An Iranian whose refugee claim was turned down in Canada because he was convicted in England 16 years ago of a serious assault that left one person dead and another two injured will get another shot at arguing he should be allowed to stay here because his bisexuality, Kurdish ethnicity, conversion from Islam to Christianity and identity as a Westerner would all put him at risk back home.
An immigration officer refused Sirus Lotfi’s last ditch plea to stay in Canada in March 2024, arguing he had not provided sufficient evidence to establish the basis for his protection claim.
“I respectfully disagree with this position,” Justice Angus Grant wrote in a recent Federal Court decision out of Toronto.
“On the core details related to the applicant’s risk factors, the affidavit (outlining those) was detailed and comprehensive. This was particularly the case with respect to (Lotfi’s) sexual orientation. The affidavit contained many details, from the applicant’s first homosexual encounters, to subsequent relationships, to his time spent in Tehran, frequenting a park where gay men would meet. Moreover, the documentary evidence before the officer clearly raised concerns with respect to the applicant’s safety, assuming the risk factors he raised in his affidavit were true. This being the case, there was simply no doubt that the facts set out in the applicant’s affidavit, if believed, would have justified granting the application.”
The judge noted “the well-established principle that when an individual in refugee protection proceedings swears to the truth of their testimony, that testimony is presumed to be true unless there is a valid reason to doubt its truthfulness.”
The immigration officer’s conclusion that Lotfi “had not established facts that he had categorically and unambiguously sworn to be true” amounted to a “veiled credibility finding,” Grant said. In other words, the immigration officer questioned Lotfi’s honesty without explicitly stating the Iranian’s credibility was in doubt.
The judge granted Lotfi’s application for a judicial review.
“The matter is remitted to a different decision-maker for reconsideration,” Grant said in his decision dated June 18.
Lotfi “entered Canada in November 2022 on a fraudulently obtained passport and made a claim for refugee protection,” said the decision.
“He did not have any other identity documents with him at the time, so he was arrested and detained by the Canada Border Services Agency.”
While Lotfi was in detention, Immigration, Refugees and Citizenship Canada “learned that in April 2009, the applicant was convicted in England with intent to do grievous bodily harm,” it said. “The Canadian equivalent of this offence is aggravated assault.”
Because of his conviction, for which he served half of a 10-year prison sentence, “Lotfi was referred for an admissibility hearing before the Immigration Division of the Immigration and Refugee Board,” said the decision.
It found Lotfi “was inadmissible to Canada on grounds of serious criminality.”
That meant Lotfi became ineligible for his refugee claim to be heard, so he applied for a pre-removal risk assessment — his last ditch plea to stay in Canada.
For that hearing, Lotfi submitted a detailed written argument alleging that he would be at risk in Iran on four distinct grounds. But the immigration officer hearing his case noted Lotfi’s lack of supporting evidence to establish his claim for protection.
The court heard Lotfi “had essentially no relationship with his mother in Iran, and moved to Germany as a young adolescent, where his father placed him in a boarding school.”
At some point his family “stopped paying tuition fees for this school, and he was subsequently placed in a Christian orphanage where he lived until he turned 18,” said the decision.
“Over the course of these years, (Lotfi) grew disconnected with his Islamic background and gravitated towards Christianity. At one point while at the orphanage, he tattooed a cross on his shoulder.”
Lotfi “also explained how he explored his sexual orientation while in the orphanage, though this was not easy to do. At 20, the applicant learned that his father had committed suicide. This led to a period of serious drug addiction, and in 2007 (he) was removed to Iran.”
Lotfi “had a difficult time adjusting to life back in Iran,” said the decision.
“Eventually, he learned of a park where gay men met to have sex. He began frequenting the park and having encounters with men, despite the obvious dangers that this posed. Eventually, however, (he) decided to leave Iran and went to the United Kingdom.”
The subsequent altercation in England “led to his criminal conviction, which resulted in the death of one individual and the injury of two others,” said the decision.
“He claims that he acted in self-defence, but contrary to the advice of his lawyer, he plead guilty and was sentenced to a ten-year sentence, of which he served five years. While in prison, (Lotfi) stated that he received mental health treatment for the first time, that he disavowed drugs, and formally converted to Christianity.”
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