Docket: IMM-13084-23
Citation: 2024 FC 1940
Ottawa, Ontario, December 2, 2024
PRESENT: Mr. Justice Pentney
BETWEEN: |
MUHAMMAD ILYAS FOZIA ILYAS MUHAMMAD ZOHAIB
|
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Applicants seek judicial review of the decision of the Refugee Appeal Division (“RAD”
), dismissing their appeal from the decision of the Refugee Protection Division (“RPD”
) refusing their request for refugee status.
[2] The Applicants are a family from Pakistan, who came to Canada claiming refugee status. The Principal Applicant is Muhammad Ilyas, his wife Fozia Ilyas is the Associate Applicant, and their claim included their son, Muhammad Zohaib. The claims of the wife and son rely on the narrative of the Principal Applicant. He claims that he fears persecution by his brother and Sunni religious extremists in Pakistan, including members of Sipah-e-Sahaba Pakistan (“SSP”
) because he converted from Sunni Islam to Shia Islam.
[3] The RPD rejected the refugee claim due to a lack of credibility. The RAD dismissed the Applicants’ appeal, finding that the Principal Applicant failed to establish his core allegations, namely: that he converted to Shia Islam, that SSP had persecuted him, that his brother had ties to the SSP, or that he is subject to a fatwa. The RAD also rejected the Applicants’ request to file new evidence.
[4] The Applicants argue that the RAD’s decision is unreasonable, challenging each of the RAD’s major credibility findings. They also argue that the RAD erred in refusing to admit their new evidence. These issues will be discussed in turn. For the reasons set out below, I find the decision, read as a whole in light of the record, to be reasonable. The application for judicial review is therefore dismissed.
I. Background
[5] The Principal Applicant was born a Sunni Muslim in Pakistan, and he says that his family are devout followers of the Sunni faith. In 1979, the Principal Applicant moved to the United Arab Emirates (the “UAE”
), where he completed his education and obtained employment. He married, and he and his wife had children. He purchased properties in Pakistan with the intention of eventually moving back, and in the meantime he rented out these properties and donated the profits to a Sunni organization his family had connections with. His younger brother managed one of the Principal Applicant’s properties, and handled the rental income.
[6] Through his work in the UAE, the Principal Applicant met a man, referred to as “IH,”
who introduced him to the teachings of Shia Islam. They met weekly over a number of months, and IH connected the Principal Applicant with a Shia Imam so that he could learn more about the Shia faith. Over time, the Principal Applicant says he decided to convert to Shia Islam. He hid this from his family. He decided to divert his rental income to support Shia Muslims in Pakistan, and he offered to donate one of his homes there so that it could be used as a worship space. The Principal Applicant’s generosity became known in the community, and his family learned that he had converted at that time.
[7] The Principal Applicant says that his brother confronted him, demanding that he return to the Sunni faith. His father cut off communication because he had converted. He was then stopped and threatened by three armed men who said they were connected to the SSP. They attempted to kidnap him, but their plan was foiled with the assistance of a crowd of local bystanders. The Principal Applicant then received threatening phone calls from someone who identified himself as a local SSP commander. The Principal Applicant tried to report these incidents to the police, but they refused to take his complaint once they found out it was connected to the SSP.
[8] Soon after, the Principal Applicant learned that the SSP had seized his property and evicted the occupants who were renting these spaces. The SSP affixed a fatwa to his home and made threats against the Principal Applicant. He fled to the UAE, but was unable to stay there after his employment ended. The Principal Applicant, his wife and their son decided to flee to Canada, where two of their sons were already studying. They claimed refugee status on their arrival in Canada.
[9] The RPD found the Principal Applicant’s evidence not credible on key elements of his refugee claim. The RPD found his evidence about his conversion to Shia Islam to be vague and lacking in details. His evidence about the attempted kidnapping was given little weight because of a discrepancy between the Basis of Claim narrative in his refugee claim and his oral testimony regarding when the thugs indicated they were connected to SSP. The RPD also doubted that armed SSP thugs would be deterred by unarmed bystanders, given the prominence of the group in Pakistan and the authorities’ tacit support for it. The RPD discounted the fatwa because the Principal Applicant had failed to inquire whether it was signed by a religious authority, noting that a fatwa signed by a prominent and respected religious authority posed more risk than one signed by a less prominent or respected individual. Based on this analysis, the RPD refused the Applicants’ refugee claim.
