Federal Court Rejects Motion to Admit New Evidence in Immigration Case

Date: 20260211 Docket: IMM-18336-25 Citation: 2026 FC 199 Ottawa, Ontario, February 11, 2026 PRESENT: The [NAME]: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

ORDER AND

REASONS [ 1 ] This is a motion in writing brought on behalf of the Applicant, pursuant to Rule 369 of the Federal Courts Rules , SOR/98-106, seeking leave to file supplementary evidence. The motion is opposed by the Respondent. For the reasons that follow, I am dismissing the motion. Background [ 2 ] The Applicant, [NAME], is a citizen of Venezuela who claims that he fears persecution for his opposition to the government. The Refugee Protection Division [RPD], by decision dated December 31, 2024, denied his claim for protection because he had failed to credibly establish his claim. On appeal to the Refugee Appeal Division [RAD], by decision dated July 30, 2025, the RAD dismissed the appeal and found that the RPD was correct in finding that the Applicant is neither a Convention refugee nor a person in need of protection. [ 3 ] The Applicant filed an Application for Leave and Judicial Review [ALJR] of the RAD’s decision on August 20, 2025. He filed his Application Record on November 20, 2025. The Respondent filed their responding record on December 15, 2025. On January 8, 2026, the Applicant filed his Reply to the ALJR. On the same date he also filed the current motion seeking to file a new affidavit in which he describes events which he deposes led up to him seeing [NAME] on November 18, 2025, and attaching as an exhibit to his affidavit a letter from [NAME], also dated November 18, 2025 [Medical Assessment Letter]. Applicant’s Submissions [ 4 ] The Applicant submits that the Medical Assessment Letter is new evidence confirming a diagnosis of Major Depressive Disorder, Post-Traumatic Stress Disorder, and neurodevelopmental conditions, including ADHD and possible Autism Spectrum Disorder [ASD]. He submits that this evidence was unavailable at the time of the RPD and RAD hearings which were procedurally unfair because those decision-makers were assessing his credibility without awareness of a neuro developmental disorder affecting communication, ASD. [ 5 ] The Applicant submits that the Medical Assessment Letter is admissible as new evidence as it falls within one of the three the recognized exceptions to the general rule that the evidentiary record before a reviewing Court on judicial review is restricted to the evidentiary record that was before the administrative decision-maker ( Association of Universities and Colleges of Canada and the University of [NAME] v [NAME] , 2012 FCA 22 [ Access Copyright ] at paras 19-20). Specifically, that the affidavit brings to the attention of the reviewing Court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the Court on judicial review can fulfil its role of reviewing for procedural unfairness ( Access Copyright at para 20(b) citing Re Keeprite Workers' Independent Union et al and [COMPANY]., 1980 CanLII 1877 (ON CA)). [ 6 ] He submits that the Medical Assessment Letter demonstrates that his ability to meaningfully participate in that process was significantly impaired. Because his condition was undiagnosed and unknown at the time of the RPD and RAD proceedings no accommodations were sought or made. More specifically, he submits that the appointment of a designated representative under the “[NAME] guidelines” (presumably the [NAME] of Canada’s Designated representative guidelines ) was required and that the failure to do so constitutes a breach of procedural fairness and breach of natural justice. Respondent’s Submissions [ 7 ] The Respondent points out that the Applicant was represented by (former) counsel when appearing before the RPD on November 26, 2024. He was represented by his current counsel, [NAME], before the RAD and has been represented by her since at least February 6, 2025, as demonstrated by the evidence contained in the Application Record. [ 8 ] Further, at the RPD hearing, former counsel for the Applicant sought to provide post hearing documentation indicating that the Applicant had attended a doctor two weeks previously and was on a waitlist for further mental health care. However, the Applicant does not appear to have followed up on the medical issue raised before the RPD for purposes of his appeal to the RAD. [ 9 ] The Respondent points out that there is no rule in the Federal Courts Citizenship, Immigration and Refugee Protection Rules , SOR/93-22, permitting the filing of supplementary evidence after a respondent has already responded to the leave application. However, Rule 312(a) of the Federal Courts Rules , SOR/98-106, [Rules] provides that, with leave of the Court, a party may file affidavits additional to those provided for in Rules 306 and 307. The test to be met with respect to Rule 312 was set by the Federal Court of Appeal in [NAME] v [COMPANY] ., 2002 FCA 503 [ [NAME] ]. [ 10 ] Further, the Court is to consider whether the evidence was available or could have been available with the exercise of due diligence (citing [NAME] v Canada (Attorney General), 2023 FC 30 at para 7; [COMPANY]. v [NAME]) , 2006 FC 984 at paras 21-22; [NAME] v Canada (Attorney General) , 2010 FC 1173 at para 25) and whether it would cause unreasonable delay (citing [COMPANY] v [NAME]) , 2007 FC 170 para 5). Additionally, in the immigration context, there is a further requirement for the existence of “special circumstances” warranting the admission of supplementary evidence. The Respondent submits that the Medical Assessment Letter has limited probative value, it does not establish a breach of procedural fairness, the information the Applicant is seeking to admit was or could have been available earlier with due diligence, and, the Respondent is prejudiced. The Applicant has not demonstrated special circumstances exist. Preliminary Issue- Affidavit of [NAME] [ 11 ] The motion record contains an affidavit of [NAME], who identifies themself as [NAME] with [NAME], the same law firm as counsel for the Applicant. The purpose of this affidavit is unstated. Presumably, it is primarily intended to demonstrate that, although the Applicant was seen by [NAME] on November 18, 2025, and the Medical Assessment Letter bears the same date, it was not received by the deponent until December 18, 2025, being after the November 20, 2025, filing deadline for the Applicant’s Record. For the reasons set out below, this does not assist the Applicant. And, to the extent that the affidavit goes further and attempts to provide evidence concerning the deponent’s conversation with [NAME], this is new evidence (and likely hearsay). The Applicant has not sought to admit this new evidence and it is not admissible. Analysis [ 12 ] Rule 312 permits a party, with leave of the Court, to file affidavits additional to those provided for in Rules 306 and 307. The test for doing so has been set out by the Federal Court of Appeal (see, for example, [COMPANY] v [NAME] , 2014 FCA 88 at paras 4-6). That is: The evidence is admissible; The evidence is relevant; If these two preliminary requirements are met, then the party seeking to admit the new affidavit must convince the Court that it should exercise its discretion in favour of granting the order under Rule 312 in that it would be in the interests of justice to do so. [ 13 ] There are three questions relevant to this consideration of the Court’s discretion: Was the evidence sought to be adduced available when the party filed its affidavits under Rule 306 or 308, or could it have been available with the exercise of due diligence? Will the evidence assist the Court, in the sense that it is relevant to an issue to be determined and sufficiently probative that it could affect the result? Will the evidence cause substantial or serious prejudice to the other party? (see also [NAME] at paras 8-9) Admissibility [ 14 ] As noted above, the Applicant argues the second of the three recognized exceptions to the general rule against this Court admitting new evidence in an application for judicial review has application in this case, being that it is “necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness” ( Access Copyright at para 20(b)). The Applicant submits that the RPD and RAD hearings were unfair because the decision-makers assessed credibility without awareness of a neuro developmental disorder affecting communication – ASD – a condition which was unknown and undiagnosed at the time of the hearing and the decisions. [ 15 ] The difficulty with this argument is that the Medical Assessment Letter does not actually diagnose the Applicant with ASD. On that basis, I find that it is not admissible under the procedural fairness exception to the general rule. But even if that were not so, the Medical Assessment Letter, for the same reason, lacks sufficient probative value to permit me to conclude that it is in the interests of justice that it be admitted as new evidence, as will be discussed below. Relevance [ 16 ] The RPD’s decision was based largely on negative credibility findings (as well as finding that the Applicant created fraudulent identity documents for himself, submitted documents that contradicted his evidence as to his political affiliation the genuineness of which, as well as that of a medical report, were questioned by the RPD). As a result, the Medical Assessment Letter regarding potential diagnoses of mental health conditions appears to be relevant. Prior Availability [ 17 ] The Applicant argues the neurodivergence, including ASD, was not known at the time of the RPD and RAD proceedings and could not reasonably have been advanced earlier. I am not convinced that this is so. [ 18 ] The RPD’s decision illustrates that the issue of the Applicant’s mental health and attendance at a doctor had been raised in some form at that proceeding: [3] Counsel had been granted written representations, and the Minister was granted a reply to those arguments. Counsel had asked to provide post hearing documentation, but was unable to provide the panel with what specific documents were to be submitted. Although it was suggested a document confirming the claimant had attended a doctor two weeks ago is on a wait list for further mental health care. The panel denied the request, citing that the evidence is already on record. Submissions were received by the counsel, no reply was received by [NAME]. … [12] … Although he had brought up that in the past two weeks, he had sought out some help for his lack of ability to recall. This is under leading questions, and it does not appear to be an issue brought to counsel in advance of the proceedings, only after the testimony from the claimant had displayed serious credibility issues. … [ 19 ] Moreover, the Applicant’s current counsel represented him before the RAD. While the Applicant sought to submit new evidence before the RAD, this was not related to his health. The Applicant’s affidavit filed in support of his appeal to the RAD – as opposed to his affidavit filed in support of his application for judicial review – makes no mention of any difficulties with memory or understanding questions put to him. Rather, he asserted, for example, that discrepancies in his evidence were explained by errors by his former counsel, by incorrect dates on supporting evidence that he had submitted, and interpretation errors. Similarly, the written submissions of his current counsel made to the RAD alleged many errors by the RPD with respect to the adverse credibility findings and findings of fraudulent documents but make no arguments concerning any difficulty of the Applicant in comprehending or participating in the RPD hearing. Those submissions concluded as follows:

28. The member seems intent to find credibility issues, and fails in the process to allow the Appellant to understand what her questions were about and her to understand what his answers were about. The member asks the same questions over and over rather than explaining what she is really asking. She does not listen to the Appellant’s answer, makes decisions and accusations based on Spanish words she thought she heard or may have used herself.

29. The case is also tainted by his lawyers being so lax as they failed to file his documents and let his RPD case be declared abandoned and they failed to look at documents he sent to them or to bother to fill out basic information. [NAME] came the day before he had never met and who did not know of his case and she made an amendment of a date of his return to Venezuela when he was already in Canada for 3 months.

30. It is true he made a mistake on some dates- which would have been corrected had anyone bothered to apply them to the case.

31. The member makes assumptions of fraudulent documents, his making his way around many places which are not supported by the evidence.

32. This matter should be referred to a new RPD panel or a decision substituted. [ 20 ] The RAD in its reasons stated (footnotes omitted): [19] The Appellant identifies issues with the RPD’s conduct of the hearing arguing that they “had no clue what this case was about.” Specifically, the Appellant argues that the RPD “seems intent to find credibility issues,” failed to allow him to understand what the questions were about and to understand his answers, and made assumptions of fraudulent documents which are not supported by the evidence. [20] Following my own review of the record, the audio recordings of the hearing on November 26, 2024, and the Appellant’s submissions I did not find a breach of procedural fairness or natural justice in the conduct of the RPD hearing. I agree with the RPD that the Appellant did not credibly establish his claim. …. [25] The RPD specifically addressed a number of factors. First, the RPD took account of the Appellant’s profile as being not well educated and having worked in labour type jobs. Second, the RPD identified credibility as an issue at the outset of the hearing. Third, the RPD explained to the Appellant that the hearing was to test the credibility of his evidence, his statements and testimony and their consistency and that he should answer questions with detail, in a straightforward manner and that lack of detail or vague answers were not good for credibility. Fourth, after some problems with the Appellant’s incomplete answers about where he was located for the hearing, the RPD suggested a break for counsel to speak to the Appellant. The RPD was satisfied that the Appellant was in a place where he was able to speak freely and openly. Fifth, when the RPD asked the Appellant if there was anything making him uncomfortable at answering their questions and he said no. Sixth, the RPD asked the Appellant’s counsel if there were any concerns about his ability to testify in a forthright and clear manner and she responded, “No.” Seventh, several breaks were provided during the hearing. [26] The RPD also noted that when asked by his counsel at the end of the hearing how he was feeling the Appellant said he was “fine and calm” although he brought up that in the past two weeks, he had sought out some help from a psychologist for his lack of ability to recall. The RPD noted this was an issue which did not appear to have been brought to the attention of the Appellant’s counsel in advance of the proceedings, only after the testimony from the Appellant had displayed serious credibility issues. I note that the Appellant has not presented any medical evidence about his lack of ability to recall to either the RPD or the RAD. [27] I do not find that there was a breach of procedural fairness or natural justice in the conduct of the RPD hearing….. (Emphasis added) [ 21 ] In my view, the fact that the Applicant’s mental health was raised at the time of the hearing before the RPD, in November 2024, indicates that a medical assessment could have been sought and obtained much earlier than November 18, 2025. [ 22 ] Although the Applicant emphasises, repeatedly, that his neurodivergence was not “self evident” and that neither he nor his counsel could have or were qualified to recognized it as such, this is not really the point. As early as November 2024, the Applicant raised alleged mental health issues concerning his memory. However, there is no evidence before me that the Applicant or his current counsel pursued this or had any ongoing concerns about his mental health when preparing for and appearing before the RAD – where his mental health was not raised as a concern with respect to the RPD credibility findings. [ 23 ] In reply, the Applicant states that he attended medical appointments prior to November 2025 (there is no evidence in the motion record addressing this), but that neurodivergence was never canvassed or diagnosed as there was no awareness that such a condition may exist. However, the point here is not so much the ultimate diagnosis, but the fact that no effort was made to obtain one until a year after the RPD