Docket: IMM-11809-25
Citation: 2026 FC 1218
Toronto, Ontario, October 2, 2026
PRESENT: Madam Justice Go
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BETWEEN:
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ASHRAF HUSSAIN
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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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REASONS AND JUDGMENT
I. Overview
[1] The Applicant, a citizen of Bangladesh, arrived in Canada on a study permit in November 2022 and claimed refugee protection on May 31, 2023. He alleges fear of persecution by local Awami League [AL] cadres who demanded that he join the party or pay them money.
[2] The Refugee Protection Division [RPD] rejected the Applicant’s claim in October 2024. While the RPD accepted that the Applicant had established a nexus of political opinion based on his allegations against the AL, it found that he had failed to establish his claim with credible or trustworthy evidence.
[3] During the time when the Applicant’s appeal to the Refugee Appeal Division [RAD] was pending, the AL government fell out of power. The RAD notified the Applicant that it intended to rely on the updated National Documentation Package [NDP]—which addressed the new political developments—in its assessment of forward-facing risk.
[4] After receiving the Applicant’s submissions in response [Applicant’s RAD Submission], by a decision dated April 22, 2025, the RAD dismissed the appeal, finding that the Applicant had not established a forward-facing risk and that this finding was determinative of the appeal [Decision].
[5] The Applicant seeks judicial review of the Decision. For the reasons set out below, I dismiss the application.
II. Preliminary Issues
[6] In their Further Memorandum of Argument [FMOA], the Respondent raises a new issue, namely, that there is no proper application before the Court because:
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the Applicant’s leave application was filed outside of the statutory timeframes;
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the Applicant did not seek an extension of time; and
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the Applicant’s leave application provides inaccurate information to the Court regarding those matters.
[7] Accordingly, the Respondent argues that the application should be dismissed.
[8] The Respondent relies on Sankoh v Canada (Citizenship and Immigration), 2026 FC 915 [Sankoh], where the Court confirmed that service of the Notice of Decision and reasons of an RPD decision on counsel of record constituted effective notice to the applicant, citing subsection 38(3) of the Refugee Protection Division Rules, SOR/2012-256, and the common law holding that notice to a solicitor is considered notice to their client: Sankoh at paras 24-28. The Court noted that the applicant was deemed to have been served on the day when the applicant’s counsel was served with the Notice of Decision and RPD’s reasons via the My Case Portal of the Immigration and Refugee Board [IRB], and that it was open to the applicant to rebut that presumption: Sankoh at paras 31-35. In that case, the Court found that the applicant had failed to rebut the presumption. Because the applicant did not request an extension of time, the Court concluded that the application was not properly before the Court: Sankoh at paras 37-38.
[9] The Respondent points out that the current application was filed on May 15, 2025, with no request for an extension of time to file the application. While the Applicant claims that the Decision was not communicated until May 1, 2025, the Respondent argues that as the Decision was provided to the Applicant’s counsel by way of the IRB’s portal on April 24, 2025, that is the date on which the Decision was received.
[10] The Respondent does not explain in their FMOA why they did not raise this issue in their Memorandum of Argument [MOA] at the leave stage and waited until they filed the FMOA to raise this new issue.
[11] Shortly before the hearing, I asked the parties to prepare submissions on whether the Court should exercise its discretion to allow the Respondent to raise this new issue.
[12] Recently, in Kaur v Canada (Citizenship and Immigration), 2026 FC 1089, I dealt with a situation where the applicants raised a new issue in their FMOA. I relied on Naeini v Canada (Citizenship and Immigration), 2024 FC 899 at paragraph 12, in which the Court, citing Al Mansuri v Canada (Public Safety and Emergency Preparedness), 2007 FC 22, reiterated a list of non-exhaustive factors the Court applies to determine if it should exercise its discretion to allow issues to be raised for the first time in a party’s further memorandum of argument:
(i) Were all of the facts and matters relevant to the new issue or issues known (or available with reasonable diligence) at the time the application for leave was filed and/or perfected?
