seaman was delayed for one year.
[5] Later, in 1989, Mr. Ariri was posted as a naval police officer at the airport in Lagos with the rank of Leading Regulator, which is equivalent to the rank of staff sergeant. There, on December 31, 1990 Mr. Ariri arrested the wife of a navy commander for possession of illegal drugs. Once again he was detained in abusive conditions and released six weeks later.
[6] After being released from detention Mr. Ariri worked from 1991 with the rank of Leading Regulator of the Naval Police to enforce military discipline on members of the military. He would conduct investigations and write-up charges.
[7] While in this position he heard rumours that naval officers were killing civilians. On occasions if he came on duty and someone was being mistreated Mr. Ariri would stop that mistreatment. If Mr. Ariri came in and saw a civilian had been tortured by an officer Mr. Ariri would arrange medical treatment for the victim and then hand over the victim and the officer to the civilian police.
[8] In July 1994, Mr. Ariri was asked to assist in quelling a demonstration in Lagos protesting the annulment of the election of Chief Moshood Abiola as president. At the demonstration he saw defenceless civilians being shot. Even though water guns, tear gas and rubber bullets were available, live ammunition was used to quell the demonstrators. Mr. Ariri stated that he could not shoot at innocent civilians. After the demonstration, when the ammunition of returning servicemen was counted, it was discovered that Mr. Ariri had not fired against the demonstrators. He was thereafter detained and tortured for four years, until he managed to escape in June 1998 in the confusion following the death of General Abacha. Mr. Ariri made his way to Canada, arriving in February of 1999.
THE ISSUE
[9] Mr. Ariri asserts that the CRDD's overall assessment of the totality of the evidence was patently unreasonable, perverse and capricious and that the CRDD unfairly and improperly assessed the evidence.
ANALYSIS
[10] In Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F. C. 306 the Federal Court of Appeal set forth principles which govern exclusion under section F (a) of Article 1 of the Convention. Principals relevant to this application are:
i) The burden of establishing serious reasons for considering a crime within the exclusion was committed is on the respondent.
ii) The standard of proof is lower than that on a balance of probabilities.
iii) Mere membership in organization which from time to time commits international offenses is not normally sufficient for exclusion.
iv) What is required is personal and knowing participation in persecutory acts.
v) Complicity rests on the existence of a shared common purpose, and the knowledge that all parties in question may have of it.
[11] In Penate v. Canada (Minister of Employment and Immigration), [1994] 2 F. C. 79 (F.C.T.D.) Justice Reed, at paragraph 6, framed the requirement for complicity in the following terms:
As I understand the jurisprudence, it is that a person who is a member of the persecuting group and who has knowledge that activities are being committed by the group and who neither takes steps to prevent them occurring (if he has the power to do so) nor disengages himself from the group at the earliest opportunity (consistent with safety for himself) but who lends his active support to the group will be considered to be an accomplice. A shared common purpose will be considered to exist. I note that the situation envisaged by this jurisprudence is not one in which isolated incidents of international offences have occurred but where the commission of such offences is a continuous and regular part of the operation.
[12] In the present case, the CRDD found:
i) Mr. Ariri was a member of the Nigerian Navy, part of the Nigerian military, and that the commission of international offenses was a continuous and regular part of the operation of the Nigerian military.
ii) Mr. Ariri had knowledge of the crimes committed by naval personnel and the military.
iii) Mr. Ariri was a willing participant in the military whose objective was to preserve the military government in power and which committed numerous human rights abuses directed to that purpose.
iv) Mr. Ariri did not disengage himself from the Navy at the earliest opportunity consistent with his own safety.
[13] If those findings of fact were properly made, the CRDD committed no reviewable error in finding Mr. Ariri to be excluded.
[14] As for the findings of membership in the military and that the commission of international offenses was a continuous and regular part of the military's operation, the evidence before the CRDD, upon which it relied, was as follows.
[15] Mr. Ariri voluntarily joined the navy in 1984, and voluntarily remained a member until his final detention in 1994, notwithstanding two prior detentions resulting from his efforts to enforce regulations. While in the navy Mr. Ariri strove for promotion, achieving the rank of Leading Regulator.
