Federal Court Grants Judicial Review on Refugee Claim Due to Unreasonable Treatment of Corroborating Evidence

Date: 20260402 Docket: IMM-21631-24 Citation: 2026 FC 438 Toronto, Ontario , April 2, 2026 PRESENT: Mr. Justice Brouwer BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

JUDGMENT AND

REASONS [ 1 ] The Applicant, [NAME], seeks judicial review of a decision of the Refugee Appeal Division [[NAME]], in which [NAME] allowed the Respondent Minister’s appeal and found that she did not qualify for refugee protection. As explained below, although most of [NAME]’ arguments fail, I agree with her that [NAME]’s treatment of her corroborating evidence was unreasonable and I therefore grant the application.

I. Background [ 2 ] [NAME] is a 29-year-old citizen of Jamaica. She entered Canada on October 23, 2021, and a month later sought refugee protection. She alleged a well-founded fear of persecution based on her sexual orientation as a lesbian. [ 3 ] [NAME] retained [NAME], a registered immigration consultant, to represent her in her claim, and [NAME] submitted her Basis of Claim Form [BOC] and supporting evidence to the Refugee Protection Division [[NAME]] on her behalf. [ 4 ] On August 30, 2023, the Respondent Minister applied to intervene in [NAME]’ claim, seeking the disclosure of [NAME]’ BOC and those of eight other claimants on the basis that their BOC narratives bore numerous striking similarities, and observing that, although unrelated to [NAME], all the affected claimants were represented by the same consultant, [NAME], at the time their claims were filed. The Minister noted further that [NAME] had been suspended by his regulatory body, the College of Immigration and Citizenship Consultants [[NAME]], and that all the claimants had thereupon retained the same counsel to replace him. No evidence or arguments were adduced regarding the reasons for [NAME]’s suspension. [ 5 ] [NAME] granted the Minister’s application to intervene in writing, and the hearing took place on March 7, 2024, before [NAME]. The following exchange took place at the outset: [NAME]: Alright, so, I've started the recording, so we're on the record now. The file number is TC3-13701. Today is Thursday, March 7, 2024, in the morning, Eastern Standard Time. And if I may introduce myself, my name is [NAME]. I’m a [NAME] of the [NAME] and Counsel. Mr. [[NAME]], may I ask you to kindly identify yourself for the record? COUNSEL FOR THE CLAIMANT: [redacted] [NAME]: Thank you. So, [NAME], there has been -- there was another representative involved at some point. COUNSEL FOR THE CLAIMANT: [redacted] [NAME]: When you -- when this file began, were you starting with it when the Basis of Claim form was created? Were you with this file or was it a [NAME]? COUNSEL FOR THE CLAIMANT: [redacted] [NAME]: You were -- there was some -- your license was suspended -- COUNSEL FOR THE CLAIMANT: [redacted] [NAME]: But then it was reinstated. COUNSEL FOR THE CLAIMANT: [redacted] [NAME]: January 2024, yes. COUNSEL FOR THE CLAIMANT: [redacted] [NAME]: So, in the meantime, it was with [NAME]. COUNSEL FOR THE CLAIMANT: [redacted] [ 6 ] [NAME] proceeded to question [NAME] about how her BOC had been prepared. [NAME] acknowledged the similarities between her BOC narrative but denied responsibility. She explained that someone else from the community had referred her to a man who assisted her in preparing her BOC for a $200 fee. She had testified that she had met with this man in a coffee shop and he had asked her questions and then typed up her story, which she then provided to [NAME]. When [NAME] asked [NAME] whether the man wrote the claim with his own words or if she dictated the narrative, she responded that she herself provided the information for the narrative and that he wrote it down “mostly… word for word.” [NAME] pressed her on this point and noted that it was hard to believe this was the case given that her narrative was so similar to others, in response to which [NAME] testified that he “maybe…summarized what I’ve said.” [NAME] then shifted its questioning to the merits of [NAME]’ claim. Following questioning by both the [NAME] and [NAME], and submissions by [NAME], the [NAME] reserved his decision and closed the hearing. [ 7 ] By decision dated May 31, 2024, [NAME] accepted [NAME]’ claim. [NAME] found [NAME]’ testimony to be credible “because there were no major contradictions or omissions that went to the core of her claim, and because her testimony was spontaneous and reasonably detailed.” [NAME] also determined that the corroborative evidence was “reliable and trustworthy” and he gave it “full weight in supporting her credibility in relation to her allegations.” In addressing the Minister’s arguments regarding the striking similarities between [NAME]’ BOC and those of the other claimants, [NAME] applied the analysis set out in [NAME]’s “persuasive decision” identified as TB7-016268, concluding that the credibility concerns raised by the similarities with other BOCs had been reasonably and credibly explained by [NAME]. [NAME] then detailed his reasons for finding, on the evidence, that [NAME] had a well-founded fear of persecution on grounds of “membership in a particular social group: lesbians.” [ 8 ] On June 14, 2024, the Minister of Public Safety and Emergency Preparedness [MPSEP] appealed the decision to [NAME], arguing that contrary to [NAME]’s finding, [NAME]’ explanations for the similarities between her BOC narrative and the others “were not sufficient to establish on a balance of probabilities that she wrote the narrative and that it reflects her own story.” [ 9 ] [NAME] granted the Respondent’s appeal, reversing [NAME]’s decision and finding that [NAME] is neither a Convention refugee nor person in need of protection. This decision of October 30, 2024, is under review. [ 10 ] [NAME] applied the same “persuasive decision” as [NAME] and did not disagree with [NAME] about the required analysis for dealing with claims involving strikingly similar narratives, nor the requirement for [NAME] to establish that the narrative in fact reflected her own story. However, [NAME] was not satisfied by [NAME]’ testimony provided to [NAME] during her hearing. [NAME] found it “troubling” that [NAME]’s testimony only changed after [NAME] pointed out that if she had dictated her BOC narrative word-for-word then the similarities to other BOC narratives would be problematic, and concluded that [NAME]’ testimony had not been credible. [NAME] also noted that [NAME] had failed to explain why her testimony followed the same pattern as other claims, with some verbatim sections, and concluded variously that her BOC narrative was “manufactured for the purpose of her refugee claim” and that “it is highly likely that the nine narratives are duplicates of each other.” [ 11 ] [NAME] determined that contrary to the findings of [NAME] based on the viva voce hearing, [NAME] had “attempted to mislead the [NAME] ([NAME]) with a fraudulent BOC narrative,” and that her risk allegations therefore could not be relied upon. Having found [NAME] to lack credibility, [NAME] determined that her corroborative evidence was “limited in probative value” and the letters from her mother and from her partner could not be relied on because they mirrored the evidence in the fraudulent BOC.

II. Issues [ 12 ] [NAME] asserts that [NAME] committed multiple reviewable errors. I have reframed the issues for judicial review as follows: a) [NAME] breached procedural fairness by failing to convoke an oral hearing or to solicit submissions; b) [NAME] erred by unreasonably: reversing [NAME]’s positive credibility finding and on that basis granting the appeal; failing to properly account for the role of previous counsel, [NAME]; and/or rejecting the corroborating evidence. [ 13 ] [NAME] also appears to hint at bias on the part of [NAME] panel ( “the reasons fail to support the decision leaving the applicant with the suspicion that extraneous factors may have influenced [NAME] in reversing [NAME] decision” ) but fails to raise a cognizable legal argument on the issue so it will not be considered here. [ 14 ] When assessing whether there has been a breach of procedural fairness, a reviewing court decides for itself whether the decision-making process was fair, having regard to all of the circumstances: “it asks, with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed” ( Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 at paras 54). [ 15 ] Reasonableness review, however, entails deference to the administrative decision maker. Only if a decision falls short of the requirements of transparency, intelligibility or justification will a reviewing court intervene ( Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 99 [ Vavilov ]). To make this determination, reviewing courts apply a “reasons-first” approach to assessing the decision under review, and seek to understand the decision-maker’s reasoning process in arriving at their conclusion ( [NAME] v Canada (Citizenship and Immigration) , 2023 SCC 21 at para 60, citing Vavilov at para 84). [ 16 ] When the stakes of a decision are higher and engage the fundamental rights and interests of an individual, as is the case in refugee claims, “the reasons provided…must reflect the stakes” ( Vavilov at para 133).

