Docket: IMM-5099-23
Citation: 2025 FC 442
Toronto, Ontario, March 10, 2025
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
DARYOUSH ABBASI |
Applicant |
and |
MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant seeks judicial review of a decision by a delegate of the Minister of Citizenship and Immigration, finding him to be a danger to the public in Canada pursuant to s.115(2)(a) of the Immigration and Refugee Protection Act, thereby facilitating his removal to Iran. These proceedings arose as a result of the Applicant’s convictions for numerous sexual offences related to female children committed after he obtained refugee protection in Canada.
[2] For the reasons that follow, this application for judicial review will be dismissed. The Minister’s Delegate reasonably assessed the Applicant’s risk of re-offending, and the risk he might face in Iran due to his faith, which had formed the basis of his claim for refugee protection. The Delegate then reasonably balanced these factors – the danger he poses in Canada, against the risk he faces in Iran, together with other humanitarian factors. The decision was intelligible, transparent, and justified with regard to the significant rights at stake for the Applicant. There are no errors that warrant judicial intervention.
II. BACKGROUND
A. Facts
[3] The Applicant, Daryoush Abbasi, is a 46-year-old citizen of Iran. In October 2000, he made a successful refugee claim in Canada on the grounds of his persecution in Iran due to his Baha’i faith. He subsequently applied for and became a permanent resident of Canada.
[4] The Applicant has a troubling criminal history consisting of numerous sexual offences, in which he targeted young and vulnerable female victims. In many situations he induced girls to drink to the point of intoxication, following which he sexually assaulted them.
[5] In September 2002, the Applicant was convicted of Sexual Interference contrary to s.151 of the Criminal Code [also referred to here as the Code]. The victim was a 13-year-old girl with fetal alcohol syndrome. The Applicant received a three-year suspended sentence, and was required to participate and complete Sex Offender programming. As a result of this conviction, in June 2005, a Canadian Border Services Agency [CBSA] officer reported the Applicant as inadmissible to Canada for serious criminality. The report was not referred for an admissibility hearing at the time.
[6] In 2007, the Applicant faced charges involving allegations of sexual assault against a 13-year-old girl. The Applicant was not convicted on these allegations, as, according to the Parole Board of Canada, the charges were “not fully adjudicated.”
[7] In April 2016, the Applicant was convicted of:
a)Three counts of Sexual Interference, contrary to s.151 of the Criminal Code;
b)Two counts of Invitation to Sexual Touching, contrary to s.152 of the Code;
c)Sexual Assault, contrary to s.271 of the Code;
d)Procuring, contrary to s.212(4) of the Code;
e)Uttering Threats, contrary to s.264.1(1)(a) of the Code; and
f)Three counts of Fail to Comply Condition Recognizance, contrary to s.145(3) of the Code.
[8] These convictions arose from a series of sexual assaults perpetrated by the Applicant against three female children that took place between March 2012 and May 2013. One of these victims was, once again, a 13-year-old female who suffered from fetal alcohol syndrome, and operated at the cognitive level of a 6-year-old.
[9] On December 21, 2016, the Applicant was sentenced to 12 years’ imprisonment, including credit of 5 years and 6 months for time served.
[10] In April 2018, the Applicant was reported as inadmissible to Canada for serious criminality, in relation to his December 2016 convictions. This report was referred to the Immigration Division [ID] of the Immigration and Refugee Board for an admissibility hearing.
[11] In June 2018, the ID found the Applicant inadmissible to Canada for serious criminality and issued a deportation order against him. He did not seek judicial review of the ID’s decision.
[12] In January 2019, the CBSA served the Applicant with a notice of its intention to seek a danger opinion against him, pursuant to s.115(2)(a) of the Immigration and Refugee Protection Act [IRPA]. The notice was accompanied by a disclosure of the materials the CBSA intended to submit to the Minister for consideration. The Applicant was invited to make submissions, which he did through legal counsel. In response to further disclosure by the CBSA, the Applicant made additional submissions in June 2021, and again in October 2021. He did so once more in February 2023, in response to a final disclosure of documents by the CBSA.
[13] Finally, in March 2023, a delegate of the Minister of Citizenship and Immigration set out their opinion that the Applicant constitutes a danger to the public in Canada, pursuant to s.115(2)(a) of the IRPA [the “Danger Opinion”
]. On March 10, 2023, a copy of the Danger Opinion was hand delivered to the Applicant. Under s.72(2)(c) of the IRPA, the Applicant had 15 days (exclusive of holidays) – until March 27, 2023 – to commence an application for leave and judicial review of the danger opinion.
