Grounds for inadmissibility - Non-compliance with Act: Contravening IRPA by failing to comply with the residency obligation: IRPA ss. 28 & 41, Regulations ss. 61 & 62
Determination: The determination is made outside of Canada, usually in relation to an application by a permanent resident for a Permanent Resident Travel Document (PRTD) used to return to Canada where a permanent resident does not possess a valid permanent resident card.
Right of appeal – IRPA s. 63(4): A permanent resident may appeal to the IAD against a decision made outside of Canada on the residency obligation under section 28.
Residency Obligation - Period: A permanent resident must comply with a residency obligation with respect to every five-year period: IRPA s. 28, Regulations ss. 61 & 62.
Residency obligation – Compliance: 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:
physically present in Canada,
outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
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, or
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: IRPA s. 28(2)(a). Regulations ss. 61 & 62.
Residency obligation – Calculation of five-year period: It is sufficient for a permanent resident to demonstrate at examination
- if they have been a
permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period
immediately after they became a permanent resident;
- if they have been a
permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period
immediately before the examination: IRPA s. 28(2)(b).
H&C determination by officer: As part of the residency obligation determination, an officer is required to consider whether H&C considerations, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination: IRPA s. 28(2)(c).
Hearing: The IAD must hold a hearing in a residency obligation appeal.
Presence of an appellant at the hearing: In a residency obligation appeal, the IAD may make an order that the appellant physically appear at the hearing, in which case an officer shall issue a travel document for that purpose: IRPA s. 176(2). Usually, this is as a result of a pre-hearing application made by the appellant. Most appellants attend their hearing by telephone, unless their application to return succeeds (not often allowed by the IAD) or they are otherwise able to enter Canada.
Facts: Factual findings are generally made on a balance of probabilities.
Onus: In order to obtain a favourable decision, the onus is on the appellant to prove that the residency obligation determination is not valid (error by the decision-maker or a contravention of natural justice) or that the IAD should exercise its discretionary humanitarian and compassionate (H&C) jurisdiction in favour of the appellant: IRPA s. 67(1).
H&C considerations: In exercising its discretionary H&C jurisdiction, the IAD taking into account the best interests of a child directly affected by the decision, must consider whether there are sufficient H&C considerations to warrant special relief in light of all the circumstances of the case: IRPA s. 67(1)(c).
H&C considerations in residency obligation appeals include:
- Extent of the non-compliance with the residency obligation
- Reasons for the departure from Canada
- Remorse shown by the appellant
- Reasons for continued or lengthy stay abroad
- Whether attempts to return to Canada were made at the first opportunity
- The degree of establishment in Canada, both initial and continuing including evidence of acquisition or retention of assets in Canada
- Family ties to Canada and whether the appellant can be sponsored by their family members in Canada
- Hardship and dislocation that would be caused to the appellant and his family in Canada if the appellant were to lose their permanent residence status including hardship to the appellant in their country of nationality or residence
- Whether there are other unique or special circumstances that merit special relief
- Best interests of any child directly affected by the decision (BIOC)
Decision: The appeal may be allowed or dismissed: IRPA ss. 66, 67 & 69.
Allowing an appeal: If the IAD allows an appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, or refer the matter to the appropriate decision-maker (visa post) for reconsideration. Allowing an appeal results in the appellant retaining their status as a permanent resident: IRPA s. 67(2).
Dismissing an appeal where appellant is in Canada: If the IAD dismisses a residency obligation appeal and the appellant is in Canada, the IAD shall make a removal order (departure order): IRPA s. 69(3)
- Hearings at the IAD are generally conducted in public, absent specific exceptions (e.g. refugee claimant, danger to the appellant or others, sexual offences where there could be non-publication/disclosure orders from a criminal court proceeding, young offenders issues): IRPA s. 166.
- Designated Representatives are appointed if an appellant is a minor (under age 18) or unable, in the opinion of the IAD, to appreciate the nature of proceedings: IRPA, s. 167(2).
- An officer, in examining a permanent resident or a foreign national, is bound by the decision of the IAD to allow an appeal in respect of the permanent resident or foreign national: IRPA, s. 70(1).