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Federal Court criticizes failure to address risk claims of Swahili Muslim refugees
10-23-2024
In a recent ruling, the Federal Court found the dismissal of a refugee claim unreasonable due to the Refugee Appeal Division’s (RAD) failure to properly assess identity-based risks faced by the applicants as Swahili Muslims from Kenya.
The applicants had initially faced rejection of their refugee claims based on adverse credibility findings and an assessment that their ethnic and religious identities as Swahili Muslims did not put them at risk of persecution.
The applicants originally presented themselves as Somalis when they sought refugee protection in Canada. After the respondent intervened to establish their true Kenyan citizenship, the applicants admitted their actual identities. They then adjusted their claims, citing fears of retribution from the smuggling networks that facilitated their journey and persecution in Kenya due to their religious and ethnic identities.
The Refugee Protection Division (RPD) dismissed their claims, concluding that the applicants lacked credibility and would not face risks based on their identities. The RPD pointed to available, albeit imperfect, state protection in Kenya and found no previous harm had been inflicted on the applicants due to their religion or ethnicity. The RAD, which reviewed the case on appeal, upheld the RPD’s findings and stated that the applicants had not contested these conclusions.
However, the Federal Court found that the RAD’s decision was unreasonable. The court ruled that the RAD had misunderstood the applicants’ submissions and failed to adequately address their claims of identity-based risk. The court noted that, although the applicants’ credibility was questioned, their ethnic and religious identities were not disputed. It emphasized that the RAD had a duty to evaluate the RPD’s conclusions regarding these risks, even if they were perceived as unchallenged.
The court held that the RAD incorrectly stated it was not required to assess the RPD’s findings, particularly when these findings were central to the applicants’ fear of persecution under the Immigration and Refugee Protection Act (IRPA). The court emphasized that reasons must provide a transparent and intelligible justification for a decision, which the RAD’s reasons failed to do in this case.
The court granted the application for judicial review, finding that the RAD’s reliance on unchallenged findings contradicted its duty to conduct an independent review and ensure accuracy in refugee risk assessments. The court concluded that the RAD’s decision lacked transparent and coherent reasoning regarding the applicants’ fears of harm, making it unreasonable.
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