In Refugee Claim Credibility, the Federal Court dismissed a Kenyan claimant’s application for judicial review of a Refugee Appeal Division (RAD) decision denying her refugee protection claim. Justice Aylen found the RAD’s April 22, 2025 decision reasonable, including its treatment of new evidence, credibility concerns and the claimant’s sur place claim.
Case background and decision under review
Agwata v. Canada (Citizenship and Immigration), 2026 FC 1124, was decided by Justice Aylen in Toronto on September 3, 2026. The applicant, a citizen of Kenya, claimed refugee protection based on a fear of returning because of her lesbian identity.
The Refugee Protection Division (RPD) rejected the claim on August 6, 2024, finding that the applicant had not established the facts underlying her claim through credible and trustworthy evidence. The RPD’s determinative issue was credibility.
The applicant appealed to the RAD, which dismissed the appeal on April 22, 2025. The RAD agreed that key allegations were not credible, including events described in the applicant’s port of entry declaration that she later admitted she had made up.
Applicant challenged evidence and credibility findings
Before the Federal Court, the applicant argued that the RAD unreasonably refused to admit certain new documents, unreasonably assessed her credibility and the remaining documentary evidence, and wrongly concluded that she was not a sur place refugee.
The disputed new material included translated text messages and letters, untranslated text messages, and a letter from a friend. The RAD admitted some new evidence but found that the disputed documents did not meet the requirements for new evidence on appeal.
The applicant also argued that the false statements at the port of entry were minor or peripheral embellishments made because she feared being returned to Kenya. She submitted that the RAD gave insufficient weight to supporting evidence and failed to assess the broader context of her claim.
Court upholds RAD's new-evidence determinations
The Court applied the reasonableness standard of review. It stated that a reasonable decision must be transparent, intelligible and justified, with an internally coherent and rational chain of analysis that is justified in light of the relevant facts and law.
Justice Aylen found no error in the RAD’s refusal to admit the text messages from the applicant’s sister. Although the applicant said the messages had been stored on an old phone that was only recently found, the evidence did not establish whether the phone was found before or after the RPD’s decision. The relevant date under subsection 110(4) of the Immigration and Refugee Protection Act was the date of the RPD decision, rather than the hearing date.
The Court held that the applicant had not shown that the messages were unavailable when the RPD made its decision. It also found that the RAD had no obligation to seek further information to address that evidentiary gap. Where none of the statutory conditions for new evidence is met, the Court noted that the RAD has no discretion to admit it.
The Court also upheld the RAD’s treatment of the applicant’s sister’s letter and untranslated text messages. Justice Aylen found the RAD reasonably concluded that the letter did not establish new post-decision information. On the untranslated messages, the Court found that the applicant bore the onus of filing evidence that complied with the RAD Rules, including the translation requirements.
Fabricated allegations supported adverse credibility finding
The Court rejected the applicant’s submission that the RAD relied on minor discrepancies or matters at the fringes of the claim. Justice Aylen held that the applicant had fabricated an entire series of events that went to the core of her refugee claim.
The RAD had considered the Immigration and Refugee Board guideline for proceedings involving sexual orientation, gender identity and expression, and sex characteristics. It accepted that people who have concealed their sexual orientation may have difficulty disclosing it to authorities, potentially creating inconsistencies between a port of entry interview and later testimony. However, the RAD found that principle did not explain the circumstances in this case because the applicant had been forthright about her alleged sexual orientation at the port of entry.
The RAD also considered medical and psychological evidence, accepting that the applicant had depression, anxiety and issues discussed in a psychotherapy report, including post-traumatic stress disorder. It was nevertheless not satisfied that these conditions explained the creation of additional traumatic events that did not occur. The Court found this assessment reasonable.
Justice Aylen further declined to reweigh the supporting evidence, which included letters, photographs, text messages and documents concerning the applicant’s involvement with 2SLGBTQIA+ organizations and events in Canada. The applicant had not identified evidence the RAD failed to consider.
Sur place finding and outcome
The RAD considered whether the applicant had become a refugee sur place through circumstances or activities after leaving Kenya. It found that she had not established that her involvement in 2SLGBTQIA+ activities or same-sex relationships in Canada had come to the attention of any entity in Kenya. The RAD was also not satisfied that she would continue those activities if returned.
The Federal Court found that the RAD applied the correct legal test and that its conclusion was reasonable in light of the evidence before it. The application for judicial review was dismissed. Neither party proposed a question for certification, and the Court found that none arose.
Practical significance
This decision turns on the particular record before the RAD. It illustrates that, on judicial review, the Federal Court will not reassess the weight assigned to evidence where the RAD considered the record and the claimant has not shown a sufficiently serious flaw in the decision’s reasoning or outcome.
The decision also highlights the importance of establishing that proposed RAD evidence satisfies the statutory conditions for new evidence and of providing required translations for documents filed in another language.
Source: Federal Court Decisions