Date: 20241120
Docket: IMM-5275-23
Citation: 2024 FC 1854
Toronto, Ontario, November 20, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
MASOUMEH HATAMI
|
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] Ms. Masoumeh Hatami sought to obtain permanent residence from within Canada on humanitarian and compassionate grounds [H&C]. Her application was refused, as an Officer found that an exemption from the ordinary requirements of the Immigration and Refugee Protection Act [IRPA] was not warranted.
[2] Ms. Hatami now seeks to challenge this decision. For the following reasons, I agree with Ms. Hatami – on at least one important ground, the Officer’s decision was unreasonable and, as such, I will grant this application for judicial review.
II. BACKGROUND
A. Facts
[3] Ms. Hatami is a citizen of Iran. She has three children, aged 46, 39, and 38, who are grown and have lives and families of their own. In Iran, Ms. Hatami was a teacher for 16 years and a principal for 14 years. She had been married to her first husband for 37 years, before his passing in 2009.
[4] In around August 2018, Ms. Hatami met her second husband, the late Mr. Mohammad Akbari (a Canadian citizen) through a mutual friend. They began communicating online and fell in love. Mr. Akbari visited the Applicant in Iran in December 2018, and proposed to her on December 22, 2018. The couple were married in Iran in August 2019. When Mr. Akbari returned home to Canada, he immediately opened a spousal sponsorship application.
[5] In 2019, prior to coming to Canada, the Applicant participated in two protests to increase the wages and benefits of teachers in Iran – one in May 2019 and the other in October 2019 [the Teachers’ Protests]. During the May protest, Ms. Hatami noticed police officers taking photographs of the protestors. She felt scared and immediately left the protest. After the October protest, the government provided a slight increase in salaries and benefits, but also began arresting protest participants – whom they identified by obtaining names and matching them against photos taken at the protests.
[6] The Applicant’s sponsorship application was delayed at the beginning of 2020 by the COVID-19 pandemic. At around the same time, in May 2020, Mr. Akbari’s health deteriorated and he was listed as a candidate for a lung transplant. In August 2020, he was diagnosed as terminal and given an expected three months to live. As a result, Ms. Hatami was issued an expedited visitor visa so she could travel to Canada and care for her husband. She arrived in Toronto in September 2020, and cared for Mr. Akbari until he died in February 2021.
[7] After arriving in Canada, a friend and former colleague of the Applicant was arrested in Iran by the Iranian Intelligence Services. The friend was interrogated and tortured, and was asked to provide the names of other protesters based on photographs that were presented to her. In their interrogation, the officers specifically pointed to a photo of the Applicant and asked for her location so they could arrest her for her participation in these two protests. The friend said she did not know where the Applicant was, but they did not believe her.
[8] In April 2021, the Applicant was referred for counselling to help manage her grief.
[9] The Applicant’s sponsorship application was still in progress at the time of Mr. Akbari’s death. In September 2021, she requested to have the spousal application considered on H&C grounds from within Canada. The Applicant never received a reply, and so submitted a stand-alone H&C application in February 2022. It is the denial of this decision that is the subject of this application for judicial review.
B. Decision under Review
[10] An Officer refused the Applicant’s H&C application in a decision dated April 12, 2023. The Officer assessed Ms. Hatami’s establishment in Canada and the hardship she would face if forced to return to Iran, and concluded that those factors were insufficient to warrant relief on humanitarian and compassionate grounds.
[11] The Officer gave “some positive consideration”
to the Applicant’s establishment in Canada. The Officer noted that Ms. Hatami has lived in Canada since August 2020, has not left the country since, and has formed significant and meaningful relationships in her community. The Officer further noted that Ms. Hatami has financially established herself in Canada. She owns two properties, one of which she intends to sell when it is finished construction; she has significant savings and the means to support herself; and she intends to work as a caregiver when given the opportunity. Finally, the Officer recognized that the Applicant pays taxes, has no criminal record, and has never violated her immigration status in Canada.
[12] However, the Officer determined that the Applicant would not face sufficient hardship warranting an exemption on H&C grounds. While Ms. Hatami would be separated from her social network in Canada, the Officer was unsatisfied that Ms. Hatami would be unable to create a new social network. The Officer also noted that there are methods of communication Ms. Hatami can utilize to maintain her relationships in Canada.
[13] The Officer also found that the Applicant has “several extended family members”
in Iran, including her daughter, who can provide, “at the very least, some emotional assistance.”
[14] Additionally, the Officer acknowledged the “tragic events which led to [the Applicant’s] spousal sponsorship refusal”
and her emotional trauma as a result of her spouse’s death, as well as the late Mr. Akbari’s wish for her to live in Canada. However, the Officer determined that Ms. Hatami has resources available to her that would allow her to return to Iran and experience minimal hardship – specifically, the properties in Canada and her savings. This would allow her to continue her grief counselling and mental health treatment in Iran. The Officer also noted that the Applicant had lived and supported herself in Iran throughout the vast majority of her life.
[15] The Officer further considered the risk that Ms. Hatami could experience upon return to Iran, given her participation in the teachers’ protests, and found that she had not submitted any evidence in support of this hardship. For example, the Officer noted that the Applicant had not tendered any letters from witnesses or documentation from the colleague who was arrested; in summary, the Officer found that Ms. Hatami failed to “provide vital information regarding the risk.”
[16] Finally, the Officer determined that, while the “overwhelming”
documentary evidence confirms that women face discrimination across many formal and informal areas - such as (but not limited to) employment, general marriage rights, and gender-based violence, the Applicant has certain factors that mitigate the potential hardship of being a single woman in Iran. Those factors are: her significant financial resources, her family members, and her previous experience living as a single woman in Iran. In coming to this conclusion, the Officer noted that Ms. Hatami spent the vast majority of her life in Iran and did not indicate that she faced issues related to her gender, and that she lived without incident as a single female in Iran for approximately nine years after her first husband passed away.
[17] The Officer therefore concluded that, despite the various factors that weighed in her favour, the Applicant’s situation was not cumulatively sufficient to warrant H&C relief.
III. ISSUES and STANDARD OF REVIEW
[18] 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.
[19] 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].
[20] 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 and rationality of the administrative process: Vavilov at para 13.
[21] The departure point is one of judicial restraint, based on the distinct role of administrative decision makers in our public law regime. However, as the Supreme Court noted in Vavilov, judicial review is not a “rubber-stamping”
process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review: Vavilov at paras 13, 24, 30, 85.
IV. ANALYSIS
A. Legal Framework
[22] Under s. 25(1) of the Immigration and Refugee Protection Act [IRPA], the Minister has a discretion to exempt foreign nationals from virtually all applicable criteria or obligations under the Act, if the exemption is justified by humanitarian and compassionate considerations.
[23] In Kanthasamy, the Supreme Court outlined the legislative history of the H&C regime in Canadian immigration law. The Court noted that, throughout this history, H&C provisions have shared a common purpose, namely “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.
[24] The Supreme Court then went on to describe the underlying purpose of the H&C regime as a “flexible and responsive exception to the ordinary operation of the Act,”
which has also been described as a “discretion to mitigate the rigidity of the law in an appropriate case”
: Kanthasamy at para 19.
[25] At the same time, the Court in Kanthasamy outlined the limitations of the H&C exception (at paras 23-24): i) it was never intended to be an alternative immigration scheme; ii) some hardship is the inevitable consequence of being required to leave Canada; iii) it is not meant to duplicate refugee proceedings under s. 96 or s. 97(1) of the IRPA.
[26] Following Kanthasamy, the following considerations are relevant to an analysis under s.25(1) of the IRPA:
What warrants relief will vary depending on the facts and context of each case, but officers making H&C determinations must substantively consider and weigh all the relevant facts and factors before them: Kanthasamy at para 25.
IRCC Guidelines, which place an assessment of hardship at the centre of the H&C analysis, remain useful, but they should not be viewed as mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1): Kanthasamy at para 31.
More specifically, the words “unusual and undeserved or disproportionate hardship,”
as found in the Guidelines, should be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1): Kanthasamy at para 33.
Allegations of risk in an Applicant’s country of origin should be considered, not for the sake of assessing refugee protection, but to help determine whether the applicant’s circumstances warrant humanitarian and compassionate relief: Kanthasamy at paras 51, 54.
B. The Officer’s Decision Was Unreasonable
[27] The Applicant argues that the Officer’s decision was unreasonable for four distinct reasons. First, she argues that the Officer’s decision is tainted with unreasonable findings that were unsupported by the evidence. Second, the Applicant argues that the Officer erred in “turning the Applicant’s positive H&C factors into negative ones.”
Third, she argues that the Officer unreasonably conducted a risk assessment and required evidence of personalized risk when such evidence is not required and undermines the purpose of an H&C assessment. Fourth, the Applicant argues that the decision lacks a global assessment of the case, as is required.
[28] I am not convinced by all of these arguments. Some invite me to reweigh evidence that was adequately considered by the Officer. Others, in my view, are based on a close parsing of the Officer’s reasons resembling the “treasure hunt”
that is beyond the scope of judicial review. However, I do find that the Officer’s treatment of the evidence related to the Applicant’s participation in protests in Iran, and the fallout from those protests, to be clearly unreasonable.
[29] In her application, the Applicant provided a statutory declaration, which provided the following details:
The Applicant participated in two political protests related to teacher salaries – she noticed that police officers were photographing participants in the demonstrations, and that members of the state intelligence services were monitoring the second of these protests.
After the second protest, while modest salary increases were implemented, the government also started to arrest people for taking part in the demonstrations – according to the Applicant, the government was able to obtain names and match them with the photographs taken at the protest.
With these arrests, the Applicant became very afraid living in Tehran because she was not certain how long it would take for the government to identify and arrest her for participating.
After coming to Canada, the Applicant learned that a friend and former colleague had been arrested and detained in relation to her participation in the protests. She was interrogated, tortured, and pressured into providing the names of other protesters based on photographs presented to her.
The friend further shared that the authorities had specifically pointed out a photo of the Applicant and asked where they could locate her. The friend said she did not know where she was but they did not believe her.
The Applicant is anxious about the thought of having to return to Iran, partly because she fears that she would be in danger because of her participation in protests and the likelihood that she would be arrested at the airport and tortured.
[30] The Officer summed up these facts, and correctly noted that H&C decision-makers do not determine claims for refugee protection under sections 96 or 97 of the IRPA. The Officer also correctly noted that H&C decision-makers may take facts related to risk into account in determining whether the applicant will face hardship if returned to their country of origin.
[31] To this point in the Officer’s reasons, I see no error. The Officer reasonably summarized the relevant facts, and demonstrated an understanding of the role of an H&C Officer in evaluating hardship that is consistent with paragraph 51 of Kanthasamy.
[32] What came next, however, is of greater concern to me. After acknowledging that officers should consider allegations of risk within the context of the hardship analysis, the Officer found that the Applicant had “not submitted any evidence to support this hardship.”
This is factually incorrect. The Applicant had provided such evidence in the form of a sworn statutory declaration that set out all of the details listed above. The Officer did not question the credibility or the reliability of this statutory declaration.
[33] Reading between the lines, I take the Officer’s statement to suggest that the Applicant had not provided any corroborative evidence to support the assertions set out in the statutory declaration. While this may be true, it is trite law that such corroboration is not necessarily required in circumstances where no doubts have been expressed in relation to an Applicant’s sworn testimony: Lawani v Canada (Citizenship and Immigration), 2018 FC 924 at paras 21, 25; Ndjavera v Canada (Citizenship and Immigration), 2013 FC 452 at paras 5-6.
[34] Furthermore, while the Applicant may not have submitted any documentation corroborating her own personal circumstances, she did submit documents confirming that the teacher protests had taken place, that arrests were made in relation to these protests, and that detainees were severely mistreated. One such document stated: “In recent years, the Islamic Republic's Judiciary has repeatedly persecuted and incarcerated teachers for protesting. In the most recent case, Hamid Reza Rahmati was sentenced to 3 years in prison, 74 public lashes, and 20 million rials in fines.”
[35] Taking the above into consideration, I find the Officer’s rather summary conclusion that the Applicant “would not face hardship as a result of the protests”
to be unreasonable. Contrary to the Officer’s statements, there was evidence in the record confirming both the Applicant’s participation in the protests and the authorities’ specific knowledge that she had participated in them. Given the conditions in Iran, which were also documented in the record, more was required of the Officer in the hardship analysis.
[36] Before concluding, I wish to make one further point. Setting aside the question of whether the Applicant had provided sufficient evidence to establish, objectively, whether she would experience hardship upon return to Iran because of her participation in the protests, there is also the issue of her subjective fear of return. As noted above, the Applicant stated that she has “great anxiety”
at the thought of returning to Iran, specifically because she fears that she will be arrested at the airport and tortured.
[37] This evidence was, in itself, a factor that should have been considered by the Officer. Of course, some hardship and emotional stress are inevitably associated with being required to leave Canada; this hardship does not typically provide a sufficient basis for humanitarian relief: Kanthasamy at para 23. This said, I do not believe that a subjective fear of torture, particularly a fear that has some basis in reality such as it does in Iran, is simply the inevitable hardship associated with a departure from Canada. It is a specific, independent, and presumably exceptional factor that should be considered in the equitable exercise of humanitarian and compassionate discretion.
V. CONCLUSION
[38] For the above reasons, this application for judicial review is granted. The parties did not propose a question for certification and I agree that none arises.
JUDGMENT in IMM-5275-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is granted.
The matter is remitted to a different decision-maker for reconsideration.
No question is certified for appeal.
No costs.
"Angus G. Grant"
Email this Content