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Federal Court
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Cour fédérale
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Date: 20090902
Docket: IMM-5246-08
Citation: 2009 FC 867
Ottawa, Ontario,
September 2, 2009
PRESENT: The Honourable Frederick E. Gibson
BETWEEN:
MICHAEL
ADE THOMPSON
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
Introduction
[1]
These
Reasons for Order and Order follow the hearing on the 26th of
August, 2009, at Toronto, of an application for judicial review of a decision
dated the 26th of September, 2008, denying the Applicant’s
application for landing from within Canada on humanitarian and
compassionate grounds.
Background
[2]
The
Applicant is a male citizen of Nigeria, born on the 17th
of December, 1957. He entered Canada on the 14th of December, 2003
and claimed Convention refugee status. That claim was denied on the 29th
of June, 2005. He submitted his application for landing from within Canada on the 10th
of January 2007 and applied for a Pre-Removal Risk Assessment on the 30th
of May, 2007. Both applications were submitted in the English language which
is the only official language that the Applicant speaks, reads and writes
well.
[3]
Both
the Applicant’s application for landing from within Canada on humanitarian and
compassionate grounds and his Pre-Removal Risk Assessment application were
considered and determined, in a manner unfavourable to the Applicant, in
Montreal by an Officer who prepared his or her notes to file, ultimately the
reasons for his or her decisions, in the French language. The decisions and
notes to file were returned to the Office where the applications had been filed
which was more conveniently located to the Applicant’s residence.
[4]
The
Applicant was called in to the Greater Toronto Enforcement Centre Office to
receive the decisions on his Pre-Removal Risk Assessment and his humanitarian
and compassionate application on the 24th of November, 2008. The
written notices of decision were provided to the Applicant in the English language.
The notes to file in respect of his Pre-Removal Risk Assessment, initially
written in French, were provided to the Applicant in an English translated
version. The notes to file with respect to the Applicant’s humanitarian and
compassionate grounds application were only available in the original French
language version. The Applicant requested that those notes be translated and
that an English language version be provided to him. The English language
version of the notes to file in relation to the humanitarian and compassionate
grounds application was only provided to the Applicant in early February,
2009. Thus, the Applicant’s application for leave and judicial review of the
humanitarian and compassionate grounds decision and the Applicant’s Application
Record in support of that application were prepared and filed without either
the Applicant or his counsel having access to an English language version,
prepared at the Respondents’ expense, of the related notes to file which
constituted the reasons for the negative humanitarian and compassionate grounds
decision.
The Issue
[5]
In
the Applicant’s Memorandum of Points of Argument, the Applicant urges that the
Respondents breached his constitutional right to be heard and communicated with
in the official language of his choice, that being English, that he was denied
procedural fairness in that he was not afforded the minimal right to have the
Officer’s notes to file translated and available to him “... at the time he was
given the decision”, and that he was denied natural and fundamental justice
through the denial of his ability to prepare and pursue his judicial review of
the decision at issue in the official language that he understands and in which
he would be able to instruct counsel.
[6]
The
Applicant further, and without elaboration, submitted that the decision-maker
“... ignored relevant evidence in his decision.”
[7]
Before
the Court, counsel did not pursue the issue of ignoring evidence. Thus, the
only issue presented before the Court was denial of the Applicant’s right under
the Canadian Charter of Rights and Freedoms to be communicated by with a
government institution in the official language of his choice and his related
rights to procedural fairness and natural and fundamental justice.
Analysis
[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.
[10]
The
Applicant filed his application for leave and for judicial review in this
matter in a timely manner. While it is generic in its terminology, it
identifies with precision the decision sought to be reviewed, it identifies the
relief sought and it identifies the grounds on which relief is sought. It was
not challenged by the Respondents and it is entirely sufficient for the Court’s
purposes to support this matter.
[11]
Similarly,
the Applicant’s Application Record was filed in a timely manner. It includes the
decision-maker’s notes to file, albeit in the only language then available to
the Applicant, the French language. Certainly this Court and the Respondents
were capable of relying on that version, the original version, of the notes to
file. It does not include an affidavit of the Applicant but rather an
affidavit of an administrative assistant in the office of the Applicant’s
counsel. That deficiency in no way related to the absence at the time of
filing of an English language version of the Officer’s notes to file.
[12]
The
Applicant’s “Memorandum of Points of Argument”, was sparse but, in the event,
was sufficient to allow a Judge of this Court to grant leave for this
application for judicial review to proceed to hearing.
[13]
Finally, a translation into English of the Officer’s notes
to file supporting the decision under review was provided to the Applicant well
in advance of the hearing of the application.
[14]
Based upon the foregoing, I conclude that the Applicant
suffered no prejudice whatsoever in the prosecution of this application for
leave and judicial review by reason of the delay in the provision to him by the
Respondents of an English language version of the notes to file of the Officer
whose decision is here under review. In the result, against a standard of
review equivalent to correctness, this application for judicial review must be
dismissed.
Certification
of a Question
[15]
At the close of hearing of this application, counsel were
advised that the application would be dismissed and further, were advised, in a
summary way, of the reasons why it would be dismissed. Counsel for the
Applicant proposed certification of the following question:
Is it a violation of
the Applicant’s constitutional right when he or she applies for Immigration
status in one of the two official languages that he writes, speaks, reads,
understands and prefers, to receive a communication from the Government in the
other official language that he does not write, speak, read, understand or
prefer, and contrary to sections 19(1) and 20(1)(b)(2) of the Charter of Rights
and Freedoms?
Counsel
for the Respondents recommended against certification of the proposed question
or any other question. I agree with the position of counsel for the
Respondents. On the facts of this matter, the question proposed simply does
not arise. Further, this application for judicial review is determined on the
basis of its particular facts and thus does not raise a serious question of
general importance.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. No question is certified.
“Frederick
E. Gibson”
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