Section 28 of the Immigration and Refugee Protection Act states: Residency obligation (28)(1) A permanent resident must comply with a residency obligation with respect to every five-year period. Application (2) The following provisions govern the residency obligation under subsection (1): (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are (i) physically present in Canada, (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or (v) referred to in regulations providing for other means of compliance; (b) it is sufficient for a permanent resident to demonstrate at examination (i) if they have been a permanent resident for less than five years, that … Read More
Joint Submissions at the Immigration Appeal Division
It is not uncommon for the Canada Border Services Agency (“CBSA“) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions. On occassion, the IAD will not accept the joint submissions. There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue. The jurisprudence on this is as follows. In Velauthar v Canada (Minister of Employment and Immigration), [1992] FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.” The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved. At the same time, the Federal Court of Canada in Fong v … Read More
Adjourning an Immigration Division Hearing
Rule 43(1) of the Immigration Division Rules, SOR/2002-229 states: Application to change the date or time of a hearing 43 (1) A party may make an application to the Division to change the date or time of a hearing. Factors (2) In deciding the application, the Division must consider any relevant factors, including (a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application; (b) when the party made the application; (c) the time the party has had to prepare for the hearing; (d) the efforts made by the party to be ready to start or continue the hearing; (e) the nature and complexity of the matter to be heard; (f) whether the party has counsel; (g) any previous delays and the reasons for them; (h) whether the time and date fixed for the hearing was peremptory; and (i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice. Duty to appear at the hearing (3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the … Read More
Misrepresentation Cases at the Immigration Appeal Division
A permanent resident can lose their permanent resident status and be banned from Canada if they commit misrepresentation. However, they have a right of appeal to the Immigration Appeal Division (the “IAD“). At the IAD, the permanent resident can argue that the determination that they committed misrepresentation was based on a factual error or mistake in law. They can also argue that there are sufficient humanitarian & compassionate (“H&C“) to warrant relief. The Test In Wang v. Canada, the Federal Court of Canada set out the following factors (generally known as the “Wang” or the “modified Chieu” factors) to be the appropriate considerations in determining whether there are sufficient H&C considerations to justify not cancelling someone’s permanent resident status and banning them from Canada for five years: the seriousness of the misrepresentation leading to the removal order and the circumstances surrounding it; the remorsefulness of the permanent residence; the length of time spent in Canada and the degree to which the permanent resident is established in Canada; the permanent resident’s family in Canada and the impact on the family that removal would cause; the best interests of a child directly affected by the decision; the support available to the permanent resident … Read More
The Right of Permanent Resident Visa Holders to Appeal to the IAD
On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). This is unfortunate because the question that Justice de Montigny certified needs to be answered. That question was: For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made? The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa. CBSA can then deny entry to Canada on the basis that the person does not have a valid … Read More