2021 FC 831, 2021 FC 831

IMM-5380-20 2021 FC 831 XY ( Applicant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) Indexed as: XY v. Canada (Public Safety and Emergency Preparedness) Federal Court, Manson J.—By videoconference, July 19; Ottawa, August 10, 2021. Editor’s Note: Portions redacted by the Court are indicated by [***]. Citizenship and Immigration — Exclusion and Removal — Removal of Permanent Residents — Judicial review of

(1) Canada Border Services Agency (CBSA) officer’s decision to write Immigration and Refugee Protection Act, s. 44(1) inadmissibility report ( s. 44 report),

(2) Minister’s delegate’s decision to refer s. 44 report to admissibility hearing before Immigration and Refugee Board Immigration Division — Applicant alleged to have provided false information in application to renew permanent resident card — Received

summary information regarding allegations — Applicant’s request for full disclosure of information refused — Officer, Minister’s delegate both finding insufficient humanitarian, compassionate considerations to overcome inadmissibility allegations — Applicant arguing, inter alia, that officer misunderstood, improperly communicated scope of his decision-making authority — Submitting that number of factors further supporting higher level of procedural fairness — Main issues whether officer breached duty of procedural fairness owed to applicant; level of discretion, procedural fairness owed in decision to write, refer s. 44 report — Extent of discretion under ss. 44(1) ,(2) dependent on number of factors — Nature of decision, statutory scheme, importance of decision to affected individuals favouring more nuanced consideration of procedural fairness — Act, ss. 44(1),(2) decisions offering limited recourse for further relief — Particular circumstances of applicant having to be considered contextually in order to determine available avenues of relief — Options for permanent resident inadmissible on basis of organized criminality limited, requiring more nuanced assessment — Duty of procedural fairness requiring appropriate level of disclosure for applicant to understand case against him — Applicant entitled to disclosure in course of s. 44 process where information sought material, otherwise unknown, unavailable — Here, applicant lacking information necessary to answer evidence of inadmissibility held by CBSA — Not appropriate in this case to broadly declare that officers, Minister held to higher duty of procedural fairness — C ould not be declared that particular level of procedural fairness applying to all circumstances — Facts not supporting allegation that applicant intentionally precluded from accessing Refugee Protection Division — While limited avenues of relief may heighten level of procedural fairness owed to applicant, these forms of relief operating as alternative measures for applicant subject to removal order, in need of protection — Matter remitted to different officer for reconsideration — Question certified — Application allowed.

This was an application for judicial review of a Canada Border Services Agency (CBSA) officer’s decision to write an Immigration and Refugee Protection Act , subsection 44(1) inadmissibility report (

section 44 report) against the applicant; and of the Minister’s delegate’s decision to refer the

section 44 report to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board. The applicant, a permanent resident, allegedly provided false information in his application to renew his permanent resident card. The CBSA alleged that the applicant was involved in “transnational transactions that were attempts to engage in money laundering” (paragraph 37(1)(

b) of the Act). The applicant received

summary information from the CBSA, obtained from the Chinese authorities, regarding the allegations. The applicant’s request for full disclosure of the information and documents that the CBSA was relying upon, in order to respond to the substance of the allegations, was refused by the CBSA officer. In referring the officer’s report, the Minister’s delegate found that there were reasonable grounds to believe that the applicant was inadmissible under paragraphs 37(1)(

a) and 37(1)(

b) of the Act. The applicant alleged that he would likely be tortured if returned to China and would be liable to receive the death penalty. Both the officer and the Minister’s delegate found in their respective decisions that there were insufficient humanitarian and compassionate considerations to overcome the serious nature of the inadmissibility allegations. The applicant argued, inter alia , that the officer misunderstood and improperly communicated the scope of his decision-making authority.

The applicant alleged that by refusing the disclosure request, the officer further hampered the applicant’s ability to fairly and fully respond. The applicant also asserted that the Court should reconsider the threshold of procedural fairness and scope of discretion engaged in the context of the officer’s subsection 44(1) and the Minister’s subsection 44(2) decisions. The applicant submitted that a number of factors further support a higher level of procedural fairness, such as the use of the word “may” in

section 44, and that permanent residence is a status recognized in the Canadian Charter of Rights and Freedoms . The respondent posited that the applicant had an adequate alternative remedy available by way of the admissibility hearing before the Immigration Division. The respondent also stated that the officer and Minister’s delegate exercised their limited discretion in accordance with the guidance of the Court and the Federal Court of Appeal. The main issues were whether the officer breached the duty of procedural fairness owed to the applicant; and the level of discretion and procedural fairness owed in a decision to write and refer a

section 44 report, particularly considering where a nexus exists to a refugee claim. Held , the application should be allowed.

The factors elaborated by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration) were re-examined in theparticular context of this case. While the subsection 44(1) and subsection 44(2) decisions are administrative in nature, they aresignificant steps within the inadmissibility process as a whole, particularly when the inadmissibility grounds concern organizedcriminality. Both subsections 44(1) and 44(2) use the permissive language “may”, which denotes some level of discretion of the part ofthe officer or the Minister, although it may be limited.

The extent of discretion under subsections 44(1) and 44(2) will be dependent on anumber of factors, including the alleged grounds of inadmissibility and whether the person concerned is a permanent resident or aforeign national. The nature of the decision favours a more nuanced consideration of procedural fairness, particularly where a permanentresident is faced with an inadmissibility allegation of organized criminality.

The statutory scheme and the importance of the decision tothe affected individuals also favour a level of procedural fairness that at the very least considers the exercise of reasonable discretion indetermining the applicant’s position under subsections 44(1) and 44(2). The decisions in issue were ultimately determinative of whetherthe applicant would be removed from Canada. Subsections 44(1) and 44(2) decisions offer limited recourse for further relief, as it relatesto an applicant subject to an organized criminality inadmissibility allegation.

The particular circumstances of an applicant must beconsidered contextually in order to determine which avenues of relief are further available. The options for a permanent resident found tobe inadmissible on the basis of organized criminality under

section 37 of the Act are limited, and a more nuanced assessment is required.The duty of procedural fairness required that the applicant be afforded an opportunity to provide submissions on the substance of theinadmissibility allegations and an appropriate level of disclosure to understand the case against him. An applicant is entitled to disclosurein the course of the

section 44 process “where the information sought is material and otherwise unknown and unavailable”. Theapplicant in this case lacked the information necessary to answer the evidence of inadmissibility held by CBSA. He was entitled toreceive the material information relied on by CBSA that was otherwise unknown or unavailable to him. The factual basis provided didnot constitute sufficient disclosure in this case. It was not appropriate in this case to undertake an academic exercise and broadly declare that officers and the Minister are held to ahigher duty of procedural fairness. Given that varying levels of procedural fairness may apply in the particular context of a

section 44inadmissibility process, it could not be declared that a particular level of procedural fairness applies to all circumstances. The facts didnot support the allegation that the officer and Minister’s delegate pursued the inadmissibility ground of organized criminality with theintention that it would preclude the applicant’s access to the Refugee Protection Division. There is a seriousness with which Parliamenthas chosen to deal with persons subject to allegations of organized criminality.

While limited avenues of relief may heighten the level ofprocedural fairness owed to an applicant, these forms of relief still operate as alternative measures for an applicant subject to a removalorder and in need of protection. The matter was remitted to a different officer for reconsideration. A question was certified to determine the extent to which a Minister’sdelegate must consider Canada’s obligations under the Refugee Convention in deciding to refer the case of a refugee claimant to theImmigration Division on the grounds of organized criminality.

