Can You Challenge a Section 44 Referral by Judicial Review in Ontario?

Can You Go Straight to Federal Court After a Section 44 Referral?

Generally, no — not right away. The Federal Court confirmed in Akintade v. Canada (Public Safety and Emergency Preparedness), 2026 FC 1186 (CanLII) that seeking judicial review immediately after a s. 44(2) referral is almost always premature. The Immigration Division is the right forum to raise legal challenges first.

This matters practically for anyone in Ontario facing immigration enforcement. Jumping to Federal Court too early can result in your application being dismissed without your arguments ever being considered on the merits.

What Is a Section 44 Referral Under the IRPA?

A s. 44 referral is a step in Canada’s immigration enforcement process where a Canada Border Services Agency (CBSA) officer prepares a report alleging that a person is inadmissible, and a Minister’s delegate then decides whether to refer the matter to the Immigration Division for a formal admissibility hearing.

The Minister’s delegate is not making a final decision about your status in Canada. Their role is limited to checking whether the facts in the report are clear and objectively verifiable. They are not conducting a full legal hearing, and they are not required to resolve contested legal questions at that stage.

Does the Minister’s Delegate Have to Consider Abuse of Process Arguments?

No — the Federal Court confirmed that the Minister’s delegate is not required to analyze abuse of process submissions before making a referral. Because the delegate’s function is a narrow screening role based on readily ascertainable facts, complex legal arguments about delay or procedural unfairness are outside the scope of what the delegate must consider.

This does not mean those arguments disappear. It means they are preserved for the Immigration Division, which is the appropriate body to weigh them in the context of a full admissibility hearing.

When Can Someone Challenge a Section 44 Referral Immediately?

Immediate judicial review is only available in extraordinary circumstances, or where there is discernible and significant prejudice that cannot be adequately addressed later. The Court applied the general rule that judicial review of a s. 44 referral is premature, and found that no such exceptional circumstances existed in this case.

The threshold for bypassing the normal sequence is high. Arguments that could be made to the Immigration Division — and then challenged by judicial review of that decision — will not typically qualify as extraordinary. Courts expect parties to exhaust the available process before seeking Federal Court intervention.

What Is the Right Way to Raise Abuse of Process in Immigration Enforcement?

The correct sequence is to raise abuse of process arguments at the Immigration Division admissibility hearing. The Immigration Division has the authority to consider whether delay, procedural unfairness, or other conduct amounts to an abuse of process, and to grant a remedy if it finds that it does.

If the Immigration Division rules against you, that decision can then be brought to the Federal Court on judicial review. Our Ontario immigration lawyers regularly assist clients in navigating this sequence — from preparing submissions for the Immigration Division through to judicial review applications when needed.

Can Two Separate Proceedings Be Consolidated or Coordinated?

In this case, the applicant also asked the Court to consolidate or coordinate the judicial review with a separate proceeding challenging the Immigration Division decision. The Court refused. The two proceedings involved different decisions at different stages, and no formal motion under Rule 105 of the Federal Courts Rules had been brought.

The Court declined to delay its judgment further to accommodate the request. This is a practical reminder that procedural requests in Federal Court need to follow the proper rules and be brought at the right time.

What Does This Mean for People Facing Immigration Enforcement in Ontario?

If you or a family member has received a s. 44 referral, the key takeaway is that your legal arguments — including any claim of abuse of process — are not lost. They need to be raised in the right place, at the right time, and in the right way.

Missing the opportunity to raise arguments properly before the Immigration Division, or bringing a premature Federal Court application, can result in those arguments never being heard on their merits. People in the Hamilton, Burlington, and broader Ontario region facing admissibility proceedings can reach out to our Burlington immigration law team to discuss the process.

Questions and Records to Discuss with a Lawyer

• What stage of the s. 44 process are you currently at — referral, admissibility hearing, or post-decision?
• Have you received written notice of the report or referral, and what reasons were provided?
• Are there facts or circumstances — such as significant delay by authorities — that may be relevant to an abuse of process argument?
• Do you have any existing Federal Court proceedings, and have deadlines for responding been communicated to you?
• Are there other family members whose immigration status may be affected by the outcome of your admissibility hearing?

Every immigration enforcement situation is different. If you have questions about a referral or admissibility proceeding affecting you or someone you know, you are welcome to reach out to UL Lawyers through /connect to discuss your circumstances.

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This article is automated commentary on a public court decision and is for general information only — not legal advice. Decisions rely on facts unique to each case. If you are affected by a similar issue, contact a lawyer for advice specific to your situation.