IMM-4611-96
Vancouver, British Columbia, Wednesday, the 25th day of June, 1997
Present: Mr. John A. Hargrave, Prothonotary
Between:
MAJID AGHAEE,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
JOHN A. HARGRAVE
PROTHONOTARY
BACKGROUND
These reasons arise out of the Applicant's second motion for an extension of time within which to serve and file his record. I dismissed the initial motion, in an Order of 14 April, 1997, for the material was too sparse.
In the 14 April Order I recognize that Mr. Aghaee acted for himself and that, with leave to try again, he might be able to both explain the reason for the entire time of the delay and show that he had an arguable case, for a principal consideration in granting an extension such as this is seeing that justice between the parties is done: see for example Grewal v. M.E.I. (1985) 63 N.R. 106 at 110 (F.C.A.). The Order therefor provided:
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1. It would be unusual to allow a motion for an extension of time within which to serve and file an applicant's Record on the minimal affidavit material provided: notwithstanding that the Applicant acts for himself, the motion is dismissed; and |
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2. In that the Applicant, in addition to brief affidavit material, has provided submissions to the Court in the form of a letter, he may be able to give a reasonable explanation for the entire time of the delay and to explain how he has an arguable case. The applicant may have 30 days within which to file a new motion, supported by a more extensive affidavit, seeking an extension of time within which to serve and file his application record. |
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Regrettably the Applicant has neither satisfactorily explained the delay nor convinced me that he has an arguable case: I will explain this further, however there is first the matter of the time at which the Applicant filed the present motion.
ANALYSIS
Late Filing of the Present Motion
The deadline set in the 14 April, 1997, Order for this second motion was 14 May, 1997. I allowed the Applicant to file his present motion and supporting material on 27 May, 1997, for I felt the late filing did not prejudice the Respondent and was necessary in order to do justice between the parties.
Subsequent Representations Filed by the Applicant
Mr. Aghaee has also filed a further letter submission in response to the written submissions of the Respondent. The Federal Court Rules contemplate written representations by both parties on a motion in writing under Rule 324, but not a subsequent right of reply. The Applicant must file all of his representations with the motion, not wait, as is the case here, for the Respondent to submit representations in response to the application and then file further material: see for example Lioubimenko v. Canada (1994) 24 IMM L.R. (2d) 146, and Kurniewicz v. Minister of Manpower and Immigration (1975) 6 N.R. 225 at 231 (F.C.A.).
In the Lioubimenko case Mr. Justice Strayer (as he then was) did, by reason of special circumstances, look at the new representations: he decided that they were not proper as a reply, but rather should have been filed with the original application. That is essentially the situation here, for in this instance Mr. Aghaee's material in reply raises little or nothing new or relevant to add to the grounds set out in the Applicant's 27 May, 1997, motion.
Lay Litigants
It is clear from the grounds set out in Mr. Aghaee's motion that, as a lay litigant acting for himself, he has had some difficulty with the Rules. Yet this does not relieve a lay litigant from the obligation to comply with the Court's Rules: See for example St-Jacques v. Pike (1990) 29 F.T.R. 256 at 258. However, I have also kept in mind the overriding principle, that justice must be done.
Mr. Justice Muldoon dealt with the position of a lay litigant in Susan De Korompay v. Ontario Hydro, an unreported decision of 17 July, 1990, in Action T-377-88. He noted that the Court has neither the time nor the right to give helpful hints to one party or to one side, for that would undermine the Court's role as an independent and evenhanded adjudicator. I would add, parenthetically, that lay litigants may seek procedural advice from the Court's staff of Registry Officers: such advice is given freely to all who request it. While the Court should not give preferential treatment to a lay litigant who has fallen into error, the Court's Rules ought not to be traps for the unwary person who, as a lay litigant, makes a harmless mistake:
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Rules of procedure are not intended as traps for the unwary or to victimize those who make innocent mistakes which cause no harm. The power of the court to relieve against default has for its purpose to allow parties to resolve the real issues between them on their merits and not on mere technical and procedural grounds. (Her Majesty the Queen v. North Grant Landscaping (1997) 206 N.R. 199 at 201 (F.C.A.)) |
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While Mr. Aghaee has, as a lay litigant, an obligation to learn and apply something of the Court's Rules, in the present instance the procedural mistakes he may have made are not determinative of the outcome of this motion. Rather, the motion is decided and has gone against Mr. Aghaee on substantive grounds.
Explanation for Delay
The Applicant's new affidavit material does not deal with the reasons for the delay, however in this instance I have considered the Applicant's submissions that are set out in his motion. Essentially the Applicant was waiting for the tapes of his Immigration and Refugee Board Hearing, which he did not receive until 12 May, 1997. He explains the further 13 day delay in bringing the proceedings, a delay between 14 May and 27 May, as a series of missteps in filing and serving material which upset him and apparently prevented him from acting more quickly. However, the material does not explain the full period of the delay from 27 January, 1997, when the Applicant's record was due, until the date of the present motion. The Applicant does say he was waiting for tapes of his Board Hearing, but he neglects to advise when he first requested the tapes.
Leaving aside whether the reasons given by Mr. Aghaee for part of the delay are acceptable, what is fatal is the lack of explanation for the whole of the delay.
Arguable Case
Turning now to the need to show an arguable case, to bring to the Federal Court for review, the Immigration and Refugee Board decision of 4 November, 1996, raises, as a central issue, "...whether the claimant is a credible witness." (page 4). The Board found generally that while some elements of the Applicant's evidence paralleled events set out in minute detail in his Personal Information Form, the Applicant also introduced some entirely novel significant details. In assessing credibility the Board appears to have looked both at the general demeanour of the Applicant as a witness and at the consistency of the Applicant's story when tested against known or undisputed facts, perhaps having in mind, on this second approach, that the evidence of the witness must be in "...harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.": the passage in which this quotation is contained is from a decision of the British Columbia Court of Appeal in Faryna v. Chorny (1952) 2 D.L.R. 354 at 357 which is worth setting out in full:
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The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of truth of a story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. |
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In dealing with the first of these subjective tests, that of the general demeanour of the witness, the Board found that he was both obtuse and evasive and that:
| The overall impression engendered by the claimant's testimony was one of guile, craft and artful composition---entirely absent was the ring of truth and a natural narrative of flow. In addition, his oral evidence contained numerous non sequiturs and implausibilities. (page 4). |
The Board went on to apply what I have characterized as a second method of assessing credibility, that is the testing of the consistency of the evidence with known or undisputed facts, by referring to five specific inconsistencies which the Board found noteworthy and relevant. The member of the Board who wrote the reasons concluded the Applicant was not a credible witness:
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Based on all the above, I do not find the claimant to be a credible witness and I do not accept as credible or trustworthy any of the material evidence adduced in support of his claim. The remaining documentary evidence is insufficient in supporting his allegation of a well-founded fear of persecution in Iran for a Convention reason (page 10). |
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Before turning to the Applicant's affidavit material, in which he purports to deal with the question of an arguable case, one must remember that it is the Court's job to review a tribunal's decision on the basis of the evidence before the tribunal. Mr. Justice Nadon put this neatly in Asafov v. M.E.I., an unreported 18 May, 1994, decision in File IMM-7425-93:
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The purpose of the judicial review process is to examine the tribunal's decision in the light of the evidence adduced before it at the hearing and to decide whether or not there are grounds for review. From that perspective the evidence which the Applicants now seek to introduce is irrelevant. |
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Thus it is important to keep in mind the evidence a Tribunal had before it and whether what Mr. Aghaee now has to say is relevant, for a court will give deference to a tribunal, particularly a specialized tribunal with a substantial degree of expertise, when it comes to the issues of credibility and weight of evidence. Granted, Mr. Aghaee does at several points in his affidavit in support of the present motion try to deal with narrow points in the Board's reasons going to credibility, but not successfully, for the decisions of tribunals and boards ought not to be looked at microscopically: [1974] S.C.R. 875">Boulis v. Minister of Manpower & Immigration [1974] S.C.R. 875 at 885.
Still dealing with the established approach to judicial review, a court when reviewing a tribunal's decision, may look to see if the tribunal has exercised its discretion in good faith and that the tribunal has not relied upon irrelevant or extraneous considerations. A court should not interfere merely because the particular judge reviewing the tribunal's decision might have exercised his or her discretion differently. This is clearly set out in a passage from Maple Lodge Farms Limited v. Government of Canada [1982} 2 S.C.R. 2 at 7 and 8:
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It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. |
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This was put succinctly by Mr. Justice Noël in Oduro v. M.E.I. (1994) 66 F.T.R. 106 at 107-108:
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However, it is not for me to substitute my discretion for that of the board. The question I must answer is whether it was open to the board on the evidence to conclude as it did. Recognizing that if confronted with the same evidence, I would have been inclined to hold otherwise, I cannot say that the board ignored the evidence before it or acted capriciously. |
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To summarize, the burden on Mr. Aghaee, to convince a court to overturn the findings of the Immigration and Refugee Board, is a very difficult one. The Court will be reluctant to interfere with the determination of such a specialized tribunal and all the more so when the issue is that of Mr. Aghaee's credibility as a witness.
Mr. Aghaee, in his affidavit filed 27 May, 1997, touches on the five material inconsistencies cited by the Board. In the first instance, the Tribunal found it implausible that Mr. Aghaee's military discharge card did not reflect the claimed period of military service. Mr. Aghaee now deposes that he has a document from the Iranian army to prove that he served extra time. This new material is irrelevant in that at issue is the material that was before the Board at the time it made its decision.
