Section 44 Report

A Section 44 Report is a document created by immigration officers under Section 44 of the Immigration and Refugee Protection Act (IRPA), allowing them to declare a foreign national or permanent resident inadmissible to Canada.

These reports are commonly used in cases involving permanent residents failing residency requirements, individuals with significant criminal convictions, or those with unresolved eligibility concerns.

• Sometimes, individuals are given the opportunity to respond to the concerns raised in the Section 44 Report before a final decision is made.

• In response, individuals should gather evidence supporting their personal circumstances and, if applicable, the involvement of family members.

• Judicial review of Section 44 reports is typically granted only in exceptional circumstances, with formal inquiries conducted by the Immigration and Refugee Board if necessary.

• Lin v Canada (Public Safety and Emergency Preparedness), 2021 FCA 81, set limits on judicial review of CBSA’s inadmissibility reports, stating it should be granted only in exceptional circumstances.

• Despite the general rule to exhaust administrative appeals before seeking judicial review, exceptions exist where individuals lack appeal rights or where humanitarian factors are not considered by the Immigration Appeal Division.

• In Zhang v. Canada (Public Safety and Emergency Preparedness), 2021 FC 746, Justice Ahmed affirmed CBSA’s authority to consider humanitarian factors in organized crime referrals, allowing for judicial review in such cases.

• The Canada Border Services Agency (CBSA) can take humanitarian and compassionate factors into account when issuing these reports, especially in cases involving rehabilitation or significant humanitarian concerns.

• Singh v Canada (Public Safety and Emergency Preparedness), 2019 FC 1170, highlights CBSA’s discretion to consider humanitarian and compassionate factors in issuing A44 reports.

• Despite confirming the facts of inadmissibility, officers and delegates maintain some discretion to not refer individuals for admissibility hearings, especially if humanitarian factors outweigh the alleged inadmissibility.

• There’s debate on the extent of this discretion, but officers are expected to reasonably assess humanitarian factors, even if briefly mentioned, when making referral decisions.

• While officers are not obliged to consider humanitarian factors, they have discretion to do so, especially in cases of alleged criminal inadmissibility.

• The decision to consider humanitarian factors lies with the delegate, emphasizing the need for their reasoning to be justifiable and transparent.

• There is debate over the extent of discretion officers have in considering humanitarian and compassionate factors, but they may do so if deemed relevant to the case.

• While officers are not obligated to consider such factors, they have discretion to do so, particularly in cases of alleged criminal inadmissibility.

• The Immigration Division (ID) may consider submissions and humanitarian and compassionate factors when deciding on referral for an admissibility hearing, based on the Delegate’s review.

• Delegates have discretion to review such factors, but their decision must be justifiable, transparent, and intelligible, considering the circumstances and evidence provided.

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