Date: 20260219

Dockets: IMM-5787-24

IMM-5823-24

Citation: 2026 FC 237

Vancouver, British Columbia, February 19, 2026

PRESENT: The Honourable Mr. Justice A. Grant

Docket: IMM-5787-24

BETWEEN:

PATRICIA ZURAYA ZUNIGA ROJAS

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

Docket: IMM-5823-24

AND BETWEEN:

PATRICIA CAMACHO ZUNIGA

Applicant

and

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

Respondent

JUDGMENT AND REASONS

I. OVERVIEW

[1] This is a consolidated application for judicial review of separate decisions by a Delegate of the Minister of Public Safety and Emergency Preparedness to refer the Applicants’ cases for an admissibility hearing. The referral related to concerns that the Applicants are inadmissible to Canada under section 37 of the Immigration and Refugee Protection Act [IRPA].

[2] For the reasons that follow, I will dismiss this application.

II. BACKGROUND

A. Facts

[3] The Applicants, Patricia Zuraya Zuniga Rojas, and her daughter, Patricia Camacho Zuniga, are Mexican citizens who have resided in Simcoe County on visitor visas since 2013, along with Rojas’s other daughter Ashley Camacho Zuniga, also a Mexican citizen, and Rojas’s husband, Kevin Kielty, who is a Canadian citizen.

[4] In 2015, the Barrie police received a complaint from an employee of Rojas and Kielty’s cleaning company alleging exploitation and fraud by Kielty, Rojas, and her daughters. Several more complaints followed, and eventually the family became the subject of a multi-jurisdictional human trafficking investigation.

[5] Broadly, the allegations were that Rojas would pose online as an immigration consultant, offering work, English-language education, and Canadian host families to Mexican nationals. She charged fees in advance for assistance with the immigration process and advised her “clients” to present themselves at the border as tourists, even creating hotel bookings on their behalf to support this narrative. Upon their arrival in Canada, victims of the scheme were required to live and pay rent in overcrowded and poorly maintained housing managed by Kielty, Rojas, and her daughters; used as illegally underpaid contract workers for Kielty and Rojas’s cleaning business; and threatened with deportation and threats against their family in Mexico if they wouldn’t work for the company, didn’t stay in the housing assigned to them, or reported the Applicants’ activities to the authorities.

[6] Following the investigation, Kielty, Rojas, and her daughters were criminally charged under the Criminal Code of Canada with various offences, including human trafficking under sections 279.01 and 279.02, participating in a criminal organization under section 467, and uttering threats under section 262.1(2). They were also charged under paragraph 124(1)(c) of the IRPA for employing foreign nationals in contravention of that Act.

[7] In November 2023, the parties reached a plea agreement. Kielty pled guilty to four counts under IRPA 124(1)(c), and all criminal charges against Kielty and Rojas, and her daughters, were stayed.

[8] By May 2023, Rojas and Zuniga had overstayed their visas in Canada, and their permanent residence applications—submitted via family sponsorship by Kielty—had been placed on hold.

[9] In February 2024, following a highly detailed review of the evidence gathered in the course of the human trafficking investigation, an Inland Enforcement Officer with the Canada Border Services Agency [CBSA] issued reports under subsection 44(1) of the IRPA recommending that both Rojas and Zuniga be referred for an admissibility hearing under paragraph 37(1)(a) of the IRPA based on evidence that they had engaged in organized criminality. Patricia Zuraya Zuniga Rojas was also referred for an admissibility hearing under paragraph 37(1)(b) of the IRPA.

[10] Later that month, the Minister’s Delegate [MD] endorsed the officer’s findings and referred both Rojas and Zuniga for admissibility hearings at the Immigration Division [ID] of the Immigration and Refugee Board. This referral is the decision under review.

III. ISSUES and STANDARD OF REVIEW

[11] The Applicants raise two overarching issues:

• 1)Were the brief reasons provided by the Minister’s Delegate reasonable and, more particularly, were they sufficiently detailed and specific?

• 2)Did the Minister’s Delegate infringe the Applicants’ rights to procedural fairness by not providing them with any notice or opportunity to make submissions prior to the report being issued?