[14] The Applicant did not file an application for leave and judicial review until April 20, 2023 – that is, 24 days after the statutory time-period had expired. In his application for leave, he requested an extension of time, though no further arguments in support of an extension of time were provided in the Applicant’s Record.
B. Decision under Review
[15] In forming the opinion that the Applicant constitutes a danger to the public in Canada, the Delegate’s key findings were as follows:
a)The Applicant’s criminal convictions are very serious, as he has repeatedly and deliberately targeted vulnerable and young female teenagers, tempting them with the hope of employment, money, drugs, and alcohol to comply with his demands;
b)The Applicant’s 2016 criminal convictions were accompanied by a number of aggravating factors, including: that the victims were minors and were vulnerable, that the sexual assaults were premeditated, that he was in a position of trust, that he had a prior conviction for a sexual offense against a 13-year-old girl, that he had failed to comply with the sexual offender registry, his use of alcohol and drugs to seek compliance from his victims, and the fact that he took photos of one of the victims. There were no mitigating factors of note;
c)The Applicant deliberately sought out underage victims, with full awareness of his wrongdoing, and likely due to a problematic sexual interest in female children, rather than labouring under some cultural misunderstanding about the appropriateness of relationships between older men and teenaged girls, as he had earlier claimed;
d)According to a September 2022 Parole Board decision, the Applicant falls at the upper end of the moderate risk range with regard to sexual recidivism, and he demonstrated “very little improvements”
from his participation in a sex offender program, and has already re-offended after having completed a sex offender program once previously;
e)The Applicant has not shown significant insight into his pattern of offence, taken meaningful responsibility for his actions, or made real rehabilitative progress;
f)The fact that the Applicant has a very good record of institutional behaviour and has managed his time effectively in prison is not particularly relevant to his risk of re-offending;
g)The Applicant has demonstrated little interest in practicing his faith and, to this extent, did not face a risk of persecution in Iran, though if he were to openly practice his Baha’i or Christian faith in Iran, as opposed to doing so privately, he may face a risk of arrest and detention;
h)The Applicant’s economic establishment and establishment in the community were given positive weight, though the evidence suggested the Applicant’s relationships with his family had suffered during his incarceration. No family had visited during the Applicant’s incarceration and no letters of support were submitted;
i)There was little evidence that the Applicant’s removal would have a significant impact on his 14-year-old son, who had not visited him during his nearly 12-year incarceration; and
j)The Applicant’s mental health was a neutral factor. A doctor had recently rated the Applicant’s mental health needs as low, and the applicant will likely be able to access any mental health services he might require in the future in Iran.
[16] Overall, in the Delegate’s view, the need to protect members of the Canadian public, specifically female children, outweighs the possible risks that the Applicant might face in Iran and the humanitarian factors in the case.
III. ISSUES and STANDARD OF REVIEW
[17] The Applicant raises the following issues on judicial review:
a)Whether the decision-maker erred in finding that the Applicant would not be at risk of persecution or torture if he were to return to Iran;
b)Whether the decision-maker failed to exercise a balance between Canada’s security interest against the Applicant’s interest;
c)Whether the decision-maker has given enough weight to the current circumstances and the progress the Applicant has made while incarcerated and therefore the risk of re-offence must be reassessed;
d)Whether the decision-maker correctly summarized all the documents that were in the CBSA package.
[18] I will consider the first three of the above issues. I will not consider the final issue, as I find that it lacks both precision and merit. While I will consider the remaining issues, I will do so in a different order than that set out by the Applicant, to reflect the proper sequence of analysis undertaken in a Danger Opinion.
[19] First, I will consider the reasonableness of the Delegate’s findings with respect to the danger that the Applicant poses to the public. Second, I will consider the Delegate’s analysis of the risk the Applicant faces if returned to Iran. And finally, I will consider whether the Delegate reasonably balanced the above considerations in concluding that the danger that the Applicant poses in Canada outweighs the risk he faces in Iran, thereby justifying his removal.
[20] All of these issues relate to the substantive reasonableness of the decision under review. The standard of review applicable to these issues is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]; Recinos v Canada (Citizenship and Immigration), 2022 FC 518 at para 24; Arnulfo Recinos v Canada (Immigration, Refugees and Citizenship), 2019 FC 521. A reasonable decision bears the hallmarks of justification, transparency and intelligibility, with the burden resting on the challenging party to show that the decision is unreasonable: Vavilov at paras 99-100.
IV. LEGAL FRAMEWORK
[21] This matter concerns the application of s.115 of the IRPA, which provides as follows:
115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada;
[22] Section 115 of the IRPA gives domestic effect to Article 33 of the United Nations Convention Relating to the Status of Refugees, which is commonly referred to as the non-refoulement clause. As with section 115, Article 33 sets out the basic principle of non-return of those at risk of persecution, but carves out an exception in cases of individuals who pose a danger to the refugee-receiving country:
33(1) No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(2) The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.
