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ENF 6

Review of reports under subsection A44(2)

ENF 6 Review of reports under subsection 44(2)

Contents

1 What this chapter is about			6
2 Program objectives			6
3 The Act and Regulations			6
5 Definitions			11
6 Departmental policy			12
6.1	Procedural fairness		12
6.2	Procedures for persons less than 18 years old or persons unable to appreciate the nature
of the proceedings			13
6.3	Official languages		14
6.4	Interpreters		14
6.5	Counsel		14
7 Procedure: Review of the A44(1) report by the Minister’s Delegate			15
7.1	Transmission of an A44(1) report to the Minister’s Delegate		15
7.2	Reviewing the A44(1) report		16
7.3	Procedure: Evidentiary requirements		17
7.4	Burden of proof		17
7.5	Standard of Proof		18
7.6	Duty to provide information		19
8 Scope of Discretion of the Minister’s Delegate			20
8.1	Minister’s Delegate Options— Limited discretion of the MD at A44(2)		20
8.2	Priority Cases: Inadmissibility under A34, A35, A36 and A37 of the IRPA		22
8.3	Personal circumstances		22
8.4	Special considerations for protected persons		22
9 Charter considerations			23
10 Cases where the MD has jurisdiction to issue a removal order			25
10.1		Procedural fairness considerations	25
10.2 Types of administrative removal orders			25
10.3		Permanent residents and their residency obligation— R228(2)	26
10.4		Removal order for refugee claimants— R228(3)	27
10.5		Dual intent	28
10.6		Restoration of status	29
10.7		Procedure: Reviewing A44(1) reports when a Minister’s Delegate is not on site	31
10.8		Procedure: Issuing removal orders to persons in absentia	31
10.9		A44(1) reports for inadmissible family members	34

10.10 Procedure: Removal orders following vacation or cessation of refugee/protected person

status by RPD			35
11 Temporary resident permits (TRPs)			35
12	Allowing withdrawal of application to enter Canada/ Allowed to leave (Port of entry cases) .37
13	Procedure: Handling possible claims for refugee protection		37
14	Persons claiming to be Canadian citizens or registered Indians under the Indian Act		38
15	Cases where the jurisdiction to issue a removal order rests with the Immigration Division ..		39
15.1		A44(1) reports concerning foreign nationals	39
15.2		A44(1) reports concerning permanent residents of Canada	39
15.3		Loss of appeal right cases	40
15.4		Considerations for ‘long-term permanent residents’	41
15.5		A44(1) reports for criminality cases	41
15.6		Preparation of warning letter	42
16	Adjourning Proceedings		43
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17	Procedure: Entry for the purpose of further examination or an admissibility hearing (Port of
	entry officers)			43
18	Imposition of Conditions following the A44(1) report for A34: Mandatory circumstances			44
19	Procedure: Directing persons back to the United States under R41			45
20	Appeals and Judicial Review— Removal Order			46
20.1 Appeals to the Immigration Appeal Division				46
20.2 Right to file an application for leave and judicial review— Where no statutory right of
appeal exists				47
21	Reports with multiple allegations			48
22	Entering MD decisions into GCMS			48
24	Offences under the Youth Criminal Justice Act			48
Appendix A: Noteworthy provisions of the IRPA				50
Appendix B: Table: Immigration and Refugee Protection Act (IRPA) Inadmissible Classes				52
Appendix C: Sample Warning letter				55
Appendix D: Steps for in-person A44(2) proceeding where MD has jurisdiction to issue a
	removal order			56
Appendix E: Case Law on the Scope of Discretion under A44				58
Appendix I:		Sample letter—	IAD appeal acknowledgement letter	59
Appendix J:		Sample letter—	Judicial Review Acknowledgement letter	60

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Updates to chapter

Listing by date:

2020-02-12

Substantive and minor changes, as well as clarifications, have been provided throughout the chapter.

New content has been added to reflect legislative and regulatory amendments and to ensure consistent application of IRPA provisions as clarified through new court decisions.

Sections have been re-written for clarity and/or moved and re-organized for more logical flow of information.

Section 3.1: Amended to include several new or updated forms.

Section 9: New section added to provide guidance on Charter considerations.

Section 10.9: Content added to reflect amendments to IRPA provisions regarding inadmissible family members under section A42.

Section 10.10: Content added to reflect new inadmissibility section A40.1 Cessation of refugee

protection: under R228(1)(b.1) the MD has the authority to issue removal orders to foreign nationals who are found inadmissible under A40.1(1) on a final determination by the RPD under A108(2) that the refugee protection of the foreign national has ceased.

Section 18: New section added to reflect changes to IRPA and IRPR requiring that decision- makers impose prescribed conditions on security (A34) inadmissibility cases.