(ii) Is there any suggestion of prejudice to the opposing party if the new issues are considered?
(iii) Does the record disclose all of the facts relevant to the new issues?
(iv) Are the new issues related to those in respect of which leave was granted?
(v) What is the apparent strength of the new issue or issues?
(vi) Will allowing new issues to be raised unduly delay the hearing of the application?
[13] Having considered the parties’ submissions, and applying the factors set out above, I decline to permit the Respondent to raise this new issue for the first time in their FMOA for the reasons set out below.
[14] The fact relevant to the new issue was known at the time the application for leave was perfected. The Applicant included in the Application Record, a copy of the Statement of Service by the IRB noting that the Notice of Decision and Reasons were served on the Applicant’s counsel through the My Case Portal on April 24, 2025. Thus, by the time the Respondent filed their MOA dated July 15, 2025, the Respondent had already been made aware of the potential issue with respect to the date of service.
[15] The new issue is prejudicial to the Applicant. If allowed, this new issue could result in the dismissal of the Applicant’s judicial review application.
[16] The timing of when the new issue is raised also prejudicial to the Applicant. In her order granting leave, Justice Ferron ordered the Applicant to file his further affidavits, if any, on or before Friday July 17, 2026, and his FMOA, if any, by August 14, 2026. Justice Ferron gave the Respondent until August 24, 2026 to file their FMOA, which the Respondent did on August 23, 2026.
[17] In other words, by the time the Respondent raised this new issue, all the deadlines for the Applicant to file his further affidavit and FMOA had long passed, thus making it impossible for the Applicant to respond to this new issue by filing any updated affidavit or making reply submissions.
[18] At the hearing, counsel for the Respondent provided a fulsome explanation for raising this new issue. Counsel submitted that Parliament has decided under the Immigration and Refugee Protection Act, SC 2001, c.27 [IRPA] that for matters arising within Canada, an applicant must file their application for leave within 15 days after the day on which the applicant is notified of or otherwise becomes aware of the matter. Counsel’s view was that it is important to comply with this requirement because Canadians have expressed their view through the Parliament they have elected. As such, it is an expression of their sovereignty in our democratic system.
[19] Counsel for the Respondent submitted that the 15-day deadline is a statutory requirement that the Applicant cannot unilaterally evade. While the Court may allow an extension of time for filing and serving the application, the Applicant must bring a motion to request an extension.
[20] Counsel for the Respondent further submitted that once he is made aware of this issue, he has a legal and professional obligation to raise it. He cited subsection 4(1) of the IRPA which provides that the Minister of Citizenship and Immigration is responsible for the administration of the IRPA, as well as the Rules of Professional Conduct governing lawyers. Counsel also pointed to the Federal Courts Rules, SOR/98‑106 [Rules], to argue that the Applicant could have sought to bring a motion under Rule 369 to seek an extension or amend the application for leave and for judicial review under Rule 75. While these steps may be burdensome, they are no more burdensome than what the IRPA originally requires.
[21] Despite counsel’s able and passionate submission, I do not accept that, simply because the 15-day filing requirement reflects the will of Parliament, the Court must allow the Respondent to raise this as new issue. As counsel conceded, the Respondent is not prejudiced—which in my view undercuts counsel’s position of this being a matter of respecting Parliamentary sovereignty or safeguarding the rule of law. Also, as the Respondent acknowledged, the Court retains its discretion to extend the 15-day time limit, and indeed often does so on a motion brought under the Rules, notwithstanding the wishes of Canadians expressed through Parliament.
[22] Besides, while the Court in Sankoh determined that the service of the Notice of Decision on counsel of record constituted effective notice to the applicant, it said nothing about the obligation of counsel, or indeed the Court, to raise this issue whenever it arises. I also note that Justice Lafrenière in Sankoh took the exceptional step of providing reasons on a leave application because, in his review, the issue relating to the date of notification of an immigration tribunal’s decision had not been squarely decided, at least by any cases binding upon this Court: Sankoh at para 1. Justice Lafrenière’s comment suggests that the Respondent’s argument is not reflective of well established jurisprudence.
