I. Overview

[1] The Applicant, Adrienn Bubreg, brought a motion for the following reliefs:

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];

[2] The Respondent is arguing that the motion must be dismissed because the Applicant has not met the legal test for a stay of proceeding under paragraph 50(1)(b) of the Federal Courts Act:

Stay of proceedings authorized 50 (1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter (a) on the ground that the claim is being proceeded with in another court or jurisdiction; or (b) where for any other reason it is in the interest of justice that the proceedings be stayed.

[3] The Applicant is a citizen of Hungry. The Refugee Protection Division [“RPD”] of the Immigration and Refugee Board [“IRB”] recognized her as a Convention Refugee on May 6, 2003, with her family.

[4] On May 15, 2023, 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 of the Immigration and Refugee Protection Act [“IRPA”]. As a result, she lost her permanent residence status in Canada.

[5] The Applicant applied to this Court for leave and to judicially review RPD’s cessation decision on June 6, 2023. The decision on leave is currently pending.

[6] While the Applicant did not raise any constitutional arguments before the RPD or in her application for leave, she now seeks an order putting her application in abeyance until the hearing of Gnanapragasam. Gnanapragasam challenges the constitutionality of the provisions such as s. 46(c.1) of the IRPA and paragraph 228(1)(b.1) of the Immigration and Refugee Protection Regulation (IRPR).

[7] This Court will hear a question of law in the case of Gnanapragasam in the week of April 8, 2024. 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] This is why on this motion, 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 IRPAis 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 proceeds as a specially managed proceeding under Rule 384 of the Federal Courts Rules, SOR/98-106.

II. Analysis

[10] 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.

[11] 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.

[12] They further argue that in Gnanapragasam, the Respondent has taken the position that the constitutional challenge is moot. 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. For further context, this is because the Court will review the constitutionality of s. 108(1)(e) and not (a) to (d) which is subject of 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 a paragraph in s.108(1) 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.

[13] I cannot speculate as to how Gnanapragasam will be decided as it is open to this Court to rule on the question of mootness and 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.

[14] In any event, this Court has already 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.

[15] The Respondent also argues that keeping a matter in abeyance is discretionary and this Court’s previous decisions on the issue are not binding on me. However, I am guided by the reasoning of Madam Justice Sadrehashemi in Habib and find it to be persuasive. 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

[16] 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
Since a number of cases in this Court are now being held in abeyance until Gnanapragasam is decided, an order that this case also be specially managed under Rule 384.

ORDER IN IMM-7109-23

THIS COURT ORDERS that

The motion requesting the matters be held in abeyance pending this Court’s determination in Gnanapragasam is granted; and,
To specially manage this proceeding under Rule 384.

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"Negar Azmudeh"

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Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:

IMM-7109-23

STYLE OF CAUSE:

ADRIENN BUBREG v. MCI

ORDER AND REASONS:

AZMUDEH J.

DATED:

january 10, 2024

SOLICITORS OF RECORD:

Don Valley Community legal Services Toronto (Ontario)

For The Applicant

Department of Justice Canada Toronto (Ontario)

For The Respondent

Bubreg v. Canada (Citizenship and Immigration), 2024 FC 40

Case Summary

I. Overview

II. Analysis

III. Conclusion

Bubreg v. Canada (Citizenship and Immigration), 2024 FC 40

Case Summary

I. Overview

II. Analysis

III. Conclusion