Adibi v. Canada (Public Safety and Emergency Preparedness), 2023 FC 352 (CanLII), <https://canlii.ca/t/jw8dn>
Summary of the Case
The case involves Soheil Adibi, who is seeking Judicial Review of the Immigration Appeal Division who decided to dismiss Adibi’s appeal for the removal order that was placed on him for breaching residency obligations under section 28 of the Immigration and Refugee Protection Act.
Adibi, an Iranian citizen, became a permanent resident of Canada in September 2016, but he only spent 22 days physically in Canada before returning to Iran. The applicant’s mother developed severe depression as a result of his sister’s divorce, so Adibi stayed in Iran to care for her until her mental condition improved in November 2018. Adibi then experienced marital complications, leading to his own divorce and depression diagnosis. Adibi and his ex-wife, settled financially, and the divorce was finalized in September 2020.
Adibi claims that due to a lack of financial resources, he was unable to return to Canada until July 2021. Adibi converted to Christianity and was baptized at an evangelical church in Canada, and he believed he would face the death penalty if forced to return to Iran because of this as part of the Islamic laws in Iran.
The Canada Border Services Agency Officer issued a departure order against Adibi for failing to comply with his residency obligations. Adibi sought relief on humanitarian and compassionate grounds, but the Immigration Appeal Division concluded that Adibi failed to demonstrate sufficient grounds for relief. The court dismissed Adibi’s application for judicial review.
Adibi is remarried in Iran and has a stepchild.
Key points in this case
- IAD reviewed Soheil Adibi’s H&C case based on the following:
- The extent of non-compliance with the residency obligation;
- The reasons the Applicant left and remained outside Canada;
- Whether efforts were made to return to Canada at the first opportunity;
- The degree of establishment in Canada, initially and at the time of hearing;
- Family ties to Canada, including the best interests of the child;
- Hardship and dislocation that would be caused to family members in Canada if the [Applicant] loses status in Canada;
- Hardship that would be cause to the [Applicant]; and,
- Whether any other unique or special circumstances that merit special relief.
- Adibi failed to provide enough grounds for the above as a result his request for appeal was dismissed by the IAD:
- The IAD found that the Applicant made a voluntary choice to leave Canada and return to Iran due to employment and expense-related difficulties and failed to return at the first opportunity.
- The IAD found that the Applicant was minimally established in Canada and possessed strong ties in Iran, and that the best interests of the children were a neutral factor.
- The IAD accepted that the Applicant would face some hardship in Iran as a Christian convert, but placed little weight on a letter from the Applicant’s pastor detailing his baptism.
- He sought Judicial Review, that IAD failed to reasonably consider the hardship he went through for his mother’s mental health and his own after his divorce, the best interest of his child in Canada and as well fear of his life due to conversion to Christianity if he was forced to return to Iran:
- The Applicant claims that the IAD failed to assess the hardship that he would face upon return to Iran due to his recent conversion to Christianity.
- Additionally, the IAD erred in drawing a negative credibility finding and assigning the pastor’s letter little weight.
- Lastly, the IAD erred in concluding that the Applicant would have a strong family network in Iran
- His request was reviewed based on the following points by the court:
- Was the IAD’s assessment of hardship unreasonable?
- Was the IAD’s assessment of the best interests of the child unreasonable?
- Was the IAD’s finding that the Applicant did not return to Canada at the first opportunity unreasonable?
- Was the IAD’s assessment of establishment unreasonable?
Conclusion
The honorable judge decided that IAD’s decision was not made in error and as well it was reasonable. IAD reasonably assessed the hardship faced by the Applicant when exercising its discretion under paragraph 67(1)(c) of the Immigration and Refugee Protection Act (IRPA).:
- Adibi failed to convince the court that IAD’s decision was made in error or that it was unreasonable:
- Hardship And Best Interest of The Children Involved: IAD considered the hardship and best interest of the child reasonably, as Adibi is married and has a minor stepson, he has a strong tie to Iran. Having a child in Canada and another in Iran, would make this consideration neutral since IAD has to take into consideration the best interest of all the children involved “the IAD balanced the best interests of the applicant’s daughter with those of the applicant’s stepson who currently resides in Iran. The court ultimately finds that the IAD’s decision was reasonable based on the evidence presented and that the best interests of both children were considered.”
- Ties in Canada vs Ties to Iran: IAD reasonably found that the Applicant would have a strong family network in Iran to alleviate any hardship. IAD did not make an err in finding that the Applicant would have strong family ties in Iran despite his recent Christian conversion, as the Applicant failed to provide any additional evidence that he would face problems or that his family would be unwilling to support him should they discover his conversion to Christianity. The judge stated that the burden of proof is on the Applicant to establish facts on which their claim rests.
- Fear for life in relation to the conversion to Christianity: This is related to Convention Refugee and IAD’s role does not extend to refugee claimant determinations. IAD still reasonably took that into consideration while they could not find enough supporting documents Adibi needed to submit in relation to his becoming an evangelical Christian: “The Respondent [IAD] believes that the Applicant’s assertion concerning the pastor’s letter confuses credibility findings and findings going to weight. Lastly, the Respondent argues that the IAD reasonably found that the Applicant would have a strong family network in Iran to alleviate any hardship.”
“The Applicant had claimed that the IAD failed to consider country condition evidence related to sections 96 and 97 of IRPA, but the judge found no legal authority requiring the IAD to do so. The judge also noted that the IAD is not tasked with determining whether an individual is a Convention refugee and that it correctly considered the elements related to hardships that affect a foreign national, including adverse country conditions.”
