Federal Court Sets Aside Refusal to Reopen Danger Opinion

Date: 20260716 Docket: IMM-11908-23 Citation: 2026 FC 959 Ottawa, Ontario, July 16, 2026 PRESENT: The Honourable Mr. [NAME]: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

JUDGMENT [ 1 ] The Applicant seeks judicial review of the decision by a delegate of the Respondent, the Minister of Citizenship and Immigration [Minister’s Delegate], dated September 19, 2023 [Decision] declining to reopen and reconsider the determination made on September 25, 2015 by a previous delegate pursuant to paragraph 115(2)(a) of the Immigration and Refugee Protection Act , SC 2001, c 27 [IRPA] that the danger the Applicant posed to the [NAME] outweighed the risks he then faced in South Sudan [Danger Opinion]. [ 2 ] The Applicant submits that in coming to this conclusion, [NAME] unreasonably ignored and/or misunderstood the majority of the evidence before them, breached the Applicant’s right under section 7 of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] as well as international law to have a contemporaneous assessment of risk prior to removal, and rendered a decision that failed to reflect the stakes. [ 3 ] For his part, the Respondent maintains that [NAME] engaged with the evidence submitted but found it fell short of establishing a “material” change in conditions post-2015. The Respondent submits that this finding was reasonable given the evidence. [ 4 ] I disagree with the Respondent. [ 5 ] For the reasons set out further below, I conclude that [NAME]’s refusal to reopen the Danger Opinion to assess whether, based on current conditions, the Applicant is at risk of persecution, torture, or other prohibited mistreatment, failed to reflect the legal constraint imposed by the principle of non-refoulement , a cornerstone of international law that forbids a country from returning asylum seekers or refugees to a country where they would face threats to their life or freedom, or a risk of torture and human rights abuses. As a result, the Applicant was deprived of a thorough and contemporaneous assessment of the risk he would face if removed to South Sudan.

I. Background [ 6 ] The Applicant was born in 1987 in what was then the “Democratic Republic of Sudan.” He is Christian and a member of the [NAME]. He came to Canada with his family in 1999 and obtained permanent residence as a [NAME] refugee. [ 7 ] On April 25, 2005, the Applicant initiated an application for Canadian citizenship, but the application was marked abandoned on August 4, 2010. [ 8 ] Between 2006 and 2012, the Applicant engaged in a long series of criminal offences, including assault, aggravated assault, resisting arrest and failure to comply with probation orders. [ 9 ] In 2009, the Applicant’s older brother was returned to Sudan after being found to be a danger to the public. [ 10 ] As a result of his ongoing criminality, the Applicant became the subject of an inadmissibility report and was determined to be inadmissible to Canada in 2013 under paragraph 36(1)(a) of the IRPA. That same year, the Applicant’s brother was killed in newly independent South Sudan, in an act of ethnic violence. [ 11 ] The Danger Opinion, which called for the removal of the Applicant to South Sudan, was made on September 25, 2015. [ 12 ] The Applicant applied for leave to seek judicial review of the Danger Opinion; however, the application was dismissed by this Court on January 14, 2016. [ 13 ] Despite the Danger Opinion authorizing his removal, the Applicant was not removed ( “refoulé” ) from Canada due to difficulties securing a travel document from the [NAME]. The Canada Border Services Agency [[NAME]] made efforts to obtain travel documents for the Applicant in 2015 and 2016, and thereafter on an ongoing basis. [ 14 ] In the interim, the Applicant was under various forms of supervised release but failed to comply with his conditions. He also incurred several new criminal charges and convictions and was serving various sentences between 2017–2021. In 2022, he was convicted of possession of methamphetamines for the purpose of trafficking and sentenced to 12 months and 16 days of imprisonment. [ 15 ] On September 8, 2023, [NAME] advised the Applicant that a travel document had finally been secured and he would be removed to South Sudan on September 23, 2023 on the strength of the 2015 Danger Opinion. A. Request to Reopen the Danger Opinion [ 16 ] By letter dated September 13, 2023, counsel for the Applicant urgently requested that the Danger Opinion be reopened so that his current risks in South Sudan could be assessed and weighed based on current evidence. Counsel submitted that a fresh assessment was required given the passage of time between the Danger Opinion and the scheduled removal. In support of his request, the Applicant provided documentary evidence and submissions to demonstrate that conditions had changed in South Sudan such as to render the Danger Opinion issued eight years earlier unreliable. Counsel requested an opportunity to provide updated submissions and evidence with respect to the purported danger he represents to the [NAME] and other relevant considerations in the event the Danger Opinion were reopened. [ 17 ] [NAME] refused the request to reopen on September 19, 2023, finding that the country condition package submitted by the Applicant fell short of establishing a material change in conditions post-2015 and was not capable of affecting the outcome for the Applicant or the conclusions reached by the original decision maker. As a result, [NAME] concluded that the Danger Opinion remained factually and legally reliable. B. Post-Decision Events [ 18 ] On September 20, 2023, the Applicant appealed to the [NAME] [UNHRC] for non-binding “Interim Measures” under the Optional Protocol to the International Covenant on Civil and Political Rights, arguing that his removal based on a stale-dated risk assessment would violate Article 2(3), 6, 7, 9 and 23 of the International Covenant on Civil and Political Rights . [ 19 ] The following day, the Applicant filed an application for leave and for judicial review [ALJR] seeking to challenge the Decision of [NAME]. [ 20 ] On September 22, 2023, the Applicant filed a motion seeking an interim order staying the execution of the removal order made against him pending the final disposition of the ALJR. Shortly before the stay motion was to be heard, the UNHRC granted the Applicant’s request. Under rule 94 of the UNHRC’s rules of procedure, the [NAME] requested Canada not to deport the Applicant to South Sudan while his case was under consideration by the [NAME]. The Applicant’s removal was then cancelled. [ 21 ] The Applicant was granted extensions of time to perfect his record. Leave to commence the present application was ultimately granted on July 25, 2025.

II. Analysis [ 22 ] The main question to be answered here is whether [NAME] erred in exercising their discretion by concluding there was no material change in circumstances that warranted a re-assessment of the Applicant’s risk upon removal. A. Standard of Review [ 23 ] As a general matter, administrative decisions under the IRPA are subject to a reasonableness standard of review and must meet the threshold of internally coherent reasoning and justification in light of the legal and factual context ( Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 99 [ Vavilov ]). [ 24 ] In [NAME] v Canada (Citizenship and Immigration) , 2023 SCC 21 at paras 76, 81, the Supreme Court of Canada affirmed the framework for reasonableness review set out in Vavilov , underscoring the “heightened responsibility” to provide justification, intelligibility and transparency such that “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes.” (citing Vavilov at para 133) [ 25 ] More recently in [NAME] v Canada (Citizenship and Immigration), 2025 SCC 21 at paras 115–116, the Supreme Court recognized that this element of reasonableness review “may be particularly relevant in the immigration context, which often involves vulnerable individuals.” [ 26 ] The Applicant submits that in the case at bar, the stakes could hardly be higher. I agree. The Applicant is a recognized [NAME] refugee who has lived most of his life in Canada and is facing refoulement to a country riven by war, intercommunal violence, widespread insecurity, human rights abuse, and an entrenched and worsening humanitarian crisis. [ 27 ] The Decision under review clearly engages the Applicant’s rights under section 7 of the Charter and Canada’s obligations under international law.

Accordingly, this context requires an exacting review of [NAME]’s Decision. B. Reasonableness of the Decision (1) Statutory Scheme [ 28 ] Subsection 115(1) of the IRPA provides that a protected person or [NAME] refugee must not be removed to a country where they would be at risk of persecution, torture or cruel and unusual treatment or punishment. [ 29 ] As stated earlier, the principle of non-refoulement is the central concept in refugee law and prohibits the return of a refugee to any country where they would be at risk on a [NAME] ground. However, both Article 33 of the [NAME] to the Status of Refugees , July 28, 1951, 189 UNTS 137, Can TS 1969 No 6 [[NAME]] and section 115 of the IRPA contain explicit exceptions to this general principle which allow a state to return a [NAME] refugee in certain narrowly proscribed circumstances, notwithstanding that doing so would put them at risk. [ 30 ] The exception to non-refoulement at paragraph 115(2)(a) for refugees who, having been found inadmissible for serious criminality, may be removed if their presence constitutes a “danger to the public” mirrors Article 33(2) of the [NAME]’s exception for those refugees “who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” However, as this Court and the Federal Court of Appeal have recognized, this exception to the core principle of non-refoulement must be applied restrictively in light of the “fundamental character of the prohibition of refoulement and the humanitarian essence of the …[NAME] more generally.” ( [NAME] v Canada (Minister of Citizenship and Immigration) (FCA) , 2008 FCA 153 at para 69 [ [NAME] ]) (2) Discretion to Reopen [ 31 ] It is well settled that administrative decision makers have the discretion to reopen or reconsider decisions where appropriate. However, their obligation to do so is limited. In considering a request to reopen or reconsider a decision, a decision maker is merely required to determine “whether to exercise the discretion to reconsider” taking into account all relevant circumstances ( Canada (Citizenship and Immigration) v [NAME] , 2010 FCA 230 at para 5). [ 32 ] In the context of requests to reopen and reconsider Danger Opinions, the relevant operational instructions are found in ENF 28, “Ministerial opinions on danger to the public, nature and severity of the acts committed and danger to the security of Canada”, November 21, 2017, Chapter 7.16: A decision maker will review the request and determine whether to reopen the original danger decision based on whether the request (along with any accompanying submissions) demonstrates one of the following: [NAME] décideur examinera la demande et déterminera s’il est nécessaire de revenir sur la décision initiale de l’avis de danger selon que la demande (et toute observation connexe) répond à l’[NAME] des critères suivants : ○ New evidence has been submitted that meets all of the following criteria:

1. De nouveaux éléments de preuve respectant tous les critères ci-dessous ont été présentés. a) Reliable: Is the evidence reliable, considering its source and the circumstances in which it came into existence? a) Fiabilité : Les preuves nouvelles sont-elles fiables, compte tenu de leur source et des circonstances dans lesquelles elles sont apparues? b) Relevance: Is the evidence relevant to the decision type, in the sense that it is capable of proving or disproving a fact that is relevant to the proceeding? b) Pertinence : Les preuves nouvelles ont-elles trait au type de décision, c’est-à-dire peuvent-elles prouver ou réfuter [NAME] fait qui intéresse la procédure? c) Materiality: Is the evidence material, in the sense that the decision maker may have come to a different conclusion if it had been known? c) Caractère substantiel : Les preuves nouvelles sont-elles substantielles, c’est-à-dire le décideur aurait-il tiré une conclusion différente si elles avaient été portées à sa connaissance? d) Newness: Is the evidence new in the sense that it is capable of d) Nouveauté : Les preuves sont-elles nouvelles, c’est-à-dire peuvent-elles : i. proving the current state of affairs in the country of removal; i. prouver la situation ayant cours dans le pays de renvoi? ii. proving a fact that was unknown at the time of the original decision; ii. établir [NAME] fait qui n’était pas connu au moment de la prise de décision initiale? iii. contradicting a finding of fact made by the original decision maker? iii. réfuter une conclusion de fait tirée par le décideur initial? ○ A principle of natural justice was violated by the original decision maker.

2. La décision initiale portait atteinte au principe de justice naturelle. [ 33 ] While operational instructions are not law, and therefore not binding, they clarify the framework that guided [NAME]’s analysis in this case. This includes the factors to be considered for the admissibility of new evidence as set out in [NAME] v Canada (Citizenship and Immigration) , 2007 FCA 385 [ [NAME] ]. [ADDRESS] has previously found that the [NAME] principles are applicable in the danger opinion context ( [NAME] v Canada (Citizenship and Immigration) , 2018 FC 588 at para 15). (3) New Evidence [ 34 ] As part of his request to reopen and reconsider the Danger Opinion, the Applicant sought to adduce new evidence that would attest to the state of affairs in South Sudan, the country of removal, that did not exist at the time the decision was rendered. [ 35 ] [NAME] did not take issue with the Applicant’s new evidence meeting the criteria of reliability and relevancy. However, the evidence was determined not to meet the elements of materiality or newness, “in the sense that it is capable of proving a material fact that was unknown at the time of the original decision or contradicting a finding of fact that was made by the original decision maker.” (4) Materiality [ 36 ] “Materiality” is a high threshold to meet to avoid the risks of “wasteful and potentially abusive re-litigation.” ( [NAME] at para 12.) A danger opinion is to be considered as final regarding risk upon removal, subject only to the possibility that new evidence demonstrates that the applicant would be exposed to a new, different or additional risk that could not have been contemplated at the time the assessment was made. In the Pre-Removal Risk Assessment [PRRA] context, examples of material changes could include the outbreak of a civil war, or the imposition of a new law which directly affected the claimant ( [NAME] v Canada (Minister of Citizenship and Immigration) , 2006 FC 1379 at para 5). [ 37 ] The Applicant submits that [NAME]’s analysis of the evidence is unreasonable for several reasons. First, he claims the assessment is highly selective and provides no discussion of much of the evidence which spoke to the significant deterioration of conditions in South Sudan generally, and more particularly in Juba, its capital city located in the Equatoria region. Second, the Applicant claims that [NAME] applied an unstated, arbitrary threshold to determine that the changes of conditions in South Sudan are insufficient to warrant reopening the danger opinion. Third, the Applicant claims that [NAME] relied on the irrelevant assertion that authorities are “taking some measures” to try and manage the circumstances that have worsened the crisis in South Sudan in recent years, more particularly the influx of internally displaced people [IDPs] following the onset of neighbouring Sudan’s civil war in April 2023. [ 38 ] While I agree with the Applicant that certain aspects of the Decision are problematic, I do not share the breadth of the criticisms levelled against [NAME]. My focus is on whether [NAME] failed to analyze the Applicant’s evidence in a meaningful way. Let me explain why I have reached the conclusion that [NAME] did fail. [ 39 ] The previous delegate recognized the “dire security and humanitarian situation in many parts of South Sudan.” The previous delegate went on to note that the Applicant is Dinka, that “while the capital city Juba has witnessed violence at the start of the civil conflict, it remains today in the hands of the Dinka-dominated governing body, currently headed by South Sudan’s president, [NAME],” that “[f]ighting between the two parties continued during the reporting period and was for the most part concentrated in the greater Upper Nile region,” and that “[t]he current civil conflict has a decidedly ethnic character, with members of the [NAME] (…) pitted against their Nuer compatriots.” [ 40 ] In concluding that “the risk to [the Applicant] of returning to South Sudan’s capital city does not meet the thresholds of section 96 or 97, nor would it result in a breach of Section 7 of the Charter ,” the previous delegate was clearly swayed by the fact that the Applicant is Dinka and that Juba was controlled at the time by a president who was also Dinka. In weighing the objective evidence, the previous delegate noted that the fighting was concentrated for the most part in the Upper Nile region. Because Juba was controlled by the [NAME], the Applicant was perceived to be at a lesser risk if removed there. [ 41 ] In support of his reopening and reconsideration request, the Applicant adduced evidence, which incidentally was accepted as reliable and relevant by [NAME], seeking to demonstrate that conditions had changed in South Sudan since 2015 so as to render the Danger Opinion unreliable. [ 42 ] Counsel for the Applicant explained that in 2015, when risk for the Applicant was last assessed, there had been brief optimism about conditions in the country. The [NAME] had signed a peace treaty with opposition militia groups, which was meant to end civil