Docket: IMM-1668-15
Citation:
2015 FC 1285
Toronto, Ontario, November 17, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MONIR
DARVISHPOUR HASSANKIADEH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of the decision of a Senior Immigration Officer [Officer],
dated February 27, 2015, rejecting the Applicant’s application for
permanent residence from within Canada on humanitarian and compassionate
grounds [H&C Application].
II.
Background
[2]
The facts are identical to this Court’s decision
in IMM‑1667‑15.
[3]
In addition, in October 2014, the Applicant
filed her H&C Application in which she stated that her application is based
on her establishment in Canada, the caring for her disabled daughter, Hanieh
Gholami due to her daughter’s detention, rape, and attempted suicide with
cyanide in Iran which left the daughter disabled. The events in Iran which had
occurred to the daughter are allegedly the very basis for which the daughter
attempted to come to Canada in any way possible. The daughter’s traumatic
experiences are also the basis for the subsequent conversion to Christianity of
the Applicant. The H&C application is based on consequences as to the hardship
due to the Applicant’s conversion from Islam to Christianity which the
Applicant claims she would face in Iran; and, in addition the Applicant has stated
that the best interests of her grandson are also a factor for her application.
The H&C Officer rejected all of the grounds of the Applicant, in a decision
dated February 27, 2015.
III.
Decision under Review
[4]
In his decision, the Officer relied, in part, on
his findings in regard to the pre-removal risk assessment and the findings of
the RPD in respect of sections 96 and 97 of the IRPA as to the assessment of
hardship of the Applicant if she would be obliged to apply from abroad. The
Officer also considered, in a broader context, the additional allegation of
unusual and undeserved or disproportionate hardship as submitted by the
Applicant. The Officer determined that the Applicant did not demonstrate that
she is a “genuine” Christian; and, that, even
she is, he did not consider her to be at risk due to insufficient evidence that
the Applicant would be personally discriminated or persecuted because of her
religious beliefs. The Officer also assessed the best interests of the Applicant’s
child; and, found insufficient humanitarian and compassionate considerations to
warrant granting an exemption to the normal process.
IV.
Analysis and Conclusion
[5]
Given the Court’s detailed analysis of the
substantive subjective and objective evidence in respect of IMM-1667-15, the Officer
erred in his assessment of the risk of persecution and consequences therefrom
if the Applicant is made to return to Iran. Therefore, a different officer will
have to assess the hardship that the Applicant may face, if her H&C
application is rejected due to the potential peril to the Applicant’s life and
limb as a result of the Applicant having converted from Islam to Christianity.
Substantive affidavit evidence from several clergy men in Canada in respect of
the Applicant’s genuine practice of Christianity and objective Country
Condition evidence thereon point to the inherent potential danger to the
Applicant if she is made to return to Iran.
[6]
As a result, this application for judicial
review is granted on the basis of the analysis that the H&C Officer relied
almost exclusively on the PRRA Officer’s determination; and furthermore, did
not consider the significant substantial evidence as to the consequences of the
Applicant’s conversion from Islam to Christianity as is described in the
analysis of IMM-1667-15, both in the subjective and objective evidence if she
was made to return to Iran. In addition the Applicant would be subject to a
situation of serious, usual and undeserved or disproportionate hardship if she
attempted to apply for H&C from Iran.
[7]
It is also recognized by the Court, the
Applicant has put forward in her H&C application the need to care for her
disabled daughter due to the trauma which her daughter had undergone as a
result of her daughter’s detention, rape, and attempted suicide with cyanide in
Iran which the Applicant would provide for her outside of Iran due to the
trauma which had occurred in Iran due to circumstances therein.
[8]
Therefore, for all of the above reasons the
judicial review application is granted.
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