[10] The Applicants appealed to the RAD, challenging the RPD’s credibility findings and seeking to file new evidence to support their claim. The Applicants sought to file a report from a psychotherapist about the psychological distress that had affected the Principal Applicant’s testimony before the RPD. This report was prepared shortly after the Applicants received the RPD decision. The RAD refused to accept this evidence, finding that it could have been provided to the RPD after the hearing and before the decision was issued. The RAD noted that the Applicant did not express concerns during the hearing, and he was represented by experienced counsel who did not raise concerns during the hearing or subsequently ask the RPD for time to assemble and file further evidence. There was no reason to wait for the RPD’s decision before raising the concerns set out in the report. The Applicants could have obtained and filed it before the RPD’s decision was released. Therefore the RAD found the medical report to be inadmissible.
[11] The Applicants also sought to file an affidavit from a friend of the Principal Applicant, who said he had been kidnapped by the SSP and asked about the Principal Applicant’s location. The RAD noted that the alleged kidnapping occurred a few days after the release of the RPD decision, finding the timing to be a fortuitous coincidence. The RAD also observed that other credibility concerns existed regarding the friend’s evidence before the RPD, and it therefore rejected the affidavit.
[12] On the merits of the appeal, the RAD found that the Principal Applicant had failed to establish the core elements of his claim. The RAD found that the Applicants had not challenged the RPD’s finding that they had failed to establish a link between the Principal Applicant’s brother and the SSP. The RAD agreed with the RPD’s assessment, finding that the absence of a link between the brother and the SSP goes to the core of the Applicants’ refugee claim and significantly undermines the Principal Applicant’s credibility.
[13] The RAD found that the Principal Applicant’s evidence about his conversion to Shia Islam lacked details, and was not consistent with the narrative set out in his Basis of Claim form. In the Basis of Claim form, the Principal Applicant described regular meetings with IH over the course of several months, during which they exchanged religious texts, CDs of Muslim orators describing the Sunni and Shia faiths, and engaged in discussions of their respective belief systems. The RAD found that the Principal Applicant’s answers to questions about his conversion journey to be vague and lacking in details. For example, he did not refer to any of the texts he said he had read, or describe core elements of Shia doctrine that he found compelling. Based on its evaluation of the Principal Applicant’s testimony, the RAD found he had not established that he had, in fact, converted from Sunni Islam to Shia Islam.
[14] On the evidence of the attempted kidnapping, the RAD did not find it plausible that a crowd of unarmed bystanders was able to prevent the armed SSP members from carrying out their plan. In light of the objective evidence about the degree nature of the violence committed by the SSP in carrying out its aims, and given that the armed thugs had fired their guns in the air to ward off the crowd, the RAD doubted the Principal Applicant’s narrative.
[15] Finally, the RAD largely agreed with the RPD’s analysis of the fatwa, finding that the Principal Applicant had not taken steps to identify the religious authority who issued it. The lack of confirmation that the fatwa had been issued by a prominent or senior religious figure diminished the weight that could be accorded to the risks associated with it. The RAD assessed this in light of its previous findings that the Principal Applicant had failed to establish his conversion to the Shia faith, that his brother was connected to the SSP, or that SSP members had tried to kidnap him.
[16] Overall, the RAD dismissed the Applicants’ appeal because they had not demonstrated that they faced a serious possibility of persecution or a risk to their personal safety in Pakistan.
[17] The Applicants seek judicial review of this decision.
II. Issues and Standard of Review
[18] The issue in this case is whether the RAD’s decision is unreasonable. The Applicants argue that it is not for several reasons:
the RAD improperly assessed the Principal Applicant’s evidence about his conversion to Shia Islam and failed to properly consider corroborative evidence on that point;
the RAD made an unjustified implausibility finding and speculated about the behaviour of the SSP thugs on the attempted kidnapping;
the RAD’s reasoning for rejecting the fatwa does not withstand scrutiny;
iv. the RAD improperly refused to admit the new evidence they had submitted.
[19] These questions are to be assessed under the framework for reasonableness review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, and recently confirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21.
[20] In summary, under the Vavilov framework, a reviewing court “is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints”
(Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 at para 2 [Canada Post]). The onus is on the Applicants to demonstrate that “any shortcomings or flaws … are sufficiently central or significant to render the decision unreasonable”
(Canada Post at para 33, citing Vavilov at para 100).Such errors must be “more than merely superficial or peripheral to the merits of the decision.”
(Vavilov at para 100).
III. Analysis
A. The RAD’s assessment of the conversion to Shia Islam
[21] The Applicants challenge the RAD’s finding that the Principal Applicant’s evidence about his conversion to Shia Islam was not credible. They say that the RAD failed to assess his evidence in light of the specific questions he was asked – and not asked – about his conversion to that faith.
[22] The Applicants focus on the RAD’s statement that the RPD had asked the Principal Applicant “what he read that made him realize that Shia Islam was a more faithful form of Islam and that he wanted to join.”
(RAD Decision, para 46). They point out that the RPD had actually asked the Principal Applicant “…was there a day when you read something that made you realize that to you, Shia Islam was a more faithful form of Islam and that you wanted to join? What was that thing that you read?”
(RPD Transcript, CTR, p 512). The Applicants contend that the RAD erred in making a negative credibility finding based on the Principal Applicant’s failure to list the books or texts he had read during the process of his conversion, because he was never asked to do that. They say that he described the reasons why he found Shia Islam to be compelling from a personal perspective, in direct response to the RPD’s line of questioning.
[23] I am not persuaded that the RAD’s analysis on this point is unreasonable. The RAD’s key finding on this point was that “…the Principal Appellant’s testimony about his decision to convert was markedly lacking in particulars and did not reflect the degree of engagement with Shia teachings that he alleged in his BOC.”
(RAD Decision, para 45). The RAD’s discussion of portions of the Principal Applicant’s testimony must be understood in relation to the narrative he set out in his Basis of Claim form, where he indicated that over the course of several months he and IH “exchanged each other’s religious books, literatures, Orator’s CDs”
and that they discussed the doctrines of their faiths on weekends. He also described a visit to a Shia place of worship where he had an opportunity to ask questions from Shia scholars.
[24] The RAD’s assessment of the Principal Applicant’s evidence is reasonable, when examined in light of the evidence in the record. While I agree with the Applicants that the Principal Applicant was never specifically asked to list the books or CDs that he received from IH, the transcript shows that he was provided ample opportunity to describe his understanding of the Shia faith and why he decided to convert, despite knowing that his family would strongly oppose his decision. The RAD’s finding that the Principal Applicant’s evidence was vague and not consistent with the narrative he set out in his Basis of Claim form is grounded in the evidence in the record and clearly explained. That is all that reasonableness demands, and it is not the role of the Court to reweigh the evidence (Vavilov at para 125).
[25] It is true that the RAD did not discuss each specific piece of corroborative evidence submitted by the Applicants in support of the Principal Applicant’s claim that he converted to Shia Islam, but the RAD stated that these were considered. I note that the RAD explained why it doubted the conversion certificate that was filed, given its questions about the timing of the conversion. In my view, the RAD must be presumed to have considered all of the evidence in the record, and the elements that were not specifically discussed are not so compelling as to cast doubt on the overall conclusion on this point.
[26] I do not agree with the Applicants’ submission that the RAD engaged in circular reasoning when it discounted the evidence of IH, the friend who discussed Shia Islam with the Principal Applicant. The Applicants rightly point out that this Court has repeatedly found decision-makers to have erred when they reject corroborative evidence solely because they have already found the claimant to be not credible: Li v Canada (Citizenship and Immigration), 2019 FC 307 at para 18. This is wrong because each piece of evidence is to be assessed on its merits, before a final determination of credibility is made.
[27] In this case, the RAD noted the discrepancy between the details set out in the Principal Applicant’s Basis of Claim form and the vague and general nature of his oral testimony. When it examined the statement provided by IH, the RAD noted that it confirmed that he had met with the Principal Applicant over many months and they engaged in deep conversations regarding the tenets of their faith based on the sharing of texts and CDs. The RAD then found that this statement did not corroborate the Principal Applicant’s testimony, because it was similar in nature to the detailed account set out in the Basis of Claim form. This is not circular reasoning; the RAD independently assessed IH’s evidence, but found it could not corroborate the Principal Applicant’s testimony. This demonstrates that the RAD engaged with this evidence, assessed it and explained its conclusion. That is what a reasonable decision-maker is asked to do under the Vavilov framework.
[28] I am thus not persuaded that the RAD’s finding that the Principal Applicant failed to establish that he converted to Shia Islam was unreasonable. I agree with the Applicants that this was a crucial element of their refugee claim, and therefore the RAD acted reasonably in giving it great weight in the overall analysis.
B. The attempted kidnapping
[29] The Applicants submit that the RAD unreasonably tried to rationalize the actions of the SSP kidnappers, which is an error this Court has repeatedly cautioned against: Senadheerage v Canada (Citizenship and Immigration), 2020 FC 968 at paras 18-19. The RAD made several plausibility findings about the SSP’s actions during this incident, concluding that it was not credible that armed agents of persecution would abandon their kidnapping plan simply because a crowd of bystanders intervened to support the Principal Applicant.
[30] The Applicants say that the RAD’s findings are not justified on the evidence. The RAD found that the kidnappers could have kept the crowd at bay by threatening them with their weapons. It rejected the Principal Applicant’s explanation that the SSP members might have feared firing into a crowd because there may have been Sunni Muslims present. The RAD noted the evidence that the SSP was responsible for widespread indiscriminate bombings and attacks that had killed many people, which demonstrated its lack of concern for the welfare of others.
[31] The Applicants contend that the evidence of other large-scale attacks is not persuasive because it does not deal with a situation similar to the attempted kidnapping. They note that the kidnapping attempt involved only three SSP members who were faced with opposition from a crowd numbering in the hundreds according to the Principal Applicant’s testimony. They submit that the RAD engaged in unreasonable speculation about the mindset and actions of the SSP, which calls into question its conclusions regarding the attempted kidnapping.
[32] I am not persuaded. The RAD examined the objective country condition evidence about the actions of the SSP, and considered it in relation to the Principal Applicant’s evidence about the attempted kidnapping. The RAD explained its three reasons for rejecting the Applicant’s challenge to the RPD’s finding on the attempted kidnapping. The RAD did not agree with the Applicants’ contention that the SSP members would have had to harm the crowd in order to carry out their kidnapping plan. Noting that the assailants were armed and had fired into the air to deter the crowds, the RAD reasonably found that the SSP members could have used the threat of gunfire to keep the bystanders at bay while they forced the Principal Applicant into their vehicle. This is not speculation, but rather a reasonable interpretation of the evidence as the Principal Applicant presented it: he testified that the SSP members were carrying long rifles, and that they fired them into the air to clear the crowd.
[33] Second, the RAD found the objective evidence confirmed that the SSP conducted both large-scale attacks targeting the Shia population but it also attacked individuals. The RAD noted the evidence showing that SSP attacks had caused multiple casualties, and that it had demonstrated a lack of concern for its victims. Finally, the RAD found that the tacit or active support of law enforcement and security officials for SSP actions was a relevant consideration since it showed the lack of an effective state response to terrorist and illegal activities by that group, and the sense of impunity its members would likely have.
[34] Overall, I can find no basis to question the RAD’s analysis of the Principal Applicant’s evidence about the attempted kidnapping by SSP members. The RAD did not engage in the type of speculation that this Court has cautioned against, but rather drew reasoned inferences from the evidence which it explained in some detail. That is the type of analysis required by the Vavilov framework. I am not persuaded that the RAD’s finding on the Principal Applicant’s failure to establish that the SSP was an agent of persecution is unreasonable.
C. The fatwa
[35] The Applicants say they are confused by the RAD’s inconsistent and incomplete analysis of the fatwa that was issued against the Principal Applicant. They point out that the RAD does not appear to question that a fatwa existed, but instead it focused on the religious authority of the person who issued it. They claim this is unreasonable, because the RAD failed to examine the relevant objective country condition evidence. The Applicants argue that this evidence confirms that a fatwa can be issued by a variety of different religious figures, and that the allegation of blasphemy carries significant risks for the individual who is accused of it.
[36] The RAD found that a fatwa is usually issued by a senior religious figure, although this is not always the case. In this case, the Principal Applicant indicated that the fatwa was signed by a molana, meaning a person with an Islamic education. The RAD did not reject this as a possibility, but it gave the fatwa less weight because the Principal Applicant had not been able to identify the person who signed the document. The RAD concluded this was inconsistent with his alleged fear of harm arising from the issuance of the fatwa.
[37] The Applicants submit that this reasoning is opaque, and fails to take into account the objective evidence of the risks associated with the accusation of blasphemy that is clearly stated in the fatwa. They also note that the RAD did not discuss any of the corroborating evidence such as the affidavit of the tenant who advised the Applicants of the existence of the fatwa. The Applicants argue that the RAD’s reasoning on this point is unreasonable and unjustified because the RAD failed to account for the evidence that was before it, contrary to the Vavilov standard.
[38] I am not persuaded. The Principal Applicant’s evidence about the fatwa was lacking in several respects. He did not know who issued it, nor had he taken any steps to find out more about it. The RAD found his claim to be at risk because of the existence of the fatwa was not credible, given the objective evidence indicating that the danger arising from a fatwa was associated with the authority and prestige of the person who issued it. In this case, the Principal Applicant stated he thought it was issued by a molana, who is not a significant religious figure. The Applicants were unable to provide more evidence detailing the origins of the fatwa or indicating its impact in the community.
[39] The RAD engaged with the evidence about the fatwa in the record, assessed it in light of its other findings regarding the other elements of the case, and then explained its findings. The RAD was not persuaded that the fatwa was of such significance as to overcome the deficiencies in the rest of the Applicants’ case. This is a reasonable conclusion on the record, even if every piece of evidence was not discussed in detail.
[40] I can find no basis to question the RAD’s conclusion regarding the weight to be accorded to the fatwa in assessing the risks to the Applicants on a return to Pakistan.
D. The RAD’s rejection of the new evidence
[41] Finally, I am not persuaded by the Applicants’ arguments regarding the RAD’s refusal to accept the new evidence they tendered. The RAD reasonably found that the Principal Applicant could have obtained the psychotherapist’s report immediately after the RPD hearing, and it explained why it was not satisfied by his explanation for failing to do that. The report largely focuses on the reasons why the Principal Applicant’s evidence before the RPD may have been disjointed or lacking in details, and the psychotherapist recounts what he told her during their session relating to his experience of testifying. This confirms that the Principal Applicant was concerned that his capacity to provide coherent testimony was impaired, and the RAD reasonably found that such evidence could and should have been provided immediately after the hearing. There is no basis to question this finding.
[42] As for the affidavit about the alleged kidnapping and questioning of the Principal Applicant’s friend, the RAD reasonably observed that the timing was fortuitous, since the incident apparently occurred a few days after the RPD issued its negative decision. The RAD also explained its other reasons for doubting the friend’s credibility and its analysis is both supported in the record and explained in a specific and detailed manner. There is no basis to question this determination.
[43] I therefore reject the Applicants’ challenge to the RAD’s refusal to admit the new evidence.
IV. Conclusion
[44] Based on the analysis set out above, and despite the able submissions of counsel, I am not persuaded that the RAD’s decision is unreasonable. The application for judicial review is therefore dismissed.
[45] There is no question of general importance for certification.
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