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February 20, 2024

Determining if Criminality or Organized Criminality Cases Should be Referred to the Immigration Division has Seemingly Become Rubber Stamping

Posted by Mario Bellissimo - Bellissimo Law Group PC

For years, the legal questions of what is the scope of an immigration officer (IO) or a minister’s delegate’s (MD) discretion in section 36 and 37 cases of the Immigration and Refugee Protection Act (IRPA) and what is the extent of the participatory rights required under subsections 44(1) and 44(2) of the IRPA when making a decision to refer to the Immigration Division (ID) have persisted.

It would appear on a plain reading of the wording in the legislation at section 44 (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”, that there is an important role for an IO and MD to play in the very screening exercise and in making a finding of well-foundedness. Otherwise, the section, in my view, becomes devoid of legislative meaning and is tantamount to a rubber-stamping.

Section 33 of the IRPA reinforces this important role, which sets out that the standard of proof in establishing inadmissibility under sections 36 and 37 is reasonable grounds to believe that they have occurred, are occurring, or may occur.  The Supreme Court of Canada has established that “reasonable grounds to believe” requires more than suspicion, but less than the civil standard of balance of probabilities. This “requires a bona fide belief in a serious possibility based on credible evidence.”

Thus, establishing “reasonable grounds to believe” necessitates “compelling,” in addition to credible and objective evidence.  Mugesera v. Canada (M.C.I.), 2005 SCC 40, at par. 114 being the foremost authority

The recent Federal Court of Appeal decision in Obazughanmwen v. Canada (Public Safety and Emergency Preparedness), 2023 FCA, followed by the Honourable Chief Justice Crampton’s decision in Sidhu v. Canada (Public Safety and Emergency Preparedness), 2023 FC 1681, which relied heavily on the Obazughanmwen decision, arrived at a number of important findings:

  1. The scope of discretion held by IOs under subsection 44(1) and by MDs under subsection 44(2)of the IRPAis very limited, especially in cases of serious criminality and organized criminality: Obazughanmwen, at paras 27 and 29.
  2. IOs and MDs are simply on a fact-finding mission, no more, no less. Particular circumstances of the person, the offence, the conviction and the sentence are beyond the reach of those decision-makers: Obazughanmwen,at paras 31 and 39.
  3. For greater certainty, the exercise contemplated by subsections 44(1) and (2) is an administrative screening function that is only meant to look into readily and objectively ascertainable facts concerning admissibility: Obazughanmwen, at para 37; see also paras 27 and 30.
  4. These principles apply equally to foreign nationals and permanent residents: Obazughanmwen, at para 32. They also apply with equal force to sections 36and37 of the IRPA: Obazughanmwen, at para 41.

Previously, the Honourable Justice Manson in XY v. Canada (Public Safety and Emergency Preparedness), 2021 FC 831 held:

[18] … it is clear that they retain some discretion in exercising this function (Revell, at paragraph 6; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at paragraph 6).

[52] In consideration of the factors outlined in Baker, above, this Court and the Federal Court of Appeal have found that a lower level of procedural fairness is engaged by discretion exercised by an officer or the Minister pursuant to section 44 of the IRPA.

[64] Under subsection 44(2) of the IRPA, the Minister must be of the opinion “that the report is well-founded” to refer the report to the ID for an admissibility hearing.

[54] … Decisions of an officer or the Minister under subsections 44(1) and 44(2) of the IRPA bear none of the hallmarks of a judicial or quasi-judicial process. Although, decisions to make and refer a section 44 report are not without significance. This factor favours a heightened level of procedural fairness;

[92] Jurisprudence of this Court has established that an applicant is entitled to disclosure in the course of the section 44 process under the Act, “where the information sought is material and otherwise unknown and unavailable” (Durkin v. Canada (Public Safety and Emergency Preparedness), 2019 FC 174 (Durkin), at paragraph 18; see also Jeffrey, above, at paragraphs 24 and 27).

However, in the past, even though there was a low degree of procedural fairness owed in the issuance of s. 44 inadmissibility reports and s. 44(2) decisions, applicants nonetheless would “be given the opportunity to make submissions and know the case against them”.  See for example Khan v. Canada (M.P.S.E.P.), 2019 FC 1029, pars. 22-23; Apolinario v. Canada (M.P.S.E.P.), 2016 FC 1287, pars. 31, 38; Barrios v. Canada (M.P.S.E.P.), 2018 FC 799, par. 18. It would appear these cases are no longer good law. The participatory rights in effect, extinguished.

The new reality may be persons receiving disclosure only just prior or at the ID hearing at which, only at this point would a permanent resident or foreign national know the case to meet and be able to respond to the allegation. Being informed of the nature of the allegations before receiving the Report or Referral, and attempts to obtain further information are likely no longer required in law.

The IRPA confers the determination of well-foundedness to the jurisdiction on the MD, not the ID.  At the very minimum, the IO/MD should still determine on their own, with a lens to the facts available or through communication with the Applicant, if there are sufficient readily and objectively ascertainable facts to ground the report and make a referral. But my sense is, aside from noting concurrence with the Report and recommendation to refer, “that the allegation is correct and the report is well-founded”, little else will be provided moving forward.

Despite the seriousness of the inadmissibility findings in question and the need for officers demonstrating that there are reasonable grounds to believe, based on compelling evidence of readily and objectively ascertainable facts that a report is well-founded, the threshold seems very low with no participatory rights.

What meaning section 44(2) of the IRPA retains is unclear.  Further still, what the legal terms readily and objectively ascertainable facts and well-foundedness mean in this new jurisprudential readily beyond a rubber stamping is lost, at least, on me.

Thank you for reading.