Docket: IMM-6410-11
Citation: 2012 FC 298
Toronto, Ontario, March 8,
2012
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
|
|
IMAN MUSA AND
MAJIDA MUGRABI
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of and to set aside a decision of a
Pre-Removal Risk Assessment (PRRA) Officer dated August 9, 2011 wherein it was
determined that the Applicants would not be at risk if they were to return to Israel. For the
reasons that follow, I will allow the application.
[2]
The
Applicants are two Arab muslim women who are citizens of Israel. They are in
a lesbian relationship. They claimed refugee protection in Canada. That claim
was rejected. They applied for a pre-removal risk assessment. It is important
to note that the application was in the English language and in response to the
question at the top of the first page: “Language you prefer for
correspondence and service” they checked the box “English”. They
filed evidence including a letter written by both of them to which is attached
an Arabic language newspaper report with an English language translation
relating to a confession by a cousin of one of them, to an “honour killing” of
his sister twelve years ago.
[3]
The
Applicants, in their letter, wrote, inter alia:
The situation we are facing now, is that
if we go back home, we are at risk of being KILLED. Same sex relationships are
not permitted or accepted in all Arabic countries. There are many stories about
honor killing and we are victims of this. We have a same sex relationship,
which is forbidden back home and we have dishonoured our families by running
away to try and start a life with each other.
Honor killing is a murder by families on
a family member who have brought shame to the family. We have searched many
articles and it turns out that In Majida Mugrabi’s family, he cousin Youssef Mugrabi
has killed his own sister on the grounds of killing. However, there are many
situations of honor killing/family killing in Israel. We have done our research and have
attached the Arabic and English Google translation of the articles about
Youssef Mugrabi, and other unfortunate Israel killings based on honor for the
family. We don’t like to bring religion into it; however, we feel it maybe
necessary to save our lives. As Muslim women, we don’t have any rights in our
families, and the fact that we are lesbians does not help. Majida’s grandfather
is a sheikh, and has repeatedly threatened to kill her. Iman’s brother has
threatened to kill her if she does not leave her lesbian relationship and marry
a male. There are several police complaints regarding the threats of her
brother.
If we go back to Israel, we will be killed.
. . .
[4]
The
record also shows that the Officer had available a number of country reports,
all in English, detailing, among other things, the heightened risk to which
Arab lesbians are exposed in Israel.
[5]
The
Officer provided a letter addressed to the Applicants, dated August 9, 2011 in
which they were informed that their PRRA application had been rejected. The
letter was in the English language essentially on a pre-printed form. An “X”
was placed opposite the following paragraph:
[X] No new evidence, which
arose after the rejection of your claim at the Immigration and Refugee Board or
after the rejection of your PRRA application, or that was not normally
accessible, or that you could not reasonably have been expected in the
circumstances to have presented, at the time of rejection, was presented in
support of your application.
[6]
The
reasons for the decision were attached to the letter. Much of those reasons
were on a printed form familiar to many lawyers and others practicing in the
immigration and refugee field. However, the form and the typewritten narrative
were entirely in the French language. I repeat one of the paragraphs:
Les demandeures n’ont pas fourni de
nouveaux éléments de preuves selon les critères requis par 113 a). En effet,
tous les articles fournis sont datés d’avant la décision de la SPR. Et le
rapport de police qui a été soumis, faisait déjà parti de la liste de documents
ayant été remis à la SPR. Les demandeures n’ont pas fourni d’explications sur
les raisons pour lesquelles elles n’ont pas pu fournir les articles à la SPR,
par conséquent, je n’ai pas de raisons de croire que ceux-ci n’étaient pas
normalement accessibles au moment du rejet, ni qu’il n’était pas raisonnable de
s’attendre à ce que les demandeures les aient présentés.
[7]
The
Applicants received this decision on September 13, 2011. The next day,
September 14, 2011, Applicants’ counsel made a request that the Applicants be
provided a copy of the reasons in the English language. A translation was made
by Citizenship and Immigration Canada and sent to the Applicants’ lawyer on
October 11, 2011.
[8]
The
present application for leave, meanwhile, had been filed with the Court, in
English, on September 19, 2011. The Applicants filed a motion for a stay of
removal on September 28, 2011. On October 4, 2011 this Court granted an Order
staying the removal. All of this occurred before the English language version of
the reasons was sent to the Applicants’ lawyer.
