Docket: IMM-11995-23
Citation: 2024 FC 1855
Toronto, Ontario, November 20, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
ROBABEH RAHIMSALEHI
|
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] Ms. Robabeh Rahimsalehi applied for permanent residence from within Canada on humanitarian and compassionate grounds [H&C]. An Officer was not satisfied that H&C relief was warranted in the circumstances and, as such, her application was refused.
[2] Ms. Rahimsalehi now seeks to challenge this decision. For the following reasons, I will grant this application for judicial review.
II. BACKGROUND
A. Facts
[3] Ms. Rahimsalehi is a 74-year-old citizen of Iran. She has three living children: Mehrdad Moayedi, Bahareh Moayedi, and Ghazal Moayedi. She also has one deceased daughter, Mahta Moayedi, who died in Woodbridge, Ontario in November 2015.
[4] Ms. Rahimsalehi has lived in Canada since October 2021. She resides in Toronto with her daughter Ghazal, Ghazal’s husband, and their nine-year-old daughter Melody. She additionally spends time with her granddaughter, Helya (daughter of the late Mahta Moayedi) in Barrie, Ontario.
[5] Ms. Rahimsalehi has travelled between Iran and Canada with some frequency since October 2005, in order to visit Helya and Mahta (when she was alive), and then to visit Ghazal and her family after they immigrated in November 2020. She gained permanent residence in Canada in 2009, after being sponsored by Mahta. She later returned to Iran in 2010. In 2015, Mahta was diagnosed with terminal cancer. On advice from an immigration consultant, Ms. Rahimsalehi renounced her permanent resident status to apply for a temporary resident visa, in order to rapidly return to Canada and care for her daughter until she passed.
[6] She continued to visit Helya on visitor visas from 2015 to 2020, staying the maximum six months each time.
[7] The Applicant’s two other living children in Iran, Mehrdad and Bahareh, do not have any contact with her. She has one living brother in Iran, but does not have a relationship with him or other members of their extended family in Iran.
[8] Ms. Rahimsalehi is very close to her granddaughters, Helya and Melody. Helya, while now an adult, was raised in part by Ms. Rahimsalehi and lived with her in Iran from 2010 to 2012 in order to escape an abusive stepfather. After Helya’s mother’s passing, Ms. Rahimsalehi provided emotional and financial support, helping her to lease an apartment and helping with her rent payments. She further provided financial assistance to Helya to help her purchase her home in Barrie.
[9] Ms. Rahimsalehi additionally functions as Melody’s day-to-day primary caregiver – as both Ghazal and her husband work outside the home – providing meals, doing school pick-up and drop-off, helping with homework, and ensuring that her emotional needs are met. Melody relies on Ms. Rahimsalehi for her “daily functions and routine,”
and is very attached and will begin crying when apart from Ms. Rahimsalehi, who is the only grandparent involved in Melody’s life.
[10] In October 2021, Ghazal became pregnant with her second child. It was a high-risk pregnancy, and she needed constant at-home support. Ms. Rahimsalehi provided that support, caring for Ghazal and for Melody throughout Ghazal’s pregnancy. The expected due date was July 11, 2022. There is no information in the record regarding the child’s birth.
[11] In June 2022, Ms. Rahimsalehi applied to re-obtain her permanent residence in Canada, this time on humanitarian and compassionate grounds, pursuant to s.25(1) of the IRPA. She provided the following in support of her application:
a)Affidavit evidence;
b)Written submissions;
c)Support letters from Helya and Ghazal; and
d)Documentary evidence regarding the importance of grandparental care, regarding impacts of adverse childhood experiences and parental stress on children, regarding effects of relocation on the elderly, regarding stigma against female-headed households in Iran, regarding the Iranian economy and the Iranian medical system, and regarding elder abuse in Iran.
B. Decision under Review
[12] Ms. Rahimsalehi’s H&C application was refused. In arriving at this determination, the Officer who decided the matter considered the Applicant’s submissions regarding the best interests of Melody and Helya. The Officer also considered the Applicant’s family ties and establishment in Canada, and adverse country conditions in Iran. While acknowledging that the Applicant’s return to Iran would cause some hardship, the Officer ultimately concluded that these factors did not warrant an exemption on H&C grounds.
