Background
Norah Nyaanga Agwata, a Kenyan citizen, sought refugee protection based on her asserted lesbian identity and alleged persecution in Kenya. In her port-of-entry declaration, she described several serious incidents, including police detention, sexual assault, and an attack in which men allegedly cut off her husband’s hand. During the Refugee Protection Division hearing, however, she admitted that she had fabricated all of those events.
The RPD rejected her claim under sections 96 and 97 of the Immigration and Refugee Protection Act because she had not established its factual basis with credible evidence. The Refugee Appeal Division admitted some new evidence and held a hearing concerning evidence of a new same-sex relationship in Canada, but it excluded other documents and upheld the adverse credibility determination. It also found that the remaining evidence did not establish her claim and that she was not a sur place refugee. Agwata sought judicial review.
The Court’s Holding
Justice Aylen dismissed the application, holding that the RAD’s decision was reasonable. The RAD reasonably treated Agwata’s admitted fabrications as central to her claim rather than as minor inconsistencies or peripheral embellishments. It considered and reasonably rejected her explanation that she invented the events because she feared being returned to Kenya. It also reasonably concluded that her psychological evidence, while documenting depression, anxiety, post-traumatic stress disorder, and possible difficulty recalling trauma, did not explain why she invented highly traumatic events that never occurred.
The Court also upheld the RAD’s exclusion of the disputed documents. Agwata had not shown that older text messages stored on a phone were unavailable as of the RPD decision, and untranslated messages did not comply with the Refugee Appeal Division Rules. Because the statutory conditions in subsection 110(4) of the IRPA were not met, the RAD lacked discretion to admit the evidence. The Court declined to reweigh the remaining documents and upheld the rejection of the sur place claim because there was no evidence that Kenyan entities knew of Agwata’s activities or relationships in Canada, and the RAD was not satisfied that she would continue those activities upon return.
Key Takeaways
- Admitted fabrications concerning events at the core of a refugee claim can reasonably support a broad adverse credibility finding.
- Evidence offered for the first time on appeal must satisfy subsection 110(4) of the IRPA, and the claimant bears the burden of proving that the statutory requirements are met.
- A sur place claim requires evidence connecting post-departure circumstances or activities to a prospective risk; participation in Canadian 2SLGBTQIA+ activities alone did not establish that risk here.
Why It Matters
The decision distinguishes minor port-of-entry inconsistencies from wholesale fabrication of central allegations. Guidance recognizing the difficulty of disclosing sexual orientation does not require a tribunal to overlook invented persecution narratives, particularly where the claimant disclosed the asserted orientation but fabricated the surrounding events.
It also underscores the procedural discipline governing new evidence before the RAD: materiality cannot overcome failure to meet subsection 110(4), and the RAD is not required to cure an applicant’s evidentiary deficiencies by seeking missing dates, explanations, or translations.