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.
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