The second credibility issue raised by the Board involved the comportment of Mr. Aghaee at the trial of the killer of his brother in May of 1991. In his Personal Information Form, Mr. Aghaee set out that he had thrown his water jug at the judge and said loudly, "Death to the revolution and the Islamic Republic. Your judgment is unfair." The Board noted that at his hearing, the claimant had modified the statement that he had accidently knocked over a water jug and had directed his remarks to the prosecutor. The Board believed "...that the claimant modified his version of the incident after recognizing that he had crossed too far over a credibility threshold in its composition."
The Board also questioned why Mr. Aghaee could not produce a single document bearing on the trial. As a result the Board found Mr. Aghaee's evidence to be both suspect and unreliable. In his new affidavit material Mr. Aghaee deals not with what the Board felt was his inconsistent evidence but rather with the justice system in Iran. Mr. Aghaee's material may well be correct, but it is irrelevant to the point at issue.
The third circumstance touched on by the Board, going to credibility, is that Mr. Aghaee's Personal Information Form catalogues a single arrest in May of 1991 and no other physical clashes with authorities until he was kicked at his place of employment in February of 1994. However, in oral testimony, Mr. Aghaee said he had been arrested on two further occasions, in March/April of 1994 and in the summer of 1994: the Board felt that the claimant's evidence was both fuzzy and imprecise and that he had no explanation for omitting these incidents from his Personal Information Form even though his Personal Information Form gave lengthy responses and that "This makes his failure to include germane elements of his experiences in Iran even less susceptible to a benign interpretation than would otherwise be the case." (Board's Reasons at page 7).
Mr. Aghaee, in his present affidavit material, seems to concede that the personal information form did not square with his oral evidence, but blames that on his first lawyer. However, that is not a pertinent issue. Mr. Aghaee's affidavit material does not deal, in a relevant way, with the Board's third concern.
The Board's fourth concern is Mr. Aghaee's assertion that he distributed anti-government flyers, although when questioned on their distribution he apparently became hesitant and evasive and conceded that the flyers were not actually delivered to residences, but posted on walls and doors. The Board found that this episode, which would have jeopardized an elaborate plan to leave Iran and which would imperil his family and friends, "...strains credulity beyond recall." (page 9).
Finally, the tribunal found Mr. Aghaee's testimony of his escape highly improbable, exaggerated and not credible. The tribunal concluded that the claimant was not credible as a witness and that the documentation was insufficient to support a well founded fear of persecution in Iran for a Convention reason:
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Based on all of the above, I do not find the claimant to be a credible witness and I do not accept as credible or trustworthy any of the material evidence adduced in support of his claim. The remaining documentary evidence is insufficient in supporting his allegation of a well-founded fear of persecution in Iran for a Convention reason. (Page 10). |
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CONCLUSION
If Mr. Aghaee's application for judicial review were to proceed, a Federal Court judge reviewing the Board's decision would look only at the material that was before the Board. Mr. Aghaee's new material would not be considered. The issue is thus whether Mr. Aghaee has an arguable case without any new material. Mr. Aghaee's affidavit sworn 14 May, 1997, and filed 10 days later evokes some sympathy, but does not deal convincingly with the Board's main concern, the credibility of Mr. Aghaee as a witness.
The Board making the decision in this instance is one constituted by the Convention Refugee Determination Division under the Immigration Act. It is well established that such boards are expert tribunals: see for example Sivasamboo v. Canada [1995] 1 F.C. 741 at 756 and 763. The standard of review, as to both determination of questions of law and of findings of fact is thus one of patent unreasonableness: see for example Sivasamboo at 763 and De Connick v. Canada (1996) 110 F.T.R. 207 at 214. The standard of patent unreasonableness is a very high one.
All things considered I am left with the view that the Board acted in a reasonable manner. With the only real issue being credibility, a court would, beyond doubt, leave the Board's findings as to a lack of credibility undisturbed.
I find the Applicant has not only failed to account for the whole of the delay in moving to perfect his application for judicial review, but also, and more important, does not have an arguable case. Thus the application for a time extension is denied.
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Prothonotary
June 25, 1997
Vancouver, British Columbia
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MAJID AGHAEE
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
COURT NO.: IMM-4611-96
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF COUNSEL
REASONS FOR ORDER OF JOHN A. HARGRAVE
dated June 25, 1997
WRITTEN REPRESENTATIONS BY:
Mr. Majid Aghaee for Applicant
Ms. Wendy Petersmeyer for Respondent
SOLICITORS OF RECORD:
Mr. Majid Aghaee for Applicant
George Thomson for Respondent
Deputy Attorney General of Canada
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