Abraham v. Canada (Citizenship and Immigration), 2020 FC 246 : PRRA and H&C Refusals Set Aside Where Officer Unreasonably Relied on Unsupported Identity Findings

Abraham v. Canada (Citizenship and Immigration), 2020 FC 246

PRRA and H&C Refusals Set Aside Where Officer Unreasonably Relied on Unsupported Identity Findings

The Federal Court reviewed two related refusals concerning Adiam Michael Abraham: a negative Pre-Removal Risk Assessment and a refusal of permanent residence on humanitarian and compassionate grounds. Both decisions depended heavily on the conclusion that Ms. Abraham was a Swedish citizen rather than solely a citizen of Eritrea.

Ms. Abraham maintained that she had entered Canada using a false Swedish passport supplied by a smuggler and that she had no Swedish citizenship or right to return there. The Court found that the officer’s identity determination was unreasonable because the record did not support the claimed biometric connection between Ms. Abraham and the genuine Swedish passport. Since the same identity finding was central to both the PRRA and H&C decisions, both refusals were set aside.

Key Principle

Where nationality or identity is determinative of a PRRA or H&C application, the officer’s finding must be grounded in reliable evidence contained in the record. An officer cannot simply adopt an earlier tribunal’s characterization of information as “high value” or refer to biometric matching where the record does not establish that biometric testing actually occurred. Because risk analysis and H&C considerations depend on the correct country of nationality or return, an unsupported identity finding can render the entire decision unreasonable.

Background

Ms. Abraham arrived in Canada with her husband in February 2016 and later claimed refugee protection. She gave birth to a son in Canada shortly afterward.

During the refugee proceedings, the Minister produced evidence linking her entry to a genuine Swedish passport issued in the name of another person. Interpol confirmed that the passport belonged to a Swedish citizen born in Eritrea and also indicated that no individual matching Ms. Abraham’s stated name and birthdate appeared in Swedish population, migration, or criminal records.

The Refugee Protection Division concluded that Ms. Abraham was a Swedish citizen and rejected her refugee claim. She later applied for a PRRA and H&C relief. In both applications, she maintained that she was only Eritrean and that the Swedish passport had been provided by a smuggler.

The officer nevertheless relied on the earlier RPD findings, the Interpol information, and purported “biometric data” to conclude that she was Swedish.

Court Findings

• No Oral PRRA Hearing Was Required

The Court rejected Ms. Abraham’s argument that procedural fairness required an oral hearing.

Under paragraph 113(b) of the IRPA and section 167 of the IRPR, an oral hearing may be required where there is a serious credibility issue central to the protection determination and the evidence, if accepted, could justify protection.

The Court found that the officer had not identified a credibility issue of that nature. The problem was not procedural fairness but the reasonableness of the identity finding itself.

• Identity Finding Was Unsupported by the Record

The Court found the officer’s conclusion that Ms. Abraham was Swedish unreasonable. Although the RPD had referred to “high value information,” the Certified Tribunal Record did not establish that biometric testing had actually been conducted.

The officer nevertheless referred to biometric data as connecting Ms. Abraham to the Swedish passport. The Court held that this factual foundation was not adequately supported by the record.

• Earlier RPD Finding Could Not Cure the Evidentiary Problem

The officer relied heavily on the RPD’s earlier nationality conclusion. However, the PRRA and H&C applications required their own reasonable assessment of the evidence.

The fact that the RPD had previously reached the same conclusion did not relieve the officer of the obligation to ensure that the identity finding was supported by the record before them.

• Error Infected Both PRRA and H&C Decisions

Nationality was central to both applications. For the PRRA, the country of return determined the risk assessment. For the H&C application, the officer’s assessment of hardship and the best interests of Ms. Abraham’s Canadian-born child was framed around removal to Sweden rather than Eritrea.

Because the underlying Swedish nationality finding was unreasonable, both decisions were undermined.

Outcome

The Federal Court granted both applications for judicial review. The negative PRRA decision and the H&C refusal were set aside and remitted to a different officer for redetermination. No question of general importance was certified.

Case Citation:

Abraham v. Canada (Citizenship and Immigration), 2020 FC 246 (CanLII)