Federal Court Grants Judicial Review of Refugee Appeal Decision

Date: 20260519 Docket: IMM-5128-25 Citation: 2026 FC 636 Toronto, Ontario, May 19, 2026 PRESENT: The Honourable Mr. Justice A. Grant BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

JUDGMENT I. OVERVIEW [ 1 ] The Applicant, Mr. [NAME], seeks judicial review of a decision by the Refugee Appeal Division [[NAME]] of the [NAME]. In that decision, the [NAME] confirmed the finding of the Refugee Protection Division [RPD] that [NAME] is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act [IRPA]. [ 2 ] For the reasons that follow, I will grant this application for judicial review.

II.

BACKGROUND A. Facts [ 3 ] [NAME] is a Nepali citizen who alleges that he was targeted by members of the [NAME] for his involvement in the [NAME]. He reports several instances of threats, extortion, and physical attacks by [NAME] members dating back to around 2001. These incidents happened in his hometown of Solukhumbu and in several places in and around Kathmandu, locations that are a considerable distance from each other. [ 4 ] [NAME] left Nepal for South Korea in 2013, but the threats and attacks resumed after he returned to Nepal in 2018 to care for his ailing mother. Finally, in 2023, following further attacks, [NAME] applied for a Canadian visa and initiated a claim for refugee protection following his arrival. B. Procedural History [ 5 ] [NAME]’s refugee claim was heard by the RPD on August 7, 2024. In a decision issued on November 12, 2024, the RPD found that [NAME] was neither a refugee nor a person in need of protection because he had an internal flight alternative [IFA] in the city of Biratnagar, Nepal. [ 6 ] [NAME] appealed this decision to the [NAME], arguing that the [NAME] are active throughout Nepal, which is a small country, and they continued to pursue him after he left Nepal. In support of his appeal, [NAME] also submitted new evidence, specifically, an affidavit stating that his wife had received threatening phone calls from the [NAME] in November 2024. [ 7 ] The [NAME] refused to admit the new evidence, because the panel found that [NAME] had not established that the new information arose after the RPD decision, which was also issued in November 2024. As such, the [NAME] found that the Applicant had not established that the new evidence met the criteria for admission, pursuant to subsection 110(4) of the IRPA. [ 8 ] The [NAME] upheld the RPD’s decision, finding that Biratnagar was a viable IFA because [NAME] had not demonstrated that the [NAME] had the means or the motivation to pursue him there. The [NAME] also found that the RPD correctly concluded that it would not be unreasonable for [NAME] to relocate there.

III. ISSUES AND STANDARD OF REVIEW [ 9 ] The Applicant raises three overarching issues on judicial review: 1) whether the [NAME] erred in refusing to admit the Applicant’s new evidence on appeal; 2) whether there was a breach of natural justice due to an error committed by [NAME]’s former counsel, which led directly to the [NAME] finding that the new evidence submitted on appeal was not admissible; and 3) whether the [NAME]’s IFA findings were reasonable. [ 10 ] The parties do not dispute that the standard of review for the substance of the [NAME]’s decision is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 23 [ Vavilov ]. This is the standard to be applied to issues one and two, above. [ 11 ] Allegations of counsel incompetence go to the fairness of the proceedings in question. In the context of these proceedings, the focus of the reviewing court is whether the process was fair, having regard to all the circumstances, and bearing in mind that the duty of procedural fairness is variable and context-specific: [NAME] v Canada (Citizenship and Immigration) , 2023 FC 137 at para 31; Vavilov at para 77; [NAME] v Canada (Citizenship and Immigration) , 2019 FC 520 at para 24.

IV. ANALYSIS A. Did the [NAME] err in rejecting the new evidence? [ 12 ] Subsection 110(4) of the IRPA is as follows: Evidence that may be presented (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Éléments de preuve admissibles (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. [ 13 ] The RPD’s rejection of the Applicant’s claim was dated November 12, 2024. As noted above, the Applicant’s affidavit indicated that his wife had received the threatening phone calls in November 2024. It was therefore unclear from the record before the [NAME] whether this evidence arose after the rejection of [NAME]’s claim. Moreover, counsel for the Applicant made no submissions on the admissibility of the evidence, as he appears to have (erroneously) believed that, because the evidence arose after the RPD hearing , rather than its decision, it was admissible. [ 14 ] The [NAME] rejected the new evidence because it was unclear whether the information arose before, or after, the RPD decision and it was similarly unclear whether the Applicant could reasonably have been expected to present this information to the RPD. [ 15 ] The Applicant argues that, having been notified that the new information arose in November 2024, the [NAME] was under an obligation to independently assess whether the Applicant could reasonably have been expected to present this information to the RPD. This was, in part, because of the proximity in timing between the threatening calls and the RPD decision. I disagree. [ 16 ] The [NAME] is obligated to assess the admissibility of new information that is submitted on appeal, pursuant to subsection 110(4) of the IRPA. It does so based on the record and submissions before it. The burden of establishing the admissibility of new evidence lies with the appellant, who should provide full and detailed submissions setting out how the new evidence meets the requirements of subsection 110(4): [NAME] v Canada (Citizenship and Immigration) , 2016 FCA 96 at para 45, [NAME] v Canada (Citizenship and Immigration) , 2019 FC 1489 at para 15; [NAME] v Canada (Citizenship and Immigration) , 2019 FC 903 at para 29; [NAME] v Canada (Citizenship and Immigration) , 2019 FC 1654 at para 18. [ 17 ] In the absence of: 1) any submissions on admissibility; and 2) any clear indication as to when the new information arose, it was entirely reasonable for the [NAME] to conclude that the Applicant had failed to establish that the new information was admissible on appeal. B. Were the [NAME] proceedings unfair due to ineffective legal representation? [ 18 ] Allegations of unfairness arising from incompetent representation are governed by three considerations:

1) Did the previous representative’s acts or omissions constitute incompetence or negligence? 2) Is there a reasonable probability that the outcome would have been different, but for the ineffective representation or, put differently, has the ineffective representation resulted in a miscarriage of justice? 3) Has the former representative had a reasonable opportunity to respond to the allegations of incompetence or negligence. [ 19 ] In considering these questions, the party alleging incompetence bears the onus of rebutting the assumption that their representative’s conduct fell within the range of reasonable professional assistance: [NAME] v Canada (Citizenship and Immigration) , 2022 FC 1225 at para 36, citing R v [NAME] , 2000 SCC 22 (CanLII) at para 27. [ 20 ] [NAME] argues that his previous counsel acted negligently because he: 1) failed to appreciate that the relevant date for the admissibility of evidence before the [NAME] is the date of the RPD’s decision, and not the date of the hearing; and 2) failed to provide any submissions or arguments on the admissibility of the new information. [ 21 ] Starting with the last of the above criteria, it is clearly met. The Applicant’s former representative was notified of the concerns related to his representation of [NAME]. It is also clear to me that the first of the above criteria is met, namely, that [NAME]’s former counsel acted incompetently. This is clear from both the [NAME] record, and from the frank acknowledgment of the former representative that he made a mistake in failing to set out when [NAME]’s wife was threatened. [ 22 ] The challenge for [NAME] lies with the second of the above questions, because it is not clear to me that the outcome of the [NAME] appeal would have been different had his former representative acted competently. Recall that the evidence in question consisted of a statement by the Applicant that his wife had received threatening phone calls from the [NAME] in November 2024. At best, this information could demonstrate that those who targeted [NAME] are still motivated to find him. However, even without considering this evidence, the [NAME] accepted this fact. Indeed, the [NAME] explicitly found that the [NAME] have: “a significant level of hostility against the Appellant, which makes it more likely they would be motivated to go to the considerable trouble of seeking him throughout the country.” [ 23 ] The determinative factor for the [NAME] was not whether the [NAME] are still interested in the Applicant, but whether there was sufficient evidence to conclude that they would have the motivation and capacity to locate him in Biratnagar . [NAME]’s wife is not located in Biratnagar. As such, even if the [NAME] member admitted the evidence, it would simply confirm a fact that the member had already accepted. [ 24 ] As a result, I conclude that the Applicant has failed to establish that the ineffective assistance of his former counsel resulted in a miscarriage of justice. This means that I must reject the argument that the decision under review was tainted by any procedural unfairness. C. Were the [NAME]’s IFA findings unreasonable? [ 25 ] In addition to his arguments related to the new evidence, [NAME] also argues that the decision under review is unreasonable. For the following reasons, I agree with these arguments. [ 26 ] The credibility of the Applicant’s claim for refugee protection has never been questioned. As such, the [NAME] is taken to have accepted that [NAME] was an active member of the [NAME] and that he was attacked by the [NAME] in different parts of Nepal, namely the Solukhumbu region and different locations in the Kathmandu area. Indeed, the [NAME] explicitly accepted that [NAME] was “someone who had been active in the Party, held high office in the Party, and angered the [NAME].” [ 27 ] As noted above, the [NAME] also acknowledged that the [NAME] have a “significant level of hostility” against [NAME] and that this hostility made it “more likely they would be motivated to go to the considerable trouble of seeking him throughout the country.” Beyond this, the [NAME] found that the [NAME], while a relatively small group, are active in “various locations throughout Nepal and are said to have a presence in most of the country’s 77 districts.” [ 28 ] To summarize then: the [NAME] accepted that the Applicant was a high-profile member of the [NAME]; it accepted that the [NAME] targeted him because of his political profile; it accepted that the [NAME] had sought him out in parts of the country that are far from each other; and it accepted that the [NAME] are active throughout Nepal. However, despite these findings, the [NAME] concluded that the Applicant could safely relocate to Biratnagar because [NAME] failed to establish that the group had either the means or the motivation to find him in that specific location. [ 29 ] Given the facts that the [NAME] accepted, it is unclear to me that the tribunal’s conclusions rationally flowed from the analysis it undertook. This is precisely the scenario that the Supreme Court of Canada in Vavilov described as requiring judicial intervention: see Vavilov at paras 89-96, 103. Put somewhat differently, there appears to be an analytical gap between the [NAME]’s analysis (which identified numerous reasons why [NAME] would not have an IFA in Nepal) and its conclusion that he could safely relocate to Biratnagar. [ 30 ] In arriving at this conclusion, I am mindful that in several cases, this court has dismissed applications for judicial review involving similar allegations. I dismissed such an application in [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1538 [ [NAME] ]. In essentially all of these cases, however, the [NAME]’s conclusion that Biratnagar was a viable IFA was based on a finding that the Applicant had a low political profile: see for instance [NAME] at para 24, [NAME] v Canada (Citizenship and Immigration) , 2023 FC 807 at para 63, [NAME] v Canada (Citizenship and Immigration) , 2023 FC 452 at para 59; [NAME] v Canada (Citizenship and Immigration) , 2021 FC 545 at para 30. [ 31 ] As such, these cases are plainly distinguishable from the present matter, where the [NAME] acknowledged both that the Applicant held “high office” in the [NAME] and that he had angered the [NAME] such that they targeted him in both Kathmandu and his remote home region of Solukhumbu. [ 32 ] Parenthetically, I would also note that in [NAME] v Canada (Citizenship and Immigration) , 2023 FC 510, the [NAME] removed Biratnagar as a proposed IFA location, because it was only 25 kilometers from the applicant’s home city, where he had been targeted by the [NAME]. While each case turns on its facts, it is somewhat difficult to reconcile the factual findings in [NAME] (that Biratnagar was not a viable IFA for the applicant, because of nearby [NAME] activity) with those that arise in this case (that Biratnagar was a viable IFA because the [NAME] tended to be active in “parts of Nepal far from Biratnagar” ). [ 33 ] Many aspects of the decision under review were detailed and attentive to the Applicant’s personal profile. However, I am convinced that the reasons also contain an analytical gap between the facts that were accepted by the tribunal and the conclusion that [NAME] has a viable IFA in Biratnagar. [ 34 ] More specifically, the [NAME]’s determination that the Applicant could move to Biratnagar was not adequately justified in light of its finding that the [NAME] have “a significant level of hostility against the Appellant, which makes it more likely they would be motivated to go to the considerable trouble of seeking him throughout the country.” At root, I find the [NAME]’s conclusion to be disconnected from its chain of analysis, which undermines both the intelligibility of its reasons and the justification for the outcome. I must therefore grant this application for judicial review.

V.

CONCLUSION [ 35 ] As a result of the above, the application for judicial review is granted. The parties did not propose a question for certification, and I agree that none arises.

JUDGMENT in IMM-5128-25 THIS COURT’S

JUDGMENT is that: The application for judicial review is granted. The decision of the Refugee Appeal Division, dated February 19, 2025, is set aside and the matter is remitted for redetermination. No serious question of general importance is certified. "Angus G. Grant" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5128-25 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND, IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 23, 2026

REASONS AND

JUDGMENT: GRANT J. DATED: may 19, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME] and Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent