[1] This is an application for judicial review under s 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 [IRPA] of a decision by the Refugee Appeal Division [RAD] of the Immigration and Refugee Board, dated December 12, 2023 [Decision]. The RAD dismissed the Applicant’s appeal of a decision of the Refugee Protection Division [RPD], which found the Applicants are neither Convention refugees nor persons in need of protection per ss 96 and 97(1) of IRPA.
[2] The RAD found the RPD erred in its conclusion regarding Internal Flight Alternative [IFA] which did not need to be decided given the RAD’s assessment of the evidence. The Application will be dismissed for the following reasons.
II. Facts
[3] The Applicants are a family consisting of the Principal Applicant [PA], Associate Applicant [AA], and Minor Applicant [MA]. The PA is the Designated Representative for the MA. The Applicants are citizens of Pakistan and nowhere else.
[4] The Applicants claim protection on the grounds of religion as a Shia couple who eloped against their parents wishes when the PA was still a member of the Sunni Sect (the PA converted to Shia Islam in 2016).
[5] The Applicants raise three grounds for protection: 1) fear of honour killing from the AA’s family, who they allege threatened their lives on several occasions and got the police to persecute them through false accusations of abduction, 2) fear of an anti-Shia terrorist group which followed or attacked the PA on the street, and 3) the Pakistan police.
III. Decision under review
[6] The RPD found the Applicants’ claims under ss 96 and 97 were not established due to credibility issues, but went on to consider the issue of IFA elsewhere in Pakistan. The RAD found credibility on the central issue, to the extent it was not necessary to consider the IFA issue.
A. The RAD reviewed the RPD’s decision on a correctness standard
[7] The RAD conducted its review of the RPD decision on a correctness standard. It notes:
I was able to review the entire record, including the audio recordings of your RPD hearing and all the documentary evidence. I also reviewed all of your arguments. The RPD had no meaningful advantage over me. I independently re-weighed all of the evidence and came to my own conclusions. In legal terms, this is called a correctness review.
[Emphasis added]
B. New evidence not admitted
[8] The RAD did not admit the Applicants’ proposed new evidence, namely a police First Information Report [FIR] dated September 27, 2023, an affidavit of a friend dated October 6, 2023, and two media articles dated August 25 and October 18, 2023. The RAD held the media articles “are not new or relevant because they merely discuss two unrelated honour killings in Pakistan,”
and so “offer nothing relevant or new that was not already on the record.”
[9] The RAD found other items not credible enough to be admissible because they were “fortuitous”
, that is plainly manufactured by the Applicant and designed to bolster and correct the exact deficiencies and inconsistencies the RPD has just found. In this finding, the RAD relies on Yusuf v Canada (Citizenship and Immigration), 2023 FC 1032 [per Fuhrer J], which held in part: “[9] I am not convinced the RAD erred in finding that the affidavit was too fortuitous to be credible: Idugboe v Canada (Citizenship and Immigration), 2020 FC 334 at paras 21‑25; Elmi v Canada (Citizenship and Immigration), 2020 FC 296 at para 32‑36; Karakaya v Canada (Citizenship and Immigration), 2014 FC 777 at para 26, 31.”
[10] The RAD found most of the RPD’s credibility findings were correct, but that the RPD erred in finding some of the Applicants’ allegations credible when in its view they were not. In this connection, the RAD notes a number of issues and inconsistencies across different versions of the Applicants’ narrative of the alleged attack. These include 1) the original and “very detailed 15-page narrative”
submitted with the Applicants’ refugee claim made no reference to the [group] as the specific attackers, 2) supporting affidavits from friends and family claim [group] attacked the Applicant despite not witnessing the incident, and 3) none of the alleged attackers identified themselves to the Applicant.
[11] The RAD further notes that although the AA’s family first threatened to kill the Applicants in 2010, the Applicants re-availed (voluntarily returned) to Pakistan in 2019, where they were allegedly threatened again. Moreover, a second re-availment occurred two years later in 2021. The RPD rejected the Applicants’ explanations, finding their actions flew in the face of their claims of subjective fear and agreeing with the RPD they had not credibly established fear of returning to Pakistan.
[12] Multiple material inconsistencies were also identified elsewhere, including those between a letter and affidavit from the PA’s friend. The RAD further held the Applicants’ other evidence (primarily letters and affidavits from family and friends), which the RPD gave little weight for making statements about events they did not witness, did not overcome the numerous and serious credibility problems correctly identified above even if given full weight.
C. IFA assessment was not necessary due to credibility concerns
[13] The RAD found the RPD erred in assessing the IFA. It held an IFA analysis was not necessary because there is not sufficient credible evidence of any risk from the PA and AA’s families or that they disapprove of their marriage:
[58] Despite all of the RPD’s correct findings above, it still found that you feared honour killing and that your family disapproved of your marriage. For this reason, the RPD proceeded to do an analysis of a possible internal flight alternative.
[59] In my opinion, the RPD erred in this conclusion. I am entitled to come to a different conclusion on the same facts. The RPD’s correct credibility concerns are serious enough that they completely rebut the presumption of truthfulness. There is not sufficient credible evidence of any risk from your families and there is not sufficient credible evidence that your families disapprove of your marriage. There is no need to proceed to an internal flight alternative analysis.
IV. Issues
[14] The Applicant raises the following issues:
Did the RAD err by failing to give any deference to the credibility determinations made by the RPD despite the advantageous position the RPD had?
Did the RAD err by substituting significant credibility findings on its own with[out] affording the Applicants an oral hearing?
Did the RAD err in failing to admit the new evidence pursuant to s.110(4) of the IRPA?
[15] The Respondent submits the only issue is whether the RAD’s decision was reasonable.
[16] In my view the issues are whether the Decision was reasonable and procedurally fair.
V. Standard of review
[17] The parties agree, and I concur, that the standard of review is reasonableness. However, the Applicants also allege a breach of procedural fairness, for which the standard is correctness.
[18] The Respondent submits no circumstances warranting a departure from the presumption of reasonableness arise in this case. Given the Applicant’s submissions, I outline the standards for both below.
A. Reasonableness
[19] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[20] The Supreme Court of Canada in Vavilov at paragraph 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.”
Vavilov provides further guidance that a reviewing court decide based on the record before them:
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[Emphasis added]
[21] Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.”
The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[22] The Federal Court of Appeal held in Doyle v Canada (Attorney General), 2021 FCA 237 [Doyle] that the role of this Court is not to reweigh and reassess the evidence unless there is a fundamental error:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
B. Procedural fairness
[23] Questions of procedural fairness are reviewed on the correctness standard as established many years ago by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at paragraph 43. That said, I note in Bergeron v Canada (Attorney General), 2015 FCA 160, per Stratas JA at paragraph 69, the Federal Court of Appeal says a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.”
And see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific Railway Company] [per Rennie JA].
[24] In this connection, and while there is ongoing debate on the matter in some quarters, I will follow recent jurisprudence of the Federal Court of Appeal which relied on “the long line of jurisprudence, both from the Supreme Court and”
the Federal Court of Appeal itself, that “the standard of review with respect to procedural fairness remains correctness”
: Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at paragraph 35 per de Montigny JA (as he then was).
[25] In Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 50, the Supreme Court of Canada explains what is required on the correctness standard of review:
[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
[26] I rely on Canadian Pacific Railway Company, where Justice Rennie for the Federal Court of Appeal at paragraph 56 ruled:
[56] No matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. It would be problematic if an a priori decision as to whether the standard of review is correctness or reasonableness generated a different answer to what is a singular question that is fundamental to the concept of justice―was the party given a right to be heard and the opportunity to know the case against them? Procedural fairness is not sacrificed on the altar of deference.
[Emphasis added]
VI. Analysis
A. The Decision is procedurally fair
[27] The Applicants submit the RAD erred in not giving any deference to the RPD’s credibility determinations. They argue the RAD did not provide a “logical justification for why the RPD had no meaningful advantage over it in assessing the Applicants’ credibility.”
[28] The Applicants further submit the RAD erred by substituting significant credibility findings on its own without affording the Applicants an oral hearing, and that this violated their rights under the Canadian Charter of Rights and Freedoms, s 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. In this connection the Applicants cite Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at paragraph 59 [Singh], which held (per Madam Justice Bertha Wilson) that an oral hearing is required “where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.”
[29] I am not persuaded on this point because in my view Singh is fully complied with because the Applicants had the benefit of an oral hearing before the RPD. There is no merit in the argument that the right to an oral hearing persists and must be repeated in the RAD process.
[30] Also, and with respect, the RAD reasonably found the RPD has no meaningful advantage in this case. The RAD had both the written record and the oral recordings and reviewed and listened to each. In my view, the RPD will only have a meaningful advantage over the RAD in making credibility findings where the RPD bases its assessment on a factor that cannot be reproduced in the record before the RAD, such as witness demeanour. As held by Justice Diner in Rozas Del Solar v Canada (Citizenship and Immigration), 2018 FC 1145 at paragraphs 86-93, in most cases (and in the case at bar), the record before the RAD fully discloses the information on which the RPD based its findings and permits the RAD to review them on a correctness standard.
[31] Most notably, I was not pointed to any specific reason why the RPD had any advantage over the RAD. It is not enough to speak generally of demeanour and interpersonal reactions and the advantages attributed to oral hearings— which motivated the Supreme Court of Canada to require them in refugee cases raising serious credibility issues back in 1985 in Singh. In the absence of any specific evidence or examples of meaningful advantage in the case before me, I agree the RAD was entitled to review credibility assessments as it did in this case: see Manan v Canada (Citizenship and Immigration), 2020 FC 150 at paragraph 38; Odia v Canada (MCI), 2018 FC 363 at paragraph 5; Fabunmi v Canada (Citizenship and Immigration), 2020 FC 1009 at paragraphs 7-8 [Fabunmi].
[32] The Applicants also submit while the RAD is entitled to oversee and assess the credibility of Appellants from the RPD record, it is not permissible to do a complete overhaul and reverse the RPD’s core findings. In this respect they rely on a decision of mine, namely Sarker v Canada (Citizenship and Immigration), 2022 FC 1367 [Sarker]. It is useful to repeat the findings in Sarker:
[25] In Singh v Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 the Supreme Court of Canada considered the Charter-compliance of the refugee determination scheme then in place. That scheme did not include an oral hearing. Because of that defect, the Supreme Court held the scheme unconstitutional. The Supreme Court ruled the relevant statutory provisions were “inconsistent with the principles of fundamental justice set out in s.7 of the Charter” and held the refugee claimants before it were “entitled to a declaration that s.71(1) is of no force and effect to the extent of the inconsistency.”
[26] The Supreme Court of Canada, per Madam Justice Berta Wilson, addressed the failure to provide an oral hearing as a matter of procedural fairness protected by section 7 of the Charter in the refugee context. Paragraph 59 of its reasons are relevant and speak to the case at bar:
58. Do the procedures set out in the Act for the adjudication of refugee status claims meet this test of procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet? This seems to be the question we have to answer and, in approaching it, I am prepared to accept Mr. Bowie's submission that procedural fairness may demand different things in different contexts: see Martineau, supra, at p. 630. Thus it is possible that an oral hearing before the decision‑maker is not required in every case in which s.7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr. Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s.7. If “the right to life, liberty and security of the person” is properly construed as relating only to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless, to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in appropriate circumstances.
59. I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person: see Stein v. The Ship “Kathy K”, 1975 CanLII 146 (SCC), [1976] 2 S.C.R. 802, at pp. 806‑08 (per Ritchie J.) I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.
[Emphasis added]
[27] I am bound by this determination, noting it was made in the refugee context and that therefore the Supreme Court speaks directly to the case at hand. While this was not the only reason the Supreme Court found the absence of a hearing offender section 7 of the Charter, it is a central part of the Supreme Court’s reasoning and conclusion.
[28] I therefore find the RAD by its wholesale reversal of the RPD’s credibility findings in this case effectively deprived the Applicant of the inestimable benefit of an oral hearing so clearly given by our highest Court to refugee claimants as a Charter right.
[29] Notably and in this connection, Parliament responded by amending the legislation to provide for oral hearings, which role is now assigned to the RPD.
[30] The centrality of the RPD in credibility determinations is also recognized and reinforced by the Federal Court of Appeal’s decision in Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93, which addresses the roles of the RAD and the RPD:
[70] This also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.
[71] One can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.
[Emphasis added]
[31] I am bound by these passages also. The RAD offered no explanation or justification of any kind for its decision to conduct a wholesale review and reversal of all credibility findings in this case.
[33] With respect, Sarker is distinguishable because in the case at bar the RAD did not undertake a ‘complete overall and reversal of the RPD’s core findings’ or anything close. Rather, the RAD reasonably reviewed one subset of credibility findings and corrected them, and as such the RPD’s IFA findings fell away. That was simply an inevitable consequence of the RAD reasonably and properly performing its error correction mandate.
[34] I am also of the view the Applicants were not entitled to an oral hearing. Indeed, because the new evidence was rejected, the RAD was required to proceed without a hearing: (IRPA, ss 110(3-6); Yusuf v Canada (Citizenship and Immigration), 2023 FC 1032 [Yusuf] at paras 18-19; Singh v Canada (Citizenship and Immigration), 2014 FC 1022 at para 52; Fabunmi at para 7, citing Corvil v Canada (Citizenship and Immigration), 2019 FC 300 at para 13; Abdi v Canada (Citizenship and Immigration), 2019 FC 54 at para 29; Ibrahim v Canada (Citizenship and Immigration), 2016 FC 380 at para 30; Iqbal v Canada (MCI), 2020 FC 170 at para 55).
[35] Notably, none of the exceptions in s 110(6) of IRPA arise in this case:
Hearing
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Audience
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(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
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(6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois :
|
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
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a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause;
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(b) that is central to the decision with respect to the refugee protection claim; and
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b) sont essentiels pour la prise de la décision relative à la demande d’asile;
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(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
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c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas.
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B. The Decision is reasonable
[36] The Applicants submit the RAD unreasonably refused to admit the new evidence pursuant to s110(4) of IRPA. While four pieces of evidence were rejected, the Applicants only challenge the RAD’s refusal to admit the FIR and the affidavit of the PA’s friend, which they maintain are critical to their refugee claim. The Applicants argue the RAD’s reasoning about the fortuitousness of these documents “seems to imply that any factual development after the RPD decision gives prima facie grounds to depart from Maldonado [v Minister of Employment and Immigration, 1979 CanLII 4098 (FCA), [1980] 2 FC 302] because it’s ‘too convenient’”
, which the Applicant submits goes against parliamentary intent and “is extreme and absurd - every factual development on appeal would be suspicious by nature.”
[37] I disagree. In my view, there is no fundamental error or exceptional circumstance in the RAD’s new evidence determination, and therefore I reject the Applicant’s request that the Court impermissibly reweigh, reassess, and second-guess the RAD, which would be contrary to Vavilov and Doyle quoted above. Moreover, in my view it was reasonable for the RAD to conclude the FIR and Affidavit were not credible because their contents and timing were “too fortuitous”
(Idugboe v Canada (Citizenship and Immigration), 2020 FC 334 at paras 22-25; Yusuf at paras 7-10; Karakaya v Canada (Citizenship and Immigration), 2014 FC 777 at paras 26, 31).
VII. Conclusion
[38] Given the above, the application for judicial review must be dismissed.
VIII. Certified question
[39] Neither party proposes a question for certification, and I agree none arises.
IX. Costs
[40] This is not a case for costs.
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