The Section 44 Report

← All articles

IRB HearingsSection 44 ReportImmigration DivisionIRPACBSA

The letter on the table

Here is what I tell a client when that letter arrives, before we talk about a single section of the Act: put the letter on the table, and do not decide what it means from its last paragraph.

Amina is at home when the letter arrives. It is not a refusal of an application she filed. It is a report — pages setting out facts about her, a section of the Act, and a conclusion she does not accept: that she is inadmissible to Canada.

Amina is a composite, an illustrative example — not a real client. Client matters are confidential, and no real client's story appears in this article.

Amina's first instinct is the one I see most often, and it is the most dangerous one: to read the conclusion, feel that removal is already decided, and either panic or put the letter in a drawer. Neither helps. The conclusion is an opinion, written by an officer, sent up the chain for someone else to decide. What matters is what is underneath it — and that is where Amina's case actually lives.

So we do what I do with every report that comes across my desk. We read it the way the reviewer will read it: fact by fact, not as a whole impression. And we answer three questions first, before anything else.

Amina's three questions

One: which ground? The report must allege a ground of inadmissibility in sections 34 to 42 of the IRPA: security (s. 34), human or international rights violations (s. 35), serious criminality (s. 36), organized criminality (s. 37), health grounds (s. 38), financial reasons (s. 39), misrepresentation (s. 40), non-compliance (s. 41), or an inadmissible family member (s. 42). Each ground is its own fight, and each gets its own article later in this series. The first job on any report is to identify exactly which ground is alleged — because the answer, the evidence, and the path all turn on it.

Two: which status? Amina is a permanent resident. That one fact already changes her path, her appeal rights, and what a direct order can and cannot do to her, compared with a foreign national on the same facts. Status is not background. It is a deciding fact.

Three: which path? Referral to the Immigration Division, or a direct removal order? Amina does not get to choose. The statute and the regulations choose, based on her ground and her status. But she has to know which path she is on, because the next steps, the deadlines, and the appeal routes are different on each one.

That is the framework I use on every file, and it is the framework of this article. Answer those three questions — ground, status, path — and the rest of the case starts to make sense. Without them, you are arguing with a conclusion. With them, you are answering a case.

What a Section 44 report is, in law

Under section 44(1) of the IRPA, 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. That report is transmitted to the Minister.

Three points in that one sentence do most of the work:

• "Who is in Canada." Section 44 is the in-Canada mechanism. It is how an inadmissibility case against someone already here gets started.
• "May prepare." The report is the officer's opinion, put in writing. An opinion can be tested — against the documents, against the law, and, where the case is referred, before the Immigration Division.
• "Transmitted to the Minister." The officer does not decide the case by writing the report. The report goes to the Minister — in practice, to a Minister's delegate — for the next decision.

Under section 44(2), if the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing — except in the two cases below, where the Minister may make a removal order directly.

For Amina, that is the next decision to watch: referral, or a direct order — and her answer has to be in before it is made.

Amina answers — before the referral, not after it

This is the moment most people get wrong, and it is the moment I am most direct about with clients: the time to answer a report is before the referral, not after it.

Amina is given an opportunity to respond in writing — in practice, a procedural fairness letter inviting submissions on why a removal order should not be sought. She does not answer from memory. She answers with documents, lined up against the report's facts, fact by fact. Where a fact is wrong, incomplete, or taken out of context, her own documents are the correction. Where a fact is right, she does not waste credibility denying it; she puts it in its full context, with evidence.

Here is why that timing matters, and why I will not soften it: the law does not guarantee her a second chance to respond before referral.

In Sharma v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 319, a permanent resident convicted of sexual assault challenged the section 44(1) report and the section 44(2) referral, arguing he should have been given the report for a further response before referral. The Federal Court of Appeal dismissed the appeal. The duty of fairness at the referral stage is relatively low, and it does not require the officer's report to be put to the person for another opportunity to respond before referral.