[23] Having said that, I note that Sankoh is not the only case in which that the Court has confirmed that an IRB decision is deemed to have been received by an applicant when it is received by counsel: see e.g. Nava Aguilar v Canada (Citizenship and Immigration), 2024 FC 1714 [Nava Aguilar]. However, in both Sankoh and Nava Aguilar, the respondent raised the issue of the service date in their MOA at the leave stage, giving the applicant ample opportunity to respond. The Court in Nava Aguilar dismissed the application because the applicant had failed to respond to the respondent’s evidence of the date of service, despite having had several opportunities to do so, and had never sought an extension of time: Nava Aguilar at paras 15-17.
[24] Here, the Respondent waited until the very last moment to raise this new issue, thus depriving the Applicant of any opportunity to file further affidavits that may rebut the presumption of service based on the My Case Portal.
[25] Given all of the above, I decline to allow the Respondent to raise the new issue.
[26] In light of Sankoh, I anticipate that this issue will be raised more frequently in IRB matters that come before the Court. Going forward, I urge the Respondent to raise this issue at the earliest opportunity. Just as the Respondent has an obligation to administer the IRPA, it also has an obligation to respect the principles of fairness. Further, while I disagree that the Court has an obligation to raise this issue on its own initiative, I note that applicants would be ill-advised to ignore this issue in cases where there is a discrepancy between the date of service on the My Case Portal and the date on which an applicant purports to have received the decision.
[27] Finally, I would like to make clear that the counsel who prepared the FMOA for the Respondent was not the counsel on record when the Respondent filed their MOA. Similarly, the counsel for the Applicant before the Court was not the counsel on record before the RAD. My comments above should in no way be construed as criticisms of either counsel, both of whom have conducted themselves in a professional manner throughout the proceedings before me and have shown nothing but utmost respect for the Court.
III. Issues and Standard of Review
[28] The Applicant raises several overlapping issues to challenge the reasonableness of the Decision. At the hearing, counsel for the Applicant distilled the Applicant’s submissions into the following three issues:
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The RAD placed disproportionate weight on the downfall of the AL and the disappearance of senior leadership, and ignored the threat to the Applicant from local cadres who are made up of young, decentralized actors;
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The RAD misconstrued the objective of Item 4.10 of the NDP; and
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The RAD failed to assess the Applicant’s incidents of past persecution.
[29] The parties agree that the presumptive standard of review of the merits is reasonableness and that the Court should look to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] in determining whether the Decision bears the requisite hallmarks of justification, transparency and intelligibility: Vavilov at para 99. The Applicant bears the onus of demonstrating that the decision was unreasonable: Vavilov at para 100.
[30] While the Applicant raises multiple issues to challenge the Decision, they all fit under the following theme: The Applicant’s fear, as supported by past incidents of persecution, does not stem from high-ranking leaders of the AL, but from local cadres who continue to have the means and motivation to target the Applicant. The RAD therefore erred in focusing only on the downfall of the AL and its high-ranking leaders to dismiss the Applicant’s claim, when the country condition evidence confirms that low-ranking members of the AL do not face any risk of prosecution and therefore still have the means as well as motivation to pursue the Applicant.
[31] I reject the Applicant’s submissions for the following reasons.
[32] First, as the Respondent submits, and I agree, the Applicant’s claim—as it was before the RPD and RAD—was that he was fearful of the local AL cadres because of the power that they derived from their association with the AL. For instance, the Applicant stated in his Basis of Claim narratives and testified at the RPD hearing about the connection between one of the members of the cadres to a member of parliament of the AL. The Applicant claimed that the local cadres had the means to extort him because of their connection to the people in power and the corrupt police. Before the Court, the Applicant reframes his claim by suggesting that his claim is not about the AL and its high ranking members, which is inconsistent with his refugee claim. In light of the Applicant’s actual claim, it was not unreasonable for the RAD to focus on the downfall of the AL when analysing the Applicant’s forward-looking risk.
