De Novo Jurisdiction and the IAD

Does the Immigration Appeal Division have an obligation to determine the genuineness of a marriage on a de novo appeal from a removal order on the basis of a misrepresentation, when the genuineness of the marriage was the misrepresentation alleged in the subsection 44(1) report and was relevant to a determination by the IAD of whether the person concerned made the misrepresentation in issue before it?

This was the question before the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Peirovdinnabi, 2010 FCA 267.  In answering it, the Court reflected on the nature of a de novo hearing.

The matter pertained to an individual whose application for permanent residence on humanitarian and compassionate grounds was granted, in part because of the applicant’s marriage at the time.  The application was approved despite the fact that the applicant’s ex-spouse approached immigration authorities advising them that the marriage was a sham entered into solely for immigration purposes.

Shortly thereafter, the applicant applied to sponsor a spouse.  This got the attention of immigration authorities, who made a s. 44(1) report to the effect that the applicant was inadmissible for having made a misrepresentation in his H&C application, and that the marriage was not genuine.

The Immigration Division found that the applicant failed to disclose key facts in his H&C application, and that he was therefore inadmissible.  Having done so, the Immigration Division stated that it was not necessary to determine the genuineness of the marriage issue.

The Immigration Appeal Division overturned the Immigration Division’s finding that the applicant had failed to disclose key facts. It also stated that it would not consider the genuineness of the marriage because the Immigration Division had not found it necessary to so.

But was this the correct approach to take?

De Novo

The Federal Court of Appeal said no, and found that that the IAD was obliged to consider the underlying issue in the matter, and not just the narrow ground of appeal. The court said that this was far too narrow a view of the de novo jurisdiction exercisable by the IAD on an appeal against a removal order.

What is “de novo” jurisdiction? De novo means “from the beginning”.

Accordingly, unlike in Federal Court where judicial review applicants cannot introduce new facts, Immigration Appeal Division hearings are not limited to strictly reviewing the evidence that led to an order. As such, the IAD must consider the case as a whole, as well as any additional facts brought to its attention.

Thus, in answer to the question…

Does the Immigration Appeal Division have an obligation to determine the genuineness of a marriage on a de novo appeal from a removal order on the basis of a misrepresentation, when the genuineness of the marriage was the misrepresentation alleged in the subsection 44(1) report and was relevant to a determination by the IAD of whether the person concerned made the misrepresentation in issue before it?

… the Federal Court of Appeal answered:

Yes, provided that the person concerned had a fair opportunity before the IAD to address the genuineness of the marriage.


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