Date: 20240118
Docket: IMM-10151-23
Citation: 2024 FC 83
Toronto, Ontario, January 18, 2024
PRESENT: Mr. Associate Judge Michael D. Crinson
BETWEEN:
GOLRIZ MAHMOUDI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER AND REASONS
[1] The Applicant, Golriz Mahmoudi filed a motion on January 3, 2024, for:
A. An Order for the extension of time to file the Application Record in this matter for 15 days after the date of the hearing of this motion.
B. An Order for the consolidation of the matters IMM-10151-23, Golriz Mahmoudi v MCI and IMM-10157-23, Koosha Rasouli v MCI.
[2] The Respondent opposes the motion and asks that the motion and the underlying application for leave and judicial review be dismissed.
[3] The underlying subject matter of this proceeding is an application for leave and judicial review challenging a decision of Immigration, Refugees and Citizenship Canada, dated June 30, 2023, wherein an Officer refused the Applicant’s application for a study permit. The Applicant’s counsel admitted that if unsuccessful in this proceeding the Applicant would not be prejudiced from applying again for a study permit.
[4] A parallel motion seeking parallel relief was also filed on January 5, 2024 in Federal Court file number IMM-10157-23 by the applicant in that proceeding, Koosha Rasouli, the spouse of the applicant in the present proceeding. This Court heard both the motion in IMM-10157-23 and in the present proceeding on January 9, 2024 at which the same arguments and the same evidence were presented. In support of each motion, the only evidence that each applicant provided in support of the motion was an affidavit of a legal clerk assisting Applicant’s counsel, Mr. Deylami, (the “Deylami Affidavit”). The affidavits in each proceeding were in substance identical except the day on which they were sworn and the name of the applicant. There was no cross-examination on this affidavit and the Respondent did not file any evidence.
[5] The Deylami Affidavit uses as a foundation for the evidence that the affiant is “the legal clerk assisting Mr. Brian Barrow, Solicitor for the Applicant, in this matter and as such I have knowledge and familiarity with the file in this matter.” The affidavit nowhere purports to be based upon information and belief. This raises some problems with some aspects of the evidence put forth in the Deylami Affidavit for which Mr. Deylami may not have personal knowledge. Examples of this are:
“…the Applicant was with her husband outside of her home province and did not have ready access to internet connection and services.” (paragraph 6);
- “The Applicant was at this time still unable to access any reliable internet access and as a result I was unable to communicate with the Applicant.” (paragraph 9);
- “On the Applicant arriving back to her home she was able to communicate with me freely.”
[6] A further problem with the Deylami Affidavit is found in paragraph 13 where it provides the opinion and argument that “the applicant has an arguable case, and it is set out in the application record.”
Accordingly, some caution must be exercised regarding the evidence of the Deylami Affidavit to the extent portions of the affidavit would not be otherwise admissible.
[7] Nonetheless, the Deylami Affidavit can be accepted in respect of much of the content especially the key dates attested to, including:
A. September 11, 2023 was when the reasons for the refusal of the Applicant’s application for a Student Visa were received by the Applicant’s counsel;
B. September 30, 2023 (approximately) when Applicant’s counsel prepared an Affidavit for the Applicant to sign and sent it to the Applicant; and
C. early December 2023 when the Applicant was able to communicate with Mr. Deylami freely.
[8] The Applicant argues that on this motion the test to be applied is simply a balancing of the relative prejudice to the litigants, whether or not the delay is unjustifiable or unreasonable. The Applicant was unable to cite any authority for this novel proposition. In contrast, the Respondent argues the applicable legal test is that enunciated in Canada (AG) v. Hennelly, 1999 CanLII 8190 (FCA) and Canada (Attorney General) v. Larkman, 2012 FCA 204 at paras 61-62.
[9] While I acknowledge the prejudices that may be suffered by the litigants can be a relevant factor in the context of a motion for an extension of time other factors come in to play in assessing the interests of justice broadly. The Federal Court of Appeal has provided the necessary guidance where a party is seeking an extension of time pursuant to rule 8 of the Federal Courts Rules. The legal considerations to be applied on a motion for an extension of time are those set out in Canada (Attorney General) v. Larkman, 2012 FCA 204 at paras. 61-62:
Did the moving party have a continuing intention to pursue the application?
Is there some potential merit to the application?
Has the party opposed to the extension of time been prejudiced by the delay?