[12] The standard of review in this matter is straightforward and not contested by the parties, so I will be brief. For the issues that go to the substance of the MD’s decision, the standard is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; Sharma v Canada (Public Safety and Emergency Preparedness), 2016 FCA 319. For issues related to the fairness of the underlying proceedings, the standard is “akin to correctness”: Canadian Pacific Railway Company v Canada (Transportation Agency), 2021 FCA 69.

IV. LEGAL FRAMEWORK

A. Statutory Framework

[13] This application implicates several provisions of both the IRPA and the Immigration and Refugee Protection Regulations [IRPR].

[14] The first are the provisions under which the Applicants may be inadmissible to Canada, those being paragraphs 37(1)(a) and (b) of the IRPA:

[15] The second set of key provisions set out the procedure for assessing and pursuing inadmissibility concerns. These are subsections 44(1) and (2) of the IRPA, and they state as follows:

[16] As can be seen from the above, subsection 44(2) of the IRPA provides that in some situations the Minister may issue a removal order, while in other circumstances the Minister may only refer inadmissibility concerns to the ID. Section 228 of the IRPR describes the circumstances under which the Minister may issue a removal order. I need not reproduce that provision here. It is sufficient for present purposes to note that, in this case, the MD could not issue a removal order, and, therefore, the Delegate referred these matters to the ID for an admissibility hearing.

[17] For reasons that will become clear, the distinction between the two potential streams of discretion under subsection 44(2) is an important one in this case.

V. ANALYSIS

A. Preliminary Matters

[18] At the outset, I note that the two applications for leave in these matters were filed separately. However, in May 2025, Associate Judge Crinson consolidated the matters permitting the parties to serve and file consolidated memoranda of argument. I also note that Ms. Rojas’ other daughter, Ashley Camacho Zuniga, was also referred to the ID for an admissibility hearing and also submitted an application for leave to this Court. However, prior to consolidation, her application was dismissed at the leave stage.

[19] As a further preliminary matter, the Respondent submits that the Minister of Public Safety and Emergency Preparedness ought to be named as the respondent, because the decision under review was made by the CBSA. I agree, and the style of cause in this matter will be amended accordingly.

B. Procedural Fairness

[20] From my perspective, it is logical to first consider the fairness of the process that culminated in the referral decision, and then to consider the reasonableness of that decision.

[21] I begin with the observation that subsections 44(1) and (2) of the IRPA are somewhat unusual in that they apply to individuals in vastly different circumstances and can result in vastly different outcomes. This is for two main reasons.

[22] The first is that the provisions apply to both foreign nationals and to Canadian permanent residents. The application of these provisions to such a broad spectrum of individuals – from those with no right to be in Canada, to those with a permanent right to reside here – is obviously relevant in determining the content of procedural fairness rights. This is primarily because the consequences of an adverse decision are generally thought to be more severe for a permanent resident than for a foreign national: XY v Canada (Public Safety and Emergency Preparedness), 2021 FC 831 at para 81.

[23] The second reason is that, as noted above, the actual decision made by an MD under subsection 44(2) varies depending on the context. Where the MD is simply deciding whether to refer an inadmissibility concern to the ID, there is no immediate impact on the individual’s status in Canada. There is no finding of inadmissibility, and there is no question of removal. The situation is starkly different, however, in situations where the MD may issue a removal order. In these circumstances, the MD determines the individual’s admissibility and, if inadmissible, makes the applicable removal order. That decision is final, subject only to judicial review before this Court.

[24] Not surprisingly, this varied decision-making context has led to different statements from the courts as to the content of procedural fairness under subsection 44(2) of the IRPA. This is consistent with the decision of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], which remains a key authority on determining the content of the duty of fairness, and which underscored the context-dependent nature of this duty.

