Facts:
B is a Nigerian citizen. Shortly after arriving in Canada, B submitted a Pre-Removal Risk Assessment (“PRRA”), arguing that he feared persecution if he was returned to Nigeria because he was a gay man. The PRRA officer refused the application on the basis that B failed to sufficiently substantiate his claims. The officer did not conduct an oral hearing.
After the refusal of B’s application, the government began making arrangements for his removal. At the same time, B filed an application for judicial review. The removal was eventually scheduled for January 2026. B brought a motion for a stay of the removal pending his judicial review application, but the Federal Court dismissed this motion. B then did not report to his scheduled removal.
As a result, the government brought a motion requesting the dismissal of B’s judicial review application without a consideration of the merits because of his refusal to attend for his removal from Canada. The Federal Court directed that this motion be heard at the same time as the judicial review application.
Decision:
Application for judicial review granted; the refusal of the PRRA is set aside and remitted to a new officer for reconsideration (Battista J.).
The Federal Court determined that it was not appropriate to refuse to consider the merits of the judicial review application through operation of the “clean hands” doctrine and B’s failure to attend at his removal. The equitable clean hands doctrine is more appropriately a remedial consideration than a preliminary objection to judicial review. Thus, the doctrine may be used to refuse to grant relief after the applicant establishes the grounds for their judicial review application; but it cannot be used as a basis to refuse to even consider the merits of the application. Since the application of the clean hands doctrine involves the weighing of factors including the unlawfulness of the administrative actor, this balancing is most effective after the examination of the merits. In any event, given the important role of judicial review in ensuring accountability of public actors, the application of the doctrine should be narrow.
On the merits of the judicial review application itself, the PRRA officer breached B’s procedural fairness rights and the decision was unreasonable. The officer should have arranged for an oral hearing, as permitted by the statute, given the concerns over the sufficiency of B’s representations. Further, it was unreasonable for the officer to effectively impose a requirement on B to corroborate his evidence, given the presumption of truthfulness attaching to his allegations. It was also unreasonable for the PRRA officer to refuse the application without even determining whether B’s sexual orientation would lead to risks for him in Nigeria.
After considering the merits of the application, Battista J. returned to the consideration of the clean hands doctrine in the analysis of the appropriate remedy. He determined that the doctrine did not apply to deny a remedy in this case.
In particular, the clean hands doctrine did not apply because B’s evasion of his removal did not directly relate to the judicial review application. There must be a direct connection between an applicant’s misconduct and the judicial review application for the court to rely on the clean hands doctrine to refuse a remedy.
Finally, Battista J. found that even if the doctrine did apply, he would not decline to grant a remedy after balancing the relevant factors from the Federal Court of Appeal’s decision in Thanabalasingham.1 While the evasion of removal constitutes serious misconduct to be deterred, it did not prejudice the proceedings and can be adequately addressed through other parts of the legislative regime. In light of the seriousness of B’s rights at stake, the Court should not decline to grant a remedy.
Commentary:
This case fits within a recent trend of the federal courts restricting the use of the clean hands doctrine to dismiss judicial review applications. Recently, in Sierra Club, the Federal Court of Appeal set a high threshold for courts to use the clean hands doctrine to withhold relief on judicial review (in that case, the allegation related to delay on the part of the applicants).2 As a result, it is now more difficult for respondents to rely on this doctrine to defeat judicial review applications without a full consideration of the merits.
In Benson, the Court’s reading of Thanabalasingham is significant. It declines to treat that decision as authority for using clean hands as a preliminary bar, noting that the question in that case was ultimately answered on other grounds. Whether appellate courts will accept this narrow reading of Thanabalasingham — and, more broadly, whether the clean hands doctrine can ever serve as a preliminary objection to judicial review — remains an open question. The absence of clear appellate authority on the precise point means the issue is ripe for clarification.
To the extent that Benson is followed, parties seeking to challenge a judicial review application on the basis of “unclean hands” should raise it on the merits hearing, rather than attempting to bring a preliminary motion to dismiss the application.
Further, the Court’s affirmation in Benson that the alleged misconduct must directly relate to the judicial review application itself makes good sense. Otherwise, parties would be encouraged to engage in a deep investigation of the applicant’s overall character in the hopes of having the entire judicial review application dismissed. This rationale is even stronger where, as in this case, other remedies exist under the same statutory regime to address the alleged misconduct. Here, the Federal Court has interpreted this direct connection requirement fairly narrowly, as even the failure to attend for a scheduled removal was not connected enough to the judicial review application that challenged the removal decision.
- Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2006 FCA 14, at para. 10. ↩︎
- Sierra Club Canada Foundation v. Canada (Environment and Climate Change), 2026 FCA 110 ↩︎