Ruling affirms finding that Immigration Division lacked jurisdiction over procedural fairness issue
The Federal Court found no procedural unfairness in referring an applicant’s matter to the Immigration Division (ID) for a hearing on the issue of inadmissibility to Canada due to serious criminality under the Immigration and Refugee Protection Act, 2001 (IRPA).
In Fassassi v. Canada (Public Safety and Emergency Preparedness), 2025 FC 1148, the applicant was a citizen of Benin who came to Canada in 2004 and has lived here as a permanent resident for his entire adult life.
In late 2020, the applicant received convictions, which were later stayed, on two counts each of sexual interference and sexual assault under ss. 151 and 271 of the Criminal Code. He received a seven-year sentence and has since obtained parole.
Pursuant to s. 44(1) of the IRPA, a Canada Border Services Agency inland enforcement officer prepared a report giving the opinion that the applicant was inadmissible to Canada because of serious criminality under s. 36(1)(a) of the IRPA.
The officer later interviewed the applicant at Collins Bay Minimum Institution and prepared an A44 narrative report recommending an admissibility hearing. A delegate of the minister of public safety and emergency preparedness referred the matter to the ID under s. 44(2) of the IRPA.
The applicant applied for judicial review. He alleged that the minister’s delegate (MD) breached his procedural fairness rights by relying on extraneous reports not disclosed to him. He also called the referral to the ID and the ID decision unreasonable. He claimed that the ID had jurisdiction over the procedural unfairness allegations.
Referral upheld
The Federal Court of Canada dismissed the judicial review applications. The court disagreed with the applicant’s argument that using extraneous reports not disclosed to him breached his procedural fairness rights.
The court noted that the inland enforcement officer interviewed the applicant and notified him of his right to counsel. The court pointed out that the applicant opted to participate without his lawyer, but later said he preferred to speak to his lawyer before discussing the offences, which he planned to address via written submissions.
The court highlighted that the applicant received a letter the same day. The letter informed him that the officer might prepare a report under s. 44(1) of the IRPA. The letter said the applicant had a right to make submissions and apply for a pre-removal risk assessment or judicial review, but no appeal right if deemed inadmissible because the offences had sentences of at least six months.
The court noted that the applicant provided responding submissions and letters supporting these submissions.
Next, the court held that the MD reasonably decided to refer the s. 44(1) report to the ID for an admissibility hearing and did not fundamentally misapprehend or fail to consider evidence.
The court said the MD’s reasons showed a logical chain of analysis. The court found these reasons justified, transparent, and intelligible in light of the factual and legal constraints.
The court noted that the MD addressed humanitarian and compassionate (H&C) factors in the reasons, despite having no obligation to do so.
Lastly, the court determined that the ID reasonably found that it had no jurisdiction to assess alleged procedural fairness breaches relating to the process of referring the s. 44(1) report and no discretion to weigh the H&C factors, with the Federal Court possessing the jurisdiction over such matters.
The court said s. 45(d) of the IRPA and Sharma v Canada (Public Safety and Emergency Preparedness), 2016 FCA 319, supported the ID’s findings.
According to the Sharma ruling, the disclosure of inadmissibility reports under s. 44 of the IRPA aimed to inform the subject about the case they needed to meet before the ID. The precedent noted that the purpose was not to permit the making of additional submissions before the MD.
The court concluded that Sharma was good law and a binding precedent, which the court had previously cited to decide that the ID’s jurisdiction was limited.