III. Analysis A. There has been no breach of procedural fairness [ 17 ] [NAME] argues that because [NAME] rendered a fresh credibility determination, it was obliged to hold a hearing or to give her counsel an opportunity to make submissions on the issues of concern. She maintains this position despite acknowledging that no new evidence had been placed before [NAME], no new issues were decided by [NAME], and neither party had requested a hearing – indeed [NAME]’ counsel provided a statement to [NAME] explicitly stating that she was not adducing new evidence and was not requesting a hearing of arguments. [ 18 ] The Respondent argues, and I agree, that in these circumstances, [NAME] was under no obligation to convoke an oral hearing or to solicit further submissions. [ADDRESS] has repeatedly found that subsections 110(3) and (6) of the Immigration and Refugee Protection Act , SC 2001, c 27, establish that absent new evidence, [NAME] can dispose of appeals without an oral hearing ( [NAME] v Canada (Citizenship and Immigration) , 2019 FC 54 at para 29). And there was no new issue raised by [NAME] that would justify requesting further submissions ( [NAME] v Canada (Citizenship and Immigration), 2016 FC 600 at para 25). Although, with respect, the Minister’s appeal submissions to [NAME] are not a model of legal precision – they amount to little more than a demand that [NAME] reverse [NAME]’s decision because the Minister was unhappy with [NAME]’s finding that [NAME] was credible – it cannot be argued that [NAME] was not put on notice of the case to meet, and I find she had a full and fair opportunity to address that case in her responding submissions. B. The Applicant has not demonstrated that it was unreasonable for [NAME] to substitute a negative credibility finding [ 19 ] The Applicant maintains that it was unreasonable for [NAME] to substitute its negative credibility findings for the positive one of [NAME], and that if it disagreed with [NAME] on credibility [NAME] should have remitted the claim back for redetermination by [NAME]. The Respondent submits that this argument has no basis in law, as [NAME] is mandated to conduct a fresh assessment of the evidence on the record and may consider inconsistent evidence, implausibility, common sense, rationality and inherent logic, as well as the accumulation of inconsistencies and contradictions as a whole, to make credibility findings ( [NAME] v Canada (Citizenship and Immigration) , 2022 FC 1003 at para 76; [NAME] v Canada (Citizenship and Immigration) , 2022 FC 458 at para 48 and the cases cited therein; [NAME] v Canada (Citizenship and Immigration) , 2020 FC 245 at paras 30-31). [ 20 ] I agree with the Respondent that [NAME] is not bound by [NAME]’s credibility determinations and as a general matter has the jurisdiction to make its own independent credibility findings based on the record ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 665 at para 21; Canada (Citizenship and Immigration) v [NAME] , 2021 FC 637 at para 71; [NAME] v Canada (Citizenship and Immigration) , 2019 FC 870 at para 13). However, as the Respondent’s counsel conceded during the hearing, the entirety of the jurisprudence on which the Respondent relies relates to appeals of negative credibility findings by [NAME]. Counsel was unable to identify any case in which [NAME] had allowed an appeal of a positive decision by reversing [NAME]’s positive credibility finding. [ 21 ] Notwithstanding the absence of direct precedent, the Applicant has not identified any principled basis upon which to distinguish the analogous precedents relied on by the Respondent, nor has the [NAME] demonstrated that it was unreasonable for [NAME] to have proceeded in the way it did based on the record before it. This argument must fail. C. [NAME]’s consideration of the role of previous counsel, [NAME], was reasonable considering the submissions and evidence that were before it [ 22 ] The evidence before [NAME] established that [NAME] had been suspended for a time between the filing of [NAME]’s BOC and the hearing before [NAME]. However, no evidence was adduced by the parties regarding the reason for [NAME]’s suspension, and no allegation of ineffective assistance was raised by [NAME]’ [NAME] counsel who continues to represent her before this Court. The Minister in his appeal offered no information about the disciplinary proceedings and laid the responsibility for the similarity between [NAME]’ claim and those of several other people firmly and solely at the feet of [NAME]. Likewise, during the hearing before me, neither party raised any issue regarding the relevance of [NAME]’s suspension by his regulatory body. [ 23 ] During my post-hearing deliberations and review of the record and jurisprudence, I came across the decision of the [NAME]’s Discipline Committee in [NAME] v [NAME] , 2023 [NAME] 14 [ [NAME] v [NAME] ], in which [NAME]’ [NAME] counsel, [NAME], was found to have engaged in professional misconduct in his representation of several refugee claimants. Of particular note, the [NAME] found that [NAME] had used a template to prepare his clients’ narratives, resulting in narratives that bore striking similarities to one another. The [NAME] found that [NAME]’s use of a template in this way fell short of the requirements of the standard of competence required of regulated immigration consultants: The Respondent acknowledges that he relied on a template BOC form. The Respondent acknowledges that a BOC form is a highly individualized document and that the information contained in each of the BOCs needed to be particularized to the circumstances of each client. The Respondent acknowledges that the use of a template, without adequate alteration, amendment, and particularization, constitutes