“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.
Credibility Findings by the ID
In Patel v. Canada (Citizenship and Immigration), 2024 FC 191, Madam Justice Go wrote:
The Applicant raises several other issues with regard to the reasonableness of the Decision. I need not address those arguments as I find the IAD member’s failure to engage the duty of candour analysis determinative. My decision not to address these other issues, however, does not connote my endorsement for the rest of the IAD member’s findings.
While I have not made any determination on the jurisdictional relationship between the IAD and ID, I would offer two observations arising from the context of this case.
First, as noted above, the ID member conducted a thorough review of the applicable legal principles and engaged in a fulsome analysis that was largely absent in the Decision. Whether or not the jurisprudence confirms, as the Applicant urges, that the IAD should explain why it did not adopt the ID reasons, Vavilov requires all decisions to demonstrate justification, transparency and intelligibility: Vavilov at para 99. Arguably, when faced with an ID decision that came with detailed reasons in support of its legal and factual findings, the IAD should at least have offered some explanations as to why it reached a conclusion that was completely opposite to that of the ID. Doing so does not mean the IAD would be ceding its jurisdiction to the ID or showing deference to the latter’s decision. Rather, “reasoned decision-making is the lynchpin of institutional legitimacy:” Vavilov at para 74.
Finally, the ID in this case found the Applicant to be credible on all issues but one, namely, that it was implausible the Applicant did not know he was offered a job by Adamas. The ID arrived at its credibility findings based on all the evidence, including the oral testimonies of the Applicant and his witness. Notwithstanding it did not have the advantage of receiving oral testimony, the IAD appeared to have overturned some of the ID’s positive credibility findings when it found the Applicant was “dodgy and evasive regarding the circumstances of the job interview and offer,” which went beyond the single negative credibility finding the ID made regarding the job offer.
The FCA in Huruglica confirmed that, in the context of refugee hearings, assessing oral evidence is one area where the Refugee Protection Division [RPD] may enjoy a meaningful advantage over the RAD: Huruglica at paras 69-70. The FCA also examined the various scenarios under which the RAD may reject or alter the RPD’s credibility findings before concluding that the RAD should be given the opportunity to develop its own jurisprudence in that respect: Huruglica at paras 70-74.
Since Huruglica, the jurisprudence in refugee law has certainly developed to respond to this question, with this Court requiring the RAD to give notice when it makes new credibility findings. It is also worth repeating Justice St-Louis’ comment that “the IAD should consider the ID’s findings where the applicant has not testified before the IAD:” Verbanov at para 26. Perhaps the time has also come for the IAD to develop its jurisprudence with respect to the nature of its de novo appeal in general, and its assessment of the ID’s credibility findings in particular, when the IAD relies solely on the record before it without the benefit of a new oral hearing.