Kabir v. Canada (Minister of Citizenship and Immigration)

Ottawa, Ontario, this 27^th day of May, 2003

PRESENT: THE HONOURABLE JOHANNE GAUTHIER

BETWEEN:

OLUSEGUN (SEGUN) ADETOKUMBO (ADEJOKUMB)

KABIR, AKANNI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1] Olusegun (Segun) Adetokumbo (Adejokumb) Kabir, Akanni seeks judicial review of the decision of a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated September 30, 2002 that determined that Mr. Akanni is not a Convention refugee because there are serious reasons for considering that I) he has committed a crime against peace or a crime against humanity (Article 1F(a) of the United Nations Convention Relating to the Status of Refugees), and ii) has committed a serious non-political crime in Nigeria prior to his coming to Canada (Article 1F(b) of the Refugee Convention).

[2] Mr. Akanni is a citizen of Nigeria. At the time of the hearing, he was 30 years old. He claimed a well founded fear of persecution from the Nigerian government because of his membership in the Oodua Peoples Congress ("OPC"), more particularly in the Gani Adams' faction of this organization. Mr. Akanni left Nigeria a couple of months after participating in a large demonstration to obtain the release of Mr. Gani Adams resulted in violence and repression which participation prompted the police to search for him. Mr. Akanni fears that if he returns to Nigeria, he will be tortured.

[3] Before concluding that Mr. Akanni was not a refugee or a person in need of protection under the convention, the Board reviewed whether ( I) the Gani Adams' faction of the OPC could be considered an organization with a limited and brutal purpose and (ii) the applicant could be considered to have committed the crimes referred to in article 1F(a) and (b) in the absence of direct evidence that he personally perpetrated them.

[4] In its decision, the Board rejected Mr. Akanni's testimony that the Gani Adams' faction of the OPC was not a violent organization and that he did not have any knowledge of the violent acts reproached in the various documentary evidence on file. The Board does not discuss directly Mr. Akanni's allegation that the various documents produced were simply the result of propaganda from the Nigerian government aimed at discrediting the OPC. However, the Board in supporting its finding quoted from what it described as "a respected news agency".

Issues

[5] Mr. Akanni submits that the Board erred in characterizing the OPC as an organization with limited and brutal purpose. In his view, to reach this conclusion, the Board ignored the evidence on file which established that (I) the OPC is a duly constituted political party whose main purpose is to protect and advance the interests of the Yoruba people; and (ii) the acts of violence reported in the documentation were perpetrated by renegades against the will and the declared policy of the leader of the organisation.

[6] Mr. Akanni further submits that the Board mis-characterized his participation in the OPC, failing to appreciate that he was a low ranking member of the Gani Adams' faction. In his view, if the Board had properly appreciated his participation, it could not have concluded that he was complicit in the crimes reported against the OPC.

Analysis

[7] The parties agree that the standard of review applicable to this case was properly described in the recent decision of the Federal Court of Appeal in Harb v. Canada (M.C.I.) (2003) F.C.A. 39, (2003) F.C.J. 108, (QL) at para. 14:

In so far as these are findings of fact, they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable"). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous. (On the standard of review, see Shrestha v. The Minister of Citizenship and Immigration, 2002 FCT 886, Lemieux J. at paras. 10, 11 and 12.)

[8] In his written submissions, Mr. Akanni did not direct the Court to any portion of the evidence which would have been ignored or misconstrued by the Board. At the hearing, he referred to a few passages which did not really fully support the arguments advanced. In fact, Mr. Akanni's argument seemed to be entirely based on his affidavit and his testimony before the Board.

[9] On the other hand, the respondent quoted several documents supporting the Board's findings with respect to the nature of the activities of Mr. Gani Adams and his faction. Mostly, those corroborate the two articles cited by the Board itself in its decision at pages 8 and 9:

Agence France Press describes the OPC in the following way:

Nigerian police Friday charged the leader of a militant ethnic group, blamed for riots in which hundreds died, with 23 counts of murder, robbery and illegal possession of arms. Ganiyu Adams, leader of the most violent faction of the banned Odua People's Congress (OPC), and three others were brought to the Ikeja Magistrate's Court here, handcuffed and in shackles. (Emphasis added).

...

An article from the magazine "Tell," filed by counsel in Exhibit C-3, describes Gani Adams thus:

Like Malcolm X, he believes in attaining his purpose "by any means necessary." Fasehun, like Mahatma Gandhi, believes in non-violence but Adams, like Hitler, glories in the poetry of violence, blood and scattered membranes. It was not long before he earned a place in history and he did it in style. Lagos went up in fire. From Mile 12 to Mushin and to Bariga, it was burning fires, charred corpses and insecurity. The orgy of violence climaxed with the death of the divisional police officer of Bariga Police Station and the bathing of two others with acid.

[10] The Board expressly rejected Mr. Akanni's testimony that Gani Adams was non-violent because "this is blatantly inconsistent with the documentary evidence, which I prefer as disinterested" (pages 6-7 of the decision).

[11] The Court finds that in deciding that the Gani Adams' faction is an organization with a limited and brutal purpose, the Board made no reviewable error. Its decision was not unreasonable and was not made in a perverse and capricious way without due regard to the evidence.

[12] Turning now to the second issue, both parties agreed that the principles to be applied in assessing whether or not a person "committed" a crime within the meaning of article 1F(a) are properly set out in the decision of the Court of appeal in Ramirez v. Canada (Minister of Employment and Immigration) [1992] 2 F.C. 306 (F.C.A.).

[13] Both parties also agreed that the words "serious reasons for considering" in article 1F(a) set a standard lower than the civil standard of "balance of probability".

[14] There is little doubt that mere membership is normally not sufficient to exclude a person from the refugee status. However, the Court of Appeal did recognize in Ramirez, supra, at 317, that "...where an organization is principally directed to a limited, brutal purpose, such as secret police activity, mere membership may by necessity involve personal and knowing participation in persecutorial acts."

[15] But the Board did not limit itself to examining Mr. Akanni's membership to reach its conclusion with respect to Mr. Akanni's knowing participation. It reviewed what violence and crimes took place during the period Mr. Akanni was a member of the Gani Adams' faction, where that violence took place, how Mr. Akanni's personal activities related to the types of activities reproached to the OPC.

[16] Mr. Akanni joined the Gani Adams' faction in January 2000 just after the president of Nigeria had issued a "shoot-on-site" order against the OPC in 1999, and during the period the said president was seeking from the National Assembly its permission to declare a state of emergency in Lagos following incessant attacks on life and property by members of the OPC.

[17] Mr. Akanni was promoted to "combatant" in November/December 2000; this title meant that members of the Gani Adams' faction had to consult with him to receive his go-ahead whenever they wanted to rally or make a demonstration in his region. He was personally involved in the vigilante/security group. He often helped police catch thieves and, in particular, would hand thieves over to the police. He attended more than thirty meetings in the year 2000 and gave reports at meetings as to what happened in his area of the Okeani Branch. He personally knew Gani Adams and met with him on several occasions.

[18] The Board noted that it is in the context of vigilante activities that most of the violence reproached to the OPC took place. For example, "...during the year 2000, although there were fewer OPC vigilante killings than in previous years, on August 16, the OPC reportedly beheaded four suspected robbers and set their bodies on fire in the district of Lagos. The OPC also reportedly crucified a man in the Surelere district of Lagos."

[19] The Board also noted that "the AFP reported on October 19, 2000, that police had begun arresting OPC leaders and supporters after four days of violence in Lagos that resulted in more than 100 deaths".

[20] In the circumstances, the Board concluded that "the claimant could not reasonably have been involved as a combatant in charge of security for the Lagos Island area of that faction and not be aware of, if not a participant in, the violence perpetrated by the group."

[21] The Court finds that the Board did look into the question of whether Mr. Akanni's shared in the common purpose in the Gani Adams' faction and had knowledge of some of the acts of violence and whether he had sufficient knowledge of the nature of the activities of the Gani Adams' faction. Their finding in this respect, is not unreasonable.

[22] Mr. Akanni had testified that he did not know of the violence and that when OPC members went out in the streets to catch thieves, they were unarmed and would dodge when suspects shot their guns and wait until all bullets were spent. The Board found this testimony not to be credible and rejected it as totally implausible in light of the documentary evidence on file.

[23] The Court finds that the Board's conclusion that "the claimant was complicit in the crimes committed by the Gani Adams' faction of the OPC in Lagos" is supported by the evidence presented by the respondent. It is not unreasonable. There is no reviewable error in the Board's decision.

[24] Given that such finding is sufficient to justify the Board's rejection of Mr. Akanni's application as a Convention refugee, it is not material for this Court to review whether the Board made an error in its conclusion with respect to article 1F(b) of the Refugee Convention.

[25] The parties indicated that, in their view, this matter did not raise any question of general importance. The Court finds that indeed there is none.

[26] For these reasons, the application for judicial review is dismissed.

ORDER

THIS COURT ORDERS that:

1. The application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board dated September 30, 2002, is dismissed.

2. No question of general importance is certified.

"Johanne Gauthier"

Judge

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-5405-02

STYLE OF CAUSE: Olusegun (Segun) Adetokumbo (Adejokumb) Kabir, Akanni

v. M.C.I.

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: May 6, 2003

REASONS FOR ORDER AND ORDER: THE HONOURABLE JOHANNE GAUTHIER

DATED: May 27, 2003

APPEARANCES:

Laurence Cohen FOR PLAINTIFF / APPLICANT

Angela Marinos FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Laurence Cohen FOR PLAINTIFF/APPLICANT

101-50 Richmond Street East

Toronto, Ontario, M5C 1N7

Morris Rosenberg FOR DEFENDANT/

Department of Justice RESPONDENT

Toronto, Ontario, M5X 1K6