B. Jurisprudential Framework
[23] Several decisions of this Court are of assistance in understanding the analysis that is to be undertaken in danger opinions. First, in Williams v Canada (Minister of Citizenship and Immigration), 1997 CanLII 4972 (FCA), [1997] 2 F.C. 646 (C.A.) the Federal Court of Appeal discussed the meaning of the term “danger to the public”
as follows:
In the context the meaning of "public danger" is not a mystery: it must refer to the possibility that a person who has committed a serious crime in the past may seriously be thought to be a potential re-offender. It need not be proven -- indeed it cannot be proven -- that the person will reoffend. What I believe the subsection adequately focusses the Minister's mind on is consideration of whether, given what she knows about the individual and what that individual has had to say in his own behalf, she can form an opinion in good faith that he is a possible re-offender whose presence in Canada creates an unacceptable risk to the public.
[24] Second, in cases such as Ragupathy v Canada (Minister of Citizenship and Immigration), 2006 FCA 151, the courts have set out the preferred sequence of analysis that is to be undertaken in a danger opinion under s.115(2)(a) of the IRPA, which I paraphrase as follows:
In the first step, the Minister’s delegate must confirm that the protected person is inadmissible to Canada on grounds of serious criminality.
In the second step, the delegate must consider whether the protected person is a danger to the public. This determination is to be made with reference to the criminal history of the person concerned, but focuses on the “present or future danger”
that the individual poses to the public.
If the delegate is of the opinion that the presence of the protected person does not present a danger to the public, that is the end of the subsection 115(2) inquiry, and the individual may not be removed from Canada. However, if the delegate is of the opinion that the person is a danger to the public, the delegate must proceed to a third stage, which is to then assess the individual’s risk of persecution, torture or other inhuman punishment or treatment if removed from Canada.
Finally, the delegate must engage in a balancing exercise as between i) the protection of the public from the danger posed by the individual; and ii) the individual’s interest in not being deported to potential harm.
[25] The risk assessment and balancing components of the danger opinion analysis are not rooted in the text of section 115(2) but are intended to ensure compliance with section 7 of the Charter of Rights and Freedoms as set out by the Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1. With this in mind, I turn to a consideration of the Delegate’s opinion.
V. ANALYSIS
[26] As noted above, the Applicant was late in filing his application for leave and judicial review in this matter. The Respondent urges the Court to dismiss the application on this basis alone. I decline this request. In his Notice of Application, the Applicant explained that he remained incarcerated in a federal penitentiary when he received the Danger Opinion. He further stated that he sought legal representation the day he received the Danger Opinion, but that delays with legal aid coverage prevented him from obtaining a lawyer right away.
[27] The Respondent correctly points out that this Court has found that the mere assertion of legal aid delays may not always justify an extension of time. However, the rights at stake in this matter are at the highest end of the spectrum. Taking this factor into account, together with the Applicant’s explanation for the delay, I find that it is in the interests of justice to consider this application on its merits.
B. Preliminary Issue: Improper Relief Sought
[28] The Respondent also points out that the Applicant has requested several forms of relief that are beyond the scope of this application. For example, the Applicant has requested an “order recalling the removal order and/or the deportation order against the applicant.”
He has also requested an order, “directing the [respondent] to restore the applicant’s permanent resident status.”
[29] I agree with the Respondent that these requests are improper. The sole decision under review in this matter is the opinion of the Minister’s Delegate under s.115(2) of the IRPA. As such, the analysis that follows will be confined to this decision.
C. Did the Delegate properly assess the Applicant’s progress and risk of reoffending
[30] The Applicant argues that the Delegate gave insufficient weight to his present circumstances and the progress he has made. More specifically, he asserts that he has completed many programs while incarcerated – ones that are related to his recidivism – and the Delegate did not sufficiently consider these programs in assessing his risk of re-offending.
[31] With respect, this argument, as formulated by counsel for the Applicant, is essentially doomed to fail because it explicitly asks this Court to reweigh the evidence that was before the Delegate. It is trite that a court sitting on judicial review of an administrative decision must refrain from re-weighing evidence that was properly considered by the original decision-maker: Vavilov at para 125.
[32] In any event, the Applicant’s argument is simply out of step with the actual content of the Delegate’s opinion which, in fact, engaged extensively with the Applicant’s conduct and self-improvement efforts while in prison. The Delegate provided a detailed analysis of the Applicant’s participation in various rehabilitative programs, but also noted that, for the majority of his sentence, he refused to discuss his offences, which limited his progress such that the Parole Board denied applications for early release in both 2021 and 2022. The Delegate also specifically considered the various other kinds of vocational programs in which the Applicant had participated, but reasonably concluded that such programs were not “particularly relevant to his risk of re-offense.”
[33] It was also reasonable for the Delegate to consider the fact that the Applicant had participated in sexual offender training following his first conviction in 2002, which appeared to have no effect on his propensity to engage in serious sexual offences. Indeed, the Applicant engaged in an extensive history of sexual assaults on minors after this training. This was also after he had been the subject of a first inadmissibility report, and roughly a decade after his first offences.
[34] The Delegate also considered the psychological risk assessments prepared by the Applicant’s psychologist, which outlined the various efforts and shortcomings exhibited by the Applicant on his rehabilitative journey. The Delegate acknowledged the moderately positive steps that the Applicant had taken, particularly after his criminal appeals process had concluded, but also noted that he was still considered to be at the upper end of the moderate risk range with regard to sexual recidivism. I find that the Delegate reasonably assessed this evidence.
[35] The Delegate referred extensively to the most recent decision of the National Parole Board, and the evidence that was before the Board in that proceeding. This was a reasonable approach to take, given the overlapping considerations that apply to parole proceedings and danger opinions, both of which must assess the likelihood that an individual will re-offend and threaten the safety of others. In its 2021 decision, the Parole Board concluded that the Applicant was likely to, if released, commit a sexual offence involving a child before the expiration of his sentence. In 2022, the Board confirmed the Applicant’s detention order, finding that there was insufficient new information to justify modifying the order. As a result, the Applicant remained in detention for virtually the entirety of his prison sentence (it appears he was released into an immigration detention facility roughly one month prior to his warrant expiry date of June 20, 2023).
[36] In summary, contrary to the Applicant’s submissions, the Delegate engaged extensively with the evidence relating to the Applicant’s activities and conduct while in prison; the Applicant may disagree with the Delegate’s conclusions on his likelihood of re-offending, but this does not render the decision unreasonable. The Delegate appropriately recognized the improvements that the Applicant had demonstrated, but ultimately concluded, on a balance of probabilities, that he continues to represent a present and future danger to the Canadian public, and in particular, to a vulnerable subset of that public. I am satisfied that this conclusion was reasonably open to the Delegate.
D. Did the Minister’s Delegate Err in finding that the Applicant would not be at risk of persecution or torture if he were to return to Iran
[37] The Applicant argues that the Delegate erred in concluding that he would not be at risk of persecution or torture if he were to return to Iran. The Respondent contends that this assertion misses the mark, as the Delegate engaged deeply with the question of the Applicant’s risk, acknowledging the country’s poor human rights track record, its repression of non-Muslim religions, and the possibility that the Applicant could face persecutory treatment or other deprivations of his liberty or security of the person upon return.
[38] I understand the Applicant’s main concern with the Delegate’s assessment of risk to be the suggestion that he could avoid mistreatment in Iran by engaging in either Baha’i or Christian activities discreetly, and within private confines. This finding, he argues, is contrary to basic tenets of religious freedom, which includes the right to manifest one’s religion in public or private.
[39] It is certainly true that the Delegate would have erred had they simply found that the Applicant could avoid persecution by practicing his religion in private. However, the Delegate’s findings were considerably more nuanced than this. First, one of the Officer’s core findings was that there was little evidence to suggest that “Mr. Abbasi’s system of belief is so strongly either Christian or Baha’i at this time, that he would intend to practice either religion if forced to return to Iran.”
[40] This was a reasonable conclusion, based on the record. On the question of the Applicant’s Baha’i background, the Applicant provided no documentation that he had any involvement in Baha’i practices since his arrival in Canada. While his Baha’i faith had formed the basis of his asylum claim some 25 years ago, there was simply no indication in the record that he continues to practice the religion, or had any engagement with the Baha’i community in the quarter-century since he arrived in Canada. On the contrary, the evidence that was in the record suggested that the Applicant has most recently engaged in Christian and Indigenous spiritual teachings while in prison. It was therefore reasonable for the Delegate to find that there was little evidence to suggest that the Applicant would want to return to practicing the Baha’i faith upon his return to Iran.