STATUTES AND REGULATIONS CITED Criminal Code, R.S.C., 1985, c. C-46, s. 253(b). Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 6. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]. Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16. Immigration Act, R.S.C., 1985, c. I-2, s. 27(1). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(1)(h),(i), 24, 25, 34, 35, 36(1)(c), 37, 40(1)(a), 42.1, 44, 45, 46(1)(c), 48,64, 112, 113, 114(1)(b), 115.

Interpretation Act, R.S.C., 1985, c. I-21, s. 11. TREATIES AND OTHER INSTRUMENTS CITED Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3. International Covenant on Civil and Political Rights, December 19, 1966, [1976] Can. T.S. No. 47, Arts. 12, 13, 17, 23. United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6. CASES CITED APPLIED: Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193;Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Strickland v. Canada (AttorneyGeneral), 2015 SCC 37, [2015] 2 S.C.R. 713; Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89, 36 Imm. L.R.(3d) 167. DISTINGUISHED: Sharma v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 319, [2017] 3 F.C.R. 492; Lin v. Canada (Public Safety andEmergency Preparedness), 2021 FCA 81; Cha v. Canada (Minister of Citizenship and Immigration), 2006 FCA 126, [2007] 1 F.C.R.409; Hernandez v. Canada (Minister of Citizenship and Immigration), 2005 FC 429, [2006] 1 F.C.R. 3, [2005] F.C.J. No. 533 (QL);

Durkin v. Canada (Public Safety and Emergency Preparedness) , 2019 FC 174 . CONSIDERED: Revell v. Canada (Citizenship and Immigration) , 2019 FCA 262 , [2020] 2 F.C.R. 355 , leave to appeal to S.C.C. refused April 2, 2020 (38891); R. v. Wong , 2018 SCC 25 , [2018] 1 S.C.R. 696; McAlpin v. Canada (Public Safety and Emergency Preparedness) , 2018 FC 422 , [2018] 4 F.C.R. 225 ; B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 , [2015] 3 S.C.R. 704. REFERRED TO: Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50 , [2017] 2 S.C.R. 289; Canadian Pacific Railway Company v.

Canada (Attorney General) , 2018 FCA 69 , [2019] 1 F.C.R. 121 ; Mission Institution v. Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502; Jeffrey v. Canada (Public Safety and Emergency Preparedness) , 2019 FC 1180 , 70 Imm. L.R. (4th) 173; C.B. Powell Limited v. Canada (Border Services Agency) , 2010 FCA 61 , [2011] 2 F.C.R. 332 , leave to appeal to S.C.C. refused [2011] 3 S.C.R. vi; Chieu v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 3 , [2002] 1 S.C.R. 84; Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559; Mannings v.

Canada (Public Safety and Emergency Preparedness) , 2020 FC 823 ; McLeish v. Canada (Public Safety and Emergency Preparedness) , 2020 FC 705 ; Melendez v. Canada (Public Safety and Emergency Preparedness) , 2016 FC 1363 , [2017] 3 F.C.R. 354 ; Obazughanmwen v. Canada (Public Safety and Emergency Preparedness) , 2021 FC 683 ; Surgeon v. Canada (Public Safety and Emergency Preparedness) , 2019 FC 1314 . AUTHORS CITED Immigration, Refugee and Citizenship Canada. Operational Manual: Enforcement (ENF) ,

Chapter ENF 5 “Writing 44(1) Reports”. APPLICATION for judicial review of a decision by an officer of the Canada Border Services Agency to write a subsection 44(1) inadmissibility report (

section 44 report) against the applicant under paragraph 37(1) (

b) of the Immigration and Refugee Protection Act ; and of a decision by the Minister’s delegate to refer the

section 44 report to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board of Canada. Application allowed. APPEARANCES Erica Olmstead for applicant. Brett J. Nash for respondent. SOLICITORS OF RECORD Edelmann & Co. Law Offices , Vancouver, for applicant. Deputy Attorney General of Canada for respondent. The following are the public reasons for judgment and judgment rendered in English by Manson J.: I. Introduction [ 1 ] This is an application for judicial review of two decisions of the Canada Border Services Agency (CBSA): (1) a December 5, 2019, decision of the Officer to write a subsection 44(1) inadmissibility report (

section 44 report) against the applicant under paragraph 37(1) (

b) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ( IRPA ); and (2) an October 6, 2020, decision of the Minister’s delegate to refer the

section 44 report to an admissibility hearing before the Immigration Division of the Immigration and Refugee Board of Canada, finding that there are reasonable grounds to believe that the applicant is inadmissible under paragraphs 37(1) (

a) and 37(1) (

b) of the IRPA . II. Background [ 2 ] The applicant, XY, is a permanent resident of Canada, having landed with his spouse on November 3, 2002. His spouse and minor son are Canadian citizens. [ 3 ] In a letter, dated May 18, 2018, the Officer notified the applicant that a

section 44 report has been or may be prepared, alleging that the applicant may be inadmissible to Canada for misrepresentation under paragraph 40(1) (

a) of the IRPA . The applicant was alleged to have provided false employment information in his application to renew his permanent resident card, in the context of an immigration scheme. [ 4 ] The applicant provided submissions in response to the procedural fairness letter in July of 2018 and an interview was scheduled with the CBSA for April 16, 2019, to discuss the applicant’s case. During the interview, the Officer referenced an [***], accusing the applicant of bribery and money laundering. The Officer sought the applicant’s “side of the story” , verbally indicating the allegations against the applicant.

The applicant’s counsel in attendance stated that the applicant would not be answering questions in regards to this and sought a written outline disclosing the allegations against the applicant, on the basis of which a disclosure request would be made. [ 5 ] On September 9, 2019, the applicant received another procedural fairness letter from CBSA (the “ Letter” ). It advised that a

section 44 report has or will be prepared alleging the applicant may be inadmissible to Canada under paragraph 37(1) (

b) of the IRPA , for the applicant’s alleged involvement in “transnational transactions that were attempts to engage in money laundering” . Specifically, the applicant had been under investigation since 2012, when information was received from the Chinese authorities and supported by “various sources” . The applicant had allegedly accepted bribes [***] and engaged in money laundering.

[ 6 ] The applicant received

summary information from CBSA, obtained from the Chinese authorities, regarding the allegations under paragraph 37(1) (

b) of the IRPA , and including information on allegations under paragraphs 36(1) (c), 37(1) (

a) and 40(1) (

a) of the IRPA , as enclosed in the “Subsection 44(1) and 55 Highlights—Inland Cases” (the “Highlights” ). [ 7 ] The Letter stated that the next step in the process would be to conduct a review of the circumstances of the applicant’s case: “If a report is prepared, a Minister’s Delegate may cause an Admissibility Hearing to be held, which could result in a removal order being issued” . The applicant was further invited to make written submissions: … providing reasons why a removal order should not be sought.

The submission may include details relevant to your case, including, but not limited to, your age at the time you acquired permanent residence, your length of residence in Canada, the location of family support and responsibilities, the conditions in your home country, your degree of establishment, your criminal history, and any history of non- compliance and your current attitude, and any other relevant factors. [Emphasis removed.] [ 8 ] In his response, dated September 24, 2019, the applicant requested full disclosure of the information and documents that CBSA was relying upon in order to respond to the substance of the allegations (the “Disclosure Request” ).

Without such disclosure, the applicant claimed that he was only in a position to provide submissions on the humanitarian and compassionate (H&

C) aspects. Counsel at the time for the applicant indicated: He cannot respond to the case to be met on the allegations that he has violated IRPA because he has not been provided the evidence you have referred to and relied upon that forms the basis for the opinions in the s. 44 report. Your report is a

summary of records that you have seen for yourself. [The applicant] is entitled to see these for himself to consider his own response. … As such we are requesting full disclosure of the evidence you have referred to and relied upon that forms the basis for the opinions in the s. 44 report dated September 9, 2019, and all potentially relevant records accessible to you and not otherwise accessible to [the Applicant] that may be relevant to the issues set out in the s. 44 report…. [ 9 ] The Disclosure Request was refused by the Officer, in a letter dated September 26, 2019, because: …. submissions in these sorts of circumstances are generally regarding an individual’s personal circumstances as to why a report should not be referred.

The making of submissions is to allow the minister’s delegate an opportunity to exercise their discretion as to whether a removal order ought to be sought based on an individual’s personal circumstances and the impact that a removal order would have on them. The Immigration and Refugee Board has not been delegated the discretion to make this assessment; only to assess whether the evidence supports an inadmissibility.

Therefore, the appropriate forum for [the Applicant] to launch a comprehensive defense of inadmissibility is during an admissibility hearing should the minister’s delegate determine there is sufficient grounds to cause one. Furthermore, at this stage [the applicant] is only required to know the factual basis of the allegation against him which has already been disclosed in the form of the 44 report highlights.

As such the appropriate time for disclosure is when/if a report is forwarded for a hearing. [ 10 ] Counsel for the applicant responded in an October 21, 2019, letter to confirm the applicant’s understanding—the exercise of the Officer’s discretion whether to seek a removal order will be based on the applicant’s personal circumstances, not on whether the evidence indicates that he is inadmissible.

The applicant’s submissions addressed the potential personal impact of a removal order on him and his family, and the risk of death or cruel and unusual punishment or treatment, including torture, should the applicant be returned to China. The applicant alleges he will likely be tortured if returned to China so that the authorities can pursue a confession. Once convicted, the applicant would be liable to receive the death penalty in China. [ 11 ] On December 5, 2019, the Officer made the decision to write a

section 44 report against the applicant under paragraph 37(1) (

b) of the IRPA , pursuant to subsection 44(1) of the IRPA . [ 12 ] On October 6, 2020, the Minister’s delegate then referred the reports, both under paragraphs 37(1) (

a) and 37(1) (

b) of the IRPA , for an admissibility hearing before the Immigration Division, pursuant to subsection 44(2) of the IRPA , finding that there are reasonable grounds to believe that the applicant is inadmissible under paragraphs 37(1) (

a) and 37(1) (

b) of the IRPA . [ 13 ] The applicant seeks an order of this Court setting aside the subsection 44(1) decision to write and the subsection 44(2) decision to refer the

section 44 report, and referring the matter back to a different officer for redetermination in accordance with this Court’s reasons. A. The Legislative Scheme [ 14 ] A permanent resident may be found inadmissible to Canada, leading to a loss of status and removal from Canada ( Revell v. Canada (Citizenship and Immigration) , 2019 FCA 262 , [2020] 2 F.C.R. 355 ( Revell ), at paragraph 5 , leave to appeal to S.C.C. refused 38891 (2 April 2020)). The grounds for inadmissibility include serious criminality, as set out in subsection 36(1) of the IRPA and organized criminality, as set out in subsection 37(1) of the IRPA : Serious criminality 36

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (

c) committing

an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.

… Organized criminality 37

(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (

a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under

an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or (

b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. [ 15 ] The framework for the adjudication and enforcement of inadmissibility allegations is provided under the IRPA—a legislative scheme which has been described by the Federal Court of Appeal as comprehensive ( Revell , above, at paragraph 5 ). [ 16 ] If a CBSA officer (officer) is of the view that a permanent resident is inadmissible, they may prepare a report in accordance with subsection 44(1) of the IRPA : 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. [ 17 ] This report is transmitted to the Minister or the Minister’s delegate (the “Minister” ), who may subsequently refer the report to the Immigration Division for an admissibility hearing, as provided for in subsection 44(2) of the IRPA : 44 … 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. [ 18 ] While the scope of discretion of an officer and the Minister in writing and referring

section 44 reports has remained the subject of litigation, 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 ). [ 19 ] The Immigration Division must then, at the conclusion of the admissibility hearing: (1) recognize a person’s right to enter Canada; (2) grant permanent resident status or temporary resident status to a foreign national; (3) authorize a permanent resident or foreign national, with or without conditions, to enter Canada for further examination; or (4) make the applicable removal order IRPA,

section 45 ). [ 20 ] There is no further right of appeal to the Immigration Appeal Division, where a foreign national or permanent resident has been found inadmissible on the basis of organized criminality or in some cases, serious criminality IRPA, subsections 64(1) –(2)): No appeal for inadmissibility 64

(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. Serious criminality

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(

b) or (c). [ 21 ] If a removal order comes into force, the permanent resident loses status and becomes a foreign national ( IRPA, paragraph 46(1) (c)): Permanent resident 46

(1) A person loses permanent resident status … (

c) when a removal order made against them comes into force. [ 22 ] Nevertheless, three avenues remain open to the foreign national:

(1) A temporary resident permit, pursuant to

section 24 of the IRPA ; (2) a discretionary exemption from inadmissibility on H&C grounds, under

section 25 of the IRPA ; and (3) a ministerial declaration or ministerial relief, under

section 42.1 of the IRPA , where an exception to inadmissibility is granted on the basis that it is not contrary to national interest ( Revell , at paragraphs 8–10 ).

[23] The second avenue, an exemption on H&C grounds, is not available to foreign nationals who are inadmissible for organizedcriminality (IRPA, subsection 25(1)), under

section 37 of the IRPA, nor on the basis of security grounds or for violating human andinternational rights, under

section 34 or 35 of the IRPA (IRPA, subsection 25(1)). [24] A foreign national can also apply for a pre-removal risk assessment (PRRA) to stay removal from Canada or seek a deferral ofremoval (Revell, at paragraphs 11–12; IRPA, sections 48, 112–113). The objective of the PRRA process is to determine whether a personwould be subject to a danger of torture or to a risk to their life, or to cruel and unusual treatment, if removed to his or her country ofnationality.

The result of a favourable PRRA assessment for an applicant who has been deemed inadmissible on the ground of organizedcriminality is a stay of removal (IRPA, subsection 112(3) and paragraph 114(1)(b)). CBSA also retains limited discretion to defer aremoval (Revell, at paragraphs 11–12). III. Decisions Under Review [25] Both the Officer and the Minister’s delegate found in their respective decisions that there are insufficient H&C considerations toovercome the serious nature of the inadmissibility allegations. [26] The Officer provided in the December 5, 2019, decision to write a

section 44 report: In my determination insufficient humanitarian and compassionate grounds were provided and therefore I recommend that the 44 reportsfor 36(1)(c), 37(1)(

a) and 37(1)(

b) be referred to an admissibility hearing, I make this recommendation due to serious nature of theallegations against [the Applicant]. [27] The Minister’s delegate further stated in the October 6, 2020, decision to refer the

section 44 reports to an admissibility hearing: I have made the decision to refer the S. 44 reports to an admissibility hearing as I believe there are reasonable grounds to believe that [theApplicant] is inadmissible under s. 37(1)(

a) and 37(1)(b). I believe there are insufficient humanitarian and compassionate considerationsto overcome the seriousness of the allegations under the IRPA. IV. Issues [28] The issues are: A. Is the application premature? B. Did the Officer breach the duty of procedural fairness owed to the applicant? C. What level of discretion and procedural fairness is owed in a decision to write and refer a

section 44 report, particularly consideringwhere a nexus exists to a refugee claim? V. Standard of Review [29] Issues that relate to a breach of procedural fairness are reviewed on the standard of correctness (Canadian Pacific RailwayCompany v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121, at paragraphs 34–35 and 54–55, citing Mission Institutionv. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at paragraph 79). [30] The parties argued in their written submissions that the standard of review to be applied is that of reasonableness.

