Date: 20210602
Docket: IMM-3148-20
Citation: 2021 FC 523
St. John’s, Newfoundland and Labrador, June 2, 2021
PRESENT: The Honourable Madam. Justice Heneghan
BETWEEN:
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WALE FRANCIS AKINPELU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Wale Francis Akinpelu (the “Applicant”
) seeks judicial review of the decision of the Immigration and Refugee Board, Immigration Division (the “ID”
) determining that he is inadmissible to Canada, pursuant to paragraph 35(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 7 (the “Act”
).
[2]
The Applicant is a citizen of Nigeria. Together with his wife and minor child, they arrived in Canada on March 8, 2018 and sought refugee protection. Protection was denied because the ID found reasonable grounds to believe he was inadmissible for complicity in crimes against humanity.
[3]
On September 18, 2019, the Applicant was served with a Request for Admissibility Hearing. This notice said that the referral was made pursuant to paragraph 35(1)(a) of the Act, which provides as follows:
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[4]
The ID determined that the Applicant is inadmissible, on the grounds that there were reasonable grounds to believe that the Nigeria Police Force (“NPF”
), in which he declared that he voluntarily served, had committed crimes against humanity during his tenure.
[5]
In seeking judicial review of the decision, the Applicant raises several arguments. However, in my opinion, it is only necessary to address one argument, that is the submission that the ID breached procedural fairness by shifting the burden of proof from the Minister of Citizenship and Immigration (the “Respondent”
) to the Applicant in respect of paragraph 35(1)(a) of the Act.
[6]
The ID said the following in its decision:
As a foreign national who has not been authorized to enter Canada, the burden rested on Mr. Akinpelu to prove that he is not inadmissible as per subsection 45(d) of the IRPA.
[7]
The Applicant says this finding by the ID is contrary to the decision in Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678 (S.C.C.) where the Supreme Court of Canada ruled that the Respondent bears the burden of establishing complicity of an individual in the commissioning of crimes against humanity.
[8]
The Respondent argues that the ID did not err. He submits that the Applicant entered Canada illegally and is subject to section 45 of the Act which imposes a burden upon the Applicant to show that he is not inadmissible. Section 45 provides as follows:
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[9]
I disagree with the submissions of the Respondent.
[10]
The notice given to the Applicant clearly and specifically says that the referral to the ID is made under paragraph 35(1)(a) of the Act.
[11]
The ID apparently considered the issue of admissibility under section 45 of the Act.
[12]
Whether this error is called a breach of procedural fairness, reviewable on the standard of correctness, or a mistake of fact, reviewable on the presumptive standard of reasonableness pursuant to the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov (2019), 441 D.L.R. (4th) 1 (S.C.C.), it is a reviewable error.
[13]
When inadmissibility is in issue pursuant to paragraph 35(1)(a), the burden lies on the state. When section 45 is involved, the burden lies on an applicant.
[14]
The ID erred in imposing the burden in this matter upon the Applicant and the application for judicial review will be granted. The matter will be remitted for consideration by a differently constituted panel of the ID. There is no question for certification arising.
JUDGMENT in IMM-3148-20
THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Immigration and Refugee Board, Immigration Division is set aside and the matter is remitted to a differently constituted panel of the Immigration Division for re-determination. There is no question for certification arising.
“E. Heneghan”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
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IMM-3148-20
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STYLE OF CAUSE:
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WALE FRANCIS AKINPELU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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PLACE OF HEARING:
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HEARD BY VIDEOCONFERENCE
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DATE OF HEARING:
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MAY 26, 2021
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JUDGMENT AND REASONS:
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HENEGHAN J.
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DATED:
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JUNE 2, 2021
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APPEARANCES:
Abdul Rahman Kadiri
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FOR THE APPLICANT
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Leanne Briscoe
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
Kadiri Law
Barrister & Solicitor
Toronto, Ontario
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FOR THE APPLICANT
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Attorney General of Canada
Toronto, Ontario
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FOR THE RESPONDENT
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