Date: 20241209 |
Docket: IMM-9498-22
Citation: 2024 FC 1988
|
Toronto, Ontario, December 9, 2024
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PRESENT: The Honourable Madam Justice Heneghan
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BETWEEN:
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NAEEM AHMED
|
Applicant |
and
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THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
|
Respondent
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REASONS AND JUDGMENT
[1] Mr. Naeem Ahmed (the “Applicant”
) seeks judicial review of the decision of a Canada Border Services Agency officer (the “Officer”
), who wrote a report pursuant to section 44 of the Immigration and Refugee Protection Act, S.C. 2001. c. 27 (the “Act”
), referring him to an admissibility hearing.
[2] The Applicant is a citizen of Pakistan. He arrived in Canada as a permanent resident in 2011. He was convicted of the offence of sexual assault in December 2021 and sentenced to a prison term of twenty-four months.
[3] On August 22, 2022, the Officer wrote a report referring the Applicant to an admissibility hearing before the Immigration and Refugee Board, Immigration Division (the “ID”
). The report was written pursuant to subsection 44(1) of the Act which provides as follows:
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.
|
44 (1) S’il estime que le résident permanent ou l’étranger qui se trouve au Canada est interdit de territoire, l’agent peut établir un rapport circonstancié, qu’il transmet au ministre.
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[5] The Applicant challenges the section 44 report on the grounds that the Officer fettered his discretion by failing to consider his personal circumstances, thereby giving rise to a breach of procedural fairness. He also argues that the decision is unreasonable.
[6] The Minister of Public Safety and Emergency Preparedness (the “Respondent”
) submits that there was no breach of procedural fairness, that the Officer had an extremely limited discretion to consider humanitarian and compassionate factors, and that the discretion was restricted to deciding whether to refer the Applicant to a hearing.
[7] The Respondent also notes that the Officer did consider the Applicant’s personal circumstances.
[8] Any issue of procedural fairness is reviewable on the standard of correctness; see the decision in Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339.
[9] Following the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, the merits of the decision are reviewable on the standard of reasonableness.
[10] In considering reasonableness, the Court is to ask if the decision under review “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
; see Vavilov, supra, at paragraph 99.
[11] During the hearing, Counsel for the Applicant submitted the decision in Dass v. Canada (Minister of Citizenship and Immigration), 2024 FC 624.
[12] Counsel for the Respondent was given the opportunity to make post-hearing submissions. Counsel for the Applicant was given the opportunity to make reply submissions. All submissions have been considered.
[13] I agree with the arguments advanced overall by the Respondent, that an officer has a limited discretion to consider personal circumstances, but in this case those considerations were addressed.
[14] The section 44 report is an administrative step in a process to determine if the Applicant is inadmissible to Canada. It has been described by the Federal Court of Appeal as a “screening process”
. A report written pursuant to subsection 44 (1) does not, per se, affect the status of an individual.
[
15
]
In Obazughanmwen v. Canada (Public Safety and Emergency Preparedness), 2023 FC 151 at paragraph 16, the Federal Court of Appeal observed that:
[t]he recommendations of a MD do not constitute a final decision and do not result in a change of status. MDs simply perform a screening process;
[16] The section 44 report does not limit the Applicant’s opportunity to present evidence and make submissions about his personal circumstances, including his family, in the context of other processes that are available to him under the Act.
[17] The Officer committed no breach of procedural fairness.
[18] On the basis of the evidence, the report sets out a number of facts. The Officer then made a recommendation that the Applicant be referred to an admissibility hearing.
[19] The “decision”
of the Officer was to write a report. In my opinion, that decision meets the standard of reasonableness as discussed in Vavilov, supra.
[20] In the result, this application for judicial review will be dismissed. There is no question for certification.
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