The Federal Court granted judicial review in Refugee Durable Solution, Anenya v. Canada, 2026 FC 1149, after finding that a refugee applicant was denied procedural fairness in the assessment of whether she had a durable solution in Ethiopia. Justice Aylen set aside the March 19, 2025 refusal of the applicant’s overseas permanent residence application and ordered redetermination by a different officer. Before a new decision is made, the applicant must have an opportunity to provide further evidence and written submissions on the durable solution issue.
Officer refused overseas refugee application
The applicant is a citizen of Eritrea who fled Eritrea in 2019 and sought asylum in Ethiopia to avoid mandatory military conscription. She stated that she could not return to Eritrea without facing imprisonment. At the time of her Canadian application, she was living in Ethiopia as a UNHCR refugee with her husband, an Ethiopian national.
She applied for Canadian permanent residence through a Group of Five sponsorship. Her husband was included as an accompanying dependent. The application was made under the Convention Refugee Abroad class or the Humanitarian-Protected Persons Abroad designated class.
Following an interview at the Canadian High Commission, an officer refused the application five days later, in a letter dated March 19, 2025. The officer concluded that the applicant had a durable solution in Ethiopia and therefore did not qualify for a visa under subsection 139(1)(d) of the Immigration and Refugee Protection Regulations.
Durable solution concern was raised at interview
Under subsection 139(1)(d), a foreign national in need of refugee protection and accompanying family members may receive permanent resident visas if the foreign national does not have a reasonable prospect of a durable solution, within a reasonable period, in a country other than Canada.
Justice Aylen described a durable solution as a forward-looking assessment of whether an applicant has a viable long-term solution in their country of refuge. The assessment considers legal status, personal circumstances and relevant country conditions, and a durable solution does not need to be perfect.
The Court noted that the applicant bears the burden of establishing that her status in the country of refuge does not amount to a durable solution. The applicant had not attempted to obtain Ethiopian citizenship. During the interview, the officer gave her an opportunity to address the officer’s concern about a durable solution, but no post-interview procedural fairness letter was sent.
Parties disagreed on procedural fairness
The applicant argued that the interview did not provide a full and fair opportunity to answer the concern. She submitted that the officer did not explain what a durable solution was, the factual and legal considerations involved, or the implications of finding one in Ethiopia. She also argued that a single question about whether she had applied for citizenship did not allow her to explain legal constraints for Eritreans seeking Ethiopian citizenship.
The respondent argued that the applicant had the onus to show she could not resettle in Ethiopia and to provide supporting evidence. The respondent submitted that the officer was not required to seek out that information and that the interview, interpreter and invitation to respond to the durable-solution concern satisfied procedural fairness.
Court required a meaningful post-interview response
The determinative issue was whether the applicant had received a meaningful opportunity to explain her circumstances and respond to the officer’s durable-solution concern. The Court stated that procedural fairness is context-specific and that the question is whether the procedure was fair in all the circumstances.
Justice Aylen did not find that the officer was necessarily required to give all of the explanations and clarifications requested by the applicant during the interview itself. However, the Court found that a procedural fairness letter should have followed the interview.
The Court emphasized the particular circumstances: the applicant was privately sponsored by Canadians, was seeking refugee protection from abroad, had already been recognized by UNHCR as a refugee in another country, and neither she nor the Canadian sponsorship group had counsel. Taken together, those factors placed her in a vulnerable position and meant she was not well-positioned to give a meaningful response during the interview to an issue that would determine her application.
The finding is tied to those circumstances rather than establishing that every durable-solution assessment requires a post-interview procedural fairness letter.
Federal Court ordered redetermination
The Court granted the application for judicial review, set aside the refusal and returned the matter to a different officer for redetermination.
Before the new decision, the applicant must be given an opportunity to submit further evidence and written submissions concerning a durable solution in her country of refuge. Neither party proposed a question for certification, and the Court found that none arose.
Source: Federal Court Decisions