[16] In 1983 senior military officers seized power and on January 3, 1984 the Supreme Military Council launched its war against indiscipline.
[17] Mr. Ariri's experience of being unfairly detained, mistreated and threatened when he reported the sexual activities of his commanding officer, and the criminal behavior of the wife of another officer, evidenced the abuses committed by the Nigerian Armed Forces, even against their own personnel.
[18] Between July 5 and 9, 1993, the police and military killed hundreds of people, sometimes firing randomly into crowds. No effort was made by the government to investigate the conduct of security forces during or after the July riots.
[19] Police and security services commonly engaged in extrajudicial killings and excessive use of force to quell anti-military and pro-democracy protests. The government seldom held police or security services accountable for the use of excessive, deadly force or the death of individuals while in custody. The government fostered a climate of impunity in which those abuses flourished.
[20] Mr Ariri testified as to the treatment of civilians at the Apapa naval base during the years he was there as a leading regulator.
[21] This evidence supports the panel's conclusions with respect to Mr. Ariri's membership in the military and that the military committed international offenses as a continuous and regular part of its operation. Those conclusions cannot be said to be patently unreasonable or clearly wrong.
[22] As to the finding that Mr. Ariri had knowledge of the crimes committed by navy personnel and the military, Mr. Ariri testified:
Minister's Rep: Did you see officers in the navy killing civilians at this - at the base?
Claimant: You can't - you see, if you see somebody like, after you - I've never seen them killed, but I hear rumours. And when I come to work, if I'm on duty - that I have told you - and if somebody's being maltreated, I stop it right away.
Minister's Rep: Why did you say that, then: "Yes, I do see them when I'm on duty."
Claimant: No, no, no. I - what do you mean by - it's like - when she was asking me a question, I said when people are being tortured and I'm just coming in to take over a shift - it's what I really mean by that. I don't say that they - like somebody is being tortured. I come and I see the thing is going on and I'm - and I see them as a civilian, is in civil clothes, I ask, "What is the problem? What is his name?"
Minister's Rep: Mm - hmm.
Claimant: "Who is this?" You know, you have to take the blood type, particular things, follow the procedure first -
Minister's Rep: Right.
Claimant: Then you have to take the blood type, take their name, profession, their address. And then, before intervene, "What is the problem?"
Minister's Rep: But you were aware that officers in the navy were torturing civilians at the base.
Claimant: When I -
Minister's Rep: You were aware of that.
Claimant: No, no no. I see what they're doing and I come in and I stop it. Then I -
Minister's Rep: Yes. So you were aware of it.
Claimant: Then I send the case to civil - civil police.
Minister's Rep: Yes, but you were aware of officers of the navy torturing and killing civilians at the base.
Claimant: If you say "killing," you are making mistake. You are saying "killing," madam. And I didn't say - I said if they - like I hear rumour, like what they do.
Panel Member: You hear a what?
Minister's Rep: Rumour.
Claimant: Like, when I come to work, the night shift will tell me, "Oh, look at what happened when we were on duty," you know?
Panel Member: So the main shift would tell you what had happened when they were on duty -
Claimant: Like - yes, when they were on duty.
Panel Member: And what would they say had happened? Answer just that question. What would they tell you had happened?
Claimant: They - they might say - someone they tortured here today and they - he's almost at the point of death and he would be sent to the hospital.
[...]
Minister's Rep: Okay. When you first heard of an abuse or of a torture at the base or whatever it was, what was your reaction? What did you do about it?
Claimant: When I came on, I saw there was a conflict between a - a civilian -
Minister's Rep: Right.
Claimant: - and a naval officer. And they asked me to write it and to hand him - to lock him up. I tell them, "No, I can't lock him." First of all - you know, what you do first is take the - take particulars of everybody, two parties. I took the particulars of everybody, of the officer and the person - the civilian (inaudible) ... have to document that. And have to tell - reporting him in to his - you have to refer to police, civil police. You have to call the civil police in and they now come and take their parts to civil police - the case is going to be dealt with by the civil police, not - that is what is written in the (inaudible) ...
Minister's Rep: Okay. What was being done to the civilian?
Claimant: From there, I don't know. Because when I give case to police, it's not my -
Minister's Rep: No. Before you gave the case to the police, when you got there and they asked you to lock him up, what was being done to the civilian? Was he being tortured? Was be beaten?
Claimant: Like, before I came there, he was already tortured (inaudible) ...
Minister's Rep: He was already tortured.
Claimant: Yeah. Then I now have to send him to - we sent him back to the police.
[...]
Minister's Rep: So previous to this demonstration in July of ‘94, the navy was involved in quelling demonstrations -
Claimant: Yes, we -
Minister's Rep: - and shooting at civilians and at people.
Claimant: They -
Minister's Rep: And students.
Claimant: We were very involved in stopping that, to stop the riots.
Minister's Rep: They were involved in shooting at civilians and students, weren't they?
Claimant: That's what I'm saying, yes. Army, navy, air force.
Minister's Rep: And you were aware of that? You were aware that the navy was being called.
Claimant: I was - I was - yes, it was one occasion.
Minister's Rep: I'm not asking you about this occasion.
Claimant: Yeah.
Minister's Rep: In July of ‘94. I'm asking previous to that -
Claimant: Yeah.
Minister's Rep: - you were aware that the navy was being called to quell the demonstrations -
Claimant: Yeah.
Minister's Rep: - and shoot at students and civilians.
Claimant: Yes.
Minister's Rep: You were aware of that.
Claimant: Yes.
Minister's Rep: Okay.
Claimant: I saw it on t.v., yeah.
[23] Mr. Ariri's testimony, together with his own experience, establishes the requisite knowledge of the nature and extent of the offenses committed by the military and navy personnel.
[24] As to Mr. Ariri's participation in the military, the evidence was as follows.
[25] Mr. Ariri volunteered and remained a willing member of the military for ten years, achieving a rank equivalent to staff sergeant.
[26] From 1991 forward Mr. Ariri was involved in enforcing military discipline. He testified that if someone committed an offense the person would be brought before Mr. Ariri who would write a charge, report the accused to a commanding officer and an investigation would follow. Mr. Ariri would make a recommendation as to punishment.
[27] There was no evidence that Mr. Ariri took steps to prevent abuses that did not occur on his shift.
[28] Mr. Ariri testified that when he came across torture he stopped it because the regulations required civilians to be handed over to the civilian police.
[29] There was documentary evidence before the CRDD as to the abuses committed by the civilian police so that the CRDD concluded that due to the reputation of the civilian police, Mr. Ariri's own training, his year of education at the Nigerian Naval Police and Intelligence College, his service in security at the Lagos airport, and his residence in Lagos during the 1992 and 1993 demonstrations, it was reasonable to conclude that Mr. Ariri would have been aware of the human rights abuses committed by the civilian police. Therefore his concern with respect to victims of torture was to follow Navy regulations, not to prevent abuses.
[30] The CRDD could reasonably conclude on the evidence before it that Mr. Ariri was an active and willing participant in the military.
[31] As to the finding that Mr. Ariri did not disengage himself from the navy at the earliest opportunity consistent with his own safety, Mr. Ariri testified as follows:
RCO: Why did you not leave the army?
CLAIMANT: Because at the time I was locked in the airport, I couldn't leave because there was no place I could go to. And also, I so much loved the military. The navy was my adventure because I did like sailing a lot.
RCO: Sorry. I didn't -
CLAIMANT: Sailing was an adventure for me because I did like sailing.
RCO: I did like...
INTERPRETER: Sailing. Sailing.
PANEL MEMBER: Sailing.
RCO: Sailing.
INTERPRETER: Yeah.
RCO: Okay. Sorry.
PANEL MEMBER: It's okay. But for all this time that you were in the army, in the navy, and you were seeing these things happening, how could you live with that?
CLAIMANT: I had no choice. I had no other place to look out - because I had no place - I had no money to start a life elsewhere or go to school. That was the only choice I had.
RCO: So you never thought of giving a letter of this - of - but to leave.