[25] Nevertheless, there is a general consensus that the duty of fairness in this context is at the lower end of the spectrum. This has been particularly emphasized where the Delegate’s exercise of discretion is merely directed to whether to refer a matter to the ID. In these cases, the courts have regularly referred to the subsection 44(2) process as little more than an administrative screening function: Lin v Canada (Public Safety and Emergency Preparedness), 2021 FCA 81 at para 4. The courts have further noted that it would be inappropriate to require MDs to “examine complex issues of fact and law” in the context of a screening exercise. According to this line of cases, the process is more about fact-checking and validation, as the “adjudication occurs elsewhere”: Ismail v Canada (Citizenship and Immigration), 2025 FC 232 at para 32.

[26] I would only add to this that the characterization of the MD’s discretion as merely “screening” only holds where the determination relates to referrals to the ID. As noted above, where MDs have the jurisdiction to issue a deportation order, these decisions are final, and cannot, in my view, be characterized as merely a screening exercise.

[27] The decision of the Federal Court of Appeal in Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 was the first appellate decision in which the content of the duty of fairness under section 44 was considered in detail. Of note, in that case, the appellants were foreign nationals and the decision under review was not a referral to the ID, but a decision of the MD to issue a removal order. In Cha, the Court of Appeal concluded that, even where the MD issues a removal order, a relatively low degree of participatory rights is warranted. Having considered the factors set out by the Supreme Court in Baker, the Court concluded that the following participatory rights meet the requirements of the duty of fairness:

- providing a copy of the immigration officer’s report to the person

- informing the person of the allegation(s) made in the immigration officer’s report, of the case to be met and of the nature and possible consequences of the decision to be made

- conducting an interview in the presence of the person, be it live, by videoconference or by telephone

- giving the person an opportunity to present evidence relevant to the case and to express his point of view

[28] Other decisions since Cha have affirmed that similar procedures are appropriate to other section 44 contexts. For example, in XY v Canada (Public Safety and Emergency Preparedness), 2021 FC 831, the applicant was a permanent resident, and the decision under review was not the issuance of a removal order, but a referral to the ID. Despite these differences, the court found that the duty of fairness required that the applicant be afforded notice of the process, an opportunity to provide submissions on the substance of the inadmissibility allegations, and “an appropriate level of disclosure to understand the case against him”: at para 88.

[29] A factual matrix that is directly applicable to this case arose in Zhang v Canada (Public Safety and Emergency Preparedness), 2021 FC 746. The case was identical to this one in that the applicants in both were foreign nationals, the allegations against them related to organized criminality and, as a consequence, the MD’s determination in both matters was not whether to issue a removal order, but whether to refer the matter to the ID.

[30] In briefly assessing the fairness requirements in this context, the Court found that while the duty of fairness owed was at the lower end of the spectrum, the applicant was nevertheless entitled to the right to be heard.

[31] Flowing from this jurisprudence, the Minister has incorporated the procedural rights from Cha directly into its program manual on section 44 decisions. ENF 6 Review of reports under subsection 44(2) states as follows (at paragraph 6.1):

Actions and decisions made under the IRPA must be made in accordance with the principles of procedural fairness and natural justice. These principles apply to the exercise of the powers of the Minister’s delegate. In general terms, this means the MD must:

•Allow the person concerned the opportunity to know the case to be met and present all relevant facts of the case;

•Inform the person concerned about the purpose and possible outcomes of the MD proceedings;

•Provide the person concerned with a reasonable opportunity to respond;

•Allow the person to respond to facts or new information that will be considered by the decision-maker;

•Fully and fairly consider the evidence;

•Render decisions that are impartial and free from bias;

•Provide the notice of decision and reasons for the decision to the person concerned;

•Inform the person concerned of a right to counsel if an A44(2) MD proceeding is caused where the person is detained and the Minister has the authority to issue a removal order;

•Ensure that an interpreter is provided where necessary

[32] Of note, the manual goes on to differentiate between cases where the MD may issue a removal order and those cases where the jurisdiction to issue a removal order lies with the ID. Later in the manual, further and more fulsome procedural fairness instructions are provided for situations where the MD may issue a removal order.

