JUDGMENT AND REASONS

I. Background

[1] The Applicant, a citizen of Ukraine, seeks judicial review of the Pre-Removal Risk Assessment (PRRA) decision finding that he would not face risk in returning to Ukraine.

[2] The Applicant arrived in Canada in 2015, and was issued a deportation order in 2022, after he was charged and convicted of various serious offences.

[3] In advance of removal, he was given the opportunity to apply for a PRRA. He completed the application on his own and in the section for risk in another country, he stated: “[c]urrent war in Ukraine. If I was to go back their [sic] would be a risk to my life.”

[4] The PRRA Officer found the Applicant would not face a risk of persecution in Ukraine under sections 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[5] For the following reasons, I am granting this judicial review as I have found the PRRA Officer’s analysis of section 96 is unreasonable.

II. Issues

[6] On this judicial review, the Applicant argues that the PRRA decision is unreasonable, and he was denied a fair process. As I am granting this judicial review on the grounds that the decision is unreasonable, I will not address the procedural fairness issue.

[7] Reasonableness requires a decision to have justification, transparency, and intelligibility, be based on an internally coherent and rational chain of analysis, and be justified in relation to the facts and law that constrain the decision maker (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 85-86 [Vavilov]).

III. Analysis

[8] The Applicant argues that the PRRA section 96 analysis is unreasonable. He argues that a nexus should have been found due to his Ukrainian nationality. His PRRA application identifies that he was born in Ukraine and has Ukrainian citizenship.

[9] The PRRA Officer found that the Applicant did not raise a nexus to section 96, stating as follows:

I have conducted by [sic] own research into the matter. I note that according to research found in the National Documentation Package (NDP), millions of Ukrainians have been displaced from their homes. I acknowledge that beginning in February 2023, all regions of Ukraine were subjected to indiscriminate missile and artillery strikes against both civilian and military targets. However, the ongoing conflict in Ukraine is faced by every resident of Ukraine. It is not a risk unique to the applicant or a particular social group he is apart of.

There is little evidence before me to indicate that the applicant is being specifically targeted by Russian forces or other entities. I acknowledge that Ukraine is currently engaged in armed conflict with Russia and as a result of this conflict, both military personnel and civilians face risks of violence and other harm. However, these are risks currently faced by every resident of Ukraine. The applicant has presented little evidence to speak to how the generalized risks in Ukraine amounts to a personalized risk for him.

Section 96 of IRPA requires the applicant demonstrate he has more than a mere possibility of persecution due to one of the five Convention grounds. I find that the applicant has not established on a balance of probabilities his fear is by reason of his perceived race, religion, nationality, membership in a particular social group, or political opinion. As a result, I find that there is no nexus to a Convention ground. Since there is no nexus to a Convention ground I find the applicant faces no more than a mere possibility of risk under section 96 of IRPA.

[10] As noted, the Applicant relies on his nationality in support of his PRRA application. In this regard, the same National Documentation Package [NDP] relied upon by the Officer also states:

Throughout the Russian military campaign in Ukraine in 2022, Russian authorities openly admitted that their aim was to extinguish Ukrainian statehood and bring much, if not all, of the country under Moscow’s rule. The retreat of Russian troops from towns in the Kyiv, Kharkiv, and Kherson Regions, among other areas, revealed mounting evidence of Russian war crimes, including targeted executions, rape, and torture of Ukrainian civilians.

An independent legal analysis—sponsored by the New Lines Institute, a nonpartisan US-based think tank, and Canadian nonprofit the Raoul Wallenberg Centre for Human Rights, and signed by more than 30 independent experts —concluded that there were reasonable grounds to believe that the Russian state was responsible for “direct and public incitement to commit genocide,” and “that a pattern of atrocities” committed by the Russian military pointed to “intent to destroy the Ukrainian national group”. [Emphasis added.]

[11] This evidence contradicts the Officer’s conclusion that the Applicant, as a Ukrainian, would not face persecution due to his nationality. Given this contradictory information in the same NDP the Officer relied upon, the Officer was required to justify or account for their finding that is clearly inconsistent with the NDP evidence (Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 73, quoting Vavilov at para 126).

[12] Here the Officer fails to account for this evidence or address the reality of the risk the Applicant would face as a Ukrainian in Ukraine. Rather, the Officer focuses on the fact that all residents of Ukraine face risk from the war. However, under section 96, it is not necessary to demonstrate that an individual faces risk above the generalized risk faced by the rest of the population (Salibian v Canada (Minister of Employment and Immigration), 1990 CanLII 7978 (FCA) at p 259).

[13] In support of his position, the Applicant also relies on a decision of the Refugee Appeal Division in X (Re), 2022 CanLII 136990 (CA IRB), which found a nexus between Ukrainian nationality and section 96. In that decision, the Refugee Appeal Division found the Russian state targeted Ukrainians in Ukraine based on their nationality (at paras 32-33). As such, the Ukrainian claimant had established fear that a group he was associated with (Ukrainians) would be targeted based on a Convention ground (nationality).

[14] In this case, I find that the Officer’s consideration of section 96 lacks sufficient justification and rationalization to the facts and the evidence. This renders the decision unreasonable.

IV. Conclusion

[15] This judicial review is granted. The matter shall be redetermined by a different decision maker.

JUDGMENT IN IMM-3373-25

THIS COURT’S JUDGMENT is that :

1. This judicial review is granted. The PRRA decision is set aside and shall be redetermined by a different officer.

2. There is no question for certification.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES :

SOLICITORS OF RECORD: