Date: 20250325

Docket: IMM-13465-23

Citation: 2025 FC 555

Vancouver, British Columbia, March 25, 2025

PRESENT: The Honourable Mr. Justice Ahmed

JUDGMENT AND REASONS

I. Overview

[1] The Applicants, Faraz Ahmed Mir and Mazen Ahmed Mir, seek judicial review of a decision of the Refugee Appeal Division (“RAD”) dated September 27, 2023, confirming the determination of the Refugee Protection Division (“RPD”) that the Applicants are neither Convention refugees nor persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).

[2] The Applicants submit that the RAD committed several reviewable errors and rendered a decision that is unreasonable.

[3] For the reasons below, I find that the RAD decision is unreasonable. This application for judicial review is allowed.

II. Background

[4] The Applicants are citizens of Pakistan. They are Shi’a Muslims. The Principal Applicant, Faraz Ahmed Mir, is the father of the Associate Applicant, Mazen Ahmed Mir.

[5] The Principal Applicant was a member of the Pakistan Tehreek-e-Insaf (“PTI”) party. Members of the Sipah-e-Suhabah (“SSP”) party, a rival political group known to target Shi’a Muslims, attempted to extort the Principal Applicant in 2016. The Principal Applicant refused to cooperate.

[6] The SSP members retaliated by kidnapping the Associate Applicant. The Principal Applicant rescued the Associate Applicant hours later.

[7] The Principal Applicant attempted to report the incident to the police. An altercation ensued when the Principal Applicant encountered the perpetrators of the kidnapping at the police station. The Principal Applicant reports that he was assaulted and told to return home. However, the police filed a First Information Report (“FIR”) against the Principal Applicant, claiming he attacked police officers during the incident.

[8] The Principal Applicant and his family fled to his sister’s home in Lahore. Due to persistent safety concerns, the Applicants relocated to the United States in October 2016.

[9] In 2017, the Applicants arrived in Canada and filed refugee claims.

[10] The RPD refused the Applicants’ claims in May 2021. The RAD remitted the matter to the RPD for redetermination. The Applicants’ claims were again refused, with the RAD upholding the RPD’s negative redetermination decision on appeal.

[11] In May 2023, the Applicants sought to reopen the matter, as the RAD had relied on a previous appeal record in upholding the negative redetermination decision. The RAD granted the Applicants’ request.

[12] During this time, the Applicants received updates from friends and family members in Pakistan. The Principal Applicant’s spouse received threatening phone calls in 2016. She and the Principal Applicant’s sister reported that the Principal Applicant’s mother was tortured at her home in Jhelum. Fearing for her safety, the Principal Applicant’s mother joined his spouse and children at his sister’s house in Lahore. In 2021, several men on motorcycles chased the Applicants’ family members at the house of the Principal Applicant’s sister in Lahore. The Applicants’ family reported continuous harassment throughout 2021, with the Principal Applicant’s brother-in-law filing two FIRs in June and November 2021. The Principal Applicant’s spouse and children eventually relocated to a relative’s house in another city. Family friends stated in sworn affidavits that they visited the Principal Applicant’s spouse and children in 2023, finding them to be living in a state of fear.

[13] Shortly after the Applicants’ refugee claims were reopened in June 2023, Imran Khan, former Prime Minister of Pakistan and leader of the PTI party, was arrested. The RAD invited the Applicants to make submissions on resultant changes to the National Documentation Package for Pakistan. The Applicants did so, asserting that an oral hearing was required as the Applicants’ risk of political persecution would now “be sufficient to accept the claim.”

[14] In September 2023, the RAD confirmed the RPD’s negative redetermination decision. The RAD found that the RPD’s negative credibility findings were warranted and determinative of the reopened appeal. The RAD also found the Applicants have a viable IFA in the city of Lahore, dismissing the affidavit evidence to the contrary due to its vagueness and lack of corroboration. The RAD refused the Applicants’ request for an oral hearing and determined that the Applicants had not established a serious risk of persecution. This is the decision that is presently under review.

III. Issue and Standard of Review

[15] The sole issue in this application is whether the RAD’s decision is reasonable.

[16] The parties submit that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25 (“Vavilov”)). I agree.

[17] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13, 75, 85). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov at para 15). A decision that is reasonable as a whole 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). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).

[18] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep” (Vavilov at para 100).

IV. Analysis

[19] The Applicants submit the RAD’s decision contains several reviewable errors. The Applicants assert the RAD’s credibility assessment is flawed, as the RAD disregarded objective evidence of false FIRs and erroneously stated that the Principal Applicant’s Schedule 12 form was part of his Basis of Claim (“BOC”). The Applicants further submit the RAD erred in finding a viable IFA in Lahore, as the affidavit evidence concerning the harassment of the Applicants’ family in Lahore was extensive and its credibility conceded by the RAD when the affidavits were admitted as new evidence. Lastly, the Applicants submit that the RAD erred by refusing to hold an oral hearing despite the applicability of subsection 110(6) of the IRPA, and that its findings on political persecution were flawed as a result.

[20] The Respondent submits the RAD’s decision is reasonable. The Respondent asserts that the RAD reasonably refused to hold an oral hearing, as the Applicants’ new evidence was not sufficiently central to “justify allowing or rejecting the refugee protection claim” (IRPA, s 110(6)(c)). The Respondent further asserts that the Applicants’ documentary evidence was vague, speculative, internally inconsistent, and at odds with official state documents. Consequently, the RAD made no reviewable error by finding that the Applicants had failed to bring sufficient evidence of their alleged risks.

[21] I agree with the Applicants.

[22] The RAD’s rationale for disbelieving the Applicants with respect to the altercation at the police station is illogical and not consistent with the record. The Applicants assert that the FIR filed by the police was fraudulent, citing country condition evidence that it “is a common practice in Pakistan” to “implicat[e] innocent people through the registration of fake FIRs for personal emmity.” The RAD dismissed the Applicants’ explanation because “there is a serious criminal penalty for the filing of a false FIR.” However, the existence of criminal sanctions has no bearing on whether the particular FIR filed against the Principal Applicant was fraudulent. Criminal sanctions also do not negate objective evidence indicating that the filing of fraudulent FIRs is a common practice. I agree with the Applicants that the RAD’s reasons for impugning their credibility on this point were not rational or justified (Vavilov at para 85).

[23] The RAD’s treatment of the Principal Applicant’s Schedule 12 form was similarly flawed. In his Schedule 12 form, the Principal Applicant indicated he had been charged with assault in October 2009. His other evidence indicates he was charged with this offence in September 2016. When confronted with this discrepancy, the Principal Applicant immediately stated: “The date is wrong.” He confirmed that he was charged in 2016 and explained that “he [is] not well educated.” The RAD drew a negative credibility inference from this discrepancy, as “[t]he Principal [Applicant] testified that the BOC form was complete, true, and correct.” However, the Applicants rightly note the Schedule 12 form is distinct from the BOC. The discrepancy in the Principal Applicant’s Schedule 12 form has no bearing on the truthfulness of his BOC attestation. I further note that the Principal Applicant explained and immediately acknowledged the discrepancy during the RPD hearing. I am therefore not persuaded that the RAD’s negative credibility determinations are justified in light of the record.

[24] I similarly do not find the RAD’s IFA assessment to be justified given the continued harassment faced by the Applicants’ family in Pakistan. The Principal Applicant’s brother-in-law filed FIRs in June and November 2021 about incidents in which the Applicants’ family members were chased by individuals on motorbikes while residing with the Principal Applicant’s sister in Lahore. The RAD discounted this evidence because “there is no corroborating evidence” and “the perpetrators are not identified as…the agents of persecution.” However, the incidents described in the two FIRs are also referred to in a sworn affidavit from the Principal Applicant’s spouse. Given the nature of the incidents, it is not clear what further corroborative evidence the Applicants could have provided other than this written testimony. In the affidavit, the Principal Applicant’s spouse states that she and the Principal Applicant’s mother recognized the attackers as the Associate Applicant’s kidnappers. The RAD’s determination that “the perpetrators were not identified as…the agents of persecution” is contradicted by this evidence.

[25] The RAD’s treatment of this evidence highlights an error that pervades its assessment of the proposed IFA. Throughout its written reasons, the RAD discounts affidavit after affidavit provided by the Applicants’ family members, stating that these materials are vague, speculative, and uncorroborated. The RAD’s findings amount to the perverse and illogical finding that the Applicants’ family members have been subjected to several years of sustained attacks unrelated to the incidents in 2016, despite credible statements linking the perpetrators to the Associate Applicant’s kidnappers.

[26] Such an approach cannot be justified, transparent, or intelligible (Vavilov at para 99). I find the record before the RAD indicates that the Applicants’ agents of persecution have clear means and motivation to locate them in Lahore. In fact, I find that the record shows they have located the Applicants’ family members in Lahore, and have caused them to flee the proposed IFA due to continual harassment and threats. Consequently, the RAD’s IFA assessment is fundamentally flawed.

[27] As these grounds alone are sufficient to warrant allowing this application for judicial review, there is no need to consider the RAD’s assessment of political persecution.

V. Conclusion

[28] For these reasons, I allow this application for judicial review. The RAD’s decision lacks a rational chain of analysis and is not justified in light of the evidence (Vavilov at paras 85, 126). Given the lengthy procedural history of this matter and the seriousness of the legal errors in the RAD’s decision, the decision is quashed and the matter remitted for redetermination before a different RAD member in accordance with these reasons on an expedited basis. No questions for certification were raised, and I agree that none arise.

JUDGMENT in IMM-13465-23

THIS COURT’S JUDGMENT is that:

1. This application for judicial review is allowed.

2. The decision is quashed and the matter remitted to a different RAD member for redetermination in accordance with these reasons on an expedited basis.

3. There is no question to certify.

"Shirzad A.”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: