Docket: IMM-5593-15
Citation:
2016 FC 1308
Ottawa, Ontario, November 28, 2016
PRESENT: The
Honourable Mr. Justice Bell
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BETWEEN:
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SAIED ROSHAN
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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.
Overview
[1]
On November 19, 2015 a Senior Immigration
Officer [the Officer] refused the Applicant’s (Mr. Roshan) request that he be
permitted to make an application for permanent resident status from inside
Canada, pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA] for humanitarian and compassionate
[H&C] reasons. The Officer concluded Mr. Roshan would not face unusual,
undeserved or disproportionate hardship in being required to make his
application for permanent residency from outside Canada.
[2]
On September 13, 2016, I allowed the
application for judicial review and ordered the matter be remitted to another
officer for re-determination. I indicated that reasons would follow; these are
my reasons.
II.
Background
[3]
Mr. Roshan, an atheist, is a thirty-four
year-old citizen of the Islamic Republic of Iran. On May 4, 2012, he arrived in
Canada where he made a refugee claim at the Lester B. Pearson International
Airport. His claim was rejected on January 8, 2014. His application for leave
and judicial review of the rejection of his refugee claim was denied on May 28,
2014. Following dismissal of a pre-removal risk assessment [PRRA] on November
19, 2015, Mr. Roshan sought leave to bring an application for judicial review
of the PRRA decision. This Court has not yet pronounced on that matter. In the
meantime, Mr. Roshan filed an application for permanent resident status from
within Canada, pursuant to section 25(1) of the IRPA. It is the rejection of Mr.
Roshan’s application for permanent resident status that is presently before the
Court.
III.
Impugned Decision
[4]
The Officer found that Mr. Roshan would not face
unusual, undeserved or disproportionate hardship if he were required to apply
for permanent resident status from outside Canada. Mr. Roshan contends the
Officer’s decision is flawed because she did not correctly apply the legal test
set out in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC
61, [2015] 3 S.C.R. 909 [Kanthasamy]. Specifically, Mr. Roshan contends the
Officer unlawfully fettered the broad discretion granted by Parliament to
consider humanitarian and compassionate factors in rejecting his claim.
IV.
Issues
[5]
Mr. Roshan contends that (i) the Officer failed
to apply the correct legal test in her analysis of the humanitarian and
compassionate considerations, which underpinned her subsection 25(1) analysis;
and (ii) the application of the test must be measured against a correctness
standard. By applying the wrong legal test, he contends that the correctness
standard is not met and judicial review should be granted. In the alternative,
if the Officer did in fact apply the correct legal test, he contends the
decision does not meet the test of reasonableness as articulated in Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir].
V.
Analysis
A.
Standard of Review
[6]
Mr. Roshan relies on Taylor v Canada
(Citizenship and Immigration), 2016 FC 21 at para 18, [2016] FCJ No. 23 [Taylor]
in support of his contention that the choice of the legal test attracts a standard
of correctness. With respect, I disagree. In Kanthasamy, although the
Court concluded the decision maker had inappropriately fettered her discretion
by applying an incorrect legal test, both the majority and the minority applied
the reasonableness standard of review. The Court in Kanthasamy never
departed from its opinion in Dunsmuir that the reasonableness standard
of review applies to questions of law related to the interpretation of a
tribunal’s home statute. In this case, the Officer was called upon to interpret
subsection 25(1) of the IRPA, her home statute. With respect to those who hold
a contrary view, the appropriate standard of review is that of reasonableness.
[7]
With respect to the soundness of the decision as
a whole, Mr. Roshan acknowledges that the standard of review is reasonableness.
That is, does the impugned decision “fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” and is there “transparency and
intelligibility within the decision-making process” (Dunsmuir,
above, at para 47).
B.
Was the Officer’s decision reasonable with
respect to the application of the legal test?
[8]
Mr. Roshan contends the Officer unlawfully
failed to take into consideration humanitarian and compassionate considerations
when assessing his application for permanent resident status from within Canada.
Mr. Roshan relies on Kanthasamy, in which Abella J. provides direction on
the correct interpretation of subsection 25(1):
The words “unusual and undeserved or
disproportionate hardship” should therefore be treated as descriptive, not as
creating three new thresholds for relief separate and apart from the
humanitarian purpose of s. 25(1). […] The three adjectives should be seen as
instructive but not determinative, allowing s. 25(1) to respond more flexibly
to the equitable goals of the provision.
[9]
Mr. Roshan relies heavily upon the majority’s
reference in Kanthasamy to Chirwa v
Canada (Minister of Citizenship and Immigration) 1970, 4 IAC 338 [Chirwa], in which the Immigration
Appeal Board employed a rather subjective test as the standard for intervention
on humanitarian and compassionate grounds (Kanthasamy, above, at para
13). According to its test the facts would need to “excite
in a reasonable man [sic] in a civilized community a desire to relieve the
misfortunes of another - so long as these misfortunes ‘warrant the granting of
special relief’ from the effect of the provisions of the Immigration Act”. Mr.
Roshan contends the majority in Kanthasamy
holds Chirwa up as the foundation for the legal test under the subsection
25(1) humanitarian and compassionate exception set out the IRPA. I do not share
Mr. Roshan’s liberal application of the Chirwa tribunal decision.
[10]
While the majority in Kanthasamy discussed
the Chirwa test when analyzing the legislative and jurisprudential
history of the subsection 25(1) exception, it distanced itself from that very
same test in its determination of the case before it. The majority specifically rejected a ‘stand-alone’ Chirwa approach
preferring one which “[treats] Chirwa less
categorically, using the language in Chirwa as co-extensive with the Guidelines
[…]” This ‘second’ approach finds favour
in para 31 of Kanthasamy, where the majority confirms that this approach
is “more consistent with the goals of s. 25(1)”. While the Chirwa test may influence the
application of the Guidelines on International Protection No. 8 [the
Guidelines], other factors may also do so. Those other factors may, in my view,
include a fulsome analysis of the exceptional nature of relief based upon H&C
grounds, as outlined by the minority in Kanthasamy. Therefore, although
the majority and minority do not agree upon the ‘legal test’ to apply when
assessing a subsection 25(1) exception, practically speaking, they agree that
the determinative issue is whether the factors taken into consideration result in
a reasonable decision. They ultimately both seek to ensure that officers do not
fetter their discretion with a strict application of the Guidelines. I will attempt
to follow that approach.
[11]
The Respondent contends that the Officer’s
interpretation of the subsection 25(1) exception respects the principles set
out in Kanthasamy, and is consequently reasonable. I agree. While the Officer evaluated
certain factors through the lens of the unusual, undeserved or
disproportionate hardship threshold, she also took into consideration other
factors such as Mr. Roshan’s establishment in Canada, his ability to speak
Farsi, the fact he would face some degree of hardship upon a return to Iran, and
his good civil record. In my view, the Officer’s application of the legal test
is consistent with the view expressed by Abella, J. in Kanthasamy, when
she states at para 25:
What does warrant relief will
clearly vary depending on the facts and context of the case, but officers
making humanitarian and compassionate determinations must substantively
consider and weigh all the relevant
facts and factors before them.
[My emphasis.]
[12]
Finally, I would note that the facts and
law presently before the Court are distinguishable from those addressed in Kanthasamy.
In that decision, the Supreme Court placed particular emphasis upon the failure
of the tribunal to adequately address the “best
interests of the child” factor, as set out in subsection 25(1) of the IRPA.
[13]
I find the Officer’s interpretation of
subsection 25(1) of the IRPA and the factors used in her assessment of the humanitarian
and compassionate exception to be reasonable. As set out below, it is the
application of that reasonable legal interpretation which I find problematic.
C.
Was the Officer’s
Decision Reasonable?
[14]
As already indicated, Mr.
Roshan is an atheist, and led evidence to this effect. He led un-contradicted
evidence from Robert David Onley [Mr. Onley] a lawyer with the then Office of
Religious Freedom in the Department of Foreign Affairs (now Global Affairs
Canada), that the Iranian government executes, tortures, imprisons and punishes
people who identify as atheists. The letter provided by Mr. Onley also states
that the Iranian government does not hesitate to kill people who identify as
having apostate beliefs. Atheism is considered an apostate belief. The Officer
also referred to a United States Department of State International Religious
Freedom Report for 2013: Iran [USDS Report], which states:
The constitution
does not provide for the rights of Muslim citizens to choose, change or
renounce their religious beliefs. The government automatically considers a
child born to a Muslim father to be a Muslim and deems conversion from Islam to
be apostasy, which is punishable by death.
[15]
In the course of
rejecting the claim for humanitarian and compassionate relief, the Officer
briefly referred to the fact that atheists are becoming more accepted “among some Iranians”. This fact, along with her observations
that Mr. Roshan did not offer evidence that he is a religious leader or
activist, led the Officer to conclude there were insufficient humanitarian and
compassionate grounds to justify granting the subsection 25(1) exception.
[16]
While I have already expressed my view
that the Officer’s formulation of the test for the application of humanitarian
and compassionate relief is reasonable, I am of the view that in the
circumstances, the application of the test, and, hence, the conclusion, are
both unreasonable. When I consider the goals of subsection 25(1) through the
‘exceptional nature of H&C relief’ lens advocated by the minority in Kanthasamy,
I am left with many unanswered questions. For example, why did the Officer
conclude that Mr. Roshan had lived in Iran for 30 years with no problems
related to his atheism, when Mr. Roshan’s evidence was that his atheism is of
recent genesis, having developed in the last 10 years? How could the Officer
accept as credible the evidence from Mr. Onley and the USDS Report regarding
the treatment of atheists by the government of Iran, but discount it completely
by observing that atheism is becoming more accepted in Iran? I can see no link
between the State’s actions towards atheists and the fact that atheism is
becoming more accepted by some citizens of Iran. Finally, what is the
relevance of concluding that Mr. Roshan is not a leader in the atheist
movement? The evidence from Mr. Onley and the USDS Report do not suggest that
persecution of atheists is limited to leaders in the atheist community. These
unanswered questions lead me to conclude that, while the decision may be within
a range of possible, acceptable outcomes, it is not defensible in respect of
the facts and law. Furthermore, in my view, while there may be some degree of
transparency in the Officer’s approach, I find the reasons neither justifiable,
nor transparent (Dunsmuir, above, at para 47).
[17]
In reaching this conclusion, I am mindful of the
fact that this Court should not unnecessarily parse the Officer’s decision (Kanthasamy,
above, at para 11) and that I should consider whether there is, in the record,
evidence upon which the Officer could have reasonably reached the conclusion
she did: see Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 18, [2011] 3 S.C.R. 708.
Because of my unanswered questions and my inability to divine how the Officer
chose to disregard key evidence from Mr. Onley and the Department of State, I
am unable to apply Newfoundland Nurses to save the impugned decision.
JUDGMENT
THIS COURT’S JUDGMENT is that the application
for judicial review is allowed without costs. I do not consider there to
be a question certifiable for consideration by the Federal Court of Appeal and
none is therefore certified.
“B. Richard Bell”
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