[41] The record before the Delegate did include letters from pastors attesting to his participation in Christian practices while in prison. Once again, however, I find that it was reasonable for the Delegate to conclude that these activities did not, on their own, suggest that the Applicant has an ongoing interest in practicing Christianity if he were to return to Iran. This was reasonable because, in his own submissions to the Delegate, the Applicant noted his support from Christian religious advocates, but did not attest to any particular belief in Christianity, or to any desire to practice the religion. In these circumstances, it was therefore reasonable for the Delegate to conclude that the Applicant had failed to establish that he has a forward-looking interest in any kind of religious practice that could attract mistreatment from the Iranian regime.
[42] Beyond this, however, the Delegate did acknowledge the possibility that the Applicant could face restrictions on his ability to freely engage in either Baha’i or Christian practices, should he wish to do so in the future:
Participation in House Churches or other formal Christian gatherings aside, I note that should Mr. Abbasi be satisfied with ‘private and solitary worship, within the confines of the home’, as either a Baha’i or Christian convert, he is unlikely to experience persecution. I recognize that in an asylum context it is inappropriate to suggest that a claimant hide his or her beliefs in order to live safely in their country of origin. However, in the present context, I must consider all possible courses of action open to Mr. Abbasi upon his return.
[43] Later, the Delegate further stated:
That said, I recognize that practicing either faith openly and in congregational gatherings may put Mr. Abbasi at increased risk of arrest and detention. And while I do not find that there is evidence that Mr. Abbasi’s faith is so important to him that he would risk his wellbeing in order to practice his faith, I acknowledge that if he forsakes his principles or the practices of his religion simply in order to be safe, the test for persecution is met.
Thus, based on my review of current country condition information, I have considered risk to life, liberty and security of the person, being informed by the risks set out in s. 115(1) of IRPA and s. 7 of the Charter. I have found that Mr. Abbasi may face a risk to his liberty or security of the person, on a balance of probabilities, if he decides to openly practice the Baha’i or Christian faith in Iran.
[44] In context, these are reasonable findings. The Delegate first found that the Applicant did not appear to have a demonstrated interest in resuming his Baha’i religious practice, or in becoming a Christian. Beyond this, the Delegate found that the Applicant could likely engage in such religious practices privately, but specifically acknowledged that if he were to openly practice one of these religions in Iran, he may indeed experience persecutory treatment. Thus, the Delegate did not merely find that the Applicant could avoid persecution by hiding his religious beliefs. The Delegate reasonably questioned the Applicant’s degree of religious devotion, but also acknowledged the possibility that the Applicant could face persecution or other deprivations to Charter-protected rights, related to his faith, if returned to Iran. Taken together, these findings provided an adequate foundation on which to engage in the balancing process as between the danger that the Applicant poses in Canada and the risk that he would face if returned to Iran.
E. Humanitarian Considerations and Balancing
[45] Having considered the various factors discussed above, the Delegate then undertook a detailed assessment of the humanitarian and compassionate considerations associated with the Applicant’s situation. The Officer acknowledged that the Applicant’s family is here in Canada, but also observed that he appears to have minimal connection to them. The Officer also considered the Applicant’s psychological condition but concluded that his mental health needs were a “neutral factor”
in the decision. While he had been diagnosed with Post-Traumatic Stress Disorder, his most recent Correctional Services Report also indicated that he does not presently have any “acute mental health needs.”
[46] Taking into consideration the danger that the Applicant poses in Canada, the risk that he faces in Iran, and the relevant humanitarian and compassionate factors, the Delegate concluded that the balance weighs in favour of Mr. Abbasi’s removal from Canada. In assessing the various factors, the Delegate emphasized the seriousness of the Applicant’s crimes and his specific, and repeated, targeting of a vulnerable sector of society. The Delegate again acknowledged the risk of persecution that the Applicant may face in Iran if he openly engages in Baha’i or Christian practices, but reiterated that he does not appear inclined to do so.
[47] The Applicant argues that the Delegate erred in the balancing exercise by failing to consider the current situation in Iran and the persecution of non-Muslims. As can be noted from the above, however, this is plainly incorrect. The Delegate engaged in a detailed analysis of country conditions in Iran, together with an assessment of the Applicant’s religious practices. Moreover, the Delegate did not discount the possibility that the Applicant could face mistreatment in Iran, but in balancing the various factors, concluded that this possibility was outweighed by the risk that the Applicant posed to members of the Canadian public. As a result, the Delegate concluded that Mr. Abbasi’s removal from Canada would not shock the conscience of Canadians. This was a reasonable conclusion, based on thorough, well-justified, and logical reasons.
CONCLUSION
[48] For the above reasons, this application will be dismissed. The Delegate’s findings were intelligible and transparent. They flowed from a logical chain of reasoning and, most importantly, they were justified in a manner that reflected the significant rights at stake for Mr. Abbasi. Neither party proposed a question of general importance, and I agree that none arises.
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