Date: 20260209
Docket: IMM-5403-25
Citation: 2026 FC 184
Ottawa, Ontario, February 9, 2026
PRESENT: The Hon Mr. Justice Henry S. Brown
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BETWEEN: |
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ELISHIBA WANJIRU NGURI |
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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 |
JUDGMENT AND REASONS
[1] This application is for judicial review of the decision of a senior immigration officer [Officer] dated November 8, 2024 [Decision] refusing the Applicant’s Pre-Removal Risk Application [PRRA]. The parties consented and I agreed to having this application determined based on the pleadings and the record but without an oral hearing. I am persuaded the Court should grant this Application for the following reasons.
[2] The Applicant is a citizen of Kenya and bisexual woman. In December 2021 at the age of 52, she was cruelly and forcibly circumcised by family members thinking she was a lesbian. She had several female partners, both prior to and after her father forced her into an arranged marriage. He husband violently abused her on multiple occasions, most recently when he found her with another woman while recovering from the forced female gender mutilation.
[3] The Applicant had been a successful businessperson in Kenya.
[4] She arrived in Canada in July 2023 on a valid temporary resident visa.
[5] She applied for refugee status shortly after arriving. Previously she had obtained refugee status in the United States of America. There is no copy of her refugee application nor rejection in the Certified Tribunal record, although the Respondent says it was dismissed within a week or two of her arrival.
[6] In terms of state protection, the PRRA Officer acknowledged and marked “YES”
on the PRRA decision form beside the statement that state protection is a common consideration applicable to all protection grounds in her PRRA applications. The Officer could have left it blank or in the negative. The affirmative leads me to conclude state protection would and should be considered in her case, that is: “[the] applicant is unable or, because of the risk alleged, unwilling to avail themselves of state protection.”
[7] However, while the Decision considers whether Kenya is a state-sponsor of violence against LGBTQ+ persons (found not the case), that was the focus of the Decision’s state protection analysis. That gives rise to a reviewable error. I say this because, while state sponsorship of persecution is relevant, the central issue is whether the Applicant and those similarly situated have adequate state protection at the operational level. This is neither considered nor determined, let alone grappled with in a meaningful manner as required by constraining law: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paragraphs 127-128:
[127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[Emphasis in original]
[8] The adequacy of state protection at the operational level had to be determined. The importance of this assessment is established in a great deal of jurisprudence: Bito v Canada (Citizenship and Immigration), 2022 FC 1370 at paragraph 25 per Brown J [Bito]; Zapata v Canada (Citizenship and Immigration), 2022 FC 1277 at paragraphs 15, 25 per Favel J; Mejia v Canada (Citizenship and Immigration), 2022 FC 1032 at paragraphs 25-26, 28 per McVeigh J [Mejia]; Rstic v Canada (Citizenship and Immigration), 2022 FC 249 at paragraphs 18, 30-31 per Favel J [Rstic]; Asllani v Canada (Immigration, Refugees and Citizenship), 2020 FC 645 at paragraph 25 per Crampton CJ; Newland v Canada (Citizenship and Immigration), 2019 FC 1418 at paragraphs 23-25 per McHaffie J [Newland]; Dawidowicz v Canada (Citizenship and Immigration), 2019 FC 258 at paragraph 10 per Brown J; Gjoka v Canada (Citizenship and Immigration), 2018 FC 292 at paragraph 30 per Strickland J; Moya v Canada (Citizenship and Immigration), 2016 FC 315 at paragraph 68 per Kane J; Hasa v Canada (Citizenship and Immigration), 2018 FC 270 at paragraph 7 per Strickland J; Eros v Canada (Citizenship and Immigration), 2017 FC 1094 at paragraph 45 per Manson J [Eros]; Benko v Canada (Citizenship and Immigration), 2017 FC 1032 at paragraph 18 per Gascon J [Benko]; Koky v Canada (Citizenship and Immigration), 2017 FC 1035 at paragraph 14 per Gascon J; Mata v Canada (Immigration, Refugees and Citizenship), 2017 FC 1007 at paragraphs 13-15 per McDonald J [Mata]; Poczkodi v Canada (Immigration, Refugees and Citizenship), 2017 FC 956 at paragraph 37 per Kane J; Paul v Canada (Immigration, Refugees and Citizenship), 2017 FC 687 at paragraph 17 per Boswell J [Paul]; John v Canada (Citizenship and Immigration), 2016 FC 915 at paragraph 14 per Brown J; Whyte v Canada (Citizenship and Immigration), 2023 FC 1420 at paragraph 21 per Turley J [Whyte].
[9] Notably in connection with the foregoing, Bito, Mejia, Rstic, Newland, Eros, Benko, Mata, Paul, and Whyte are all judicial reviews of PRRAs, as is the case at hand. See also St. Brice v Canada (Citizenship and Immigration), 2023 FC 1139 at paragraphs 66-70 per Régimbald J.
[10] There are many other issues raised by counsel, including new evidence. I make no comment on any of these matters. It seems to me the Applicant should have the right to file additional information on the redetermination to be ordered.
[11] In the result, judicial review will be granted.
[12] Neither party suggested a question of general importance for certification, and none arises.
[13] This is not a case for costs.
JUDGMENT in IMM-5403-25
THIS COURT’S JUDGMENT that:
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The Application for judicial review is granted.
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The Decision is set aside and remanded for redetermination by a different decision-maker.
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The Applicant has the right to file additional evidence before the decision-maker.
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No question of general importance is certified.
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There is no order as to costs.
“Henry S. Brown”
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