Docket: IMM-5986-24
Citation: 2025 FC 655
Ottawa, Ontario, April 9, 2025
PRESENT: The Honourable Justice Battista
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BETWEEN: |
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MOHAMED HUSSAIN ASLAM |
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Applicant |
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and |
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THE MINISTER OF IMMIGRATION, REFUGEE AND CITIZENSHIP CANADA |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mr. Aslam, his wife, and his two children came to Canada in May 2022. They made refugee claims based on their fears of persecution at the hands of Mr. Aslam’s family due to their Islamic-Christian interfaith marriage and fears of persecution in Russia at the hands of the Federal Security Bureau.
[2] The Refugee Protection Division (RPD) granted Mr. Aslam’s family refugee status but refused Mr. Aslam’s claim after finding that he had a viable internal flight alternative (IFA) in Karachi, Pakistan. He appealed this decision to the Refugee Appeal Division (RAD), which upheld the RPD’s decision.
[3] Mr. Aslam seeks judicial review of the RAD’s decision. He argues primarily that the RAD erred by rejecting his new evidence and he claims that he was not treated fairly as a self-represented litigant.
[4] For the reasons below, the RAD’s decision is reasonable in its treatment of his new evidence and the IFA analysis is justified in light of the evidence. The decision was also rendered in a procedurally fair manner. The application for judicial review is dismissed.
II. Background
[5] Mr. Aslam and his spouse were married in Lahore, Pakistan in 2005. He is a Pakistani Muslim and she is a Russian Orthodox Christian. Mr. Aslam stated that his interfaith marriage is strongly opposed by his family, who view it as an impermissible “anomaly”.
[6] The last time that Mr. Aslam and his family were in Pakistan was December 2017, when they visited his parents’ home in Sialkot. At that time, he was threatened by his cousin “BB” (BB’s identifying details were withheld by the RAD). Mr. Aslam claims that BB is affiliated with the Jamiat Ulema-e-Islam (JUI) in Pakistan, that he is a murderer, and that he is very influential.
[7] During this visit, Mr. Aslam claims that he was beaten by members of his extended family for his blasphemous marriage. BB threatened to “cleanse” Mr. Aslam and his family for failing to be “true Muslims”.
[8] As stated above, the RPD accepted the claims of Mr. Aslam’s wife and children. It found that they would not face a serious possibility of persecution in Karachi, but that it would be objectively unreasonable for them to take refuge there. By contrast, the RPD found that Mr. Aslam would not face a risk of persecution in Karachi, and that it was reasonable for him to relocate there.
[9] The RAD upheld the RPD’s decision, finding that BB and Mr. Aslam’s family lack the means to find him in Karachi, and that BB also lacks the motivation to do so. The RAD also found most of the new evidence that Mr. Aslam submitted for his appeal inadmissible.
III. Issues
[10] The issues in this matter are the fairness of the RAD’s process and the reasonableness of the RAD’s decision.
[11] The issue of the decision’s reasonableness is considered pursuant to the reasonableness standard set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (Vavilov), affirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21.
[12] The issue of procedural fairness asks whether an individual “knew the case to meet and had a full and fair chance to respond”
(Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 56).
IV. Analysis
A. The decision is reasonable
[13] The RAD’s findings on the admissibility of Mr. Aslam’s evidence and the availability of an IFA for him in Karachi are reasonable.
(1) The RAD reasonably rejected most of Mr. Aslam’s new evidence
[14] Mr. Aslam provided four new affidavits in support of his appeal, primarily to establish that a fatwa was issued against him:
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-Mr. Aslam’s initial new affidavit;
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-Mr. Aslam’s updated new affidavit;
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-Faisal Meraj’s (FM) affidavit;
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-Naveed Amir’s (NA) affidavit.
[15] The criteria for the admission of new evidence before the RAD is mandatory and dictated by the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA): “pursuant to subsection 110(4) of the IRPA, applicants can only submit new evidence if such evidence was not before the RPD and was not reasonably available to them at the time of the RPD decision”
(Vargas Cervantes v Canada (Citizenship and Immigration), 2024 FC 791 at para 20 (citations omitted)).
[16] The three disjunctive conditions that must be met for new evidence is that the evidence: (1) arose after the rejection of the claim; (2) was not reasonably available before the rejection of the claim; or (3) could not reasonably have been expected to be presented. If the RAD refuses to admit evidence, the RAD must explain how all three conditions are not met (Rahman v Canada (Citizenship and Immigration), 2025 FC 22 (Rahman) at para 27 (citation omitted)).
[17] The RAD has no discretion in applying subsection 110(4) of the IRPA for the admission of evidence (Singh v Canada (Citizenship and Immigration), 2016 FCA 96 at para 35). The appellant has the onus of establishing the admissibility of evidence (Guillen Gomez v Canada (Citizenship and Immigration), 2024 FC 340 at para 19). After establishing subsection 110(4) is met, the RAD “must then consider whether that evidence is credible, relevant, and material”
(Mehmood v Canada (Citizenship and Immigration), 2025 FC 535 at para 16 (citations omitted)).