However, inoral argument they agreed that procedural fairness issues were engaged. The issues put forward by the applicant relate to the fairness ofthe process employed by the Officer. They concern whether the applicant’s opportunity to respond to the substance of the inadmissibilityallegations was hampered by the Officer. Such participatory rights are contained within the duty of procedural fairness (Baker v.

Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193 (Baker), atparagraph 22): Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and therights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires ina given set of circumstances.

I emphasize that underlying all these factors is the notion that the purpose of the participatory rightscontained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure,appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by thedecision to put forward their views and evidence fully and have them considered by the decision-maker. [31] Prior to the Supreme Court of Canada’s decision in Vavilov, an applicant’s entitlement to disclosure in the context of a

section 44process under the IRPA has previously been reviewed on the standard of correctness (Jeffrey v. Canada (Public Safety and EmergencyPreparedness), 2019 FC 1180, 70 Imm. L.R. (4th) 173 (Jeffrey), at paragraph 20; see also Sharma v. Canada (Public Safety andEmergency Preparedness), 2016 FCA 319, [2017] 3 F.C.R. 492 (Sharma), at paragraph 15). This approach has not changed in light ofVavilov, where the Vavilov framework applies to the merits of an administrative decision under review (Canada (Minister of Citizenshipand Immigration) v.

Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (Vavilov), at paragraphs 23 and 77). [32] Nevertheless, the scope of discretion engaged by an officer or the Minister to respectively write and refer a

section 44 report isreviewed on the standard of reasonableness (Vavilov, above, at paragraph 25; Sharma, above, at paragraph 15). VI. Analysis A. The Parties’ Positions [33] The applicant argues that the Officer misunderstood and improperly communicated the scope of his decision-making authority.By indicating to the applicant that the Officer’s discretion to write a

section 44 report would be based on the applicant’s personal

circumstances, he denied the applicant a fair opportunity to respond to the inadmissibility allegations. By refusing the Disclosure Request, the Officer further hampered the applicant’s ability to fairly and fully respond. The information relied on by the Officer was obtained directly from the Chinese authorities and the applicant could not have obtained the information in any other way.

The Highlights were insufficient to meet the requirements of procedural fairness, in a context such as this, where inadmissibility is not based on a conviction in Canada. [ 34 ] The applicant also asserts that although the alleged errors arise on a lower level of procedural fairness, this Court should reconsider the threshold of procedural fairness and scope of discretion engaged in the context of the Officer’s subsection 44(1) and the Minister’s subsection 44(2) decisions.

The applicant alleges that there are a number of factors that have been overlooked in prior decisions of this Court and the Federal Court of Appeal in interpreting these subsections of the IRPA . [ 35 ] Furthermore, specific consideration must also be given to refugee claimants in this context. In the context of this case, the facts underlying the inadmissibility allegation may also create a basis for a refugee protection claim. The two streams are markedly different, specifically with respect to the parameters of the decision to be made.

The applicant is asking this Court to clarify the proper framework to be followed in this context. [ 36 ] It is the respondent’s position that while the applicant does not have a right of appeal to the Immigration Appeal Division, he has an adequate alternative remedy available by way of the admissibility hearing before the Immigration Division and through the PRRA process. This application should be dismissed on the sole basis that it is premature.

Further, the discretion of officers and the Minister respectively under subsections 44(1) and 44(2) of the IRPA has largely been settled by recent jurisprudence of this Court. The impugned decisions are reasonable and do not warrant the intervention of this Court. The Officer and Minister’s delegate exercised their limited discretion in accordance with the guidance of this Court and the Federal Court of Appeal. B. Preliminary Issue: Prematurity of the Application [ 37 ] The respondent argues that this application should be dismissed on the ground of prematurity alone.

The respondent relies on the Federal Court of Appeal’s decision in Lin v. Canada (Public Safety and Emergency Preparedness) , 2021 FCA 81 ( Lin ). In Lin , the Federal Court of Appeal found that Minister’s delegates acting under

section 44 of the IRPA undertake what is akin to a screening exercise. A full opportunity to adduce evidence and advance factual and legal arguments is instead available before the Immigration Division and the Immigration Appeal Division. The applications in Lin , seeking judicial review of the Minister’s delegates’ decisions to refer the appellants to inadmissibility hearings, were therefore premature. The available and adequate administrative resources had not been pursued.

Any exception to this general rule is very rare, requiring exceptional circumstances ( Lin , above, at paragraphs 4–6 ). [ 38 ] The underlying decisions in Lin concerned allegations of inadmissibility for misrepresentation, pursuant to subsection 40(1) (

a) of the IRPA . The respondent acknowledges that the applicant in this current application does not have a similar right of appeal to the Immigration Appeal Division, as the appellants possessed in Lin , owing to the operation of subsection 64(1) of the IRPA . [ 39 ] Having access to both the Immigration Division and Immigration Appeal Division, the Federal Court of Appeal concluded in Lin , at paragraph, that: ....

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: Strickland v.

Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713 at para. 42 . [ 40 ] The respondent nonetheless asserts that the applicant in this case has an adequate alternative remedy available at the admissibility hearing before the Immigration Division in light of: (1) the convenience of the alternative remedy; (2) the nature of the error alleged; (3) the nature of the other forum which would deal with the issue, including remedial capacity; (4) the expertise of the alternative decision maker; and (5) economical use of judicial resources and costs ( Strickland v.

Canada (Attorney General) , 2015 SCC 37 , [2015] 2 S.C.R. 713 ( Strickland ), at paragraph 42 ; C.B. Powell Limited v. Canada (Border Services Agency) , 2010 FCA 61 , [2011] 2 F.C.R. 332 , at paragraphs 30–32 , leave to appeal to S.C.C. refused [2011] 3 S.C.R. vi). [ 41 ] I agree with the applicant that the consideration of prematurity requires a close attention to the facts. The

section 44 process is inclusive of a variety of inadmissibility grounds, and applies to both permanent residents and foreign nationals. I note the Federal Court of Appeal’s statements in Cha v. Canada (Minister of Citizenship and Immigration) , 2006 FCA 126 , [2007] 1 F.C.R. 409 ( Cha ), at paragraphs 21–22 : Subsection 44(2) of the Act applies to all grounds of inadmissibility. These grounds encompass such diverse areas as security, human or international rights violations, serious criminality, criminality, organized criminality, health, financial reasons, misrepresentation and non-compliance with the Act.

The complexity of the facts at issue varies from ground to ground. Some grounds have legal components, others not. The subsection applies to permanent residents and to foreign nationals, who are not usually subject to the same treatment under the terms of the Act. The subsection applies both to the power of the Minister’s delegate to refer the report to the Immigration Division and to his power to issue the removal order himself.

The scope of the discretion, therefore, may end up varying depending on the grounds alleged, on whether the person concerned is a permanent resident or a foreign national and on whether the report is referred or not to the Immigration Division. There may be a room for discretion in some cases, and none in others. This is why it was wise to use the term “may”. [ 42 ] I find that the circumstances in Lin are distinguishable from the current facts of this case and that the applicant does not have an adequate alternative remedy in the form of an admissibility hearing before the Immigration Division.

For the reasons below, this application is not premature.

[ 43 ] The

section 44 process does not result in a change of status for an applicant. The Federal Court of Appeal in Sharma aptly describes at paragraph 25: “While these decisions are important in the sense that they trigger the process that may ultimately strip the appellant of his permanent residency, they are of no immediate and practical consequence for the appellant.” The Immigration Division, seized of a

section 44 report, will make the determination in this regard. The jurisprudence that likens the process under

section 44 of the IRPA to a screening process is instructive. [ 44 ] However, in discussing the duty of fairness owed by an officer and the Minister in the subsection 44(1) decision to write and subsection 44(2) referral decision, the Federal Court of Appeal stated ( Sharma , at paragraph 24 ): That being said, I am prepared to accept that the decisions to make a report and to subsequently refer it to the ID are not without significance.

Considering that, once referred, the options of the ID appear to be very limited since it “shall make” a removal order if satisfied that the foreign national or the permanent resident is inadmissible, it would appear that the only discretion (albeit very limited) to prevent a foreign national or permanent resident from being removed rests with the immigration officer and the Minister or his delegate…. [ 45 ]

Section 45 of the IRPA provides: Decision 45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions: (

a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident; (

b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act; (

c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or (

d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible. [ 46 ] The factors enumerated in the Supreme Court of Canada’s decision in Strickland , at paragraph 42 , is not a closed checklist.

A Court must consider the available alternative and the appropriateness of judicial review, and question whether the alternative remedy is adequate in all the circumstances to address the applicant’s grievance ( Strickland , at paragraphs 42–43 ). [ 47 ] Considering the limited discretion of the Immigration Division, which “shall make” a removal order, where a permanent resident is deemed inadmissible and the discretion that an officer or the Minister may exercise to prevent a foreign national or permanent resident from being removed, I do not find this application is premature, given the “nature of the other forum which could deal with the issue, including its remedial capacity” being more narrow than the

section 44 screening process that precedes it ( Strickland , at paragraph 42 ). Judicial review is appropriate in the circumstances ( Strickland , at paragraph 43 ). [ 48 ] Although defined as a screening process, the

section 44 process covers a breadth of inadmissibility grounds, engaging different considerations in each context. In the current circumstances of this case, I do not find that the admissibility hearing before the Immigration Division constitutes an adequate alternative remedy, rendering this Application premature. C. Duty of Procedural Fairness [ 49 ] The applicant’s allegations as it relates to the breach of procedural fairness of the Officer and Minister’s delegate are two-fold. First, in the decisions to write and refer the

section 44 reports, the Officer and Minister’s delegate considered the seriousness of the allegation of inadmissibility to be paramount, after having foreclosed the applicant’s ability to respond to those allegations.

Second, the Officer failed to provide relevant disclosure to the applicant, as sought in the Disclosure Request. [ 50 ] While the duty of procedural fairness under both the subsection 44(1) and subsection 44(2) decisions under the IRPA have largely been considered concurrently below, where differences exist, they are referred to explicitly. [ 51 ] The errors described by the applicant allegedly arise in that the Officer unreasonably found and communicated to the applicant that “submissions in these sorts of circumstances are generally regarding an individual’s personal circumstances as to why a report should not be referred” and “at this stage [the applicant] is only required to know the factual basis of the allegation against him which has already been disclosed in the form of the s. 44 report highlights.

As such the appropriate time for disclosure is when/if a report is forwarded for a hearing” . [ 52 ] The applicant submits the alleged errors arise even on a lower threshold of procedural fairness generally found in the jurisprudence. 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 . [ 53 ] The five, non-exhaustive Baker factors are: (1) the nature of the decision; (2) the statutory scheme; (3) the importance of the decision to the affected individuals; (4) the legitimate expectations of the person challenging the decision; and (5) the administrative decision maker’s choice of procedure ( Baker , at paragraphs 23–28 ). [ 54 ] In brief, the Federal Court of Appeal has found that in balancing all of the Baker factors, “ the duty of fairness is clearly not at the high end of the spectrum in the context of decisions made pursuant to subsections 44(1) and (2)” on the basis of ( Sharma , at paragraphs 22–29 ):

A. 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; B. The subsection 44(1) report, the subsection 44(2) referral and the Immigration Division’s removal order are not necessarily determinative of whether an applicant/appellant will be removed from Canada, as there are possibilities of seeking relief under other provisions of the IRPA . Subsections 44(1) and 44(2) decisions are of no immediate and practical consequence; C. No legitimate expectation was found to exist in Sharma ; and D. The IRPA does not set out any particular procedure to be followed in making a

section 44 report and referring it to the Immigration Division—the procedure to be followed has been left to the decision maker. [ 55 ] Similarly, in Hernandez , this Court considered the factors laid out in Baker and found that they “point toward a more relaxed duty of fairness” . At a minimum, the duty of procedural fairness required that the affected person be given an opportunity to make submissions and to know the case against him or her ( Hernandez v. Canada (Minister of Citizenship and Immigration) , 2005 FC 429 , [2006] 1 F.C.R. 3 , [2005] F.C.J.

No. 533 (QL) ( Hernandez ), at paragraphs 70–72 ). [ 56 ] In light of the applicant’s submission that a number of factors further support a higher level of procedural fairness, as it relates to the decisions to both write and refer a

section 44 report, the Baker factors warrant re-examination in the particular context of this case. The applicant asks this Court to rely on the decision in Hernandez , above, as the most appropriate starting point.

The applicant argues that the Federal Court’s decision in Hernandez has comprehensively taken into account the circumstances allegedly informing the duty of procedural fairness and the scope of discretion exercised under subsections 44(1) and 44(2) of the IRPA , including the legislative history of the IRPA . [ 57 ] The applicant further submits the following factors for this Court’s consideration, as outlined at paragraph 57 of the applicant’s further memorandum of fact and law: A. The use of the word “may” write/refer in

section 44 of the IRPA , which is a significant and intentional change from the use of the word “shall” ; B. The presumptive rule in

section 11 of the

Interpretation Act , R.S.C., 1985, c. I-21 (

Interpretation Act ) is that “may” is permissive and “shall” is not; C. Historically, permanent resident status has been recognized as critical, which should be removed only “for very serious reasons” and after consideration of “ameliorating or compassionate factors such as length of residence” . Before the creation of the Immigration Appeal Board, this power [was] vested with the Minister. Through the IRPA amendments, Parliament can be seen as seeking to bring this power back to the Minister not to be removing it ( Chieu v.

Canada (Minister of Citizenship and Immigration) , 2002 SCC 3 , [2002] 1 S.C.R. 84, at paragraph 38 ); D. That permanent residence is a status recognized in the Charter [ Canadian Charter of Rights and Freedoms ], under

section 6 mobility rights, and when citizenship was first created as a lawful status in 1947, it automatically captured persons who were domiciled in Canada for at least 5 years (domiciled status has since become known as permanent residence) ( Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]); E. That Articles 12 and 13 of the International Covenant on Civil and Political Rights , December 19, 1966, [1976] Can. T.S. No. 47, which Canada acceded to on May 19, 1976, provide for the rights of entry into one’s own country, which encompasses long-term permanent residents, and for expulsion only for compelling reasons of national security, with a right for review of the reasons against expulsion.

Articles 17 and 23 also provide for the rights against interference with family and home, and the recognition of the family as the natural and fundamental unit of society which is entitled to protection by society and the State; F. That the Supreme Court of Canada has recognized that deportation can have “a more significant impact on the accused than the criminal sanction itself…. They may be forced to leave a country they called home for decades. They may return to a country where they no longer have any personal connections, or even speak the language, if they emigrated as children.

If they have family in Canada, they and their family members face dislocation or permanent separation” ( R. v. Wong , 2018 SCC 25 , [2018] 1 S.C.R. 696, at paragraph 72 ); G. That new bars and restrictions enacted since 2012 on mechanisms that previously allowed for the possibility that permanent residents could retain their status after a report was written, considering their personal circumstances, means that the

section 44 decisions are of greater significance to the rights and interests of the person concerned than was previously the case: access to the Immigration Appeal Division was further restricted in 2012 to exclude persons with sentences of more than 6 months’ imprisonment and in 2013 H&C applications under

section 25 of the IRPA excluded persons inadmissible under sections 34 , 35 and 37 from having applications considered. The Supreme Court of Canada also clarified that ministerial relief applications available to the later group of persons need only consider security interests and not H&C type circumstances ( Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 ( Agraira ), at paragraph 84 ); H. In sections 34, 35 and 37 inadmissibility cases, there is no other place for the best interests of the child to be considered.

It would be contrary to the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3] if a meaningful best interests of the child analysis were not conducted at the

section 44 IRPA stage; I. That the “broad and unrestricted”

interpretation that has been given to inadmissibility provisions makes this discretion even more important to ensure prospective removal is rationally tied to the objectives of the IRPA to prioritize security in each individual case, as balanced against the rights and interests of the person concerned and their families; and J. That it is an absurd

interpretation of the IRPA that would afford foreign nationals greater substantive consideration of their rights and

interests in an application for permanent residence under

section 25 of the IRPA than long-time permanent residents with Canadian children who stand to lose that status.

(1) The Nature of the Decision [ 58 ] For the reasons below, the nature of a subsection 44(1) and subsection 44(2) decision favours a more nuanced level of procedural fairness than simply applying a “lower level” .

While the decisions are administrative in nature, they are significant steps within the inadmissibility process as a whole, particularly when the inadmissibility grounds concern organized criminality. [ 59 ] The Federal Court of Appeal in Sharma and the Federal Court’s decision in Hernandez have recognized the administrative nature of subsections 44(1) and 44(2) decisions, which bear “none of the hallmarks of a judicial or quasi-judicial decision” ( Sharma , at paragraph 22 ; Hernandez , at paragraph 50 ).

I further note the Federal Court of Appeal’s statement in Lin that the “process is akin to a screening exercise in that there is no finding of inadmissibility, nor alteration of status” ( Lin , at paragraph 4 ). On this basis, the Federal Court in Hernandez found that this factor supported a relatively low duty of fairness ( Hernandez , at paragraph 56 ). [ 60 ] Both subsections 44(1) and 44(2) of the IRPA use the permissive language “may” , which denotes some level of discretion of the part of the officer or the Minister, although it may be limited.

The change from the use of the word “shall” in the equivalent provisions in prior iterations of the Immigration Act (for example, Immigration Act , R.S.C., 1985, c. I-2, subsection 27(1)) and in light of the parliamentary committee proceedings discussed in Hernandez , at paragraphs 18 to 19 , while not determinative, suggest discretion was intended at the “front end” of the

section 44 process. The Federal Court of Appeal in Sharma has further recognized that the extent of discretion under subsections 44(1) and 44(2) of the IRPA will be dependent on a number of factors, including the alleged grounds of inadmissibility and whether the person concerned is a permanent resident or a foreign national ( Sharma , at paragraph 23 ). [ 61 ] In Cha , as mentioned above, although the Federal Court of Appeal stated that “may” can be sometimes read in context as “must” or “shall” , thereby rebutting the presumptive rule in

section 11 of the

Interpretation Act , the Court further recognized that the scope of discretion may end up varying depending on “the grounds alleged, on whether the person concerned is a permanent resident or a foreign national and on whether the report is referred or not to the Immigration Division. There may be room for discretion in some cases, and none in others.

This is why it was wise to use the term ‘may’” ( Cha , above, at paragraphs 19 and 22 ). [ 62 ] I also note that in the Federal Court of Appeal’s decision in Cha a “low degree of participatory rights is warranted” is further distinguishable as it concerned a foreign national, not a permanent resident, and the decision under review was only in respect of issuing a removal order. [ 63 ] While the nature of the subsection 44(1) decision to write and the subsection 44(2) decision to refer an inadmissibility report under the IRPA have been considered concurrently thus far, there is the matter of the respective nature of each decision. [ 64 ] As it relates to writing a

section 44 report under subsection 44(1) of the IRPA , the officer “may prepare a report setting out the relevant facts” . 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 Immigration Division for an admissibility hearing. The Minister further retains some authority in certain prescribed circumstances to directly make a removal order under subsection 44(2) of the IRPA .

In this respect, the Minister arguably possesses a broader scope of discretion under subsection 44(2) , than the officer under subsection 44(1) , whose task is one of fact-finding. However, as both decisions are in issue in this application, this distinction is ultimately not determinative. [ 65 ] Therefore, I find that this factor rather favours a more nuanced consideration of procedural fairness. Particularly, I find this to be the case where a permanent resident is faced with an inadmissibility allegation of organized criminality. [ 66 ] Decisions to make and refer

section 44 reports to the Immigration Division are not without significance. The outcomes following an admissibility hearing are limited, as the Immigration Division “shall make” a removal order if it finds that the permanent resident is inadmissible ( IRPA,

section 45 ). The only discretion appears to be conferred by an officer and the Minister and the use of the word “may” in subsections 44(1) and 44(2) of the IRPA . As described in Hernandez , at paragraph 47 , although in the context of a serious criminality inadmissibility allegation: …. As discussed earlier in these reasons, under subsection 36(1) of the IRPA , the applicant is inadmissible; there is no room for any other finding. Once the subsection 44(2) referral is made to the Immigration Division, the only outcome of the inquiry, that I can see, is a removal order.

Finally, an appeal to the IAD has been removed for persons in the position of the applicant. Thus, the only power to prevent the applicant’s removal rested with the immigration officer and the Minister’s delegate. Only if either one or the other of these two officials had decided not to take further action would the applicant be able to avoid the issuance of a removal order under paragraph 45 ( d ).

(2) The Statutory Scheme and the Importance of the Decision to the Affected Individuals [ 67 ] I find that the statutory scheme and the importance of the decision to the affected individuals also favour a level of procedural fairness that at the very least considers the exercise of reasonable discretion in determining the applicant’s position under subsections 44(1) and 44(2) of the IRPA .

For the reason below, I find that the decisions in issue are ultimately determinative of whether the applicant will be removed from Canada, particularly in the context of an organized criminality inadmissibility allegation, and the consequences of these decisions carry a particular importance for permanent residents in Canada. [ 68 ] As stated by the Supreme Court of Canada in Baker , at paragraph 24 : ….

The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted….

