Docket: IMM-23703-24
Citation: 2026 FC 744
Toronto, Ontario, June 5, 2026
PRESENT: The Honourable Mr. Justice A. Grant
|
BETWEEN:
|
|
ABDIFATAH OSMAN ASHKIR
|
|
Applicant
|
|
and
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
REASONS AND JUDGMENT
I. OVERVIEW
[1] The Applicant, Abdifatah Osman Ashkir, seeks judicial review of a decision by an Immigration, Refugees and Citizenship Canada [IRCC] officer to refuse his application for permanent residence as a Convention refugee abroad or humanitarian-protected person abroad.
[2] For the reasons that follow, this application is granted.
II. BACKGROUND
A. Facts
[3] The Applicant is a citizen of Somalia. He claims that in 2018 he fled Somalia for Uganda after the Al-Shabaab militant group attempted to forcibly recruit him. He was recognized as a refugee in Uganda that same year.
[4] Mr. Ashkir later applied for permanent residence in Canada as a Convention refugee abroad or humanitarian-protected person abroad. He was interviewed by an IRCC visa officer on October 22, 2024.
[5] The officer refused Mr. Ashkir’s application on November 16, 2024, citing credibility concerns. Notes entered into IRCC’s Global Case Management System [GCMS] reveal that the officer was particularly concerned with a perceived contradiction in Mr. Ashkir’s testimony. Specifically, the officer was concerned that Mr. Ashkir first stated that Al-Shabaab recruited him because he had access to a particular seaport, but then he also stated that he and other recruits were being sent away to a spy training camp. The officer also identified inconsistencies regarding Mr. Ashkir’s testimony about how he told his parents that he had been recruited. The officer expressed these concerns to Mr. Ashkir but did not find his responses satisfactory.
III. ISSUES and STANDARD of REVIEW
[6] The sole issue raised by the Applicant relates to the reasonableness of the officer’s decision.
[7] The standard of review of the merits of an administrative decision is typically reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 10, 25; Pepa v Canada (Citizenship and Immigration), 2025 SCC 21 at para 35 [Pepa]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 7 [Mason].
[8] In the judicial review context, the role of the reviewing court is to examine the reasons of the administrative decision maker to determine whether the decision is based on “an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
: Pepa at para 46; Mason at para 64; Vavilov at para 85.
[9] In reviewing a tribunal’s reasoning process, the court assesses whether the “decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
: Vavilov at para 99. Both the outcome of the decision and its reasoning process must be considered in assessing whether these hallmarks are present: Vavilov at paras 15, 95, 136.
IV. ANALYSIS
[10] As noted above, the officer found that Mr. Ashkir provided inconsistent information about the reasons why Al-Shabaab sought to forcibly recruit him. While at first Mr. Ashkir indicated that he thought Al-Shabaab was interested in him because of his ability to access a seaport, he later testified that the group may have sought to recruit him to be a spy and that he would be sent to a camp to be trained. This perceived inconsistency was the primary basis on which the officer found that Mr. Ashkir was not credible.
[11] Counsel for the Applicant has raised many arguments on judicial review, the majority of which are either irrelevant or lack merit. However, as a general proposition, he argues that the officer unreasonably discounted the Applicant’s explanations for the perceived inconsistencies, and that the officer’s findings on why Al-Shabaab sought to recruit Mr. Ashkir should not have affected his application.
[12] I agree for two principal reasons. The first is that I see no contradiction in the Applicant’s testimony. There is simply nothing inherently incompatible in the Applicant’s testimony that: 1) he thought the militants wanted to recruit him because of his ability to access the seaport; and 2) that they first intended to send him to a camp for spy training. In my view, the lack of a contradiction is made perfectly clear by the officer’s own interview notes:
[Officer]: So I just want to summarize what you told me to make sure I have it right. What was the job they wanted you to do?
[Applicant]: So they told me have several trainings we are going to give you training in our camps. They told you will give you six months training and then you will operate as a spy in the sea port. It was not only seaport and not just the seaport but in Kismayo and we will pay you good money. So at that time I agreed. If I refuse they might kill me.
[13] As is plainly evident from the above, the Applicant communicated to the officer that, as far as he understood, the Al-Shabaab militants recruited him because of his ability to access the seaport, but before they had him take on this role, they intended for him to receive training. There is nothing inconsistent in these statements. An inaccurate finding that two events are contradictory represents just the kind of break in logic that the Supreme Court in Vavilov described as warranting judicial intervention.