[33] Second, the Applicant’s argument is also inconsistent with his own submission to the RAD after being notified that it intended to rely on the updated NDP in its assessment of forward-facing risk. In the Applicant’s RAD Submission, his then representative submitted that, according to the new NDP articles, the leadership of the AL “may very well return to power in Bangladesh”
and that “it is too early to speculate the future for Bangladesh”
, as the situation is still “extremely fluid.”
In other words, the Applicant submitted that there was a forward-facing risk because of the possibility of the AL returning to power, and not because the local cadres still posed a risk to him.
[34] The RAD accurately summarized the Applicant’s RAD Submission as amounting to stating that the NDP “confirms the existence of forward-facing risk as the military have seized power and therefore the agent of harm remains in power in Bangladesh.”
The RAD thus did not err in not addressing the risk posed by the local AL cadres as part of its forward-facing risk analysis.
[35] Third, I reject the Applicant’s submission that Item 4.10 of the NDP confirms that the local cadres still have the means and motivation to target the Applicant and that the RAD erred in ignoring the evidence.
[36] In the Applicant’s RAD Submission, the Applicant relied on Item 4.10 of the NDP to argue that agents of the AL remain safely in Bangladesh, which in turn confirms the serious possibility that the AL itself will be able to regroup.
[37] The Applicant argues that the RAD improperly dismissed Item 4.10 because establishing the AL’s possible return to power was not the objective of Item 4.10. Rather, the relevant issue was whether the low-level AL supporters who are targeting the Applicant would be targeted by the authorities for prosecution. Because the document states that “[l]ow level supporters and members of the AL and auxiliary (student and youth) organisations…are unlikely to be of ongoing interest to the authorities”
, the Applicant submits that the young AL cadres pursuing him would remain free to harm him.
[38] I reject this argument for two reasons. First, in the Applicant’s RAD Submission, the Applicant did not cite Item 4.10 to demonstrate the means of the local cadres but to support his argument that AL will likely to return to power. Secondly, the RAD did not ignore this evidence.
[39] At paragraph 14 of the Decision, the RAD acknowledged Item 4.10, noting that “low-level AL supporters are unlikely to be of ongoing interest to the authorities.”
However, the RAD found that the preponderance of the note does not indicate that the AL will return to power. Later in the Decision, the RAD also noted that the Bangladesh Chhatra League—the AL student wing—has been declared a terrorist organization and banned. During his testimony, the Applicant stated that the local cadres were tied to the Chhatra League. The RAD therefore did consider the objective evidence about the local cadres as agents of persecution, but concluded that the evidence does not support a finding that they pose a forward-facing risk to the Applicant. The Applicant may disagree with the RAD’s assessment, but his argument that the objective evidence was ignored has no merit.
[40] Finally, I reject the Applicant’s submission that the RAD failed to assess incidents of past persecution—which constitutes a reviewable error—by not considering that the local cadres who pose a risk to the Applicant are not senior members of the AL. The Applicant cites Natynczyk v Canada (Citizenship and Immigration), 2004 FC 914 at paragraph 71 to argue that the RAD had an obligation to assess those incidents because “evidence of past persecution is one of the most effective means of showing that a fear of future persecution is objectively well-founded.”
[41] The Applicant’s argument misses the point. The RAD did not find that the Applicant lacks forward-facing risk because of the lack of evidence of past persecution. Rather, the RAD reached its conclusion based on changed country conditions. In view of the RAD’s finding that the downfall of the AL is not temporary or brief, it was reasonable for the RAD to find no objective basis for the Applicant’s fear of the AL, notwithstanding the Applicant’s past incidents of persecution.
[42] The application for judicial review is dismissed.
[43] There is no question for certification.
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