[ 69 ] Prior jurisprudence of this Court and the Federal Court of Appeal have generally found that the decisions to write and refer a

section 44 report and the Immigration Division’s removal order are not necessarily determinative of an applicant’s removal from Canada, considering the other forms of available relief under the IRPA . These forms of relief include an exemption on the basis of H&C considerations under

section 25 of the IRPA and the PRRA process pursuant to

section 112 of the IRPA ( Hernandez , at paragraph 59 ; Sharma , at paragraph 25 ).

As such, the inadmissibility process is not “the end of all possibilities for the applicant to remain in Canada” ( Hernandez , at paragraph 59 ). [ 70 ] While I agree in principle with the rationale used in the above cases, a closer examination of the statutory scheme and its application in the context of this case reveals that the subsections 44(1) and 44(2) decisions under the IRPA offer limited recourse for further relief, as it relates to an applicant subject to an organized criminality inadmissibility allegation. [ 71 ] Within the inadmissibility process itself, as indicated above, a subsection 44(1) and 44(2) decision to write and refer a

section 44 report confer the only discretionary power to prevent an applicant’s removal in the inadmissibility process ( Hernandez , at paragraph 58 ; Sharma , at paragraph 24 ). [ 72 ] Moreover, as it relates to the IRPA scheme more broadly, the particular circumstances of an applicant must be considered contextually in order to determine which avenues of relief are further available.

As described above, subsections 44(1) and 44(2) of the IRPA encompass all grounds of inadmissibility—including, security, human or international rights violations, serious criminality, criminality, organized criminality, health, financial reasons, misrepresentation and non-compliance with the IRPA—with varying consequences for an applicant ( Cha , at paragraphs 21 and 22 ). [ 73 ] The options for a permanent resident found inadmissible on the basis of organized criminality under

section 37 of the IRPA are limited. There is no further right of appeal to the Immigration Appeal Division ( IRPA, subsections 64(1) and (2) ). Moreover, an exemption based on H&C grounds is not available ( IRPA, subsection 25(1) and paragraph 46(1) (c)). In this respect, this case is distinguishable from the facts in the decisions of Sharma and Hernandez , where the courts considered an appellant or applicant inadmissible on account of serious criminality. [ 74 ] While an applicant may be able to apply for a temporary resident permit, a PRRA or deferral of removal, these are temporary or provisional measures.

A temporary resident permit applies for a “finite period of time” and a PRRA operates to “stay removal from Canada” , in the case of inadmissibility on the basis of organized criminality ( IRPA, subsection 112(3) and paragraph 114(1) (b)). [ 75 ] In oral submissions, counsel for the respondent emphasized the importance of the PRRA process. However, I do find that this avenue is analogous to the Immigration Appeal Division process or to an exemption on the basis of the H&C considerations, in the context of assessing the level of procedural fairness owed to an applicant, due to its provisional nature.

Again, I find that a more nuanced assessment is required on the basis of this particular ground of alleged inadmissibility—organized criminality. [ 76 ] Further, pursuant to

section 48 of the IRPA , removal orders must be executed as soon as possible. An officer charged with the matter would retain little discretion to defer removal ( IRPA, subsection 48(2) ; Revell , at paragraph 12 ). [ 77 ] As such, the only option for a foreign national to directly challenge the inadmissibility finding is through a

section 42.1 ministerial declaration under the IRPA : Exception — application to Minister 42.1

(1) The Minister may, on application by a foreign national, declare that the matters referred to in

section 34, paragraphs 35(1)(

b) and (

c) and subsection 37(1) do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest. Exception — Minister’s own initiative

(2) The Minister may, on the Minister’s own initiative, declare that the matters referred to in

section 34, paragraphs 35(1)(

b) and (

c) and subsection 37(1) do not constitute inadmissibility in respect of a foreign national if the Minister is satisfied that it is not contrary to the national interest. Considerations

(3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada. [ 78 ] If relief is granted, the foreign national becomes eligible to make an H&C application under

section 25 of the IRPA ( Revell , at paragraph 10 ):

Section 42.1 provides that the Minister of Public Safety and Emergency Preparedness may declare that subsection 37(1) organized criminality does not constitute inadmissibility in respect of a foreign national if he or she is satisfied that this exception is not contrary to the national interest. This declaration may be made on his or her own initiative or on the basis of an application.

Under subsection 42.1(3), in determining whether or not to make this declaration the Minister may only consider “national security and public safety considerations” but he or she “is not limited to considering the danger that the foreign national presents to the public or the security of Canada” in the analysis. When

section 42.1 relief is granted, the foreign national becomes eligible to make an H&C application under

section 25 . [ 79 ] As such, while this is not a situation where the applicant has no recourse, the avenues are more limited than the circumstances considered in Sharma and Hernandez . I further note the applicant’s argument that H&C factors are more properly considered in the context of a

section 25 H&C application under the IRPA , and ministerial relief should not serve as an alternative form of humanitarian

review ( Agraira , above, at paragraph 84 ). Accordingly, there is limited opportunity for consideration of such factors, including the best interests of the child, in the avenue of relief that remains accessible to the applicant. [ 80 ] Amendments to the IRPA have implemented bars and restrictions on mechanisms that previously allowed for the possibility that permanent residents could retain their status after a

section 44 report was written. The IRPA statutory scheme should be considered contextually in this case, where a permanent resident is facing allegations of inadmissibility on the basis of organized criminality. [ 81 ] Further, I accept that the subsections 44(1) and 44(2) decisions may carry a particular importance for permanent residents considering their close ties to Canada when compared to foreign nationals.

Nevertheless, I acknowledge that Parliament’s intention to make security a top priority must be kept in mind by officers and the Minister, and their scope of discretion has generally been found to apply with equal force to foreign nationals and permanent residents ( IRPA, paragraphs 3(1) (h), (i)); Sharma , at paragraph 23 ).

(3) The Legitimate Expectations of the Person Challenging the Decision [ 82 ] As found at paragraph 26 of Baker , “[i]f the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness” . This takes into account the promises and regular practices of decision makers ( Baker , at paragraph 26 ; Hernandez , at paragraph 62 ). [ 83 ] In this case, the Officer expressly indicated to the applicant that at this stage, only the personal circumstances of the applicant were relevant in his decision of whether to write the

section 44 report: … The making of submissions is to allow the minister’s delegate an opportunity to exercise their discretion as to whether a removal order ought to be sought based on an individual’s personal circumstances and the impact that a removal order would have on them. [ 84 ] The applicant had a legitimate expectation that this process would be followed, as stated in the October 21, 2019, response letter to the Officer, which confirmed the applicant’s understanding. [ 85 ] I note that different conclusions were reached in Sharma and Hernandez as it relates to the relevance of Immigration, Refugees and Citizenship Canada’s Enforcement Manual ENF 5 [ Operational Manual: Enforcement (ENF) ,

Chapter ENF 5 “Writing 44(1) Reports” (ENF 5 Manual) on the legitimate expectations of the appellant or applicant, respectively. I do not find the ENF 5 Manual determinative in my assessment of this factor, when clear direction was provided by the Officer ( Sharma , at paragraphs 26–27 ; Hernandez , at paragraph 64 ).

(4) The Administrative Decision Maker’s Choice of Procedure [ 86 ] The IRPA does not set out any particular procedure to be followed in making a

section 44 report and referring it to the Immigration Division—the procedure to be followed has been left to the decision maker. However, for this reason, the applicable ENF 5 Manual deserves consideration ( Sharma , at paragraph 28 ; Hernandez , at paragraph 69 ). It requires that persons reported understand both the case against them and the nature and purpose of the report. [ 87 ] Moreover, as indicated above, in the procedural fairness letter, dated September 9, 2019, the Officer provided that the applicant may make a written submission in respect of “any other relevant factors” .

(5) Application to this Case [ 88 ] In balancing the above factors, I find in the circumstances here that the duty of procedural fairness requires that the applicant be afforded an opportunity to provide submissions on the substance of the inadmissibility allegations and an appropriate level of disclosure to understand the case against him.

In this case, this includes disclosure sufficient for the applicant to address concerns related to the reliability of the evidence gathered by the Chinese authorities that formed the basis of the inadmissibility allegations. [ 89 ] The Officer invited the applicant to make submissions in the procedural fairness letter, dated September 9, 2019.

The procedural fairness letter enumerated a list of personal circumstances the applicant could speak to and further invited the applicant to address “any other relevant factors” . [ 90 ] The Officer was then put on notice that the applicant intended to respond to the inadmissibility allegations, assuming relevant disclosure could be obtained.

The Disclosure Request was made in the applicant’s letter to the Officer, dated September 24, 2019. [ 91 ] However, the Officer’s response on September 26, 2019, foreclosed the applicant’s opportunity to make submissions on the inadmissibility allegations, stating “[t]he making of submissions is to allow the minister’s delegate an opportunity to exercise their discretion as to whether a removal order ought to be sought based on an individual’s personal circumstances ” (emphasis added) .

On this basis, the Officer found that it was not appropriate to disclose anything further at the time of the Disclosure Request. [ 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 ). [ 93 ] In Durkin , the Federal Court provided that ( Durkin , above, at paragraph 14 ): … a duty of fairness applies to the process described in s. 44 of the IRPA such that an appropriate level of disclosure is required.

For a permanent resident with substantial ties to Canada, the scope of available discretion under these provisions may also be somewhat broader than that for a foreign national and can give rise to a heightened level of procedural fairness. [ 94 ] Mr. Durkin was a long-standing permanent resident of Canada, holding British Citizenship. He was facing the prospect of a hearing before the Immigration Division to determine whether he was inadmissible to Canada, pursuant to paragraph 36(1) (

c) or 37(1) (

a) of the IRPA . In 2013, Mr. Durkin was indicted by a Grand Jury in Alabama, for an alleged conspiracy to commit securities and wire fraud. The Federal Court found ( Durkin , at paragraph 32 ): The stated rationale for the refusal to disclose the United States law enforcement material to Mr. Durkin was that he would be entitled to later disclosure in the context of an admissibility hearing. This misses the point. The invitation to a person involved in the s 44 process to provide submissions is for the purpose of possibly avoiding a referral for an admissibility hearing.

This is also the only point in the process that a person can call upon the Delegate for leniency notwithstanding the person’s technical inadmissibility. At the later point of an admissibility hearing the only open issue is whether the grounds for establishing inadmissibility have been established. Accordingly, in a situation where disclosure is actually needed to support a claim for leniency to the Delegate, the duty of fairness may require it. [ 95 ] Unlike the circumstances in Durkin , I find that the applicant in this case lacked the information necessary to answer the evidence of inadmissibility held by CBSA.

This information was provided by the Chinese authorities and supported by other unknown sources. The information was not available to the applicant publicly or through other avenues. [ 96 ] The applicant has raised concerns with the procedural fairness of investigations undertaken by the Chinese authorities. In such circumstances, it cannot be said that the applicant was in a position to respond to the inadmissibility allegations of CBSA.

He was entitled to receive the material information relied on by CBSA that was otherwise unknown or unavailable to him. [ 97 ] Counsel for the respondent points this Court to the Highlights, stating that the applicant was well aware of the detailed, factual basis underpinning the inadmissibility allegations. I do not agree that the factual basis provided constitutes sufficient disclosure in this case, where the fairness of investigations undertaken by the Chinese authorities has been put into issue.

These were detailed in the applicant’s October 21, 2019, submissions, [***]. [ 98 ] As previously discussed above, I note that the

section 44 process under the IRPA has been described by this Court and the Federal Court of Appeal as akin to a screening process ( Lin , at paragraph 4 ). The Federal Court of Appeal in Cha , at paragraph 35 has further described that officers and the Minister “are simply on a fact-finding mission, no more, no less” . [ 99 ] In Cha , a foreign national with a student authorization was convicted in Ottawa of driving a vehicle while impaired, contrary to paragraph 253 (

b) of the Criminal Code , R.S.C., 1985, c. C-46 . While Cha describes an officer’s role in assessing readily and objectively ascertainable facts concerning admissibility, the current case is distinguishable in that it does not concern a conviction in Canada, but allegations from the authorities in China. The facts underlying an inadmissibility allegation in such a case are not “readily and objectively ascertainable” in the same way. The role of an officer under subsection 44(1) of the IRPA is not necessarily as straightforward in such a case.

I do not find the reliability of the facts in question to be immaterial in the Officer’s exercise of discretion under subsection 44(1) of the IRPA to “prepare a report setting out the relevant facts” . [ 100 ] These circumstances support the applicant’s entitlement to relevant disclosure and to make submissions on the admissibility allegations themselves, including on the reliability of the evidence. [ 101 ] The applicant further asserts that the Officer did not fairly conduct the interview by failing to provide proper notice about the purpose of the interview.

There is no duty on the part of the Officer to conduct an interview and the applicant was advised of the additional grounds of alleged inadmissibility both during the interview and in a subsequent procedural fairness letter. The applicant was invited to make submissions in response ( Mannings v. Canada (Public Safety and Emergency Preparedness) , 2020 FC 823 ( Mannings ), at paragraph 102 ). The applicant has not substantiated that the Officer breached a duty of procedural fairness in this regard. D. The

Section 44 Inadmissibility Framework: Level of Discretion and Procedural Fairness Owed [ 102 ] The applicant further states that the question remains unsettled as to the actual scope of discretion held by officers and the Minister in their decisions to respectively write and refer a

section 44 report, and the level of procedural fairness owed in this context. It is the applicant’s position that a wider scope of discretion and procedural fairness ought to be found to exist in light of a number of factors that have not been considered in past decisions of this Court. These decisions, finding a more narrow discretion exists, have allegedly failed to conduct a fulsome statutory analysis on the proper

interpretation of the applicable provisions. [ 103 ] Using Hernandez as the starting point, the applicant raises the same considerations at paragraph 57 of his further memorandum of fact and law, as previously outlined above. [ 104 ] The applicant further argues that this application raises the question of how

section 44 of the IRPA should be engaged where the person concerned is a refugee claimant, particularly where the facts underlying the inadmissibility allegation have a nexus to the refugee claim. The applicant argues that the following considerations should be undertaken: A. An officer must consider whether the evidence relied upon is truly reliable or if there is a risk that it is a part of persecutory efforts by the foreign state; B. An officer must also then consider Canada’s obligations under the Refugee Convention [ United Nations Convention Relating to the Status of Refugees , July 28, 1951, [1969] Can.

T.S. No. 6] and whether the circumstances are more appropriately determined through the refugee claim exclusion framework; and C. Alternatively, an officer must turn their mind towards the exceptions to non-refoulement, under subsection 115(2) of the IRPA . [ 105 ] The applicant alleges that the Officer and Minister’s delegate in this case pursued an inadmissibility ground that would preclude the applicant’s access to the Refugee Protection Division, without reasonably considering the refugee-related context of whether this course of action was actually appropriate.

Section 115 of the IRPA provides: Protection

(1) A prot

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