Federal Court Decisions

 

 

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:

 

 

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"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                            IMM-1770-06

 

STYLE OF CAUSE:                            SOLOMON OREMADE

 

                                                              v.

 

                                                              THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                      OTTAWA, ONTARIO

 

DATE OF HEARING:                        September 28, 2006

 

REASONS FOR JUDGMENT

AND JUDGMENT BY:                      Justice Strayer

 

DATED:                                               October 5, 2006

 

 

APPEARANCES:

 

Mr. Solomon Oremade	FOR THE APPLICANT(S)
Ms. Tatiana Sandler Tel: 613-948-3463 Fax: 613-954-1920	FOR THE RESPONDENT(S)

 

 

SOLICITORS OF RECORD:

 

Mr. Isaac Owusu-Sechere Barrister and Solicitor	FOR THE APPLICANT(S)
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice	FOR THE RESPONDENT(S)