Ruling notes counsel, not claimant, signed memorandum raising credibility concerns
Canada’s Federal Court ruled in favour of a refugee protection claimant upon seeing unreasonableness in the Refugee Appeal Division’s (RAD) evaluation of supporting evidence regarding the applicant’s sexual orientation and its analysis of his delay in bringing his claim.
In Kayanza v. Canada (Citizenship and Immigration), 2025 FC 1414, the applicant was a Tanzanian national who entered Canada on a study permit as a minor in 2016 and claimed refugee protection in 2023 after the rejection of his request to renew his permit.
The applicant based his refugee claim on his fear of persecution as a gay man. The Refugee Protection Division (RPD) disbelieved the applicant’s evidence regarding his sexual orientation and denied his refugee claim.
The RAD affirmed the RPD’s denial. The applicant applied for judicial review of the RAD’s decision.
Redetermination ordered
The Federal Court of Canada granted the judicial review application, set aside the RAD’s decision for being unreasonable, and remitted the matter to the RAD for another panel’s redetermination.
The court rejected the applicant’s allegations of bias and ineffective RPD questioning. The court noted that the applicant appeared not to understand that the RPD would:
- ask questions within the range of what a reasonably informed and prepared party might expect
- have credibility concerns about three supporting letters with identical passages
- seek a narrative accounting for events before he arrived in Canada
- expect corroboration of his alleged involvement in LGBTQ+ community organizations
The court said the evidence did not explain the applicant’s apparent lack of understanding of the RPD’s role and the proceedings.
The court speculated that the applicant might have received poor legal assistance, chosen not to listen to excellent legal advice, or dealt with circumstances beyond his control that prevented him from heeding his counsel’s advice. The court noted that the applicant could raise any concerns upon a redetermination before the RAD.
Next, the court ruled that the RAD reasonably rejected the applicant’s argument that the RPD had breached procedural fairness by failing to tackle an inexistent bias claim.
The court pointed out that the applicant did not file a motion seeking a recusal or alleging bias before the RPD, which his then-counsel could have done.
The court noted that the applicant did not allege ineffective assistance of counsel, notify previous counsel of such an allegation, or follow the relevant steps in the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings.
The court rejected his current counsel’s allegation that the RPD should have inferred from the applicant’s responses to questions that he perceived the RPD as biased or partial.
However, the court deemed this case appropriate for judicial intervention. The court said the RAD was unreasonable in its treatment of the letters seeking to corroborate the applicant’s sexual orientation and its analysis of his delay in claiming refugee protection.
First, the applicant alleged that the RAD erred in its evaluation of letters from the applicant’s three friends who confirmed his sexual orientation.
The court accepted that the RAD member could raise concerns about most of the text in the letters being identical. However, the court found the RAD’s treatment of the applicant’s response to those concerns and its determination of the issue unreasonable.
Second, the court noted that the RAD affirmed the RPD’s finding that the applicant undermined his refugee claim when he failed to file it until he received the denial of his study permit four years after his arrival in Canada.
The RAD said the applicant failed to give a reasonable explanation for the delay. However, the court noted that the RAD failed to address the appeal submissions of the applicant’s counsel regarding this issue.
Lastly, the court determined that the RAD relied on inconsistencies in then-counsel’s submissions to support its finding that the applicant was not credible. The court held that the RAD unreasonably stated that internal inconsistency in the appellant’s memorandum raised credibility concerns.
The court noted that this memorandum had the signature of the applicant’s then-counsel, not the applicant’s. The court said the RAD member inappropriately made negative findings about the applicant’s credibility based on his counsel’s arguments, which did not amount to evidence.
