In this type of appeal, an immigration officer of Immigration, Refugees and Citizenship Canada (IRCC) has decided that you did not comply with the residency obligation for permanent residents. This decision is made outside Canada. The law says that a permanent resident must be:
- “physically present in Canada” at least 730 days in every five-year period, or
“physically present in Canada” or outside Canada for one of the allowable reasons set out under the law or its regulations, for a combined total of at least 730 days in every five-year period.
The date to start counting the 5 years is the date you asked for a travel document to come back to Canada.
Can you prove that you were in Canada for the required time?
If you believe that the officer’s decision was wrong because, during the five-year period in question, you
did live in Canada for at least 730 days, you will have to demonstrate this by testimonies or documents. Gather documents and witnesses who can demonstrate that you were in Canada for the required time.
Did you have an acceptable reason for being out of Canada?
If you were outside of Canada for longer than the law allows, it might be for reasons that would fit into one of the exceptions allowed by the law. This may mean that the time you were living outside Canada can be added to the time physically present in Canada to fulfil your residency obligation. These exceptions include:
- Working as a full-time employee assigned outside Canada for a Canadian business or organization.
- Accompanying a spouse, common-law partner or a parent who is a permanent resident, working as a full-time employee assigned outside Canada for a Canadian business or organization. A child can make this case only if they were a dependent child of the working parent at the time they lived outside Canada.
- Accompanying a spouse, common-law partner or a parent who is a Canadian citizen. A child can make this case only if they were a dependent child of the Canadian citizen at the time they lived outside Canada.
If one of these exceptions applies to you, you must provide evidence such as witnesses or documents that support the reason you are relying on. In order to confirm that the exception applies to you, we recommend that you read the exact wording of the exception provisions set out in
subsection 28(2) of the Immigration and Refugee Protection Act (IRPA) and in
section 61 of the Immigration and Refugee Protection Regulations.
Do you have humanitarian and compassionate reasons for your appeal?
Another way to succeed in your appeal is to show the IAD that there are sufficient
humanitarian and compassionate (H&C) grounds for your appeal to be allowed, even if you were outside Canada longer than the law permits. The decision-maker will take into consideration all the relevant evidence to reach a fair decision.
Here are some factors that the IAD may consider:
- The length of time you lived in Canada
- Your level of establishment in Canada (for example your assets in Canada, activities and jobs held in Canada, community involvement in Canada)
- The reason why you left Canada and why you remained outside Canada so long
- Whether you tried to return to live in Canada at the earliest opportunity
- The impact on you losing your permanent resident status. Will you suffer any hardship as a result?
- The impact on your family members in Canada if you were to lose your permanent resident status
- The support you have in Canada from family and others in the community
- The impact on the best interests of any child affected by losing your permanent resident status
- If you left Canada as a child, your efforts to return to Canada when you were no longer a child.
To show the closeness of your relationships with family and community in Canada, you can include documents such as letters and messages from family and friends, phone bills, family photographs and receipts for money transfers. You may also want them to testify at your hearing.