A Ugandan woman whose refugee claim was rejected as not credible, whose appeal failed, and whose first pre-removal risk assessment was refused, has won a fresh chance to stay in Canada because the officer who refused her a second time never said whether he believed her.

Esther Nyende Kayaga, 46, came to Canada in 2017 and claimed protection as a bisexual woman at risk in Uganda. The Refugee Protection Division of the Immigration and Refugee Board, which decides refugee claims, found her not credible. The Refugee Appeal Division agreed.

A pre-removal risk assessment, the last check before deportation, was refused. She was not removed.

In November 2023 she filed a second risk assessment, this time with a certificate showing she had married a woman, Deborah Namakula, in June 2023, a statement that news of the marriage had reached an uncle in Uganda who spread it in her community, and a copy of Uganda's 2023 Anti-Homosexuality Act.

On February 7, 2025, an officer at Immigration, Refugees and Citizenship Canada refused the application, not questioning the new evidence but giving it limited weight: it did not overcome the earlier credibility problems and dealt with the same risk.

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Justice Grant said that reasoning does not hold together.

"Given the nature of the evidence provided by the Applicant, this is not a coherent finding," he wrote. Either the officer accepted the marriage was genuine, in which case he had to weigh it against a law that punishes same-sex marriage with up to ten years in prison, or he did not believe it, in which case he had to say so and consider a hearing. The decision, the judge wrote, "bears only two possible interpretations, either of which are unreasonable."

The judge did not say the marriage was real. He noted the record "contains no information from Ms. Namakula, and no evidence supporting the couple's co-habitation beside the marriage documentation," and said the officer "may well have had good grounds" for doubt. The problem was silence. The refusal was set aside and the file goes to a new officer. No costs, no certified question.

Justice Grant was appointed to the Federal Court on February 9, 2024 (announced February 12 by Justice Minister Arif Virani). He practised immigration and refugee law, worked for Legal Aid Ontario from 2004 to 2015, and from 2019 was Assistant Deputy Chairperson of the Refugee Appeal Division.

Public-record searches found no party ties, candidacy or controversy.

Nine years after a claim two tribunals called not credible, the case is back at square one. Judges and officers are appointed, not elected, and answer to no voter.