Read that plainly: Amina cannot count on the report coming back to her for a second round. If her submissions are not in before the delegate decides, they may never be weighed at that stage at all. That is not a criticism of the system. It is a fact about how the system works, and it is why early counsel matters more than late counsel on a 44 report.

Amina's submissions go in, with counsel, with documents behind every fact she disputes. Then the delegate decides.

The fork: Amina's path, and the other path

Path one: referral to the Immigration Division. This is the path IRB article #1 walked through. If the report is referred, the person concerned receives a Notice to Appear, and the Immigration Division holds an admissibility hearing: the Canada Border Services Agency presents why it believes the person is inadmissible, the person or their counsel responds, and the member decides under section 45 — including, where the person is found inadmissible, making a removal order. The hearing cannot be held if the person concerned is not physically present in Canada (section 44.1).

The delegate finds Amina's report well-founded and refers it. That is not a defeat. It is a forum — a hearing, with disclosure, with witnesses, with a member who must decide on evidence, not on a report alone. Article #1 describes how that hearing actually runs, step by step.

Path two: a removal order made directly by the Minister. Section 44(2) excepts two cases from referral:

• A permanent resident who is inadmissible solely because they failed to comply with the residency obligation under section 28 — the Minister may make a removal order directly, with no hearing on that ground.
• A foreign national, in the circumstances prescribed by the regulations — the Minister may make a removal order directly in those prescribed circumstances.

Which path your report takes is not a matter of preference. It turns on your status and on the ground alleged, as the statute and the regulations prescribe. If your report was not referred, that does not mean nothing happened — it means the decision took the direct route, and the next steps are different. The three kinds of removal order, and what each one bars, are the subject of a later article in this series.

Take a second, illustrative file — a foreign national who overstayed an authorized period — and the contrast is clear: two people with the same envelope can face completely different processes. The envelope is the same. The answers inside it are not.

What the cases actually teach

These are published decisions, cited as lessons, not as promises about any reader's case. No two reports are the same, and a case that helps one person can hurt another on different facts. What they show, together, is how the fork actually plays out when it is tested.

Delay alone does not kill a report — and the wrong forum wastes the argument.

In Tejedas v. Canada (Public Safety and Emergency Preparedness), 2025 FC 214, a man who entered Canada in 2009 and disclosed drug-trafficking involvement in 2010 was reported under section 44(1) in 2019 for organized criminality under section 37(1)(a), and the delegate found the report well-founded in 2020. He argued the delay of more than a decade was an abuse of process and asked the Federal Court for a stay. The Court dismissed the application as premature: the stay had to be sought from the Immigration Division, which was the adequate alternative remedy. The lesson is twofold, and both halves matter. Delay is an argument, not an answer — and it has to be made in the right forum, or it is lost before it is heard.

A delegate who does not grapple with your submissions can be overturned.

In Campagna v. Canada (Public Safety and Emergency Preparedness), 2025 FC 613, CBSA prepared a section 44(1) report in January 2023 alleging organized criminality under section 37(1)(a) for an illegal gaming enterprise, and invited written submissions on why removal should not be sought. Counsel gave comprehensive submissions and supporting evidence urging that the matter not be referred. The delegate referred it anyway — but the Court found the referral unreasonable in two respects: the assessment of the applicant's criminality, and the assessment of his personal circumstances. That is the other side of Sharma. The referral stage may be low-fairness, but it is not no-fairness. On those facts, a referral fell because the delegate had not properly assessed the criminality and the personal circumstances put before them. Amina's early submissions are not a formality. On the right facts, they are the case.

The direct order is real, and it can arrive without a hearing.

In Akpan v. Canada (Public Safety and Emergency Preparedness), 2025 FC 620, a CBSA officer prepared a section 44(1) report in February 2023 against a foreign national who had not left Canada at the end of her authorized study-permit period, alleging non-compliance under section 41(a) and section 29(2). The delegate found her inadmissible and issued an exclusion order directly. No hearing. That is the direct-order path for a foreign national in the prescribed circumstances, working exactly as the statute prescribes it — it is not the path for every foreign national. If your three questions point to that path, preparing for a hearing you will never get is preparing for the wrong case.