[9]
On
December 13, 2011 leave was granted to permit the Applicants to pursue this
judicial review. I heard the matter on March 7, 2012.
[10]
The
Applicants have raised a number of grounds for judicial review. It is necessary
to refer only to two of them.
[11]
The
first ground is whether the Applicants were entitled to receive the reasons for
the decision, in the first instance, in the English language. In this respect
the Applicants Counsel argues that the Applicants should be entitled to receive
the decision in the official language of their choice so as to be able to
understand it and instruct their lawyers properly. Similarly, their lawyers
should be able to understand it properly. A more nuanced argument was made by
applicants’ Counsel but only in reply in the oral argument before me. It was to
the effect that, given that the evidence, the argument and all correspondence
was in the English language, the Applicants, and their lawyer, should feel
assured that the decision-maker understood that language including its
complexities and nuances, sufficiently well so as to make a proper decision. It
would be expected that if the decision-maker was fluent in English, that the
reasons for the decision should have been produced in the first instance, in
English.
[12]
The Official
Languages Act, RSC 1985, c.31 (4th Supp.) guaranties that any
member of the public has the right to communicate with and receive available
services from federal institutions, where there is significant demand, in
either official language. I repeat sections 21 and 22:
Rights relating to language of communication
21. Any
member of the public in Canada has the right to communicate with and to receive available services
from federal institutions in accordance with this Part.
Marginal note: Where communications and services must be in both
official languages
22. Every
federal institution has the duty to ensure that any member of the public can
communicate with and obtain available services from its head or central
office in either official language, and has the same duty with respect to any
of its other offices or facilities
(a) within
the National Capital Region; or
(b) in Canada or elsewhere, where there is significant demand for communications
with and services from that office or facility in that language.
|
Droits en matière de communication
21. Le
public a, au Canada, le droit de communiquer avec les institutions fédérales
et d’en recevoir les services conformément à la présente partie.
Note marginale : Langues des communications et services
22. Il
incombe aux institutions fédérales de veiller à ce que le public puisse
communiquer avec leur siège ou leur administration centrale, et en recevoir
les services, dans l’une ou l’autre des langues officielles. Cette obligation
vaut également pour leurs bureaux — auxquels sont assimilés, pour
l’application de la présente partie, tous autres lieux où ces institutions
offrent des services — situés soit dans la région de la capitale nationale,
soit là où, au Canada comme à l’étranger, l’emploi de cette langue fait
l’objet d’une demande importante.
|
[13]
The
decision of Justice Frederick Gibson of this Court in Thompson v Canada (Minister of
Citizenship and Immigration), 2009 FC 867 is instructive. He held that where
a translation is provided in a timely fashion such that there is no prejudice to
a party then there is no breach of a Charter right. He wrote at
paragraphs 8 and 9:
8 Subsections 19(1)
and 20(1) of the Canadian Charter of Rights and Freedoms establish rights before courts created
by Parliament, such as this Court, for persons to be heard and dealt with in
either official language. They also create rights for members of the public in Canada who deal with institutions of the
Government of Canada to conduct those dealings, with certain
limitations, in the official language of their choice and to receive
communications from those institutions in the language of their choice. With
relation to government institutions, the provisions provide no stipulation as
to the time within which communications in the official language of the member
of the public's choice must be provided. Thus, I take it as implied that, where
applicable, government institutions must provide communications within a
"reasonable" time of the request for the provision of the
communication in a particular official language or, put another way, within a
time that results in no prejudice to the individual seeking the communication.
9 On the facts of
this matter, while the delay in providing the notes to file with respect to the
decision here under review was, perhaps, inordinate, I find that it resulted in
no prejudice to the Applicant.
[14]
In
Sztern v Canada (Attorney General), 2010 FC 181 Justice
Boivin considered the Official Languages Act, supra. He found
that, in the particular circumstances of the case before him, no prejudice had
been shown. He wrote at paragraphs 69 to 73:
69 The applicants
also argue that the Delegate contravened and offended the Act, the Charter
and the Official Languages Act, 1985, c. 31 (4th Supp.), by not immediately providing
an English translated version of his decision dated December 15, 2008. The
English translated version of the Delegate's decision was e-mailed to the
applicant, Henry Sztern, on February 3, 2009. Mr. Sztern submits that the
English version of the decision is not properly translated as many statements
appear to be literally translated, resulting in nonsensical statements in
English. The applicant submits the English translation was delivered too late
for the appeal process to be initiated and it is of little value as a legible
and understandable document. The applicant also argues that there was no
interpreter available during his English testimony and during the English
examinations and cross-examinations.
70 It is worth
nothing that on April 3, 2007, Henry Sztern filed a motion requesting the
services of an interpreter and the Delegate rejected this request on October 2,
2007. The Delegate found that section 14 of the Charter did not apply to the case at bar and
that Henry Sztern had not established he did not have knowledge of French.
71 Furthermore, this
very same issue had been previously decided by the Superior Court of Quebec and
the Quebec Court of Appeal on April 16, 2007 (see
Affidavit of Sylvie Laperrière sworn March 13, 2009 at Exhibit SL-11, pp.
2494-2498 of the respondent's Record).
72 On the basis of
this evidence, the Court finds that Henry Sztern had sufficient knowledge of
French to file his application for judicial review pursuant to subsection
18.1(2) of the Federal Courts Act, R.S., 1985, c. F-7 and there has not
been a breach of procedural fairness. There is no evidence on file that Henry
Sztern made a specific request to the Delegate prior or during the disciplinary
hearing for the decision to be rendered or translated in English. To the
contrary, the evidence demonstrates that the Delegate issued his decision in French
on December 15, 2008 and a request for a translation was sent to the Delegate
on December 21, 2008, six days after
the decision was rendered. The Delegate followed-up on the request and a
translation of the decision was obtained by the applicants on February 3, 2009.
In the present circumstances, the Court finds this was an acceptable delay. The
applicants filed this application for judicial review on January 10, 2009,
within the prescribed time limit, and they have not convinced the Court that
they suffered any prejudice on this point.
73 The Court also
notes that in spite of a ruling from the Delegate rejecting the request for
translation, the respondent nonetheless made arrangements upon its own
initiative during the disciplinary hearing before the Delegate to provide an
interpreter to translate the testimonies rendered in French for Henry Sztern
(see Sylvie Laperrière's affidavit at paragraph 41). Most of the disciplinary
hearing was conducted in English and the testimonies rendered in French were
translated by an interpreter provided by the respondent for Henry Sztern. The
Court is of the view that the applicants' claims on this point are unfounded.
[15]
In
the case before me no prejudice has been alleged. The Applicants were able to
file their Application for Leave and Judicial Review and they obtained a stay
of removal; all before an English language translation was sent to their
lawyer. I have no evidence, one way or the other, as to whether the Applicants
or their lawyer, is fluent in French. I find, on this ground; that the
Applicants have not made out any prejudice.
[16]
The
second issue raised by the Applicants’ Counsel is that, given that all the
evidence and argument was in English it was surprising to receive the reasons
for decision in French. This raises a question as to whether the decision-maker
competently understood the English language evidence and submissions.
[17]
This
argument was not raised in the Applicants’ written argument and only raised by
Counsel in his oral submissions in reply. The Respondent’s Counsel had no
opportunity to meet this argument whether by argument orally or in writing or
by filing appropriate evidence. Therefore, I will disregard this argument.
[18]
I
pass to the next issue raised by the Applicants. Nowhere in the reasons does
the Officer mention the Applicants’ letter (parts of which have been set out
earlier in my reasons) raising the fear that they might be killed if they
return to Israel and illustrating that fear by a newspaper report that a cousin
of one of the Applicants had recently confessed to an “honour killing” of his
sister some twelve years earlier.
[19]
The
newspaper report pre-dates the Refugee Board’s decision, however the letter
from the Applicants, as set out earlier, states that the article was only recently
discovered by them. As such, the evidence should at least have been considered
under section 113 of the Immigration and Refugee Protection Act, SC
2001, c. 27 as interpreted by the Federal Court of Appeal in Raza v Canada
(Minister of Citizenship and Immigration), 2007 FCA 385. It may be that the
Officer would ultimately consider it of no weight or unhelpful, but it should
have been considered. For this reason the matter will be sent back
[20]
There
is no question for certification and there is no basis for an Order as to
costs.
JUDGMENT
FOR THE
REASONS PROVIDED:
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is allowed;
2.
The
matter is returned for redetermination by a different officer;
3.
No
question is certified; and
4.
No
Order as to costs.
“Roger T. Hughes”
Email this Content