2023 FC, 2023 FC 1570

Date: 20231127 Docket: IMM-12192-23 Citation: 2023 FC 1570 Ottawa, Ontario, November 27, 2023 PRESENT: Madam Justice Azmudeh BETWEEN: FARIDA BAJWA Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION, THE MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS, and THE ATTORNEY GENERAL OF CANADA Respondents ORDER AND REASONS I.

Overview [ 1 ] The Applicant, Farida Bajwa, brought a motion for the following reliefs: • An order to stay the removal order issued by the Minister’s Delegate on September 7, 2023; • An order to hold this judicial review in abeyance pending the determination of the Federal Court in the Charter challenge in the matter of Jude Upali Gnanapragasam and Al. v.

Canada (MCI) , Court File No.: IMM-8432-22 [“Gnanapragasam”]; • An order that this case continue as a specially managed proceeding under Rule 384; • In the alternative, an extension of time of 10 days from the date of the Court’s decision on this Motion to perfect the underlying application for judicial review (i.e. to submit the application record); • Such further and other relief as this Honourable Court may allow. [ 2 ] The Applicant is a citizen of Pakistan.

The Refugee Protection Division [“RPD”] of the Immigration and Refugee Board [“IRB”] recognized her as a Convention Refugee on February 24, 2009, on the basis of the persecution she faces in Pakistan due to her Ahmadi Muslim religion. She subsequently became a permanent resident of Canada on March 17, 2010. [ 3 ] On November 22, 2022, a different panel of the RPD granted an application brought by the Minister of Public Safety and Emergency Preparedness to cease the Applicant’s refugee protection pursuant to s.108(1) (

a) of the Immigration and Refugee Protection Act [“ IRPA ”]. As a result, she lost her permanent residence status in Canada. [ 4 ] The applicant applied to this Court to judicially review RPD’s cessation decision and on May 10, 2023, the Court dismissed the application. Subsequently, on June 8, 2023, the Applicant filed an application to restore her permanent residence in Canada on Humanitarian & Compassionate [“H&C”] grounds. Per s. 25(1.2)(

c) IRPA , the Applicant is barred for one year from applying for an H&C exemption to allow her to remain safely in Canada, but s. 25(1.21) creates an exception to this bar for “best interests of a child directly affected”.

She has asked that this discretionary remedy be applied to her, as she has numerous grandchildren who would be directly and adversely impacted by her removal from Canada. [ 5 ] She is also PRRA barred for one year from the date of her judicial Review dismissal. [ 6 ] On September 7, 2023, a Minister Delegate issued a removal order to the applicant under s.40.1 IRPA and declined to consider the constitutionality of the said section, stating that that the Federal Court was the appropriate place to argue the constitutionality of the impugned provisions.

This is the decision that is the subject of the Applicant’s underlying judicial review but she has informed her counsel that she lacks resources to fund her own complex constitutional litigation. [ 7 ] In the meantime, this Court will soon hear a similar question of law in the case of Jude Upali Gnanapragasam and Al. v MCI and Al., Court File No.: IMM-8432-22 ( Gnanapragasam ). Gnanapragasam is scheduled for a full day judicial review hearing on December 12, 2023.

Similarly, the Applicants in Gnanapragasam are arguing that sections 40.1 and 46(1)(c.1) of IRPA – the provisions that provide for the automatic loss of permanent resident status following a determination that refugee protection had ceased under sections 108(1) (a)(b)(

c) or (

d) of IRPA – violate sections 7, 15, 12 and 2(

d) of the Charter. [ 8 ] On this motion, amongst other relief, the Applicant asks this Court to not proceed with her judicial review until the constitutional validity of sections 40.1 and 46(1)(c.1) of IRPA is determined in Gnanapragasam . [ 9 ] For the reasons set out below, I am of the view that it is in the interest of justice to grant the Applicant’s request and hold her case in abeyance pending this Court’s determination in Gnanapragasam . I also order that her case to proceed as a specially managed proceeding under Rule 384 of the Federal Courts Rules , SOR/98-106 .

II. Analysis [ 10 ] The Applicant’s request for an interlocutory Order prohibiting the Canada Border Services Agency from enforcing a removal order against the Applicant, prior to receiving a Direction to Report, is premature.

As such, the Court declines to hear the motion at this time. [ 11 ] On the Applicant’s request to hold this judicial review in abeyance pending the determination of the Federal Court in the Charter challenge in the matter of Gnanapragasam , I am guided by this Court’s decision in Habib v Canada (Citizenship and Immigration), 2023 FC 1116 ( Habib ) to conclude that it is in the interest of justice to grant the Applicant’s request. [ 12 ] The Respondent is attempting to distinguish Gnanapragasam to argue that this case should not be kept in abeyance. Mr.

Gnanapragasam brought his constitutional challenge before the RPD had decided on the merits of the Minister’s paragraph 108(1) (

a) of the IRPA cessation application against him. The RPD decided, subsequent to this Court granting leave in the application, that Mr. Gnanapragasam’s refugee status had ceased pursuant to paragraph 108(1) (

e) of the IRPA , that is, the reason for which he sought refugee protection has ceased to exist. The 108(1)(

e) finding meant that Mr. Gananpragasam is not subject to either paragraph 46(c.1) or paragraph 228(1)(b.1) of the IRPR, the very provisions he alleges are constitutionally invalid. He is thus challenging the constitutional validity of a provision to which he is not subject, and whose alleged negative impact he is inoculated against. [ 13 ] They further argue that in Gnanapragasam , the Respondent filed a motion to strike on the basis of mootness and that the mootness motion will be heard by the Application’s Judge.

Given the potential mootness in the Gnanapragasam matter, it would not be in the interests of justice to hold this matter in abeyance and that the Charter challenge in that case is not a sufficient justification to hold this matter in abeyance. This is because the Court will review the constitutionality of s. 108(1) (

e) and not (

a) which is applied to this case and has the far more serious consequence. Mr. Gnanapragasam had his Convention Refugee status revoked on grounds triggered by 108(1) (

e) that did not cause him to lose his PR status or render him inadmissible under 46(1)(c.1) and 40.1 of IRPA . This is while the cessation case of the Applicant here was decided under 108(1)(

a) which resulted in loosing her permanent residence status, and that the Court will likely not entertain the constitutionality of a provision that did not determine the case of Mr. Gnanapragasam in his case. [ 14 ] I cannot speculate as to how Gnanapragasam will be decided. As the Applicant has noted in her reply, the case management judge, Mr. Justice Ahmed, declined to rule on the Respondent’s motion to strike for mootness in Gnanapragasam and directed instead that it be put back to the application’s judge to decide, along with the substantive Charter issues.

As such, the “potential mootness” has not been considered and the herein motion is not the place to determine that issue. [ 15 ] Both the leave judge and the case management judge have decided that there is a serious issue to be heard in Gnanapragasam , despite full cognizance of the fact that Mr. Gnanapragasam himself did not lose his PR. [ 16 ] Moreover, I am guided by the reasoning of Madam Justice Sadrehashemi in Habib , which the respondent has not attempted to distinguish. Ms.

Habib had found herself in the exact situation as the Applicant here when she too had lost her PR status by the operation of s.108(1) (

a) of IRPA . Madam Justice Sadrehashemi has also determined that the case may have a direct and serious impact on 10 other cases and thus put them in abeyance pending Gnanapragasam. III.

Conclusion [ 17 ] I follow the reasoning in Habib to conclude the following: • An order to hold this judicial review in abeyance pending the determination of the Federal Court in the Charter challenge in the matter of Gnanapragasam ; and • An order that this case continue as a specially managed proceeding under Rule 384 . [ 18 ] The Applicant’s request for an interlocutory Order prohibiting the Canada Border Services Agency from enforcing a removal order against the Applicant, prior to receiving a Direction to Report, is premature. As such, the Court declines to hear the motion.

ORDER IN IMM-12192-23 THIS COURT ORDERS that 1. The motion requesting the matters be held in abeyance pending this Court’s determination in Gnanapragasam is granted ; and, 2 . The motion to continue as a specially managed proceeding under Rule 384 is granted. blank "Negar Azmudeh" blank Judge