[33] The Respondent argues that the Minister’s operations manual is of no real significance since these kinds of documents are not “law” and are not binding on decision-makers. As a general observation, this is true enough: Sharma v Canada (Public Safety and Emergency Preparedness), 2016 FCA 319 at paras 27, 46. But often manuals and guidelines are intended to distill and operationalize statutory and jurisprudential obligations. To this extent, while the manual itself may not be binding per se, the principles contained in it are not optional. Such is the case here.

[34] This brings us to the procedural rights afforded the Applicants in this case, and on this I can be brief: they were afforded none. They were not instructed that section 44 proceedings had been initiated. They were not provided with any disclosure, and they were not given an opportunity to make submissions. In fact, it seems that the Applicants only learned of the section 44 process after it had concluded and their cases had been referred to the ID. Of interest, the Respondent has pointed to no other cases in which applicants were, as here, left completely uninformed about a section 44 process until after it was complete.

[35] The officer who conducted the subsection 44(1) process and the MD who made the subsection 44(2) referral appear to have been of the view that neither the principles of procedural fairness nor their employer’s program instructions applied to them in this case. This was an error. The jurisprudence is clear that, at a minimum, the Applicants ought to have been informed of the section 44 process and given an opportunity to make submissions.

[36] This, however, is not the end of the story. On judicial review, the Applicants state that this infringement on their procedural rights prevented them from making submissions to the MD. These submissions would have included the fact that the charges against them had been stayed or withdrawn, and that various humanitarian and compassionate [H&C] factors weighed against referring the matter to the ID. These factors included information related to the length of time they have been in Canada, their pending sponsorship applications, and the fact that they have no home in Mexico.

[37] With respect to the withdrawal of the criminal charges against them, this was clearly known by the CBSA, as it was set out in detail in the officer’s subsection 44(1) investigation notes. It is trite that inadmissibility proceedings under section 37 of the IRPA are not contingent on a criminal conviction, and the standard used to assess inadmissibility is lower than the criminal law standard. As such, the mere fact that the criminal charges did not proceed is not particularly relevant, and certainly not determinative of, the section 44 process. What is relevant are the underlying facts that formed the basis of the subsection 44(1) report, and the Applicants have not contested those facts in this application for judicial review.

[38] The Applicants’ argument that they would have made H&C submissions to the MD rests on an assumption that the MD should consider controversial and complex issues of law and evidence in deciding on referrals to the ID. The problem with this argument, however, is that the Federal Court of Appeal has repeatedly rejected it. Most recently, in Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151, the Federal Court of Appeal found that “the referral process at section 44 of the IRPA is only meant to look into readily and objectively ascertainable facts concerning admissibility, and not to adjudicate controversial and complex issues of law and evidence” (at para 37).

[39] The only requirement that courts have imposed on decision-makers with reference to considering H&C factors in section 44 determinations is that officers or MDs must assess H&C factors reasonably if and only if they refer to H&C considerations when providing a rationale for their reasons: McAlpin v Canada (Public Safety and Emergency Preparedness), 2018 FC 422 at para 70. This is not applicable to the decision under review.

[40] Normally, a finding of a breach of procedural fairness results in the decision being sent back for redetermination. However, a reviewing court may refuse to grant judicial review notwithstanding the error where it is satisfied that the breach of procedural fairness would not have affected the outcome: Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC) [Mobil Oil]; Canada (Minister of Citizenship and Immigration) v Patel, 2002 FCA 55 at paras 4-5; NK v Canada (Citizenship and Immigration), 2015 FC 1040 at para 23.

[41] Taking the above into consideration, I have concluded that, notwithstanding the MD’s failure to provide the Applicants with notice and an opportunity to respond, there would be no purpose served in remitting this matter back for redetermination, because none of the Applicants’ proposed submissions to the MD could have made any difference in the outcome of the subsection 44(2) referral decision. As noted above, the MD was not empowered to consider H&C factors. Moreover, the Applicants can make their submissions related to the allegations against them to the ID. These allegations, particularly in respect of Ms. Camacho Zuniga and her sister, are far from clearly made out. They require careful consideration and a deep engagement with complex issues of law and fact. At this point, the jurisprudence is clear: the ID is where this adjudication should happen.

C. Reasonableness

[42] The reasons provided for the subsection 44(2) referral in this case were minimal. The referrals for both Applicants were essentially identical and were as follows (I reproduce here the reasons for Ms. Rojas):

This is a Minister’s Delegate review of the following report under subsection 44(1) of the Immigration and Refugee Protection Act (IRPA):

•A report (N307247555) date February 5, 2024 for a 37(1)(a) inadmissibility

•A report (N307421332) date February 15, 2024 for a 37(1)(b) inadmissibility

The above noted reports refer to a foreign national.

I have reviewed this case and concur with the Officer’s assessment and recommendation to refer this case to an Admissibility Hearing.

I am satisfied that Patricia Zuraya Zuniga Rojas is a Foreign National in Canada.

Having reviewed the file, the accompanying 44(1) reports and the supporting evidence, I am satisfied that the allegations are correct and the report is well-founded.

As such I have issued a referral under subsection 44(2) of the IRPA for an Admissibility Hearing.

[43] While admittedly brief, I have concluded that the above reasons are sufficient, taking into consideration the context. The most important contextual factor here is the detailed subsection 44(1) investigation report, on which the subsection 44(2) referral was based. The subsection 44(1) investigation report extensively documented the facts giving rise to the inadmissibility concerns and the legal basis for the criminal proceedings. As noted above, the report also documents the fact that the charges against the Applicants were all either stayed or withdrawn.

[44] In this context, the MD’s statement that he had reviewed the subsection 44(1) materials, and that he concurred with the officer’s assessment, provides a sufficient understanding of the Delegate’s rationale for the referral. It is clear, for example, that the referral relates to the criminal allegations made against the Applicants. It is also clear that the MD was satisfied that these allegations were ‘correct’ and provided an adequate evidentiary foundation on which to base the referral. While far from perfect, the reasons provide a sufficient basis for understanding the rationale underlying the referral.

[45] In any event, the Supreme Court in Vavilov found that the principle from Mobil Oil, as outlined above, may also apply to the substantive review of the reasonableness of an administrative decision. The Court stated (at para 142):

Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose

[46] For the reasons that I provided in the section above, I have determined that this matter should not be remitted, despite some of the imperfections in the referral decision.

VI. CONCLUSION

[47] For the above reasons, these applications for judicial review will be dismissed. The parties did not propose a question for certification, and I agree that none arise.

[48] In concluding, I provide the following. The above reasons should not be read as condoning an approach to the section 44 process that infringes procedural fairness rights. In this matter, the officer and the MD ought to have provided the Applicants with notice of the section 44 proceedings, and an opportunity to make submissions. The fact that the Applicants did not articulate on judicial review a basis on which to challenge the decision could not have been known by the MD before rendering the subsection 44(2) referral, and this left his decision highly vulnerable on judicial review. The fact that I have ultimately dismissed this application does not suggest that basic procedural rights – long recognized in the jurisprudence and in the Minister’s own instructions – do not apply in this context.

JUDGMENT in IMM-5787-24 and IMM-5823-24

THIS COURT’S JUDGMENT is that:

1. The style of cause in these matters is amended to name the Minister of Public Safety and Emergency Preparedness as the Respondent.

2. The applications for judicial review are dismissed.

3. There is no serious question of general importance.

4. No costs are awarded.

"Angus G. Grant"

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-5787-24
STYLE OF CAUSE:	PATRICIA ZURAYA ZUNIGA ROJAS v. THE MINISTER OF CITZENSHIP AND IMMIGRATION
PLACE OF HEARING:	HELD BY WAY OF VIDEOCONFERENCE
DATE OF HEARING:	ferbuary 11, 2026
JUDGMENT AND REASONS:	GRANT J.
DATED:	February 19, 2026

APPEARANCES:

Daniel Kingwell	For The Applicants
Jocelyn Espejo-Clarke	For The Respondent

SOLICITORS OF RECORD:

Kingwell Immigration Law Barrister and Solicitor Toronto, Ontario	For The Applicants
Attorney General of Canada Toronto, Ontario	For The Respondent