Date: 20100121
Docket: IMM-3333-09
Citation: 2010
FC 64
Toronto, Ontario,
January 21, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
MAHMOUD PEIROVDINNABI
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns whether the Respondent made a misrepresentation in
the course of obtaining his landed immigrant status in 2002. This question was
brought to the Immigration Appeal Division (IAD) on a de novo appeal
from the decision of a member of the Immigration and Refugee Board. In the
decision presently under review, the IAD found that the Respondent did not make
a misrepresentation.
[2]
The issue
is whether, in 2002, the Respondent made a misrepresentation by giving the
answer “yes” to the question “are you living with your spouse” posed in a form
entitled “Supplementary Information Spouse in Canada (Respondent’s Record, Tab 21). This
issue arose in the course of the Respondent’s sponsorship of his second wife to
Canada in 2005. In the course of
that application he was questioned about his living circumstances with his
first wife 3 years before and he answered that he thought that the question
posed at that time required an answer as to whether he and his first wife were
living “together”. To this question the Respondent said that, while they were
living together, he and his first wife maintained separate residences and lived
in them both after their marriage. The problem which arose is that the
Applicant interprets the question answered by the Respondent to mean “are you
living together with your wife in the same residence”. This conflict in
interpretation set a course of decision-making in motion which has resulted in
the present Application.
[3]
The first
level decision on the question was that of an immigration officer pursuant to
s. 44 of the IRPA who found the Applicant to be inadmissible pursuant to
s.40(1)(a) of the IRPA as follows:
On a balance of probabilities
there are grounds to believe [the Applicant] is a permanent resident or a
foreign national who is inadmissible for misrepresentation for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this Act.
(Applicant’s Book of
Authorities, p. 103)
[4]
The second
level decision was that of a Refugee Board member who made the following
determination:
[14] The panel finds that Mr.
Peirovdinnabi directly misrepresented his living arrangements with his spouse
to Immigration officials. In his Supplementary Information Spouse in Canada
form signed on January 16, 2002, he indicated he was living with his spouse. In
signing the form, he declared that the information given in the application was
truthful and correct. Mr. Peirovdinnabi testified at the hearing that he never
lived with his wife after their wedding. An applicant who indicates on the form
that they are not living with their spouse is required to provide an
explanation for their living arrangements. As Mr. Peirovdinnabi completed the
form indicating he was living with his spouse, and that an explanation was “NOT
APPLICABLE”. As such, the information provided by Mr. Peirovdinnabi in his Supplementary
Information Spouse in Canada was neither true nor correct and the panel
finds the Mr. Peirovdinnabi misrepresented his true living arrangements.
[…]
[18] The Minister introduced evidence
which raised serious questions with respect to Mr. Peirovdinnabi’s true
intentions in marrying Ms. Shahi. In particular it was established that the
timing of the marriage ceremony was motivated by Mr. Peirovdinnabi’s
immigration circumstances. Mr. Peirovdinnabi testified that a wedding date was
set quickly following his release from detention as Ms. Shahi was fearful that
he would be removed from Canada. In addition, Mr.
Peirovdinnabi’s Affidavit in support of his petition for Divorce indicates the
couple separated on January 15, 2002, prior to his filling of the Supplementary
Information Spouse in Canada form. However, the panel finds it is not
necessary to consider his intentions as the Minister has already met the burden
of establishing Mr. Peirovdinnabi’s misrepresentation.
[Emphasis added]
(Applicant’s Book of Authorities, pp. 17
– 19)
[5]
The third
level decision is the one presently under review. In the present decision the
IAD determined that the only question that was required to be answered is the
one addressed in the first and second level decisions: did the Respondent make
a misrepresentation? To aid in making the determination that the Respondent did
not make a misrepresentation, the IAD approached the
subject from the perspective of whether the Respondent and
his wife were living separate and apart as that concept is understood in divorce
law. I find that that this perspective on the question was appropriate because
the position taken throughout by the Applicant is that the Respondent and his
first wife were living separate and apart. The IAD did not make a determination
with respect to whether the Respondent’s first marriage was genuine because no
determination was made on this issue in the second level decision which brought
the appeal to the IAD.
[6]
The
central argument advanced by the Applicant in the present review of the IAD
decision is that, as a matter of law, the IAD was required to determine the
genuineness of the Respondent’s first marriage. The position that the Applicant
takes is that since the hearing before the IAD was de novo, all issues
with respect to the Respondent’s first marriage were required to be determined.
I reject this argument. I find that the IAD took the appeal as it came: there
was only one question to be addressed and that was whether the Respondent made
a misrepresentation. The question of whether the marriage was genuine was not determined
in the first and second level decisions, and I find that it was not in play in
the IAD decision.
[7]
As a
result, I find no reviewable error in the IAD’s decision.
ORDER
As I find no reviewable error in the
decision under review, the present Application is dismissed.
Counsel for the Applicant proposes the following
question for certification:
Does the IAD have an obligation in law to
determine the genuineness of a marriage on a de novo appeal brought with
respect to an issue of misrepresentation when the issue of the genuineness of
the marriage concerned was not specifically raised for determination in the
appeal?
I agree that this question is determinative of
the present Application and is a question of general importance and,
accordingly, I certify the question for determination by the Federal Court of
Appeal.
“Douglas
R. Campbell”
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