D. Does the moving party have a reasonable explanation for the delay?
[10] The overriding consideration is that the interests of justice be served and these questions guide the Court in determining whether the granting of the extension of time is in the interests of justice. The relative importance of each question depends upon the circumstances of each case and in certain cases; other questions may be relevant to the inquiry into the interests of justice.
[11] The delay of the Applicant in this case amounts to approximately twelve weeks between the date the Application Record was due to be served and filed and the date this motion was commenced asking for an extension of time. Such a delay, absent evidence from the Applicant to the contrary, may be taken to infer there was no continuing intention of the Applicant to pursue the application. The evidence the Court does have shows that from early December, prior to this motion for an extension of time being filed, “the Applicant was able to communicate with Mr. Deylami freely”
. Yet there is no direct evidence from the Applicant or even from Mr. Deylami on information and belief that the Applicant had throughout the period of delay a continuing intention to pursue this application. As the burden is on the Applicant, as the party seeking the extension of time, to establish such a continuing intention and no evidence has been adduced to establish the continuing intention, this factor weighs against the extension of time requested.
[12] The Applicant argued that since the Court and the Respondent:
“…have not had the benefit of seeing the supporting documents in the case…including but not limited to the financial and educational materials which were included in the initial application of the Applicant, the Court is not in a position to determine the merits of the Application.”
[13] The Applicant made this submission in the context of arguing that without knowing the merits of the case the Court and the Respondent are not in a position to determine there is any prejudice to the Respondent if the extension of time is allowed. However, it could also be taken as an admission that the Applicant has not on this motion established this application for leave and judicial review has any merit. For the purposes of determining this motion, I do not rely upon these statements as such an admission.
[14] On the issue of prejudice the Respondent has been unable to point to any notable prejudice it will suffer if the requested extension of time is granted and acknowledged as much at the hearing. Rather the Respondent argued that dismissing the present motion and the underlying application will not cause the Applicant significant prejudice. The underlying application challenges the refusal of a study permit. Dismissing the underlying application will not bar the Applicant from re-applying for another study permit. At the hearing of this motion, the Applicant’s counsel rightfully acknowledged the Respondent’s argument and admitted that dismissing the present motion and the underlying application will not cause the Applicant significant prejudice.
[15] What is the explanation provided for the delay in filing the Application Record, which was due October 11, 2023 pursuant to Rule 10(1)(b) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules? There is no evidence of any communication between the Applicant and his counsel in the period from September 11, 2023 (when the reasons for the refusal of the Applicant’s application was received) to September 30, 2023 (when an affidavit for the Applicant to sign had been prepared). There is some evidence that at some subsequent time there was some communication between the Applicant and counsel but the extent and timing of this is unclear. The Deylami Affidavit states that the Applicant was unable to access “any reliable internet access”
at some other point in the timeline but certainly by early December 2023 there was no barrier to communication. There is no affidavit from the Applicant explaining the extent, timing or reason, why the Applicant could not communicate with counsel, whether that be by internet or some other means of communication. In short, there is no reasonable explanation for the full extent of the delay in serving and filing the Application Record or in the delay in bringing this motion to permit the same.
[16] The interests of justice in this case militate against granting the extension of time requested for service and filing of the Application Record. This conclusion is supported by a failure to provide a reasonable explanation for the full delay, failure to prove a continuing intention to pursue this proceeding and the lack of any prejudice to the Applicant should this motion, and the underlying proceeding dismissed. Accordingly, the Applicant’s motion is dismissed.
[17] The Applicant has not been granted an extension of time to serve and file an Application Record and absent such a record; it is not possible to continue this proceeding. Accordingly, this application for leave and judicial review is dismissed pursuant to rule 168 of the Federal Courts Rules.
ORDER
THIS COURT ORDERS that:
- The Applicant’s motion is dismissed.
- The Applicant’s application for leave and judicial review is dismissed.
- There shall be no costs on this motion.
"Michael D. Crinson"
Associate Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-10151-23
STYLE OF CAUSE:
GOLRIZ MAHMOUDI v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MATTER WAS HEARD VIA ZOOM VIDEOCONFERENCE
DATE OF HEARING:
january 9, 2024
ORDER AND REASONS:
CRINSON A.J.
DATED:
January 18, 2024
SOLICITORS OF RECORD:
Brian L. Barrow
Barrister and Solicitor
For The Applicant
Attorney General of Canada
Department of Justice Canada
Ontario Regional Office
For The Respondent
Per: Desmund Jung