Date: 2007-04-12

Section 5.1: Substantial changes were made throughout that section.

Section 5.7: Minor changes were made to the first paragraph. As well, two paragraphs were added.

Section 7: The entire section was re-written.

Section 9: Minor changes were made.

Section 19.2: The section on non-criminal cases involving permanent residents was re- written.

Section 20.1: The entire section was re-written.

2005-10-31

Changes were made to reflect the transition from CIC to the CBSA. The term “delegated officer” was replaced with “Minister’s delegate” throughout text; references to “departmental policy” were eliminated; references to CIC and CBSA officers and to the C&I Minister and the PSEP Minister were made where appropriate, as were other minor changes.

Appendix A was removed since no countries are listed under A102(1);

Appendix B, C & D were renamed A, B & C;

Other minor changes to correct mistakes or relating to terminology were also made.

2004-08-11

ENF 6 - Review of Reports under A44(1) has been updated to reflect an amendment to paragraph R228. The amendment prescribes that inadmissibility reports with respect to unaccompanied minors and persons unable to appreciate the nature of proceedings who

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are unaccompanied must be referred to the Immigration Division if the Minister's delegate determines that a removal order should be sought.

2004-01-26

The title for section 23 of chapter ENF 6 in French has been amended and now reads as follows:

Statut de citoyenneté/Citoyens canadiens qui présentent une demande d'asile 2003-09-02

A minor change was made to section 3.8 and section 24 of ENF 6.

2003-06-19

Changes to section 3.3 and the addition of section 24 relate to the procedures to follow when issuing administrative removal orders on grounds of misrepresentation pursuant to R228(1)(b).

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1 What this chapter is about

This chapter provides guidance to Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC) officials performing the function of the Minister’s Delegate (MD) and exercising their authority to review reports prepared under A44(1) of the Immigration and Refugee Protection Act (IRPA).

2 Program objectives

The objectives of Canadian immigration legislation with regard to the inadmissibility provisions are:

to protect the health and safety of Canadians and to maintain the security of Canadian society;

to promote international justice and security by fostering respect for human rights and denying access to Canadian territory to persons, including refugee claimants, who are criminals or security risks.

3 The Act and Regulations

Under A44(1), an officer may prepare and transmit a report if that officer is of the opinion that a permanent resident or foreign national in Canada is inadmissible. Under A44(2), all A44(1) reports must be referred to the MD to determine the accuracy and validity of the report and to decide whether to:

issue a removal order, where the MD has jurisdiction to do so; or

refer the matter to the Immigration Division (ID) of the Immigration and Refugee Board (IRB) for an admissibility hearing.

The IRPA provides authority both to members of the ID and to the MD to issue removal orders, depending on the type of allegation contained in the A44(1) report, and pursuant to the authority prescribed in the IRPA and the Immigration and Refugee Protection Regulations (IRPR) .

In order to streamline the enforcement process in cases involving straightforward allegations, and to maintain the principle that the MD may make determinations in cases where there is little need to weigh evidence, the scheme of the Act and Regulations empowers the MD to issue removal orders under the circumstances prescribed in R228. Generally speaking, the more discretion and analysis required in assessing the allegation, the more likely the jurisdiction rests with a member of the ID.

It is important to note that where the MD is authorized to make removal orders under R228, this authority applies at both ports of entry and at inland offices.

The following table includes some of the most relevant provisions that may apply during the A44(2) process. Some of the authorities listed below pertain specifically to CBSA Border Services Officers (BSOs) at the port of entry or IRCC officers assessing applications; others are more relevant to CBSA Inland Enforcement Officers (IOEs).

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Table 1: Sections of the IRPA and the IRPR applying to determinations under A44(2)

	Provision	Act and
		Regulations
	Delegation of powers	A6(2)
	Permanent Resident	A21(1)
	Temporary resident dual intent	A22
	Entry to complete examination or hearing	A23
	Residency obligation	A28
	Security	A34
	Human or international rights violations	A35
	Serious criminality	A36(1)
	Criminality	A36(2)
	Organized criminality	A37
	Health grounds	A38
	Financial reasons	A39
	Misrepresentation	A40
	Cessation of refugee protection	A40.1
	Non-compliance with the IRPA or IRPA— foreign national	A41(a)
	Non-compliance with IRPA or IRPR— permanent resident	A41(b)
	Inadmissible family member	A42
	Preparation of report	A44(1)
	Referral or removal order	A44(2)
	Imposition of Conditions	A44(3)
	Mandatory imposition of conditions— inadmissibility on grounds of	A44(4),(5)
	security
	Applicable removal order- Immigration Division	A45(d)
	No return without prescribed authorization	A52(1)
	Right of appeal to Immigration Appeal Division (IAD)	A63
	Loss of appeal rights	A64
	Application for judicial review	A72(1)
	Protected person	A95
	Referral to Refugee Protection Division	A100(1)
	Suspension of consideration of eligibility of claim	A100(2)
	Deemed referral to Refugee Protection Division	A100(3)
	Ineligibility to refer refugee claim	A101
	Cessation of refugee protection	A108
	Vacation of refugee protection	A109