You never -
PANEL MEMBER: Resigning.
RCO: Yeah, exactly. A resignation.
CLAIMANT: Okay. You do not leave the military without completing the number of years you signed in from the initial beginning. In other words, if you sign 12 years, you cannot leave until 12 years is done.
[...]
MINISTER'S REP: Yes, okay. When you became aware, in 1991, that personnel in the navy were torturing or abusing civilians at the base, why did you continue to be a part of this machinery? Why did you continue to be a part of the navy and, sir, of this brutality?
CLAIMANT: (inaudible)... I have to do once. You can't leave that job until 12 years. If you leave that job, you are considered a desertion, that's one. And I told you secondly (inaudible)... I told you, I said okay, I'm there maybe to - in the near future, if I happen to be an officer, I might make changes. I've just given you three reasons that makes me still stay in the navy. Because if everybody keep leaving, the country is going turn another road.
MINISTER'S REP: H'mm?
CLAIMANT: If everybody keep leaving their job, and there's nobody to stand up for the right thing, the - the system become - it could be worsened. So I was there for three reasons. One is (inaudible)... desertion and at the same time, trying to upgrade myself to a better level, to a higher system, whereby I can stop those things.
MINISTER'S REP: So you were concerned about the system collapsing if you leave the job, right?
CLAIMANT: One. That's one of the reasons.
[...]
RCO: Okay. As a leading regulator, did you deal with cases of desertion?
CLAIMANT: Yes, on several occasion.
RCO: And what's the punishment if you desert the army?
CLAIMANT: Like I told you before, they review this - they review the attempts of - like, any offence people commit, they review cases, but when I was there, it was between two - between five years or something.
RCO: Two to five years?
CLAIMANT: Four to five years so something, when I was there.
[32] I am satisfied on this and the other evidence before the CRDD that its finding that Mr. Ariri did not disengage from the military at the earliest prudent opportunity was supported by the evidence before it.
[33] Mr. Ariri made much of the fact that no one was tortured on his shift. That is to his credit, but his situation has striking parallels to that considered by the Court in Ramirez, supra. There the Federal Court of Appeal wrote at paragraphs 37 and 38:
I find it clear from these and other passages in the appellant's testimony, as well as from the documentary evidence, that the torture and killing of captives had become a military way of life in El Salvador. It is to the appellant's credit that his conscience was greatly troubled by this, so much so that during his second term of enlistment, after three times unsuccessfully requesting a discharge (Appeal Book, I at 41), he eventually deserted in November, 1987 (Appeal Book, I at 47), in considerable part at least because of his bad conscience. I have also to say, however, that I think it is not to his credit that he continued to participate in military operations leading to such results over such a lengthy period of time. He was an active part of the military forces committing such atrocities, he was fully aware of what was happening, and he could not succeed in disengaging himself merely by ensuring that he was never the one to inflict the pain or pull the trigger.
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.
[34] Like Mr. Ramirez, Mr. Ariri was an active part of the military forces which committed collective, deliberate acts of inhumanity. Had his ammunition not been counted after he was ordered to fire on civilians he would have returned to his regular duties. He cannot disengage himself from the actions of the military by simply stating that he was not the one who personally inflicted the torture. To echo the words of the Court of Appeal in Ramirez, the harm Mr. Ariri would have been exposed to for desertion, a term of imprisonment, was much less than the torture and death facing the victims of the military forces to which he adhered.
ORDER
IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. Counsel posed no question for certification and no question is certified.
"Eleanor R. Dawson"
Judge
Toronto, Ontario
March 6, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2111-01
STYLE OF CAUSE: OJERE OSAKPAMWAN ARIRI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, FEBRUARY 7, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: WEDNESDAY, MARCH 6, 2002
APPEARANCES BY: Mr. Emeka Nwoko
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: Mr. A. Emeka Nwoko
Barrister & Solicitor
4101 Steeles Avenue West
Suite 201
Toronto, Ontario
M3N 1V7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020306
Docket: IMM-2111-01
BETWEEN:
OJERE OSAKPAMWAN ARIRI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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