decision – despite the Applicant previously asserting memory issues – and just two days before the Application Record was due to be filed in support of the Application for Leave and Judicial Review. [ 24 ] On this same point, in his proposed new affidavit the Applicant states that his lawyer had him go to the doctor because the Applicant was telling her that he had problems remembering things and understanding what she was talking to him about and because he could not read properly, mixed up letters and misunderstood what he had read. The Applicant does not say when this occurred. Nor is it explained why this was apparent during preparation for the judicial review of the RAD’s decision but not when preparing for RAD hearing. The Applicant was and is represented by the same counsel in both matters. The Applicant also states that he had some learning disabilities as a child. This later point suggests that the Applicant did have awareness, on some level and perhaps not in diagnostic terms, of his neurodivergence as regards to his learning disabilities (although the Applicant does not relate the same to his ability to give evidence). Further, the Medical Assessment Letter indicates that the Applicant reported feeling sad or anxiety over the “past months and years” and that he had been told recently “by at least one doctor” that he suffers from anxiety. In other words, alleged mental health challenges have apparently existed for some time. [ 25 ] In my view, given the above, the proposed new evidence could have been available earlier with the exercise of due diligence. Probative Sufficiency [ 26 ] The Respondent submits the Medical Assessment Letter has limited probative value because it was done by a family physician, not a psychologist or psychiatrist, within a limited period of time that had necessitated a translator, and that it was the doctor’s first encounter with the Applicant. [ 27 ] I agree with the Respondent that the Medical Assessment Letter has limited probative value but for mostly different reasons. While the Applicant’s written submissions with respect to the motion state that the Applicant has a diagnosis of ASD, and the Applicant primarily relies on this diagnosis to establish the alleged procedural defect, a review of the Medical Assessment Report shows that [NAME] did not actually diagnose the Applicant with ASD. [ 28 ] [NAME] is a family physical who saw the Applicant on one occasion, on November 18, 2025. He reports that this meeting was for less than one hour, from 9:48 a.m. to 10:39 a.m., during which time a Spanish language interpreter assisted via video call. [NAME]’s diagnosis was that the Applicant suffers from Major Depressive Disorder with Anxious Distress which symptoms had been present “at least 2 weeks” and clearly causes (unspecified) impairment. Additionally, that the Applicant has elements of Post-Traumatic Stress Disorder “though he does not meet the full criteria at this time” and that the Applicant shows symptoms of lifelong neurodivergence. Specifically, he meets the criteria for dyslexia and dysgraphia based “based on his history.” [NAME] states that he strongly believed that the Applicant has Attention Deficit Disorder but that he had to rule out the effect of the Applicant’s depression, which would take some weeks to do. And, finally, he stated “I do question the presence of mild Autism Spectrum Disorder given some [unspecified] findings on examination. Again it is impossible to make this diagnosis in the presence of significant depression and anxiety. However the above diagnosis often co-exist in single patients.” [ 29 ] [NAME] concluded that the Applicant “presents with symptoms consistent with Major Depressive Disorder with the Anxious Distress, PTSD elements (does not meet full diagnosis at this time), dyslexia, dysgraphia, likely ADHD and possible autism.” He started the Applicant on medication to treat his depression and anxiety and arranged to follow him in his office to treat his mental health and clarify the above diagnoses (although in his affidavit filed in support of this motion the Applicant states that he has not seen [NAME] because he has been sick a lot). [ 30 ] [NAME] also states that he would have quite strong reservations about the Applicant presenting evidence “on his own behalf” in an [NAME] setting. This is because the Applicant had described a strong sensation of overwhelm and an inability to present certain pieces of evidence and that “[t]his is quite typical for those with neurodivergence” . [NAME] stated that he would have liked the Applicant “to have more support through the [NAME] Determination Hearing process” and asked that the [NAME] to reconsider the negative decision in light of his letter. [ 31 ] I note here that while the Applicant’s submissions start out accurately by referring to a possible diagnosis of ASD, they then shift to describing this, inaccurately, as a confirmed diagnosis. For example, he states “[w]hile the RPD and RAD were unaware of the Applicant’s neurodivergence - Autism Spectrum Disorder (ASD) during the proceedings, the fairness analysis on judicial review is objective rather than fault-based.” He also states “[t]he Applicant’s neurodevelopmental conditions - dyslexia, dysgraphia, ASD prevented the applicant from fully comprehending the impossibility [of a timeline in his narrative before the RPD].” [ 32 ] On reply, the Applicant goes further, stating “[t]he applicant was recently diagnosed with neurodivergence- including Autism Spectrum Disorder. This diagnosis was not known to the applicant at the time of the Applicants RPD or RAD proceedings and could not reasonably have been advanced earlier. The Applicant ASD diagnosis constitute unusual and exceptional circumstances that warrant the filing of supplementary evidence.” Further, that the Medical Assessment Letter provided such a diagnosis: “[t]he Applicant’s Medical letter diagnosing ASD serves the interests of justice because it reveals a procedural defect that is not apparent on the face of the tribunal record - namely the Applicant’s impaired ability to meaningfully participate in the hearing without accommodations for his ASD.” Similarly, the Applicant states “[t]he Applicant can only comment upon his case that his neurodivergence - ASD was only recently diagnosed in 2025.” [ 33 ] However, the Medical Assessment Letter did not diagnose the Applicant with ASD. Rather, [NAME] simply questioned “the presence of mild Autism Spectrum Disorder” but found that it was impossible to make this diagnosis in the presence of significant depression and anxiety. [ 34 ] I acknowledge that while the Medical Assessment Letter did not diagnose the Applicant with ASD, it did diagnose Major Depressive Disorder with Anxious Distress. It is possible that that diagnosis could potentially have impacted the Applicant at the RPD hearing – if he was suffering from that condition at that time. However, there is no specific evidence in that regard. [ 35 ] Moreover, and significantly, the Applicant’s submissions focus almost exclusively on the ASD “diagnosis” and the impact of ASD on the Applicant at the RPD hearing. For example, the Notice of Motion seeks an order granting leave to file “supplementary evidence in the form of an Affidavit attaching medical assessment evidence confirming a diagnosis neurodivergence – ASD.” The Reply states that “[t]he Applicant made the motion to file supplementary evidence to file the diagnosis for ASD in the underlying Application for Leave and judicial review…” ; that the evidence is narrowly focussed and “explanatory of the procedural defect i.e. no accommodations for ASD” ; and, that the Applicant was not able to meaningfully participate in the hearing “without accommodation for his ASD.” [ 36 ] In my view, the possible ASD diagnosis in the Medical Assessment Letter upon which the Applicant seeks to rely is inflated and has limited probative value to establish a breach of procedural fairness and, therefore, effect the result of the RPD and RAD decisions. Prejudice [ 37 ] The Respondent submits that because there is no provision permitting an applicant to file additional evidence at the ALJR reply stage, the facts to be relied upon by an applicant are to be filed in their record. This allows the respondent to know the case to be met and to be able to fully respond with evidence and in the written submission. If reply evidence were to be permitted generally it would result in the respondent having to give his/her final argument before all of the evidence was filed and “[t]hat would be patently unfair.” ( Kuchin v MCI, [1995] FCJ No. 1105 (Proth.)(QL)). And, because ALJRs are summary proceedings, the discretion to permit the filing of additional material should be exercised with “great circumspection” ( [NAME] v Canada ([NAME]) , 2002 FCA 295 at para 5). [ 38 ] The Respondent also argues it is prejudiced by the delay in the proceeding and by having to respond to a motion that should not have been necessary. [ 39 ] I agree with the Respondent that admitting the proposed new evidence at this late stage in the proceeding would cause it prejudice because the Respondent has already filed its written submissions and the Respondent did not have the opportunity to address this new evidence and the issues it purports to raise. This new evidence, if admitted, would require additional steps on behalf of the Respondent that could have been avoided with due diligence by the Applicant. Conclusion [ 40 ] In my view, the proposed new evidence does not fall under the recognized procedural fairness exception for admitting new evidence on judicial review. It is not admissible. And although relevant, it would not be in the interests of justice to admit the evidence as it could have been available earlier with due diligence, it is not sufficiently probative, and its admission would cause prejudice to the Respondent.

Accordingly, I am dismissing this motion.

ORDER IN IMM-18336-25 THIS COURT ORDERS that The Applicant’s motion seeking to admit new evidence is dismissed; and Costs are not awarded to either party. "[NAME]" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-18336-25 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION DEALT WITH IN WRITING, PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES , SOR/98-106

JUDGMENT AND

REASONS: [NAME] J. DATED: February 11, 2026 WRITTEN SUBMISSIONS : [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