Date: 20191202

Dockets: IMM-5745-18

IMM-6365-18

Citation: 2019 FC 1530

Ottawa, Ontario, December 2, 2019

PRESENT:  Mr. Justice Sébastien Grammond

ORDER AND REASONS

[1]  The applicants ask that their applications for leave and judicial review be held in abeyance while a similar matter is before the Supreme Court of Canada. Indeed, this is a test case for a class of similar cases challenging the constitutional validity of the denial of a right of appeal within the process for the determination of refugee status.

[2]  I am granting this motion. As I will explain below, refusing to hold these matters in abeyance would require the parties to pursue two applications at the same time, before the Supreme Court’s decision clarifies which one of them is the proper course of action. Moreover, it would jeopardize the applicants’ Charter rights before the Supreme Court defines their scope.

I.  Background

A.  The STCA RAD Bar

[3]  The Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], entrusts the determination of asylum claims to the Immigration and Refugee Board [IRB]. Two divisions of the IRB are tasked with hearing those claims: the Refugee Protection Division [RPD] and the Refugee Appeal Division [RAD].  Most persons whose claim for asylum is rejected by the RPD have a right to appeal to the RAD.

[4]  Under the Safe Third Country Agreement [STCA], foreign nationals are normally not allowed to claim asylum in Canada if they seek to enter at a port of entry located on the Canada-United States land border: section 101(1)(e) of the Act. There are, however, certain exceptions to that rule, set out in section 159.5 of the Immigration and Refugee Protection Regulations, SOR/2002-227. Foreign nationals who fall within those exceptions may claim refugee status, but, according to section 110(2)(d) of the Act, they do not have a right to appeal to the RAD. This exclusion came to be known as the “STCA RAD bar.”

B.  The Kreishan Case

[5]  The constitutional validity of the STCA RAD bar has been challenged on the basis that it is inconsistent with section 7 of the Canadian Charter of Rights and Freedoms. In Kreishan v Canada (Citizenship and Immigration), 2018 FC 481, the applicants sought judicial review of a decision of the RAD that declined jurisdiction on the basis of section 110(2)(d). This Court dismissed their application in May 2018. The applicants in that case then brought the matter before the Federal Court of Appeal.

[6]  The applicants in Kreishan were not alone in this situation. Similar applications were filed in this Court while Kreishan was under reserve. On an ad hoc basis, some of those applications were put in abeyance until the issuance of the judgment of this Court. When that judgment was issued and the matter was brought before the Federal Court of Appeal, further motions to put matters in abeyance were filed. It became apparent that a large number of files would be involved. For that reason, I directed that three such motions be heard as test cases. In Buyu Luemba v Canada (Citizenship and Immigration), 2018 FC 681 [Buyu Luemba], I ordered that these matters be held in abeyance pending the decision of the Federal Court of Appeal. I have since issued similar abeyance orders in approximately 150 similar cases.

[7]  Buyu Luemba was an application for judicial review of a decision of the RAD, which held that it did not have jurisdiction because of the STCA RAD bar. Many applicants in that situation simultaneously filed an application for judicial review of the decision of the RPD that denied their claim for refugee status. Those applicants also asked that these matters be held in abeyance pending the decision of the Federal Court of Appeal. I granted a large number of such motions.

[8]  The Federal Court of Appeal dismissed the appeal from this Court’s decision in August 2019: Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223. The applicants in that case announced their intention to seek leave to appeal to the Supreme Court of Canada. That application was filed on October 18, 2018, under file no. 38864.

[9]  Counsel in a number of matters that were held in abeyance until the decision of the Federal Court of Appeal then communicated with the registry and expressed the desire to extend the abeyance until the final disposition of the Kreishan case by the Supreme Court of Canada. It was agreed that a test case would be selected, that a motion for abeyance would be heard in that case and that the decision would apply to the whole class of similar cases. The present applicants’ case was selected to be the test case. I also issued an order holding a class of similar cases in abeyance until the disposition of the present motion.

[10]  On November 7, 2019, the Chief Justice ordered that these proceedings continue as specially managed proceedings, appointed me as the case management judge and assigned my colleague Prothonotary Sylvie M. Molgat to assist me in the management of these files.

C.  The Applicants’ Claim

[11]  The applicants are a family of stateless Palestinians who used to reside in Saudi Arabia. They came to Canada through the United States in order to claim asylum. The applicants availed themselves of one of the exceptions to the STCA and were allowed to make a claim for refugee status.

[12]  The RPD dismissed their claim. They appealed to the RAD. Consistent with its practice in similar cases, the RAD summarily dismissed their appeal for lack of jurisdiction, given the STCA RAD bar. The applicants filed separate applications for judicial review of the decisions of the RPD and RAD. I ordered that these applications be held in abeyance pending the decision of the Federal Court of Appeal in Kreishan.

II.  Analysis

[13]   Paragraph 50(1)(b) of the Federal Courts Act, RSC 1985, c F-7, allows this Court to stay a proceeding “where . . . it is in the interest of justice.” As I mentioned in Buyu Luemba, the criteria used when granting an interlocutory injunction (serious issue to be tried, irreparable harm and balance of convenience) are not, strictly speaking, applicable, but they may nevertheless constitute useful guides: RJR — MacDonald Inc v Canada (Attorney General), [1994] 1 S.C.R. 311.

A.  Applications in respect of RAD decisions

[14]  With respect to the applications for judicial review of decisions in which the RAD declines jurisdiction, the reasoning I adopted in Buyu Luemba remains largely valid today.

[15]  I cannot predict how the Supreme Court will decide the Kreishan case. However, I cannot say that the case is without merit. There is a possibility that Kreishan will be reversed and that the STCA RAD bar will be declared unconstitutional. The applicants would be prejudiced if that were to happen after a final disposition of their case. In all likelihood, they would not be able to benefit from the decision of the Supreme Court: see, for example, Lesly v Canada (Citizenship and Immigration), 2018 FC 272; Pham v Canada (Citizenship and Immigration), 2018 FC 1251. While there is a general interest in the expeditious adjudication of refugee claims, this should not override the applicants’ Charter rights.

[16]  Counsel for the Minister sought to distinguish the present case from cases that were held in abeyance pending a decision of the Supreme Court of Canada on the basis that the Supreme Court had already granted leave when those files were put in abeyance: Mangat v Canada (Citizenship and Immigration), 2014 FC 1201 at paragraph 7; Canada (Public Safety and Emergency Preparedness) v Khalil, 2014 FCA 213 at paragraph 16; Appulonappar v Canada (Citizenship and Immigration), 2016 FC 914 at paragraph 2. I do not agree that the granting of leave to appeal is a threshold requirement for obtaining interim relief when a similar case is before the Supreme Court. See, for instance, Baier v Alberta, 2006 SCC 38, [2006] 2 S.C.R. 311. I will simply note that the issue that forms the basis of the application for leave to appeal to the Supreme Court in Kreishan was certified by a judge of this Court as a “serious question of general importance” deserving consideration by the Federal Court of Appeal. Thus, the application for leave to appeal cannot be said to be devoid of merit.

[17]  In my view, the practical impact of not holding these files in abeyance at this time remains a highly relevant factor in this motion. Considerable resources would be wasted in perfecting a large number of applications raising exactly the same issue. Moreover, if, during this process, the Supreme Court were to grant leave in Kreishan, the applicants would likely renew their motion to hold their files in abeyance.

[18]  In contrast, if the files are put in abeyance now, the parties will be able to dispose of them more simply and quickly when the Supreme Court makes a final decision in Kreishan.

[19]  It may be that, at the end of the day, the Supreme Court will deny leave and the only practical effect of holding these cases in abeyance will be to delay the removal of the applicants from Canada. That additional delay, however, is not decisive if the applicants’ Charter rights are in the balance. In fact, I would be showing disrespect to the Supreme Court if I were to deny this motion on the assumption that it will not grant leave in Kreishan.

B.  Applications in respect of RPD decisions

[20]  The applicants are also seeking an abeyance order with respect to their application for judicial review of the decision of the RPD that denied their claim for refugee status. Such an application was not in issue in Buyu Luemba. As I mentioned above, however, I have granted abeyance orders in respect of many such applications, while waiting for the decision of the Federal Court of Appeal.

[21]  The Minister argues that such applications raise different considerations. The issue in those applications is not the same as in Kreishan. Rather, it is the merits of each applicant’s claim for refugee status and the reasonableness of the RPD’s decision. It is, by nature, a case-specific issue. Hence, according to the Minister, those applications should proceed normally.

[22]  There is some merit in the Minister’s position. However, once again, practical considerations weigh heavily in the balance. The applicants have a recourse against the decision of the RPD denying their claim for refugee status. This recourse is either an appeal to the RAD (if the Supreme Court reverses Kreishan) or an application for judicial review before this Court. But it cannot be both, as section 72(2)(a) of the Act provides that an application to this Court “may not be made until any right of appeal that may be provided by this Act is exhausted.”

[23]  Thus, if applications for leave and judicial review of RPD decisions are allowed to proceed according to the usual timelines and the decision in Kreishan is ultimately reversed, an awkward situation may result. Resources will have been expended on applications that this Court will not be able to entertain. Moreover, the applicants would have been forced to proceed first on the recourse that affords them narrower grounds for challenging the RPD decision. Thus, if this Court has already dismissed their application for leave and judicial review if and when the Supreme Court reverses Kreishan, the applicants would presumably want to appeal the RPD decision to the RAD, despite the dismissal of their application for leave and judicial review, as the grounds for appealing are wider than the grounds for judicial review. In that situation, however, this would lead to the possibility or perception that the RAD would feel bound by this Court’s decision.

[24]  Hence, we will not know for sure which recourse is appropriate until the Supreme Court makes a final decision in Kreishan. In my view, it would be unwise to force the applicants to pursue one of those recourses, or both, before the situation is definitively clarified. Doing so would hinder access to justice, as it would require applicants to incur legal fees in perfecting applications that may turn out to be an inappropriate recourse. This would also put an undue strain on the Court’s resources.

[25]   I have considered the possibility of ordering the parties to perfect their applications and, when that is done, to hold them in abeyance until the Supreme Court makes a final determination in Kreishan. That would potentially accelerate the processing of those applications, especially if the Supreme Court denies leave. However, as the application for leave to appeal in Kreishan will be perfected in a matter of days, and given the short time-frame in which the Supreme Court usually decides such applications, the potential gain might be quite limited. This limited gain does not outweigh, in my view, the disadvantages of proceeding immediately when the proper procedure is not yet known with certainty.

III.  Disposition

[26]  As a result, I will grant the applicants’ motion and I will order that these applications, as well as the applications listed in the schedule to this order, are held in abeyance pending the final decision of the Supreme Court in Kreishan.

[27]  I anticipate that applications raising the same issues will continue to be filed. My order sets out a summary process whereby such applications may be put in abeyance and added to the list of proceedings covered by this order. It also allows parties covered by this order to withdraw from it and to have their applications considered according to the usual timelines.

ORDER in IMM-5745-18 and IMM-6365-18

THIS COURT’S ORDER is that:

1.  This order applies to files IMM-5745-18 and IMM-6365-18, as well as all files listed in the schedule to this order and any other files subsequently added to this list pursuant to paragraph 5.

2.  These files are held in abeyance until the Supreme Court of Canada finally disposes of the application for leave to appeal and, as the case may be, the appeal in Kreishan v Canada (Citizenship and Immigration), file no. 38864.

3.  If the Supreme Court denies leave to appeal in Kreishan, the applicants in all the applications for leave and judicial review covered by this order will have 30 days from the date of the decision of the Supreme Court to file their application records or, where the application record has already been filed, the parties will have 30 days to complete the next step in the proceedings.

4.  If the Supreme Court grants leave to appeal in Kreishan, a further case management conference will be held at the earliest opportunity after the final decision of the Supreme Court to determine the next steps in the files covered by this order. The parties will provide their availability to the registry within 15 days of the decision of the Supreme Court.

5.  New applications raising similar issues may be brought under the present order upon the applicant making an informal request by way of a letter, if the Minister consents to or does not oppose the request. Upon receipt of such an informal request by the registry, with the confirmation that the Minister consents to or does not oppose the request, such applications will continue as specially managed proceedings and will be held in abeyance, subject to the terms of this order. Where the Minister opposes the request, the matter may be brought before Prothonotary Molgat for decision.

6.  An applicant in a matter covered by this order may, by way of informal request made by letter, withdraw from this order. Upon receipt of such an informal request by the registry, the application in question will cease to be held in abeyance and the parties will have 30 days to complete the next step in the proceedings.

“Sébastien Grammond”

Schedule

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: