Last updated on August 21st, 2021
Last Updated on August 21, 2021 by Steven Meurrens
Section 44 of the Immigration and Refugee Protection Act states:
Preparation of report
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
Conditions — inadmissibility on grounds of security
(4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person.
Duration of conditions
(5) The prescribed conditions imposed under subsection (4) cease to apply only when
(a) the person is detained;
(b) the report on inadmissibility on grounds of security is withdrawn;
(c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security;
(d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or
(e) a removal order is enforced against the person in accordance with the regulations.
Inadmissibility reports look like the following:
The Canada Border Services Agency typically issues statutory declarations explaining the circumstances which lead to the A44 report, which look like this.
These two documents typically form the reason for the A44 report, and should be obtained by those removed in order to determine next steps, including applying for Authorization to Return to Canada or judicial review.
Judicial Review of Inadmissibility Reports
In Lin v Canada (Public Safety and Emergency Preparedness), 2021 FCA 81, the Federal Court of Appeal stated that judicial review of the CBSA’s decision to issue someone an inadmissibility report under subsection 44(2) of the IRPA and refer them to the Immigration and Refugee board should only be granted in exceptional circumstances. The Court stated:
In the present cases, the delegates of the Minister, acting under section 44, expressed evidence-based beliefs that the circumstances are sufficient to warrant a more formal inquiry and an adjudicated decision on inadmissibility by the Immigration Division and, if necessary, the Immigration Appeal Division. The process is akin to a screening exercise in that there is no finding of inadmissibility, nor alteration of status. The appellants will have a full opportunity to adduce evidence and advance their factual and legal arguments and concerns regarding the relevant issues in the Immigration Division and the Immigration Appeal Division. This includes any procedural fairness or substantive issues regarding the section 44 screening process that undermine the Immigration Division’s ability to proceed. It also includes whether there were any misrepresentations giving rise to the grant of permanent residence, the relevant knowledge of the appellants, and any humanitarian and compassionate considerations. Thus, in the present cases, proceedings before the Immigration Division and the Immigration Appeal Division are both available and adequate.
The general rule is that judicial review should not be brought until all available and adequate administrative recourses are pursued. Buttressing this is the prohibition in para. 72(2)(a) of the Immigration and Refugee Protection Act that forbids judicial review until all administrative appeals are exhausted.
Nonetheless, several Federal Court decisions have stated that where someone does not have a right of appeal to the Immigration Appeal Division, or where the Immigration Appeal Division is precluded from considering humanitarian & compassionate considerations, that judicial review is possible.
In Zhang v. Canada (Public Safety and Emergency Preparedness), 2021 FC 746, Justice Ahmed determined that the CBSA has the jurisdiction to consider humanitarian & compassionate considerations in organized crime referrals, and that judicial review of their decisions was possible.
In Singh v Canada (Public Safety and Emergency Preparedness), 2019 FC 1170, the Federal Court stated that the CBSA has the discretion to consider humanitarian and compassionate factors when issuing A44 reports. The Court stated:
The jurisprudence accepts that even when Officers and Delegates confirm the underlying facts of the alleged inadmissibility, they maintain some form of discretion to not refer an individual for an admissibility hearing. This encompasses situations where Officers or Delegates believe that other considerations, such as potential for rehabilitation or significant humanitarian factors, are more important to maintaining IRPA’s objectives: Melendez v Canada (Public Safety and Emergency Preparedness), 2016 FC 1363 [Melendez] at para 34; updated in McAlpin, supra at para 70.
There is considerable debate, however, on just how much discretion Officers and Delegates actually have, and under what circumstances they must or should exercise this discretion. The Chief Justice in McAlpin, supra, summarizes this current tension:
Having regard to all of the foregoing, and in particular the guidance that the FCA has provided in Sharma, above, I consider it necessary and appropriate to update and elaborate upon the conclusions reached by Justice Boswell in respect of the current state of the jurisprudence concerning the scope of the discretion contemplated by subss. 44(1) and (2) in cases involving allegations of “criminality” and “serious criminality” on the part of permanent residents. Maintaining the framework adopted by Justice Boswell, I would summarize that jurisprudence as follows:
1. In cases involving allegations of criminality or serious criminality on the part of permanent residents, there is conflicting case law as to whether immigration officers and ministerial delegates have any discretion under subss. 44(1) and (2) of the IRPA, respectively, beyond that of simply ascertaining and reporting the basic facts which underlie an opinion that a permanent resident in Canada is inadmissible, or that an officer’s report is well founded.
2. In any event, any discretion to consider H&C factors under subss. 44(1) and (2) in such cases is very limited, if it exists at all.
3. Although an officer or a ministerial delegate may have very limited discretion to consider H&C factors in such cases, there is no general obligation or duty to do so.
4. However, where H&C factors are considered by an officer or by a ministerial delegate in explaining the rationale for a decision that is made under subs. 44(1) or (2), the assessment of those factors should be reasonable, having regard to the circumstances of the case. Where those factors are rejected, an explanation should be provided, even if only very brief in nature.
5. In this particular context, a reasonable assessment is one that at least takes account of the most important H&C factors that have been identified by the person who is alleged to be inadmissible, even only by listing those factors, to demonstrate that they were considered. A failure to mention any important H&C factors that have been identified, when purporting to take account of the H&C factors that have been raised, may well be unreasonable.
[Bold emphasis added.]
The Minister argues Officers and Delegates need not consider or refer to any facts other than those underlying the alleged inadmissibility before making a referral decision: McAlpin, supra at para 70 (Point 3); Pham v Canada (Public Safety and Emergency Preparedness), 2016 FC 824 [Pham] at para 18; Apolinario v Canada (Public Safety and Emergency Preparedness), 2016 FC 1287 [Apolinario] at para 46; Balan v Canada (Public Safety and Emergency Preparedness), 2015 FC 691 [Balan] at para 16; and Lin et al v Canada (Public Safety and Emergency Preparedness), 2019 FC 862 [Lin et al] at para 16. I agree with the Minister that the jurisprudence does not obligate Officers or Delegates to consider submissions or H&C factors, except where the evidence is prima facie compelling: Lin et al, supra at para 16, citing Faci v Canada (Public Safety and Emergency Preparedness), 2011 FC 693 at para 63; McAlpin, supra at paras 70 (Point 5), 74.
Here, the ID is unable to consider Mr. Singh’s submissions or adjudicate the claim in his favour. It was clear Mr. Singh’s conviction rendered him inadmissible: IRPA 36(1)(a). In circumstances where an individual is factually inadmissible, the ID must issue a removal order: IRPA s 45(1)(d). As such, the Delegate was the last decision maker authorized to consider his submissions and other H&C factors, and on this basis decide not to issue a referral for removal. Mr. Singh’s only real chance to avoid removal was to provide the Delegate with submissions, and hope that the Delegate would exercise discretion not to refer him for an admissibility hearing as a result.
In other words, where the Applicant’s underlying inadmissibility is not in question, the Delegate, not the ID, is in the best position to consider relevant submissions and H&C factors. I emphasize again that, absent prima facie compelling evidence, the Delegate is not obligated to do so. Once the Delegate chooses to review the submissions or H&C factors, however, it is imperative they do so reasonably, and that their reasoning is justifiable, transparent, and intelligible: Dunsmuir, supra at para 47; NL Nurses, supra at para 14.
While they are not obligated to consider humanitarian and compassionate considerations, especially in instances where a foreign national is alleged to be criminally inadmissible, they do have discretion to do so (McAlpin v Canada (Public Safety and Emergency Preparedness), 2018 FC 422 at para 65; Melendez v Canada (Public Safety and Emergency Preparedness), 2016 FC 1363 at para 34).