SAMREEN JAMSHAID, HAFIZ JAMSHAID AHMED MALIK, AROOBA JAMSHAID, ADEN JAMSHAID v. MUHAMMAD, 2020 FC 863

Date: 20200828 Docket: IMM-2476-18 Citation: 2020 FC 863 Ottawa, Ontario, August 28, 2020 PRESENT: Mr. Justice Sébastien Grammond BETWEEN: SAMREEN JAMSHAID, HAFIZ JAMSHAID AHMED MALIK, AROOBA JAMSHAID, ADEN JAMSHAID and MUHAMMAD FURQAN JAMSHAID Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS [ 1 ] The applicants are seeking leave and judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board dismissing their appeal from a decision of the Refugee Protection Division [RPD] for want of jurisdiction.

Their application was held in abeyance pending a final determination of Kreishan v Canada (Citizenship and Immigration) , 2019 FCA 223 [ Kreishan ]. Kreishan was a challenge to the constitutional validity of a provision of the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act ], that deprived certain categories of claimants of the right of appeal to the RAD. Put briefly, the persons affected were those who fell under exceptions to the Safe Third Country Agreement [STCA] with the United States. The Federal Court of Appeal dismissed the challenge and held the legislation to be valid.

The Supreme Court of Canada denied leave to appeal. [ 2 ] The applicants now ask that their application be held in abeyance again, this time until a final determination of Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship) , 2020 FC 770 [ Canadian Council for Refugees ], in which my colleague Justice Ann Marie McDonald found the STCA to be in breach of the Canadian Charter of Rights and Freedoms .

I am dismissing the applicants’ motion, because they fail to explain how they could be affected by the outcome in Canadian Council for Refugees . [ 3 ] The applicants in Canadian Council for Refugees challenged the validity of section 101(1)(

e) of the Act and

section 159.3 of the Immigration and Refugee Protection Regulations , SOR/2002-227 [the Regulations ]. These two provisions implement the STCA by rendering claimants who came directly from the United States ineligible to a hearing before the RPD. [ 4 ] I fail to see how the applicants in this case can be affected by the Canadian Council for Refugees case.

Although they have not filed their application record yet and I have little information on their case, it is obvious that they fell under an exception to the STCA (see sections 159.4 and 159.5 of the Regulations ) and were eligible to bring their case to the RPD. This, indeed, is what rendered their situation indistinguishable from Kreishan .

Unlike the claimants in Canadian Council for Refugees , they were not sent back to the United States. [ 5 ] In their submissions on this motion, the applicants merely state that their " “position in the within matter may be subject to change pending any of Parliament’s decision(

s) in the 6-months commencing July 22, 2020 pertaining to the invalidity of Section 101(1) (

e) of the Act ” " ( sic ). The six-month period refers to the temporary suspension of Justice McDonald’s declaration of invalidity. The applicants, however, do not explain how they would be affected by the invalidity of section 101(1) (

e) or any legislation that Parliament may enact in its stead. As I have mentioned above, the applicants’ situation is clearly distinguishable from that in Canadian Council for Refugees .

Unlike the claimants in that case, the present applicants’ claim for asylum was heard and decided by the RPD; they were not barred by section 101(1) (e). [ 6 ] The applicants also submit that holding their application in abeyance " “would be consistent with what the courts have done in similar circumstances.” " Presumably, they are referring to my decisions in Buyu Luemba v Canada (Immigration, Refugees and Citizenship) , 2018 FC 681 , and Ellolo v Canada (Citizenship and Immigration) , 2019 FC 1530 , in which I directed that a class of applications, including the present one, be held in abeyance.

I did so because the issue raised by all these applications was exactly the same as in Kreishan . In contrast, there is no reason to hold a case in abeyance if it is not affected by the outcome of another case. [ 7 ] Given that the Supreme Court of Canada has now denied leave to appeal in Kreishan , there is no doubt that the present application must fail. In this regard, I note that unlike most applicants whose files were held in abeyance, the present applicants did not bring a separate application for leave and judicial review against the decision of the RPD.

In any event, I fail to see how such an application would be affected by the outcome of Canadian Council for Refugees . There would be no basis to hold such an application in abeyance. [ 8 ] Accordingly, the applicants’ motion for their case to be held in abeyance is denied. [ 9 ] In the alternative, the applicants seek an extension of time to file their application record. To succeed on such a motion, a party must show, among other things, that the underlying application has " “some potential merit:” " Canada (Attorney General) v Larkman , 2012 FCA 204 , at paragraph 61 .

As I mentioned above, this application is indistinguishable from Kreishan and is thus bound to fail. Accordingly, the motion for extension of time is denied. ORDER in IMM-2476-18

THIS COURT ORDERS that : 1. The applicants’ motion for their case to be held in abeyance is denied. 2. The applicants’ motion for extension of time is denied. "Sébastien Grammond" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-2476-18 STYLE OF CAUSE: SAMREEN JAMSHAID, HAFIZ JAMSHAID AHMED MALIK, AROOBA JAMSHAID, ADEN JAMSHAID and MUHAMMAD FURQAN JAMSHAID v THE MINISTER OF CITIZENSHIP AND IMMIGRATION MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: GRAMMOND J. DATED: August 28, 2020 APPEARANCES : Albert HM Chiu For The Applicants Camille N.

Audain For The Respondent SOLICITORS OF RECORD : Chiu Law Office Edmonton, Alberta For The Applicants Attorney General of Canada Ottawa, Ontario For The Respondent