a violation of his competency obligations under the Code. In all circumstances, the BOCs written by the Respondent were deficient. ( [NAME] v [NAME] at para 110; see also paras 142, 172 , 177, 197, 213. [ 24 ] It appears from the decision that at least four of the referenced claimants with template BOCs successfully appealed the refusals of their claims by [NAME] on grounds including the ineffective assistance provided to them by [NAME], and at least one of these claimants was subsequently granted refugee protection on redetermination by [NAME] ( [NAME] v [NAME] at paras 192-193, 215 ). [ 25 ] As the [NAME] decision had not been raised by either party, I issued a direction noting that the decision raised a procedural fairness concern and invited post-hearing written submissions on the relevance of the decision to this judicial review. [ 26 ] [NAME] asserted that since the complaint underlying the [NAME] decision had been initiated by the [NAME] was likely aware of it and influenced by it, and therefore should have invited submissions on it. She requested a directed verdict. The Respondent argued to the contrary that there was no evidence that [NAME] was aware of the decision, that there was no basis for a directed verdict, and that the decision is not relevant to the judicial review because unlike the cases before the [NAME] did not allege that [NAME] had drafted her BOC. [ 27 ] I agree with the Respondent that [NAME]’ arguments are unsustainable, and that the specific finding that [NAME] had drafted the BOC narratives is not asserted here. My concern, however, is that [NAME] decided that [NAME] lacked credibility because she had “attempted to mislead the [NAME] ([NAME])” with a “fraudulent BOC narrative,” without any consideration of the role that might have been played by her counsel. The fact that other former clients of [NAME] whose claims had also relied on template BOC narratives succeeded on appeal based on allegations of ineffective assistance or counsel incompetence gives this concern weight. [ 28 ] Unfortunately, however, while both parties appear to have been aware of the decision, neither put the [NAME] decision before [NAME], and no explanation has been provided by either party for their failure to do so. Nor has either party argued that it should have been before [NAME]. In the absence of any argument on the issue, and despite my serious reservations about whether [NAME]’s decision fairly reflects the facts regarding the role of [NAME] in the preparation of [NAME]’ claim, I must find that [NAME]’s treatment of the BOC narrative similarities is transparent and intelligible, and is justified in light of the submissions and evidence that were presented by the parties. D. [NAME]’s treatment of the corroborating evidence was unreasonable [ 29 ] [NAME] also argues that [NAME]’s treatment of the evidence corroborating her sexual orientation was unreasonable. On this point I agree. [NAME] had provided letters from her mother and from her partner, a letter from The 519 community centre, and photos of herself with her partner to corroborate her sexual orientation. [NAME] had found this evidence to be “reliable and trustworthy” and assigned it “full weight in supporting her credibility in relation to her allegations.” [NAME], however, determined that because [NAME] lacked “overall credibility…her corroborative evidence is limited in probative value.” [NAME] determined that “the letter from her mother, and partner, which mirror evidence supplied in her fraudulent BOC, cannot be relied upon to overcome the credibility concerns that have been identified in this matter.” [ 30 ] The jurisprudence establishes that, as a general matter, it is unreasonable to reject “evidence that comes from sources other than the testimony of the principal Applicant simply on the basis that the principal Applicant is not believed” ( [NAME] v Canada ( Minister of Citizenship and Immigration), 2005 FC 1339 at para 10 [ [NAME] ]; see also [NAME] v Canada (Citizenship and Immigration), 2024 FC 1432 at para 15 and the cases cited therein ; [NAME] v Canada (Citizenship and Immigration) , 2017 FC 410 at para 30; [NAME] v Canada (Citizenship and Immigration), 2013 FC 311 at paras 20-21) . [ 31 ] The Respondent contends that [NAME]’s rejection of all the corroborating evidence in one sweeping finding was justified because it was all directed at a story that [NAME] had found was not credible. I disagree. [NAME] effectively put the cart before the horse. [NAME] needed to explain in respect of each of these documents why it did not support [NAME]’ credibility or overcome [NAME]’s concerns stemming from the similar BOC narratives. As Justice Douglas R. Campbell explained in [NAME] : [E]ach independent source of evidence requires independent evaluation. This is so because the independent sources might act to substantiate an Applicant's position on a given issue, even if his or her own evidence is not accepted with respect to that issue. [ 32 ] This is a sufficient basis upon which to grant the judicial review, and I will do so. [ 33 ] Neither party proposed a serious question of general importance for certification, and I agree that none arises.

JUDGMENT in IMM-21631-24 THIS COURT’S

JUDGMENT is that : The Application is granted. The Applicant’s appeal is remitted to the Refugee Appeal Division for redetermination by a different [NAME] in accordance with these reasons. There is no question for certification. "Andrew J. Brouwer" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-21631-24 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ontario DATE OF HEARING: JANUARY 28, 2026

JUDGMENT AND

REASONS: BROUWER j. DATED: APRIL 2, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent