Background
Osahuemwenmwen Monday Benson, a Nigerian citizen, arrived in Canada on December 15, 2024. Because an exclusion order had been issued against him, he was ineligible for referral to the Refugee Protection Division and instead filed a Pre-Removal Risk Assessment (PRRA) application on December 23, 2024, while in immigration detention in Montreal. His claim was based on his sexual orientation: he alleged he faced persecution as a gay man in Nigeria. In support, he submitted a personal narrative, affidavits from his brother, aunt, and a Canadian citizen cousin attesting to his sexual orientation, and country condition evidence documenting serious risks faced by LGBTQ individuals in Nigeria.
The PRRA Officer refused the application on January 27, 2025, without conducting an oral hearing. The sole basis for refusal was insufficiency of evidence — the Officer cited missing dates, vague accounts of same-sex relationships, gaps in the chronology of events, and lack of detail about a police raid. The Officer made no credibility finding, no determination about the applicant’s sexual orientation, and no assessment of country conditions for gay men in Nigeria. Removal proceedings followed almost immediately. After the applicant failed to appear for a scheduled removal, the Minister moved to have the judicial review application dismissed outright on the basis that the applicant lacked clean hands.
Justice Battista heard the clean hands motion and the judicial review together. Leave to commence judicial review had been granted by Justice Whyte Nowak on March 26, 2026, who had earlier dismissed a stay motion on the ground that the applicant had not demonstrated irreparable harm — while expressly acknowledging non-frivolous issues with the fairness and reasonableness of the PRRA decision.
The Court’s Holding
Justice Battista granted the application for judicial review on two independent grounds. First, the PRRA Officer breached procedural fairness by identifying gaps and deficiencies in the applicant’s evidence while denying him an oral hearing to address those very concerns — a hearing the Officer had statutory authority to conduct under section 113(b) of the Immigration and Refugee Protection Act and section 167 of the Immigration and Refugee Protection Regulations. The PRRA form had not asked for the level of detail the Officer required, and once the Officer concluded that detail was necessary, fairness obligated an oral hearing. The failure to conduct or even consider one was a breach of the principles of natural justice.
Second, the decision was unreasonable in two respects: the Officer demanded corroboration of evidence that attracted a presumption of truthfulness (the applicant’s sworn statements having raised no adverse credibility finding), and the Officer entirely failed to assess whether the applicant’s sexual orientation would expose him to risk in Nigeria — an assessment that was required even if the Officer doubted the specific incidents alleged. The court declared the January 27, 2025 decision a legal nullity and ordered the matter remitted to a different officer.
On the clean hands issue, the court held that the doctrine is more properly a remedial consideration applied after the merits are assessed, not a preliminary bar to conducting judicial review. Even at the remedial stage, the court declined to withhold relief because the applicant’s evasion of removal did not relate “directly” to the subject matter of the application — the lawfulness of the PRRA decision itself — and because the balance of relevant factors (seriousness of the procedural error, importance of the applicant’s affected rights, Canada’s non-refoulement obligations, and the prohibition in international refugee law against penalizing irregular entry) weighed in favour of granting the remedy.
Key Takeaways
- A PRRA Officer who identifies evidentiary gaps as the basis for refusal must consider conducting an oral hearing under s. 113(b) IRPA and s. 167 IRPR rather than simply refusing the application; failure to do so is a breach of procedural fairness.
- Sworn PRRA evidence that attracts a presumption of truthfulness cannot be rejected solely for lack of corroboration in the absence of an adverse credibility finding.
- Even where a PRRA officer doubts an applicant’s personal narrative, a failure to assess country condition risks tied to the applicant’s claimed identity (here, sexual orientation) is independently unreasonable.
- The clean hands doctrine is more appropriately applied as a discretionary basis to withhold a remedy after the merits of judicial review are decided, not as a preliminary objection that forestalls the review entirely.
- A refugee claimant’s evasion of removal does not bear a sufficiently direct relationship to the lawfulness of their risk assessment to support denying judicial review relief under the clean hands doctrine.
Why It Matters
This decision reinforces critical procedural protections for PRRA applicants — particularly those who, like persons excluded from the RPD process, have no other avenue to have their protection fears assessed. By holding that officers must at minimum consider the oral hearing mechanism before refusing on evidentiary grounds, the court closes a gap that could otherwise allow substantive refugee claims to be dismissed on procedural technicalities. The ruling also provides a clear analytical framework for the clean hands doctrine in immigration judicial reviews, distinguishing between the threshold to conduct review and the discretion to withhold relief — a distinction with practical significance for applicants who have fled or evaded enforcement action.
More broadly, the decision engages Canada’s non-refoulement obligations and the international law principle against penalizing refugees for irregular entry, signalling that courts will be reluctant to use equitable doctrines to deny a remedy where doing so would leave a claimant exposed to removal without a fair risk assessment. Counsel representing LGBTQ asylum seekers — a population for whom credibility and identity evidence is frequently in dispute — will find particular guidance in the court’s treatment of presumption of truthfulness and the obligation to assess country conditions independently of personal incident evidence.