[14] My second concern with the officer’s reasons is that they rely, at least in part, on an evaluation of the Applicant’s knowledge of the motivations and intentions of those who he claims to fear. Essentially, the officer asked the Applicant to speculate as to why Al-Shabaab sought to recruit him. There are two pitfalls in such an approach. The first is that, by definition, these questions encourage individuals to provide information that is not firmly within their knowledge. The second is that where an individual provides information that is unexpected, there is a temptation to draw an adverse credibility inference from an individual’s inability to divine the thoughts or intentions of others. This Court has found such an approach to be unreasonable: Abdulahi v Canada (Citizenship and Immigration), 2013 FC 868 at para 44; Selliah v Canada (Minister of Citizenship and Immigration), 2006 FC 493 at para 6.
[15] Given the centrality of the officer’s credibility findings related to this recruitment issue, I have concluded that it renders the decision unreasonable. This was not a small, or microscopic issue, but one that played a central role in the officer’s findings.
[16] In arriving at this conclusion, I am aware that counsel for the Applicant only addressed these concerns in a very broad sense, and they were not squarely raised in his written materials. For this reason, at the hearing in this matter, I put my concerns to both parties.
[17] In thoughtful and thorough submissions, counsel for the Respondent argued that the above observations did not render the officer’s decision unreasonable. First, counsel argued that the Applicant’s testimony was, in fact, evolving and it was therefore within the purview of the decision-maker to rely on this inconsistent testimony to ground an adverse credibility finding. However, for the reasons already provided, I am not convinced by this argument. In my view, the Applicant’s testimony did not ‘evolve’ but was rather supplemented with further and consistent information, based on follow up questioning from the decision-maker.
[18] Second, counsel for the Respondent argues that the decision-maker did not, in fact, ask the Applicant to speculate as to Al-Shabaab’s intentions. Rather, the officer’s concerns arose from the nature of the Applicant’s own speculation as to why the group was interested in him. According to the Respondent, the officer asked the Applicant the same question several times, and in different ways, and Mr. Ashkir’s inability to provide a clear or consistent answer is what gave rise to the officer’s concerns.
[19] Once again, I am not convinced by this argument. It is true that the officer asked the Applicant what the militants had said to him and, to this extent, the officer was not inviting the Applicant to speculate as to their motives. However, in the officer’s evaluation of the Applicant’s answers, it is also clear that the officer was dissatisfied with the Applicant’s knowledge of the militants’ intentions. It is an error for a decision-maker to assume that they may understand the motivations of an agent of persecution, or that these motivations will necessarily be linear or immediately intelligible: Michel v Canada (Citizenship and Immigration), 2022 FC 1610 at para 22; Franco Taboada v Canada (Citizenship and Immigration), 2008 FC 1122 at para 35; Yoosuff v Canada (Minister of Citizenship and Immigration), 2005 FC 1116 at para 8. In any event, because I see nothing inherently contradictory in the Applicant’s statements, this point is, at most, an ancillary one.
[20] As noted above, counsel for the Applicant did not squarely, or specifically, raise the issues that I have found to be determinative of this judicial review. This gives rise to the question as to how closely I should consider these issues. This is because a party challenging a decision generally has the burden to show that it is unreasonable: Vavilov at para 100. However, irrespective of the applicable burden, I am convinced that I may consider the issues addressed above for two reasons.
[21] First, as I already noted, counsel for the Applicant did raise, albeit in broad and poorly defined arguments, the kinds of concerns that I have described above.
[22] Second, to the limited extent that my concerns about the officer’s credibility findings may constitute a new issue, the raising of such new issues is within the Court’s supervisory role, so long as fair notice is provided to the parties. In this case, the Respondent was given adequate notice. In R v Mian, 2014 SCC 54 [Mian], the Supreme Court provided guidance to appellate courts when raising new issues on appeal. The Federal Court of Appeal subsequently found that these principles also apply to courts raising new issues on applications for judicial review: Adamson v Canada (Canadian Human Rights Commission), 2015 FCA 153 at para 89, citing Labatt Brewing Company Ltd. v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at paragraphs 4–5.
[23] In Mian, the Court advised that new issues may be raised orally at a hearing, as long as the parties have an adequate opportunity to respond: Mian at paras 57-59. What constitutes an adequate opportunity will depend on the circumstances of the case and the nature of the new issue: Mian at paras 58-59.
[24] In this case, the new issue was not complex and was obvious on the face of the record: Mian at para 58. I put my concerns to the parties, and I have paid careful attention to the arguments provided by counsel. For the reasons set out above, I am not convinced by the Respondent’s arguments on these issues and, as such, I must grant this application for judicial review.
V. CONCLUSION
[25] This application for judicial review is granted. The parties did not propose a question for certification, and I agree that none arises.
Email this Content