Roshan v. Canada (Citizenship and Immigration), 2016 FC 1308 : H&C Refusal Overturned Because Officer Failed to Properly Assess Evidence of Persecution of Atheists

Ø  Introduction

The Federal Court reviewed an H&C refusal involving an Iranian citizen who identified as an atheist and sought permanent residence from within Canada.

The Court found that although the officer’s formulation of the H&C test was reasonable, the application of that test was unreasonable because the officer failed to adequately explain why significant evidence concerning the treatment of atheists in Iran was discounted.

Ø  Key Principle

H&C decision-makers must substantively consider and weigh all relevant facts and factors.

An officer cannot acknowledge credible evidence supporting significant hardship and then discount that evidence without providing a rational explanation connecting the evidence to the conclusion.

The reasons must demonstrate why important evidence was accepted, rejected, or given little weight.

Ø  Background

The applicant was an Iranian citizen and an atheist. He arrived in Canada in 2012 and made a refugee claim, which was refused. After his PRRA was also refused, he applied for permanent residence from within Canada under section 25(1) of the IRPA on H&C grounds.

The officer considered several factors, including the applicant’s establishment in Canada, his ability to speak Farsi, his good civil record, and the hardship he could face if returned to Iran.

The applicant also provided evidence from a lawyer with the former Office of Religious Freedom stating that the Iranian government executes, tortures, imprisons, and punishes people who identify as atheists. The officer also considered a U.S. Department of State report describing the treatment of apostasy in Iran.

Ø  Court Findings

The Federal Court found the officer’s application of the H&C test unreasonable.

The officer acknowledged the evidence concerning the treatment of atheists in Iran but discounted its significance by noting that atheism was becoming more accepted “among some Iranians” and that the applicant was not a religious leader or activist.

The Court found these conclusions inadequately explained.

The Court questioned how the officer could accept the evidence concerning government treatment of atheists while simultaneously relying on increased social acceptance of atheism to discount the risk. The Court also found no logical connection between the applicant not being an atheist leader and the evidence showing that ordinary atheists could face persecution.

The Court emphasized that these unanswered questions prevented it from understanding why the officer discounted key evidence. Although the decision may have fallen within a range of possible outcomes, it was not defensible on the facts and law because the reasoning was insufficiently justified and transparent.

The Court therefore distinguished the case from Kanthasamy, finding that the problem was not necessarily the officer’s formulation of the H&C test, but the unreasonable application of that test to the evidence before her.

Ø  Outcome

The Federal Court allowed the application for judicial review and set aside the H&C refusal. The matter was returned for redetermination.

Case Citation:

Roshan v. Canada (Citizenship and Immigration), 2016 FC 1308 CanLII