WALE FRANCIS AKINPELU Applicant v. THE MINISTER OF CITIZENSHIP, 2021 FC 523

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:WALE FRANCIS AKINPELUApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent 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 andRefugee 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 soughtrefugee protection. Protection was denied because the ID found reasonable grounds to believe he was inadmissible for complicity incrimes against humanity. [3] On September 18, 2019, the Applicant was served with a Request for Admissibility Hearing. This notice said that the referral wasmade pursuant to paragraph 35(1)(

a) of the Act, which provides as follows: Human or international rightsviolations" " Atteinte aux droits humains ouinternationaux" " 35

(1) A permanent resident or aforeign national is inadmissibleon grounds of violating human orinternational rights for" " 35

(1) Emportent interdiction deterritoire pour atteinte aux droitshumains ou internationaux lesfaits suivants:" " (

a) committing

an act outsideCanada that constitutes anoffence referred to in sections 4to 7 of the Crimes AgainstHumanity and War Crimes Act;""

a) commettre, hors du Canada,une des infractions visées auxarticles 4 à 7 de la

Loi sur lescrimes contre l’humanité et lescrimes de guerre;" " … … [4] The ID determined that the Applicant is inadmissible, on the grounds that there were reasonable grounds to believe that the NigeriaPolice 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 toaddress one argument, that is the submission that the ID breached procedural fairness by shifting the burden of proof from the Ministerof 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 notinadmissible 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 SCC40 , [2013] 2 S.C.R. 678 (S.C.C.) where the Supreme Court of Canada ruled that the Respondent bears the burden ofestablishing 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 ofthe Act which imposes a burden upon the Applicant to show that he is not inadmissible.

Section 45 provides as follows: Admissibility Hearing by theImmigration Division" " Enquête par la

Section del’immigration

Decision" " Décision" " 45 The Immigration Division, atthe conclusion of anadmissibility hearing, shall makeone of the following decisions:"" 45 Après avoir procédé à uneenquête, la

Section del’immigration rend telle desdécisions suivantes :" " (

a) recognize the right to enterCanada of a Canadian citizenwithin the meaning of theCitizenship Act, a personregistered as an Indian under theIndian Act or a permanentresident;" "

a) reconnaître le droit d’entrer auCanada au citoyen canadien ausens de la

Loi sur la citoyenneté,à la personne inscrite commeIndien au sens de la

Loi sur lesIndiens et au résidentpermanent;" " (

b) grant permanent residentstatus or temporary residentstatus to a foreign national if it issatisfied that the foreign nationalmeets the requirements of thisAct;" "

b) octroyer à l’étranger le statutde résident permanent outemporaire sur preuve qu’il seconforme à la présente loi;" " (

c) authorize a permanentresident or a foreign national,with or without conditions, toenter Canada for furtherexamination; or" "

c) autoriser le résident permanentou l’étranger à entrer, avec ousans conditions, au Canada pourcontrôle complémentaire; (

d) make the applicable removalorder against a foreign nationalwho has not been authorized toenter Canada, if it is not satisfiedthat the foreign national is notinadmissible, or against a foreignnational who has been authorizedto enter Canada or a permanentresident, if it is satisfied that theforeign national or the permanentresident is inadmissible." "

d) prendre la mesure de renvoiapplicable contre l’étranger nonautorisé à entrer au Canada etdont il n’est pas prouvé qu’iln’est pas interdit de territoire, oucontre l’étranger autorisé à yentrer ou le résident permanentsur preuve qu’il est interdit deterritoire. [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 theAct. [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 (Ministerof Citizenship and Immigration) v. Vavilov (2019), 2019 SCC 65 , 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 burdenlies 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. Thematter 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 RefugeeBoard, 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: IMM-3148-20 STYLE OF CAUSE: WALE FRANCIS AKINPELU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HEARD BY VIDEOCONFERENCE DATE OF HEARING: MAY 26, 2021 JUDGMENT AND REASONS: HENEGHAN J. DATED: JUNE 2, 2021 APPEARANCES : Abdul Rahman Kadiri FOR THE APPLICANT Leanne Briscoe FOR THE RESPONDENT SOLICITORS OF RECORD : Kadiri Law Barrister & Solicitor Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT