Date: 20101014
Docket: A-48-10
Citation: 2010 FCA 267
CORAM: EVANS
J.A.
DAWSON J.A.
STRATAS
J.A.
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Appellant
and
MAHMOUD PEIROVDINNABI
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
This
is an appeal by the Minister of Citizenship and Immigration from a decision of
the Federal Court (2010 FC 64) in which Justice Campbell dismissed an
application for judicial review by the Minister. The Minister had requested the
Court to set aside a decision of the Immigration Appeal Division (IAD) of the
Immigration and Refugee Protection Board, dated April 15, 2009, allowing an
appeal by Mahmoud Peirovdinnabi against a removal order, dated May 10, 2007,
issued by the Immigration Division of the Board (ID) following an admissibility
hearing.
[2]
The
Court held that the IAD was correct both to conclude that Mr Peirovdinnabi had
not made a misrepresentation when he stated on an immigration form that he was
living with his spouse, and to decline to consider the genuineness of Mr
Peirovdinnabi’s marriage “because it was not in play in the IAD decision”:
para. 6.
[3]
The
Court certified the following question pursuant to the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, paragraph 74(d) (IRPA):
Does the IAD
have an obligation 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?
[4]
In
my opinion, the IAD was obliged to determine the genuineness of the marriage in
this case because it was the misrepresentation alleged in the immigration
officer’s report under IRPA, subsection 44(1), and was closely related to the
misrepresentation found by the ID and in issue in the IAD. That is, if the
marriage was not genuine, Mr Peirovdinnabi was not living with his wife as his
spouse and, as his counsel conceded, his statement on the form that he was
living with his spouse constituted a misrepresentation.
[5]
This
conclusion is sufficient to dispose of the appeal. However, the Minister argued
that the IAD’s decision should also be set aside under paragraph 18.1(4)(d)
of the Federal Courts Act, R.S.C. 1985, c. F-7. The Minister submitted
that the IAD based its decision on an erroneous finding of fact made in a
perverse or capricious manner or without regard to the material before it when
it found that, regardless of the genuineness of his marriage, Mr Peirovdinnabi
did not misrepresent or withhold material facts in stating on the form that he
was living with his spouse.
[6]
In
view of my conclusion that the IAD wrongly declined jurisdiction when it failed
to consider the genuineness of Mr Peirovdinnabi’s marriage, I need not decide
the second, factual issue raised by the Minister.
B. FACTUAL BACKGROUND
[7]
Mr
Peirovdinnabi is a national of Iran. In 1996, he made a refugee claim after he
arrived in Canada. The claim was rejected, but he remained nonetheless. He
seems to have come onto Immigration’s radar in December 2001 when he was
involved in a motor vehicle accident. He was arrested on December 12, 2001, and
detained pending removal. However, he was released on a bond the next day, and
married Khandan Jahansooz Shahi, a permanent resident of Canada, on January 6, 2002, in Toronto.
[8]
Mr
Peirovdinnabi testified that, after they married, he and Ms Shahi were together
all the time that they were not working. However, he said, they retained their
separate apartments and spent time in both, intending to find an apartment
together later.
[9]
Ms
Shahi went to Iran on January 16, 2002, ten days after the wedding, and
returned to Toronto in April or May of 2002. On her return, she told Mr Peirovdinnabi
that their marriage was over.
[10]
In
December 2002, Mr Peirovdinnabi’s application for permanent resident status on
humanitarian and compassionate grounds was granted, even though Ms Shahi had
advised immigration authorities in May 2002, after his application had received
preliminary approval, that she was withdrawing her sponsorship because he had
only married her to avoid removal. They were divorced in February 2004.
[11]
In
June 2005, Mr Peirovdinnabi applied to sponsor the admission to Canada of a woman whom he had married in Iran. This revived Immigration’s interest in his
immigration status. In February 2006, an immigration officer made a report
under IRPA, subsection 44(1) to the effect that Mr Peirovdinnabi was
inadmissible pursuant to IRPA, paragraph 40(1)(a) for making a
misrepresentation of material facts which could have caused a mistaken decision
to be made under the IRPA in his favour.
|
40. (1) A permanent resident or a foreign
national is inadmissible for misrepresentation
(a)
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;
|
40. (1) Emportent interdiction de territoire pour
fausses déclarations les faits suivants :
a)
directement ou indirectement, faire une présentation erronée sur un fait
important quant à un objet pertinent, ou une réticence sur ce fait, ce qui
entraîne ou risque d’entraîner une erreur dans l’application de la présente
loi ;
|
|
|
|
The basis of the report was the officer’s belief
that Mr Peirovdinnabi’s marriage was not genuine, since he had never intended
to live with his first wife as her spouse, and had only married her in order to
avoid removal and to gain permanent resident status in Canada.
[12]
The
Minister consequently requested an admissibility hearing by the ID pursuant to
IRPA, subsection 44(2).
|
44. (2) If the Minister is of the
opinion that the report is well-founded, the Minister may refer the report to
the Immigration Division for an admissibility hearing, ….
|
44. (2) S’il estime le rapport
bien fondé, le ministre peut déférer l’affaire à la Section de l’immigration
pour enquête, …
|
[13]
The ID found that Mr Peirovdinnabi
was inadmissible because he had made a material misrepresentation by answering
“yes” to the question “Are you living with your spouse?” on the Supplementary
Information Spouse in Canada form which he had completed on January 16,
2002, the day after Ms Shahi left for Iran. He had submitted the form to
support his humanitarian and compassionate application to apply from within Canada for permanent resident status on the ground that he was married to a Canadian
citizen or permanent resident.
[14]
The basis of
the ID’s decision was that Mr Peirovdinnabi had failed to disclose that he and
Ms Shahi were “living separately”. This was a material misrepresentation which
could have induced the immigration officer mistakenly to exempt him from the
requirement that visas must be obtained prior to entry into Canada, and then to grant him permanent resident status. The ID stated that, while the
Minister had raised serious questions about Mr Peirovdinnabi’s intentions in
marrying Ms Shahi, it was not necessary to determine if the marriage was
genuine, since the ID had concluded that, regardless of the genuineness of the
marriage, he had made a misrepresentation respecting their living arrangements.
The ID issued an exclusion order, which Mr Peirovdinnabi appealed to the IAD.
[15]
The IAD
allowed Mr Peirovdinnabi’s appeal and cancelled the removal order, on the
ground that the question, “Are you living with your spouse?”, asks whether the
applicant and his or her spouse are living together, as opposed to living
separate and apart in the divorce law sense. The IAD found that Mr
Peirovdinnabi had intended to live in Ms Shahi’s apartment after their marriage
and, at the time that he completed the form, he did not intend to withdraw from
the marriage.
[16]
Hence, the
IAD concluded, Mr Peirovdinnabi had not breached IRPA, paragraph 40(1)(a)
by answering that he was living with his spouse, even though they retained
separate apartments and spent time in both. The IAD also stated that it would
not consider the genuineness of the marriage because the ID had not found it
necessary to do so.
C. FEDERAL COURT’S DECISION
[17]
The Minister
applied to the Federal Court for judicial review of the IAD’s decision,
alleging that the IAD had made two reviewable errors. First, it had erred by
interpreting the question on the form as asking whether the applicant was
living separate and apart from his spouse in the divorce law sense. The Court
rejected this argument and found the IAD’s view on the question to be
“appropriate”.
[18]
Second, the
IAD had erred by failing to consider the genuineness of the marriage. Since the
jurisdiction of the IAD on appeal is de novo it is required to consider
all aspects of the marriage. The Court disagreed and found that the only
question decided by the ID, and the only question before the IAD on appeal, was
whether Mr Peirovdinnabi had made a material misrepresentation: the genuineness
of the marriage was “not in play in the IAD decision.”
[19]
Consequently,
the Judge dismissed the Minister’s application for judicial review and
certified the question set out at paragraph 3 of these reasons.
D. ISSUES AND ANALYSIS
[20]
The central
question raised by this appeal is whether the IAD erred in law when it declined
to consider the genuineness of Mr Peirovdinnabi’s marriage to Ms Shahi because
the ID did not find it necessary to do so.
[21]
The IAD
regarded the issue before it on the appeal as whether the ID had erred when it
found that Mr Peirovdinnabi had made a material misrepresentation in stating on
the Supplementary Information Spouse in Canada form that he was living
with his spouse. However, it is clear from the transcripts of the hearings
before both the ID and the IAD that most of both the evidence and the submissions
of counsel for the parties were directed to whether Mr Peirovdinnabi had
entered into the marriage with Ms Shahi primarily to avoid removal and to
enhance his prospects of being granted permanent resident status on
humanitarian and compassionate grounds. The genuineness of the marriage had
also been the focus of the immigration officer’s report under subsection 44(1)
leading to the inadmissibility hearing before the ID for breach of paragraph
41(1)(a).
[22]
The ID had
not found it necessary to decide this question because it concluded that Mr
Peirovdinnabi had made a misrepresentation respecting his living arrangements
with Ms Shahi: contrary to his answer on the form, he did not live with her
after the wedding. The basis of the ID’s decision seems to have been that Mr
Peirovdinnabi testified to this effect, because he and Ms Shahi did not live
under one roof, but retained separate apartments.
[23]
The IAD
disagreed with this conclusion: provided that Mr Peirovdinnabi was not living
apart from Ms Shahi because he regarded the marriage as over, the fact that
they maintained different apartments, and spent time in both, did not mean that
he was not living with her. The IAD declined to go on to consider the
genuineness of the marriage because the ID had not found it necessary to do so.
However, the ID had been able to conclude that Mr Peirovdinnabi had
misrepresented his living arrangements without having to consider whether the
marriage was genuine.
[24]
In my
opinion, when the IAD held that the removal order could not be supported on the
basis that Mr Peirovdinnabi and Ms Shahi kept separate apartments, it was
obliged to consider the underlying issue, namely the genuineness of the
marriage. I note that counsel could not point to a provision of the IRPA, other
than paragraph 40(1)(a), under which the genuineness of the marriage
could have been made the basis of a belief that Mr Peirovdinnabi, a permanent
resident of Canada, was inadmissible.
[25]
I agree with
counsel for Mr Peirovdinnabi who advised the IAD at the hearing that the
genuineness of the marriage was still relevant, even if the only question
before the IAD on the de novo appeal was whether Mr Peirovdinnabi had
made a material misrepresentation when he said on the Supplementary
Information Spouse in Canada form that he was living with his wife. Thus,
if the marriage was not genuine because Mr Peirovdinnabi had entered into it
for immigration purposes, he was not living with Ms Shahi as his spouse, and
his answer on the form constituted a misrepresentation.
[26]
This is
because the Supplementary Information Spouse in Canada form assumes that
the applicant for permanent resident status from within Canada as a spouse is the bona fide spouse of a Canadian citizen or permanent
resident. Hence, a person who applies for a benefit under the Act as a spouse
makes a misrepresentation if his or her marriage is not bona fide in the
sense that it was entered into for the purpose of obtaining an advantage under
the Act. On the other hand, a finding that the marriage was genuine would not
settle the misrepresentation issue.
[27]
Again, I note
that the genuineness of the marriage had been a central issue throughout the
hearings before the ID and the IAD in the context of whether Mr Peirovdinnabi
had made the misrepresentation alleged. Hence, it should have come as no
surprise to Mr Peirovdinnabi if, as his counsel suggested to the IAD, the IAD
were to determine whether the marriage was genuine.
[28]
Counsel for
Mr Peirovdinnabi submitted to this Court that the IAD must implicitly have
concluded that the marriage was genuine because it found that Mr Peirovdinnabi
had not withdrawn from the marriage when he stated on the form that he was living
with his spouse. I do not agree.
[29]
While this
might seem a logical inference, it is not one that I can draw in the face of
the IAD’s reasons. First, the IAD stated expressly asserted in its reasons (at
para. 36):
The Immigration Member did not
find it necessary to consider the
genuineness of the appellant’s
marriage. The panel will not accordingly
consider the issue.
This
is far too narrow a view of the de novo jurisdiction exercisable by the
IAD on an appeal against a removal order. Second, the IAD’s reasoning is
directed throughout to the meaning of the question on the form, and whether Mr
Peirovdinnabi and his wife were living together after the wedding. The reasons
do not consider whether the marriage was genuine.
[30]
Accordingly,
since the IAD wrongly declined to exercise its jurisdiction to determine
whether Mr Peirovdinnabi had entered into the marriage for immigration
purposes, its decision must be set aside and the matter remitted for
determination by another IAD Member.
E. CONCLUSIONS
[31]
Since the
question certified by the Federal Court does not quite capture the issue as I
have framed it, I would recast it slightly and answer as follows:
Question: Does the IAD
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?
Answer: Yes, provided that
the person concerned had a fair opportunity before the IAD to address the
genuineness of the marriage.
[32]
For these
reasons, I would allow the appeal, set aside the decision of the Federal Court,
grant the Minister’s application for judicial review, set aside the decision of
the IAD, and remit the matter for redetermination by the IAD, differently
constituted, in accordance with these reasons.
“John M. Evans”
“I agree
Eleanor
R. Dawson”
“I agree
David
Stratas”
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