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	Non-refoulement— protected person	A115(1)
	Ministerial Opinion for protected person	A115(2)
	Rehabilitation	R18, R18.1
	Direct back to the United States	R41(b)
	Withdrawing application/Allow to leave	R42
	Conditions A23	R43(1)
	Applicable removal order— Minister	R228
	Criminality (foreign nationals)	R228(1)(a)
		R228(1)(b)
	Misrepresentation (vacation of refugee/protected person status)
		R228(1)(b.1)
	Misrepresentation (cessation of refugee protection)
		R228(1)(c)
	Failure to comply
		R228(1)(d)(e)
	Inadmissible family members
		R228(2)
	Permanent residents and their residency obligation
		R228(3)
	Eligible claim for refugee protection
	Unaccompanied minors	R228(4)(a)
		R228(4)(b)
	Persons unable to appreciate the nature of proceedings
	Applicable removal order— Immigration Division (ID)	R229

For further information regarding the division of jurisdiction to issue removal orders, see

Appendix B, ‘Table: Immigration and Refugee Protection Act (IRPA) Inadmissible Classes’

3.1 Forms

The following table includes some common forms used in the 44(2) process. This is a non- exhaustive list and some may only apply to officers carrying out the administration of IRPA at the port of entry.

Table 2: Forms

	Form title	Form
		number
	Referral under subsection 44(2) of the Immigration and Refugee Protection	BSF506
	Act for an admissibility hearing
	Denial of Authorization to Return to Canada Pursuant to Subsection 52(1) of	IMM 1202B
	the Immigration and Refugee Protection Act
	Authorization to Return to Canada Pursuant to Section 52(1) of the	IMM 1203B
	Immigration and Refugee Protection Act
	Departure Order	IMM 5238B
	Exclusion Order	IMM 1214B

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otherwise specified. The Minister of PS has the primary responsibility for the administration of the IRPA as it relates to the following:

port of entry examinations;

policy lead relating to enforcement of the IRPA including arrest, detention and removal;

establishment of policies respecting the enforcement of the IRPA and inadmissibility under A34/35/37; and

declarations referred to under A42.1 (Ministerial Relief provision)

Pursuant to A6(1), the responsible Minister has the authority to designate specific persons or classes of persons to carry out any purpose of any provision of the IRPA with respect to their individual mandates as described in A4, and to specify the powers and duties of the officers so designated. In addition, A6(2) authorizes that anything that may be done by the Minister under the Act and Regulations may be done by a person that the Minister authorizes in writing. This is referred to as delegation of authority.

A designated authority refers to the position that has been given the legal authority by the Minister to carry out the delegated function.

Each Minister who has responsibilities under the IRPA has written an instrument of delegation and designation that is periodically updated. The Delegation of Authority and Designations of Officers (D & D) instruments stipulate who has the authority to perform specific immigration- related functions. CBSA and IRCC personnel are designated by position to perform all delegated or designated authorities, including those associated with A44(1)/A44(2) functions. It is to be noted that the IRPA D & D instruments have a hierarchical link which means only the lowest level of authority is included in the D & D instruments as every position above this one (with a direct hierarchical link) has the same authority to perform specific immigration-related functions.

CBSA and IRCC officials acting in the capacity of the MD in A44(2) proceedings should always review both the CBSA and the IRCC D & D instruments as they have authorities delegated and designated under both instruments, which can be found on the IL 3- Designation of Officers and Delegation of Authority.

The authority to review A44(1) reports has been designated to certain CBSA and IRCC officials. It is important to note that while IRCC officers have been designated the authority to review reports for most inadmissibility sections, A44(1) reports for inadmissibility under A34 (security grounds), A35 (grounds of violating human or international rights) and A37 (grounds of organized criminality) may only be prepared and reviewed by CBSA.

All reports written by CBSA or IRCC officers will be reviewed by the MD who has been delegated the authority under the D & D instruments. If the MD is of the opinion that the report is well-founded, the MD will make the appropriate decision based on the evidence and determine whether to:

issue a removal order, if the allegation is within the MD’s authority pursuant to R228; or

refer the report to the ID pursuant to the R229.

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