Being stateless is ‘not merely a state of mind, or a choice’ – judge

4 November 2022 · Carmel Rickard

Some readers might wonder how statelessness is viewed by courts in other parts of the world. For them, the recent Canadian case of Davood Helalifar v Minister of Citizenship and Immigration will be an eye-opener. Helalifar’s application for permanent residence was refused by a senior official and so Helalifar approached the federal courts asking for judicial review of that decision. Helalifar, who has had several criminal convictions since arriving in Canada, is originally from Iran. With all that was counting against him, what weight would the federal court put on Helalifar’s statelessness?

Read judgment

Davood Helalifar’s application for judicial review was heard by Canadian Judge Shirzad Ahmed, who, before his 2017 appointment to the bench, won immense respect as a lawyer for his human rights work. Originally from Kirkuk, Southern Kurdistan, he went to Canada as a refugee in 1984.

As to the applicant in this case, Helalifar, 54, came to Canada from Iran in 1998 with his son. Initially he brought what became an unsuccessful refugee claim. Then, in 2004 he had two convictions involving assault and as a result lost custody of his son. He has no surviving family in Iran. In addition, his mental health is compromised and, deemed ‘disabled’ by the Ontario Disability Programme (ODSP) because of his mental challenges, he now supports himself financial with his ODSP benefits.

Travel document

Due for repatriation to Iran in 2007, he was held in detention, then released. The following year he was again detained, but was freed when the Canadian authorities were still unable to obtain a travel document from Iran.

So, what was to happen to him if Iran effectively disowned him and Canada wouldn’t let him stay? Helalifar said that with Iran’s refusal to give him travel documents, he was de facto stateless, and his lack of immigration status in Canada had led to him living in a shelter for more than 10 years.

The question for the court was whether the decision to refuse his application for permanent residence was ‘reasonable’. The judge found that the official who had found against Helalifar ‘placed undue focus’ on his criminal convictions, and failed to balance them properly with ‘humanitarian and compassionate grounds’, as required. The judge also found the official’s analysis didn’t properly grapple with the ‘overall hardship’ that resulted from Helalifar’s statelessness.

Undue focus

In the judge’s view, the official’s assessment of the humanitarian and compassionate factors at play in the case (a standard required by Canadian law) lacked transparency and put undue focus on the criminal behaviour.

‘I agree with the statement made by Mr Helalifar’s counsel during the hearing: while the officer was entitled to consider Mr Helalifar’s criminality, the officer was unreasonably preoccupied by it, and its mere existence defeated the entire application. This is unreasonable.’

The previous decision-maker had recognised that Helalifar’s ability to access housing and healthcare was compromised, but he ‘failed to assess the overall effect of [his] statelessness through a compassionate lens,’ said the judge.

State of limbo

'What [is] more, I am not convinced that the officer truly grasped the meaning of statelessness. … Being stateless is not merely a state of mind, or a choice. Without status, [his] ability to leave Canada is affected just as much as his ability to have his basic human rights met in Canada.’

He quoted from Helalifar’s affidavit, ‘[Canadian] Immigration cannot deport me due to the situation in Iran, but I have no immigration status, as a result I cannot secure housing, as a result I have been forced to live in a shelter for over 10 years. I have no health card, as a result little access to health care, as a result my health has deteriorated over the years. I have no identification documents as well.’

The judge then commented that Helalifar was ‘stuck in a state of limbo that prevents him from accessing necessary social and health services – the impact of which is exacerbated by his multiple mental health issues. In my view, the officer’s preoccupation with [his] criminality and failure to grasp the overall effect of his statelessness reveal an analysis that is devoid of the compassion required [under Canadian law’s humanitarian and compassionate standards for such decisions]’.

Reasons

On these and other grounds, the judge held that the officer’s decision was ‘unreasonable’ and that the application for judicial review was allowed. In his official order, the judge set aside the original decision and sent the matter back to be heard again, this time by a different decision-maker, ‘in accordance with the reasons provided.’

Obviously, the legal framework under which Helalifar’s case was considered is distinct to Canada, where a decision-maker in such a matter is required to ‘have the ability to empathise with an applicant for relief by placing her or himself in the applicant’s shoes to clearly understand and be sensitive to the applicant’s circumstances.’ But the judge's decision is still striking, even for readers beyond Canada, in the way it incorporates an humane approach with the legal decision to be made.

Carmel Rickard

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