[13] In considering the best interests of the child, the Officer assigned little weight to the interests of Helya, who is now an adult and has been able to keep in contact with the Applicant during previous separations. Regarding Melody, the Officer acknowledged the strength of her bond with her grandmother, and the important role that Ms. Rahimsalehi has played in her life. The Officer also acknowledged that there would be “some impact”
on Melody, if the Applicant were to leave Canada. However, the Officer concluded that there was insufficient evidence to show that Melody would be unable to maintain contact with her grandmother through technology. The Officer also noted the possibility that Ms. Rahimsalehi would be able to visit Canada temporarily in the future, as she had done in the past.
[14] The Officer further observed that Melody will continue to reside with and receive the care of her parents in Canada, and therefore found that Melody’s best interests would not be significantly impacted by the Applicant’s H&C refusal.
[15] On the issue of family ties and establishment in Canada, the Officer acknowledged the care the Applicant provided during Ghazal’s second pregnancy, and acknowledged that Ms. Rahimsalehi and her daughter Ghazal are very close and would like to live together in Canada. The Officer concluded, however, that requiring the Applicant to return to Iran was unlikely to result in permanent separation as the Applicant had already demonstrated her ability to visit Canada, as shown by her current immigration status and her past visits.
[16] The Officer further found that the evidence did not indicate that Ms. Rahimsalehi’s establishment in Canada is such that there would be an associated hardship in departing Canada and applying for permanent resident status from outside of Canada, as her establishment is based on family ties, which could be maintained from abroad.
[17] On the question of the country conditions in Iran, the Officer found that the Applicant did not provide evidence to show that she would be unable to live in Iran with her pension and support from her children and grandchildren, if required. The Officer acknowledged that the Applicant is not in contact with her two children in Iran, but found that “based on the cultural norms of children looking after their elders, the applicant has not provided sufficient information on why her two estranged children would not consider helping her if she were to return to Iran.”
Further, the Officer found that Ms. Rahimsalehi had not provided information as to why Ghazal and Helya could not continue supporting her financially in Iran. The Officer also noted that Ms. Rahimsalehi had lived in Iran after the death of her husband in 2000.
[18] On the issue of Ms. Rahimsalehi’s mental health concerns and the Iranian healthcare system, the Officer found that universal healthcare is enshrined in Iran’s constitution and the government is the country’s largest healthcare provider. Further, Ms. Rahimsalehi’s medical concerns were speculative, and insufficiently documented.
[19] Finally, the Officer acknowledged that there is currently an administrative deferral of removals [ADR] to Iran due to country conditions. While acknowledging the ADR, the Officer indicated that the application had been assessed based on “the country conditions as they currently are and particular to the applicant’s circumstances.”
III. ISSUES and STANDARD OF REVIEW
[20] The broad issue that arises on this application is whether the Officer’s decision, and the reasons provided in support of that decision, were reasonable.
[21] The parties do not dispute that the appropriate standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25 [Vavilov], Okohue v Canada (Minister of Citizenship and Immigration), 2020 FC 100 at paras 24-25, Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 at paras 44-45 [Kanthasamy].
[22] The reasonableness standard is not a “treasure hunt”
for errors, but is rather a review of a decision to determine whether it demonstrates certain broad, yet essential, attributes, namely justification, transparency, and intelligibility. Reasonableness review is meant to ensure that courts intervene in administrative matters only when necessary to safeguard the legality, rationality and fairness of the administrative process: Vavilov at para 13.
IV. ANALYSIS
A. Legal Framework
[23] In Kanthasamy, the Supreme Court of Canada described s.25 of the IRPA as “a flexible and responsive exception to the ordinary operation of the Act…a discretion to mitigate the rigidity of the law in an appropriate case.”
The Court further stated that the H&C exception was not intended to be an alternative immigration scheme, but was rather meant to “offer equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”
: Kanthasamy at para 21, citing Chirwa v Canada (Citizenship and Immigration) (1970), 4 I.A.C. 338 at p. 350.
[24] In Mitchell v Canada (Citizenship and Immigration), 2019 FC 190 (at para 24) the Honourable Madam Justice Walker (then of this Court) recast the consideration for H&C relief as follows: “Were the applicant’s circumstances, when considered with humanity and compassion, sufficient to warrant extraordinary relief?”
[25] Within the larger context of humanitarian determinations, the best interests of children [BIOC] are specifically enumerated under s.25(1). As the Supreme Court noted in Kanthasamy, where “the legislation specifically directs that the best interests of a child who is ‘directly affected’ be considered, those interests are a singularly significant focus and perspective”
: para 40, citing A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paras 80-81 [A.C.].
[26] The Court in Kanthasamy also noted the highly contextual nature of the “best interests”
principle because of the myriad factors that may affect a child’s interests. As such, any BIOC analysis must “be applied in a manner responsive to each child’s particular age, capacity, needs and maturity…The child’s level of development will guide its precise application in the context of a particular case”
: Kanthasamy at para 35, citing A.C. at para 89; Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 at para 11; Gordon v Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 at para 20.
B. The Officer’s BIOC Analysis
[27] In applying the above framework to this matter, I find that the Officer did not properly characterize, or adequately consider, the best interests of the Applicant’s granddaughter Melody.
[28] First, in considering Melody’s best interests, the Officer downplayed the impact that her grandmother’s departure would have on her in a manner that was unsupported by the evidence. The Officer did acknowledge that there would be “some impact”
on Melody if the Applicant were to leave Canada, but concluded that her best interests would not be “significantly impacted”
.
[29] Respectfully, this finding is difficult to square with the evidence in the record, which indicated that the Applicant loves and cares for Melody like she is her own daughter, and that she has taken over many of the responsibilities in her daughter Ghazal’s home including:
a)Childcare for Melody during the day while her parents are at work
b)Cooking for the family and feeding Melody
c)School drop-offs and pick-ups, and ensuring that Melody completes her schoolwork on time
d)Going to the parks and teaching Melody about Persian culture and language
[30] Given the central role that the Applicant has come to play in Melody’s basic care, the Officer’s conclusion that Melody would not be significantly impacted by her grandmother’s departure was simply incompatible with the evidence in the record.
[31] Second, in the circumstances of the role that the Applicant plays in Melody’s life, it was unreasonable for the Officer to suggest that their relationship could be maintained “through media such as cell phones and through the internet.”
On this issue, I adopt the reasoning of my colleague Justice Go in Chamas v Canada (Citizenship and Immigration), 2021 FC 1352. In that matter, as here, the evidence was that the Applicant played an active and daily role in the care, including the physical care, of her granddaughter. In this context, Justice Go found that it was unreasonable for an officer to find that the child’s best interests could be preserved through online media. Justice Go stated in this regard (at paras 41-42):
Aside from it being a poor substitute for playing in the park – an activity that the Applicant and her granddaughter spend much time doing together – social media cannot replace the daily care and support that the Applicant provides to her granddaughter, like getting H. ready for school, taking her to school, going shopping together, and helping her with her problem or question whenever it arises. These activities could only be carried out if the Applicant is physically in Canada, and continues to be present in the lives of her daughter and granddaughter.
Yet once having decided that the Applicant, her daughter and granddaughter can somehow live their lives and carry on their relationship online through social media, the Officer stopped asking what, if any, impact the departure of the Applicant would have on H. The Officer never identified what would be in the best interests of H. and how her best interests would be affected by the Applicant’s departure. The Officer’s failure to undertake such an analysis suggests that the Officer is not being alert, alive and sensitive to H.’s interests.
[32] Third, I find it was unreasonable for the Officer to conclude that there was little evidence to show that a refusal of the application would negatively impact Melody because her relationship with the Applicant was formed while the latter had temporary status in Canada. This is essentially a finding that temporary status is equivalent to permanent status – a proposition that this court has found to be unreasonable: Bernabe v Canada (Citizenship and Immigration), 2022 FC 295 at para 31.
[33] In light of the above findings, I have concluded that the Officer’s decision falls short of the requirement that the children’s interests be “well-identified and defined”
in light of all the evidence: Kanthasamy at para 39.
C. The Hardship Analysis
[34] While the above provides a sufficient basis on which to grant this application for judicial review, I will also briefly comment on the Officer’s hardship analysis. While aspects of this analysis appear to be reasonable, it was not reasonable for the Officer to speculate that the Applicant’s children in Iran would care for her if she were to return to the country.
[35] The evidence before the Officer was that Ms. Rahimsalehi was estranged from her Iranian children – they are not in any contact and they do not have a relationship. As noted above, despite this evidence, the Officer found that “based on the cultural norms of children looking after their elders, the applicant has not provided sufficient information on why her two estranged children would not consider helping her if she were to return to Iran.”
[36] This finding was unsupported by the documentary record, and was entirely speculative. In addition to the Applicant’s statement that she was completely estranged from her Iran-based children, she also submitted a study on the state of elder care in Iran, which demonstrated that familial abuse and neglect are not uncommon. In other words, this evidence directly called into question the Officer’s findings on cultural norms, and how they would play out in the Applicant’s situation.
V. CONCLUSION
[37] For the reasons set out above, I will grant this application for judicial review. Neither party proposed a question for certification, and I agree that none arises.
Email this Content