Appeal rights can turn on timing you would not expect.

In Pepa v. Canada (Citizenship and Immigration), 2023 FCA 102, two section 44 reports followed a further examination in April 2018, an admissibility hearing began in September 2018, and the Immigration Division issued an exclusion order for misrepresentation under section 40(1)(a). The appeal turned on a timing question: at which stage — arrival, report, referral, or exclusion order — a permanent resident visa holder's right of appeal under section 63(2) is assessed. The lesson is blunt. Do not assume you have an appeal. Check it — with counsel, on your own dates and your own status — before the order is made, not after.

Referral is discretionary, not automatic.

In Lee v. Canada (Minister of Citizenship and Immigration), 2006 FC 158, a Minister's delegate's section 44(2) referral of a long-term permanent resident was challenged. The Court stressed that the decision is highly fact-based and contextual, balancing protection of Canadian society against the considerations of removing a long-term resident. Discretion cuts both ways. It means a referral is not a rubber stamp — and it means long residence, family, and establishment, if they are in the submissions with evidence, are part of the context the decision-maker weighs. They do not weigh themselves.

Membership cases turn on the same referral rules, with the same low fairness at the front end.

In Merino Ortega v. Canada (Public Safety and Emergency Preparedness), 2018 FC 468, a citizen of El Salvador who had declared membership in the FMLN on arrival was referred to the Immigration Division on security grounds under section 34. He argued his procedural rights were breached because he was not given the evidence on which the referral was based. The Court denied the application: the decision-maker had complied with the procedural fairness requirements as laid out by the Federal Court of Appeal, and there were no legitimate expectations that the decision-maker would go beyond them. For a reader facing a section 34 report, that is the honest version of the Sharma point, in a different ground. The hearing is where the evidence is tested. The referral is not the hearing.

That is why Amina's submissions go in before the referral, not after it — the hearing tests the evidence, but only the early answer gets her evidence into the referral decision at all.

Conditions, dates, and the discipline that protects a case

Under section 44(3), an officer or the Immigration Division may impose any conditions it considers necessary on a person who is the subject of a report, an admissibility hearing, or, being in Canada, a removal order — including the payment of a deposit or the posting of a guarantee for compliance with the conditions. Under section 44(4), where a report on security grounds is referred to the Immigration Division and the person is not detained, an officer must also impose the prescribed conditions.

Amina's file carries conditions. She treats them as part of the case, not background noise: she knows what each one requires, and she meets it. If conditions are imposed on you, do the same. A missed condition is a new problem on top of the old one, and it is entirely avoidable.

The same discipline applies to dates. A report is not a letter you can leave unanswered and hope it goes away. If you are given a chance to respond, or a date to appear, treat any date in the notice as hard. Missing it forfeits your chance to answer at that stage. And keep your address and contact details current with the authorities handling your case: a Notice to Appear, a hearing date, or a decision can only reach you if the file has somewhere to send it. A missed notice is still a missed step.

Amina's case does not end in this article, because a real 44 case does not end at the report. It ends — or continues — at the hearing, at the appeal, or at the order. What this article gives you is the part that decides whether you arrive at that next stage prepared or unprepared: the three questions, the fork, and the discipline to answer early, in writing, with documents.

Amina's checklist — the same list I use on a file

Frequently asked questions

A measured next step

This article is general information drawn from published law, official process guidance, and published decisions. It is not advice about your case, and no article can be. If you want your own situation read properly — which ground, which path, which answer, and what your documents actually prove — that is what a session is for. That is the work I do: I read the report, I answer the three questions with you, and I build the answer with you, before the referral, not after it.

Mohamed Aboud, RCIC-IRB · Licence No. R711498 · eBUDDY Immigration & Visa Services Inc.

Mohamed Aboud, RCIC-IRB · Licence No. R711498 · eBUDDY Immigration & Visa Services Inc.