war that had fueled ethnic conflict and mass atrocities across the country. However, the peace process did not proceed as hoped, and violence and human rights abuses continued to occur across the country [ 43 ] The Country documentation established that since 2015 the situation in South Sudan became more desperate, as ethnic conflict continued and spread to previously unaffected parts of the country. Violence had spread into the south of the country in 2016 with violent clashes occurring even in the capital city of Juba. Another peace process was attempted in 2018, known as the Revitalized Peace Process, after the failure of the 2015 peace accord. The implementation of the 2018 peace process had been slowed and continued to be impeded by the escalating violence in the country, the influx of returnees from Sudan and the lack of civic and political spaces which are necessary in order for credible elections to be held. The evidence shows that the situation in South Sudan is now so dysfunctional that international support for the peace processes is faltering. The United States in 2022 stopped funding the South Sudan peace process monitoring mechanism because of the lack of progress on the project and lack of political will to implement reforms. The [NAME] Security Council renewed the arms embargo, travel ban and assets freeze against South Sudan. These sanctions will remain until the government can achieve progress on five benchmarks set out in resolution 2566(2021) as mandated by the [NAME]. [ 44 ] [NAME] concluded, despite the new information, that the evidence adduced by the Applicant was not capable of affecting the outcome for him or the conclusions reached by the previous delegate. While accepting that the more recent influx of refugees fleeing the 2023 conflict in Sudan had exacerbated an already difficult situation for IDPs in South Sudan, [NAME] discounted the evidence, finding that the situation was already considered and described in the initial decision as “dire,” with an expectation of continued violence in that country, including ongoing human rights violations. [ 45 ] In my view, [NAME] failed to meaningfully grapple with the central argument raised by the Applicant — that the nature and degree of risk the Applicant would face if removed to South Sudan had changed significantly over the previous eight years — which calls into question whether the decision maker was actually alert and sensitive to the matter before them. I agree with the Applicant that the fact that the previous delegate found that conditions in South Sudan were already dire in 2015 should have caused [NAME] to exercise heightened caution about the appropriateness of returning the Applicant to that country without a reassessment of current risk. [ 46 ] Instead, [NAME] laconically wrote off the worsening of an already dire situation as immaterial. This was plainly unreasonable. C. Timeliness of risk assessment [ 47 ] I would add that a serious question is raised whether a danger opinion rendered eight years earlier meets the thresholds of timeliness and contemporaneousness required to permit a person’s removal. In the context of PRRAs, the scheme of time bars and statutory stays reflects that, despite confidence in the removals process, Parliament wanted more assurances that risk situations were vetted as time increased since the last full risk assessment due to the increasing probabilities of new risks arising or changes to the previously assessed risk. [ 48 ] The jurisprudence is clear that a timely risk assessment is a Charter -mandated pre-condition for deportation of a person expressing fear of harm ( [NAME] at para 44; see also [NAME] v Canada (Minister of Public Safety and Emergency Preparedness) , 2006 FC 1370 at para 27). This is especially true where the person has already been recognized as having a well-founded fear of persecution. However, given that the Decision is being set aside and the matter is being remitted for redetermination on other grounds, there is no need to address this issue at length.

III. Conclusion [ 49 ] For these reasons, the application for judicial review will be allowed. The Decision of [NAME] will be set aside and the matter will be remitted to a new decision maker for redetermination. [ 50 ] Neither party posed a question of general importance for certification. In my view, there is no question to certify.

JUDGMENT IN IMM-11908-23 THIS COURT’S

JUDGMENT is that : The application for judicial review is allowed. [NAME]’s Decision dated September 19, 2023 is set aside and the matter remitted for redetermination. The Applicant shall be afforded a period of 30 days from the date of this Judgment to provide additional evidence and submissions in support of his request to reopen and reconsider the Danger Opinion made on September 25, 2015. There is no question to certify. “[NAME]” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-11908-23 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 9, 2025 REASONs AND JUDGMEN: [NAME] J. DATED: july 16, 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