[18] The RAD found both of Mr. Aslam’s affidavits to be inadmissible, noting that most of their contents were before the RPD and that the sole paragraph with evidence that arose after the decision was not credible for the purpose of admission.
[19] The RAD admitted certain portions of FM’s affidavit, but then gave this evidence low weight due to its lack of specificity. The RAD found that: the remainder of FM’s evidence, and all of NA’s evidence, did not arise after the RPD decision; that Mr. Aslam had not established this evidence was not reasonably available before the RPD’s decision; and that Mr. Aslam had not established that he could not reasonably have been expected to provide it before the decision.
[20] The RAD specifically acknowledged that Mr. Aslam reached out to relatives after his refused RPD claim, but also noted the lack of evidence of Mr. Aslam’s efforts to reach out to FM and NA before the RPD’s decision, and the lack of evidence from FM and NA that they could not provide the evidence before the claim. These findings are reasonable because a failure to explain why evidence was not tendered before an RPD decision can be a ground for finding an applicant has not established it was not reasonably available (see e.g., Abdi v Canada (Citizenship and Immigration), 2019 FC 54 at paras 24-26). This was not conjecture on the RAD’s part; it was the application of subsection 110(4) of the IRPA to the evidence.
[21] This Court has found it reasonable to expect an individual to present evidence before the RPD when represented by counsel, when there was an opportunity to present evidence between the hearing date and the decision date, and when IFA is identified as an issue (see Hassan v Canada (Immigration, Refugees and Citizenship), 2019 FC 459 at paras 23-24; Rahman at paras 48-50; Gelle v Canada (Citizenship and Immigration), 2022 FC 1710 at para 48; Caicedo v Canada (Citizenship and Immigration), 2023 FC 1161 at para 35).
[22] The RAD noted the “highly relevant” nature of the evidence of BB looking for Mr. Aslam and JUI assisting in distributing a fatwa against him, but also noted that Mr. Aslam was represented before the RPD, had already solicited evidence from Pakistan, and knew that Karachi as an IFA was a live issue. The RAD also noted that FM had been living in Karachi since 2018, that five months passed between the RPD hearing date and decision, and that there was no evidence Mr. Aslam sought out evidence before the RPD made its decision.
[23] These findings are not speculative, as Mr. Aslam states. They are justified considering the jurisprudence above and the facts. Mr. Aslam was represented by counsel before the RPD and had the opportunity to provide evidence on the live issue of IFAs between the RPD hearing date and the decision date, which he failed to do.
[24] I disagree with Mr. Aslam that the RAD unreasonably found FM’s affidavit to lack detail despite accepting other aspects of FM’s affidavit as admissible. This is simply a matter of weight, and the Court cannot reweigh evidence on reasonableness review (Vavilov at para 125).
[25] I also disagree with Mr. Aslam’s statement that the RAD erred by finding he had not pointed out the locations of the errors he alleged. Considering the submissions before the RAD, this is reasonable—particularly in light of Rule 3(3)(g)(ii) of the Refugee Appeal Division Rules, SOR/2012-257, which requires that the RPD’s errors be identified specifically.
[26] The RAD’s treatment of the new evidence was justified in fact and law, and there is no serious issue regarding the RAD’s oral hearing analysis.
(2) The RAD’s IFA analysis is reasonable
[30] I disagree with Mr. Aslam’s submissions regarding the reasonableness of the RAD’s IFA findings. In brief, the RAD was concerned primarily with the first branch of the IFA test, which involved determining the agents of persecution’s means and motivation to find him in Karachi. The RAD found that the agents of persecution did not have the means or motivation to find Mr. Aslam, and this was determinative of the first branch and therefore the entire IFA test. This finding is justified considering the limited admissible evidence that went to means or motivation. Following this finding, the RAD did not have to address adverse conditions in Karachi in detail.
[27] Contrary to Mr. Aslam’s argument, the RAD did not assume that he could not ever be discovered in Karachi—the RAD found on a balance of probabilities that he had not established that the agents of persecutions did not have the means or motivation to find him in Karachi. Additionally, there was no issue with Mr. Aslam’s credibility and his submissions regarding facts to establish his credibility are not accurate characterizations of the RAD’s decision.
B. There was no breach of procedural fairness
[28] The RAD did not breach procedural fairness. Mr. Aslam was provided with the opportunity to present his case and respond to the case to meet in light of his status as a self-represented litigant. Nothing in the RAD’s process or decision required additional time to Mr. Aslam, or additional opportunities for him to provide further submissions and evidence.
V. Conclusion
[29] The RAD’s decision was procedurally fair, and it reasonably excluded proposed evidence and reasonably found Mr. Aslam to have an IFA in Karachi. For these reasons, the application for judicial review is dismissed.
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