Docket: IMM-15342-23
Citation: 2025 FC 535
Ottawa, Ontario, March 24, 2025
PRESENT: Madam Justice Pallotta
BETWEEN: |
YASIR MEHMOOD AND BEENISH KHALID |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicants, Yasir Mehmood and his spouse Beenish Khalid, seek judicial review of a November 16, 2023 decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. The RAD dismissed the applicants’ appeal and confirmed the Refugee Protection Division’s (RPD) determination that they are neither Convention refugees nor persons in need of protection under sections 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The applicants are citizens of Pakistan who were living in the United Arab Emirates as temporary workers. They allege that during a visit to Pakistan in 2021, Ms. Khalid’s family threatened to kill them both after learning that Ms. Khalid, who had been engaged to another man, married Mr. Mehmood in secret against the family’s wishes and that she was pregnant. The applicants allege they were attacked, fled within Pakistan, and had to move again after being traced and threatened by Ms. Khalid’s family and affiliates of her ex-fiancé, who was a member of the militant group Lashkar-e-Jhangvi. In April 2021, the applicants claim that Ms. Khalid was attacked on her way to a medical appointment, causing a miscarriage. The couple left Pakistan for the United States in June 2021, entered Canada in December 2021, and claimed refugee protection.
[3] Credibility was the determinative issue before the RPD. The RPD found that Ms. Khalid was not pregnant when the couple saw Ms. Khalid’s family in February 2021, the applicants had misrepresented an earlier date of conception to bolster their refugee claim, the applicants’ testimony was undermined by omissions and inconsistencies, and the events that allegedly occurred in February 2021 were not credible. The RPD did not accept the applicants’ explanation for not leaving Pakistan after the February attacks or their testimony that they fled to two cities within Pakistan and were found and attacked. The RPD considered the documentary evidence filed to support the applicants’ claim and found it did not overcome the credibility concerns.
[4] The applicants appealed to the RAD and sought to introduce an affidavit from Mr. Mehmood. The RAD found parts of the affidavit to be a reiteration of evidence that was before the RPD and inadmissible because the evidence was not new. The affidavit also sought to introduce evidence related to a “kill list”
that named the applicants as fornicators who are sentenced to death. Mr. Mehmood’s brother sent the kill list by text message, stating it had been left at the family home in Pakistan by Lashkar-e-Jhangvi. The applicants sought to introduce the brother’s text message, the kill list, and an English translation of the list. This evidence was not admitted on the basis that it was not sufficiently credible for admission in view of its source and circumstances. As no new evidence was admitted, the RAD did not hold an oral hearing.
[5] The RAD then turned to its consideration of the appeal. The RAD agreed with the RPD’s findings and dismissed the appeal on the basis that the applicants lacked credibility, and they had not provided sufficient credible and trustworthy evidence to establish their allegations. The medical evidence undermined the allegation that Ms. Khalid was pregnant in February 2021 and the RAD did not accept that she was attacked after disclosing the marriage and pregnancy to her family. Like the RPD, the RAD did not accept the applicants’ explanation for not leaving Pakistan after the February 2021 attacks. The RAD did not accept the applicants’ argument that the RPD had erred in its assessment of corroborative evidence from a lawyer in Pakistan they had hired to file a complaint with the police on their behalf, including because the applicants had not addressed the RPD’s findings that they failed to reasonably explain material inconsistencies between the lawyer’s letter and related police complaint and their own evidence. This affected the credibility of the lawyer’s letter and police complaint, as well as the applicants’ credibility. The RAD found that the presumption of truthfulness was rebutted, the applicants’ testimony was not credible, and it was given no weight. The RAD went on evaluate whether the remaining corroborative evidence established the applicants’ claims and concluded it did not.
[6] The applicants allege the RAD erred in its assessment of the evidence. They contend the RAD breached procedural fairness by making new credibility findings without affording an opportunity to respond, including with respect to the evidence submitted on appeal. They contend that the RAD also erred in its assessment of other evidence, rendering the overall credibility finding unreasonable.
[7] The respondent disputes that the applicants have raised any issues of procedural fairness—the RAD did not make credibility findings against them in deciding whether to admit the evidence and properly rejected it. The respondent submits the RAD reasonably determined that the appeal could not succeed. While the applicants disagree with the RAD’s credibility findings, they have not established that judicial intervention is warranted.
[8] Allegations of procedural unfairness are reviewed on a standard that is akin to correctness: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. The central question is whether the procedure was fair, having regard to all the circumstances: Ibid at para 54.
[9] The reasonableness standard of review applies to the Court’s review of the merits of the RAD’s decision. The guiding principles for reasonableness review are set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. It is a deferential but robust form of review that considers whether the decision, including the reasoning process and the outcome, is transparent, intelligible, and justified: Vavilov at paras 13, 99. A reviewing court must refrain from reweighing and reassessing the evidence considered by the decision maker: Vavilov at para 125.
[10] For the reasons below, I find the applicants have not established that the RAD’s decision should be set aside.
A. Evidence submitted on appeal
[11] The applicants state that the principles of procedural fairness require a party to have an opportunity to respond to new issues and concerns that will have a bearing on a decision affecting them: Ching v Canada (Citizenship and Immigration), 2015 FC 725 at para 74. This is especially so in a decision of importance where the decision maker makes new findings as an appellate body who did not hear the evidence: Woldemaryame v Canada (Citizenship and Immigration), 2019 FC 1411 at paras 20-21.
[12] The applicants allege that, in assessing whether evidence should be admitted on appeal, the RAD made negative credibility findings against them that were distinct from the RPD’s credibility findings and the RAD breached procedural fairness in doing so. The applicants contend the RAD should have afforded some type of opportunity to respond, by granting their request for an oral hearing under IRPA subsection 110(6), remitting the matter to the RPD for a new hearing, holding a conference pursuant to rule 26 of the Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules], or providing an opportunity for written submissions. The RAD’s failure to do any of these things constitutes a reviewable error.
[13] As noted above, the respondent contends the RAD did not make new credibility findings that would attract a standard of correctness. The respondent submits the RAD’s treatment of the evidence submitted on appeal is a matter of statutory interpretation and should be reviewed according to the reasonableness standard.
[14] While I agree with the respondent, my decision does not turn on the standard of review. The applicants have not established that the RAD’s treatment of the new evidence was unreasonable or procedurally unfair.
[15] Subsection 110(3) of the IRPA requires the RAD to decide an appeal without an oral hearing, based on the record of the proceedings of the RPD, subject to the subsection 110(4) exceptions for admitting new evidence. Subsection 110(4) provides that on appeal to the RAD, an appellant may present only evidence that arose after the RPD’s rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the RPD’s rejection. The affidavit evidence that reiterated evidence before the RPD did not meet the requirements of subsection 110(4), and the RAD properly rejected it.
[16] Turning to the new evidence, when the RAD finds that evidence meets the IRPA subsection 110(4) criteria, it must then consider whether that evidence is credible, relevant, and material: Singh v Canada (Citizenship and Immigration), 2016 FCA 96 at paras 38-49, citing Raza v Canada (Citizenship and Immigration), 2007 FCA 385 [Raza] at paras 13‑15). These are referred to as the Raza factors.
[17] The RAD raised concerns with the applicants’ new evidence that undermined its credibility and reliability. The RAD was concerned about the provenance of the kill list because the digital copy attached to the brother’s text message differed from the copy that was appended to the translation but there was no evidence that Mr. Mehmood had obtained the original or a second copy. Furthermore, the evidence of the text message was a single screen shot with nothing to corroborate the identity of the sender and no evidence of previous or subsequent messages. The RAD also listed several concerns with the translation. There was no evidence explaining why the applicants had the document translated in Pakistan rather than in Canada, or how the applicants obtained a translation from a service in a city that was 300 kilometers away from the family home where the list was allegedly delivered. There were also issues with the translation itself: the applicants’ names were obscured by overlapping layers of text, which was not the case for the other listed names; the translation omitted the last line of text on the original kill list; there was no translator’s declaration as required by the RAD Rules; the translator was not identified; and the company name and logo on the stamp were slightly different from the company name and logo on the letterhead. The RAD reasonably rejected the new evidence as not credible.
[18] I agree with the respondent that in doing so, the RAD did not make a credibility finding against the applicants. The RAD’s conclusion that there was no basis to hold an oral hearing was in line with IRPA section 110(6) and multiple decisions of this Court: Marquez Obando v Canada (Citizenship and Immigration), 2022 FC 441 at para 26, citing AB v Canada (Citizenship and Immigration), 2020 FC 61 at para 17, Mohamed v Canada (Citizenship and Immigration), 2020 FC 1145 at paras 19–21, and Sunday v Canada (Citizenship and Immigration), 2021 FC 266 at paras 42–44.
[19] At the oral hearing of this matter, the applicants argued that the RAD hid behind statements about the credibility of the documents, and its concerns about the new evidence affected the findings about the applicants’ credibility. There is no merit to this argument. I will return to the applicants’ challenges to the RAD’s credibility findings below.
[20] The applicants also allege that the RAD misstated IRPA subsection 110(6) when it suggested that the RAD can only hold an oral hearing when new evidence has been admitted. They contend that IRPA subsection 110(6) does not say that a hearing can only take place when new evidence is introduced, and it is firmly established that the RAD must afford appellants an opportunity to present their case when making new credibility determinations. According to the applicants, after making negative credibility findings against them in relation to newly introduced evidence, the RAD ought to have remitted the matter to the RPD for a new hearing or ordered a hearing before the RAD, to allow the applicants to speak to the concerns. I agree with the respondent that the RAD made no errors in interpreting IRPA subsection 110(6). As explained above, the RAD’s conclusion that there was no basis to hold an oral hearing was in line with IRPA subsection 110(6) and this Court’s jurisprudence. Having applied the Raza factors to reject the new evidence, the RAD proceeded to decide the appeal based on the record of the RPD proceedings: IRPA, s 110(3).
B. The challenged credibility findings
[21] The applicants’ oral arguments focused on the new evidence. Their written submissions challenged several of the RAD’s credibility findings on appeal, as follows:
Findings related to date of conception: The RAD fixated on the conception date, which was peripheral and should not have been used to impugn the applicants’ credibility. The family’s reaction was sparked by the secret marriage rather than news of the pregnancy. Furthermore, the RAD erred in its consideration of the medical evidence. The RAD did not account for the inherent uncertainties in pinpointing a date of conception and it was selective in the information taken from the medical reports. Regardless of when Ms. Khalid became pregnant, the evidence established that she suffered a miscarriage and presented with signs of physical assault at the time.
Findings related to BOC narratives: The RAD was overzealous and made credibility findings based on peripheral matters and a microscopic analysis of discrepancies between the account of the April 2021 attack on Ms. Khalid as described in applicants’ BOC narratives and the account described in the report that their lawyer made to the police.
Findings related to the letter from applicants’ lawyer in Pakistan: The RAD erred in finding that the lawyer’s letter, and the police complaint he filed on the applicants’ behalf, were likely fraudulent. First, the RAD unreasonably relied on peripheral matters and a microscopic analysis of discrepancies between the applicants’ BOC narratives and the police report to infer fraud. Second, the RAD faulted the lawyer’s letter for what it did not say. Third, while the letter did not have all the features the RAD desired, this should not have undermined the document as norms vary between countries. Finally, the RAD was fixated on finding fault and unreasonably refused to accept the applicants’ explanation for the difference between the lawyer’s name signed on the police complaint and the name on the letter.
Findings related to further corroborative evidence: The RAD proceeded to dismiss all other evidence the applicants produced based on the general credibility concerns—it assigned no probative value to photos of Mr. Mehmood’s burned home and found the fatwa that the applicants allege was issued against them to be fabricated because it was sent by the same lawyer who provided other documents that were found to be not credible. Credibility concerns cannot serve as grounds for summarily dismissing other evidence as fraudulent.
[22] I am not persuaded that one or more of the alleged reviewable errors, considered alone or together, warrant setting aside the decision RAD’s decision:
I agree with the respondent that the date of conception is not peripheral. The RAD reasonably concluded, based on the medical evidence, that Ms. Khalid was not pregnant in early February 2021 and this undermined the applicants’ credibility.
The discrepancies between the BOC narrative and the police report were about who attacked Ms. Khalid in April 2021 and what they said to her. These were not peripheral or microscopic matters, the RAD justified why it did not accept the applicants’ explanations for the discrepancies, and the applicants have not established a reviewable error.
I agree with the respondent that the RAD reasonably found that the lawyer’s letter and police complaint were likely fabricated. The RAD’s finding was based on the discrepancies noted above together with other concerns—including that the police complaint did not contain a police stamp or signature or any indication that it was filed. The RAD also noted that the name of the lawyer who filed the complaint was not the same as the lawyer on the letterhead, and I disagree with the applicants that the RAD’s refusal to accept Mr. Mehmood’s belief about the lawyer’s full name was unreasonable. The RAD pointed out, as the RPD found, that there was no evidence to substantiate the belief. With respect to the features that were missing from the letter, these included the lawyer’s address, telephone number, and license number. It was open to the RAD to find that the letter lacked elements that could enhance its reliability, and the applicants have not established any error.
Contrary to the applicants’ argument, the RAD did not dismiss other evidence based on general credibility concerns. I agree with the respondent that the RAD considered all the evidence, including the applicants’ BOC narratives, testimony, and documentary evidence, and made reasonable credibility findings that were based on the totality of the evidence.
[23] In summary, the RAD reasonably concluded that the applicants had not established the core allegations of their claim, and the decision was transparent, intelligible, and justified. As the applicants have not established a reviewable error that warrants setting aside the RAD’s decision, I must dismiss this application.
[24] The parties did not identify a question for certification. I find there is no question to certify.
Email this Content