Date: 20041115
Docket: IMM-9713-03
Citation: 2004 FC 1599
BETWEEN:
MOHAMMAD HANIF BALOUCH
(a.k.a. Mohammed Hanif Balouch)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant applied for leave and for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board wherein the Refugee Protection Division dismissed the Applicant's application for Convention refugee status or similar protection in Canada. The Applicant's application was based upon his alleged fear of persecution in the country of his nationality, Pakistan, by reason of his political opinion and activity. The reasons for decision of the Refugee Protection Division are dated the 4th of November, 2003.
[2] Leave was granted. At the opening of the hearing of the application for judicial review, counsel for the Respondent urged that the application should be dismissed without a hearing on the merits because the Applicant did not approach the Court with "clean hands". More particularly, counsel for the Respondent alleged that the Applicant had sworn a false affidavit and placed it before the Court as the underpinning to the application for leave. No written material in support of the Respondent's allegation was before the Court and both the Court and counsel for the Applicant had received no prior notice of the Respondent's serious allegation.
[3] The hearing of the application for judicial review was adjourned and a schedule was fixed for the exchange and filing of written material with respect to the Respondent's allegation. When the hearing resumed, the Respondent's allegation was heard as a preliminary matter. Following submissions, the Court was satisfied that the Respondent's allegation was well-founded. In the result, the Court advised counsel that this application would be dismissed without a hearing on the merits. What follows are brief reasons in support of the Court's determination to dismiss this application without a hearing on the merits.
[4] Leave was granted, and this application for judicial review was deemed to have been commenced, by Order of the Court dated the 28th of July, 2004. At that time, for the purposes of determining whether to grant leave, the Court had before it the Applicant's Application Record comprising a copy of the application for leave and for judicial review, a copy of the RPD's notice of decision and its reasons for decision, the affidavit of the Applicant in support of the application for leave and for judicial review and the Applicant's Memorandum of Fact and Law. The Court also had before it a Memorandum of Argument on behalf of the Respondent.
[5] Of note is the fact that neither the Respondent's counsel, when he or she prepared the Respondent's Memorandum of Argument nor the Court when it determined to grant leave, had access to a transcript of the hearing before the Refugee Protection Division, let alone a full copy of the record that was before the Refugee Protection Division. Thus, neither counsel for the Respondent nor the Court was in a position to verify the facts sworn to in the Applicant's affidavit filed with the Court, as against the Applicant's sworn testimony before the Refugee Protection Division.
[6] By contrast, a copy of the Applicant's Personal Information Narrative was included as an exhibit to the Applicant's affidavit in the Applicant's Record. Since, the Applicant attended the hearing before the Refugee Protection Division, with counsel, not being the counsel who prepared his application record and who represented him before this Court, he alone was in a position to ensure a concordance between his testimony and his affidavit. If there had been any doubt in his mind, it was open to him and to his new counsel to obtain, at his expense, a copy of the tapes of the hearing before the Refugee Protection Division and to do a comparison between his recorded testimony and his draft affidavit before he swore to its truth.
[7] An applicant's affidavit is critical to the leave process. Counsel for the Respondent must be able to rely on the Applicant's affidavit in preparing his or her Memorandum of Argument. The Court itself must be able to rely on the Applicant's affidavit in determining whether or not to grant leave.
[8] In supplementary material filed on behalf of the Respondent following the first hearing before the Court, the Respondent alleges seven (7) inconsistencies between the Applicant's affidavit and his testimony before the Refugee Protection Division, as recorded in the transcript, some of which are of greater significance than others and some of which require reliance on inferences to be drawn from the transcript. Counsel for the Respondent urged that, cumulatively, they were of such a nature and number that the Court should conclude that the Applicant deliberately set out to mislead the Court. Counsel urged that, in light of the importance of the affidavits of applicants in the leave process, discrepancies between applicant's affidavits and transcripts should be dealt with very severely.
[9] Counsel for the Applicant urged that the transcript before the Court is unreliable. She noted that, at page 623 of the Tribunal Record which is page 170 of a 251 page transcript, the individual who transcribed the tape recordings of the hearing, and thus created the transcript, inserted the following:
PLEASE NOTE: CLAIMANT'S CHANNEL IS COMPLETE STATIC FROM HERE ON[1]
That being said, the same person provided and signed the following endorsement at the end of transcript:
I HEREBY DECLARE THAT THIS IS A TRUE TRANSCRIPT OF THE TAPE AND THAT I HAVE SWORN THE OATH OF SECRECY[2]
While a review of the transcript discloses a number of notations where portions were inaudible, in the experience of this judge, the number of such notations is not unusual. It is further worth noting that while an interpreter was available to the Applicant throughout the hearing, the Applicant, apparently by his choice, participated in the hearing almost entirely in the English language.
[10] It is trite to say that the reliefs sought on applications such as this are discretionary. In Basu v. Canada[3], on facts quite distinct from those here before the Court, my colleague Justice Rouleau wrote at pages 40 and 41:
It is obvious to me that the Court in exercising its discretion must have regard and must take into account a number of factors not the least of which is the public interest. Public policy dictates that I bar the plaintiff's claim. The maxim that "no one should take benefit from his own wrong" has been adopted and followed for centuries. This principle was enunciated quite succinctly in Cleaver v. Mutual Reserve Fund Life Association, ..., where Fry L.J., said:
It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.... This principle of public policy, like all such principles, must be applied to all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.
More recently, the British Columbia Court of Appeal in Hall v. Hebert ... invoked the maxim and went on to elaborate that it would be manifestly unacceptable to fair minded or right thinking persons that a court would assist a plaintiff who has defied the law.
The case at bar is not one of a party seeking compensation for an injury incurred by him while engaging in illegal acts. On the contrary, this is a situation where he is actually trying to profit from his illegality. I can find no reason whatsoever that would justify a favourable exercise of my discretion and award the relief sought. To accede to such a request would be to encourage illegality, would serve a detrimental purpose and would ultimately be contrary to public policy.
[citations omitted]
[11] I do not go so far on the facts of this matter as to categorize the Applicant's conduct in swearing his affidavit as an "illegality". That being said, I am satisfied that, at the very least, the Applicant's conduct should be categorized as an "impropriety" or as putting before this Court one or more negligent misrepresentations.
[12] In Murugamoorthy v. Canada (Minister of Citizenship and Immigration)[4], Justice Reed had before her a fact situation much closer to that here before the Court. At paragraph [1] of her reasons, she wrote:
These reasons relate to an application for judicial review and an argument by applicant's counsel, both based on a false affidavit. The applicant sought to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ... set aside on three grounds. It was alleged that the Board: (1) made capricious findings of fact; ...
Justice Reed continued in paragraph [2] of her reasons:
It is on examination of the first issue, the allegation of capricious findings of fact, that the falsity of the basis for the present proceeding becomes obvious. ...
Justice Reed noted at paragraph [10]:
When leave to commence a judicial review application is granted, the Court does not have before it the record of the proceedings before the Board. It relies on the applicant's affidavit as to what occurred during that proceeding.
[13] In the result, after reviewing extracts from the transcript before her and apparently without considering the merits of the first ground, capricious findings of facts, Justice Reed dismissed the application for judicial review on that ground. She noted that two (2) additional issues that were before her were both "spurious".
[14] I note Justice Reed's description of the affidavit before her as "false". She goes on to note that when proceedings are instituted and continued on the basis of false affidavits, contempt of Court comes into play. I find that I do not have to go so far on the facts of this matter. I am content to conclude that, at the very least, the Applicant's affidavit as filed disclosed negligent conduct on the part of the Applicant in the preparation and swearing of the affidavit. Counsel for the Respondent was at pains to note that he alleged no such negligent conduct on the part of the Applicant's current counsel. Like counsel for the Respondent, I find no basis whatsoever on which to be critical of the conduct of the Applicant's current counsel.
[15] I reiterate Justice Reed's comments and my own comments earlier in these reasons to the effect that an applicant's affidavit is critical to the just determination of the leave stage of an application such as this. That being said, it is clear that, in the preparation and swearing of an applicant's affidavit, great care is required of the applicant and, where appropriate, his or her counsel, to ensure that Respondent's counsel and the Court are not misled. On the facts of this matter, I find that both Respondent's counsel and the Court have been misled through the swearing by the Applicant of a false affidavit, whether that false affidavit was sworn intentionally or merely negligently. In the result, this application for judicial review will be dismissed without consideration on the merits.
[16] When the first hearing on this application for judicial review was adjourned, I ordered costs payable to the Applicant by reason of the fact that counsel for the Respondent raised for the first time, at that hearing, the issue of a false affidavit, thus necessitating an adjournment. I fixed the costs of that appearance at $1,000.00. Counsel for the Respondent now having been successful in respect of the allegations raised at the first hearing, seeks an offsetting order as to costs. I am satisfied that such an order is warranted given my conclusions regarding the conduct of the Applicant. An order of costs in the sum of $1,000.00 will go in favour of the Respondent and against the Applicant.
_________________________________
J.F.C.
Ottawa, Ontario
November 15, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-9713-03
STYLE OF CAUSE: MOHAMMAD HANIF BALOUCH
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: NOVEMBER 3, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Gibson
DATED: NOVEMBER 15, 2004
APPEARANCES BY: Ms. Linda Martschenko
For the Applicant
Mr. Greg George
For the Respondent
SOLICITORS OF RECORD:
Ms. Linda Martschenko
Barrister and Solicitor
Windsor, Ontario
(519)973-4940 For the Applicant
Greg G. George
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
(416) 952-9631
For the Respondent