In s. 44 Referral proceedings, the Federal Court allowed Rowan Astrick Bent’s judicial review of a reconsidered decision to refer him to an admissibility hearing. Chief Justice Diner found that the Minister’s Delegate did not adequately address evidence and submissions about the personal impact of systemic anti-Black racism.
Federal Court sets aside reconsideration decision
In Bent v. Canada, 2026 FC 1161, released in Montréal on September 15, 2026, Chief Justice Diner considered three consolidated judicial review applications concerning Mr. Bent’s inadmissibility process under section 44 of the Immigration and Refugee Protection Act (IRPA).
The Court allowed the application challenging the February 16, 2023 reconsideration decision, which had maintained the referral of a section 44(1) report for an admissibility hearing before the Immigration Division. The matter was returned to a different Minister’s Delegate for redetermination.
The Court did not rule on the original referral decision or the Immigration Division’s subsequent inadmissibility decision. It found the original referral had been superseded and was moot, while the challenge to the Immigration Division decision would be premature once the reconsideration process was sent back for a new determination.
Background to the inadmissibility referral
Mr. Bent has lived in Toronto since the age of two and became a Canadian permanent resident after immigrating from Jamaica in 1993. The Court stated that he remains a citizen only of Jamaica.
A Canada Border Services Agency officer prepared a section 44(1) report on March 31, 2022, after determining there were reasonable grounds to believe Mr. Bent was inadmissible for serious criminality based on 2021 convictions. The Minister’s Delegate formally concurred with the report and referred the matter to the Immigration Division on September 6, 2022.
Mr. Bent later sought reconsideration, submitting an enhanced pre-sentencing report and extensive legal submissions. His materials addressed, among other matters, the effects of systemic anti-Black racism on circumstances he said led to his criminal offences, as well as his family circumstances and his daughter’s best interests.
Court finds reasons were not responsive
The parties agreed that the applicable review concerned reasonableness. The Court recognized that section 44 decision makers have limited discretion and are generally not required to consider personal circumstances, including humanitarian and compassionate factors.
However, Chief Justice Diner held that where a section 44 decision maker elects to consider personal circumstances, the resulting reasons must be reasonable and fair. In this case, the Minister’s Delegate had accepted the reconsideration request and considered new material, but did not adequately engage with the evidence and submissions provided.
The Court found that the Delegate responded to the detailed material with a conclusory statement that generalized systemic issues had not been shown to be relevant to Mr. Bent’s case. This did not explain why the enhanced pre-sentencing report and counsel’s submissions did not support the requested reconsideration.
Although the Delegate could have rejected the evidence and submissions, the Court held that the reasons lacked the responsive justification, transparency and intelligibility required under Canada (Minister of Citizenship and Immigration) v Vavilov. The Court emphasized that judicial review was not an occasion for it to reweigh the evidence or decide the referral outcome itself.
Charter claim not decided
The applicants had alternatively sought a declaration that section 44(2) of IRPA was inconsistent with section 15(1) of the Canadian Charter of Rights and Freedoms. They also argued that Charter values had not been considered in the reconsideration decision.
The Court declined to determine those constitutional issues. It held that the administrative-law error in the reconsideration decision was determinative and that judicial restraint favoured resolving the matter on that non-constitutional basis.
BLAC granted public interest standing
The Black Legal Action Centre (BLAC), a non-profit community legal clinic funded by Legal Aid Ontario, participated as a co-applicant. The respondents had challenged its standing.
Applying the three-part public-interest-standing test, the Court found that BLAC should be granted standing. It concluded that the proceeding raised a serious justiciable issue, that BLAC had a genuine interest in the issues, and that its participation was a reasonable and effective way to bring the matter before the Court.
What the decision means
This decision does not determine whether Mr. Bent should ultimately be referred to an admissibility hearing. Instead, it requires a different Minister’s Delegate to reconsider the section 44(2) referral afresh.
The judgment is specific to the reconsideration record before the Court. It indicates that where a section 44 decision maker chooses to consider detailed personal-circumstances evidence, even brief reasons must meaningfully address the material submissions rather than merely state a conclusion.
Source: Federal Court Decisions