Digests

Citizenship and Immigration

Exclusion and Removal

Removal of Permanent Residents

Appeal from Federal Court decision (2010 FC 64) dismissing judicial review of Immigration and Refugee Board Immigration Appeal Division (IAD) decision allowing respondent’s appeal against removal order—Respondent marrying permanent resident, retaining separate apartments, spending time in both—After marriage failing, respondent acquiring permanent resident status on humanitarian, compassionate grounds—Immigration Division later finding respondent inadmissible in Canada under Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 40(1)(a) for misrepresentation respecting living arrangements—In Supplementary Information—Spouse in Canada form, respondent answering “yes” when asked if living with spouse—IAD cancelling removal order, finding question asked whether respondent, spouse living together as opposed to living separately in divorce law sense—IAD not considering genuineness of marriage because Immigration Division found it unnecessary to do so—Whether IAD erring in law when declining to consider genuineness of marriage—IAD obliged to consider underlying issue, namely genuineness of marriage, when finding removal order not supported on basis respondent, spouse keeping separate apartments—If marriage only entered into for immigration purposes, respondent not living with spouse, answer constituting misrepresentation—Certified question whether IAD having obligation to determine genuineness of marriage on de novo appeal from removal order on basis of misrepresentation when genuineness of marriage constituting misrepresentation alleged answered affirmatively, provided person given fair opportunity before IAD to address genuineness of marriage—Appeal allowed.    

Canada (Citizenship and Immigration) v. Peirovdinnabi (A-48-10, 2010 FCA 267, Evans J.A., judgment dated October 14, 2010, 11 pp.)