The Immigration and Refugee and Protection Act says a landed immigrant must meet a residency obligation by remaining in Canada for 730 days within a five-year period or they may lose permanent residence status.
However, there are immigration appeal cases wherein landed immigrants who did not meet that requirement were able to regain status before the Appeal Division.
Each case is decided on its merits. When exercising its discretion on humanitarian and compassion grounds, the tribunal is guided by various facts invoked by case law. These factors are not exhaustive and the weight given each one varies depending on the specific circumstances of each case.
So let us examine a unique case in which the person has not resided in Canada for a period of five or more years. I will call her Lucy.
A citizen of Chile who was 25 at the time, Lucy was accepted as a refugee by the Human Rights Commission and sent to France. In 1987, she visited Canada at which time she met her future husband who was a permanent resident.
Upon their marriage, she was sponsored as a permanent resident and was landed in May 1989. Prior to that, her first daughter was born in Canada in November 1988 and her second daughter was born in December 1992.
She remained a permanent resident in Canada for more than four years, until July 1993 at which time she fled back to Chile with her two daughters. She was being abused by her husband, physically, psychologically as well as sexually.
She was afraid to lodge a complaint with the police, fearing for her safety and that of her two young daughters. Having no family support in Canada, she returned home and moved in with her parents.
It was always the intention of Lucy to return to Canada; however, her priority was to provide her daughters with a safe and secure upbringing, wanting them to attain a certain level of maturity before having to face the possibility of a confrontation with their biological father.
After Lucy and her two daughters returned to Chile in July 1993, she had no contact with or support from her husband. Her daughters had minimal contact with their father at the ages of 16 and 17 when they were in high school.
In 2011, Lucy hired a lawyer who was able to obtain an uncontested divorce. While in Chile, the two daughters studied English and French with the hope of returning to Canada some day.
In February 2012, Lucy and her daughters returned to Canada with the intention of remaining here on a permanent basis. In March 2012 she met with a lawyer who filed her appeal of the consent decision acknowledging her failure to comply with her residency obligation and voluntarily waiving her right of appeal.
Both daughters returned on a permanent basis and are fluent in English and French and have upgraded their education and skills. Lucy has been working full time at a daycare since July 2012, as a qualified educator and has now been given the responsibility of an administrative assistant.
She previously had temporary visas to go to Montreal in 2004 and 2005, each visit being of a duration of one month.
In January, 2012, an immigration officer in Santiago determined that Lucy, as a permanent resident who had landed in 1989, must fill out a permanent resident travel document. According to Lucy’s testimony she was summoned to the Canadian Embassy in February, 2012, at which time she filled out the permanent resident travel document.
After submitting this document, she was asked to wait. The immigration officer returned with documents entitled “OP-10 Determination of Permanent Resident Status”. She met with the immigration officer for no more than five minutes and was told execution of such a document was a mere formality required in order to issue her travel document. She testified that no further explanation was provided and she relied upon the agent’s representation that it was strictly a formality.
In the visa officer’s notes, the agent wrote that Lucy “understands that she lost her permanent resident status and will enter Canada as a visitor. No concerns.” Lucy testified she told the agent she intended to return to Canada on a permanent basis with one of her daughters and she would not have signed the documents had she understood she was acquiescing to the loss of permanent resident status.
The Immigration Appeal Division (IAD) has been established to hear appeals from, among others, permanent residents who have received unfavorable decisions with respect to their status in Canada.
The tribunal stated, “In the opinion of the tribunal, Lucy was compelled to sign the voluntary waiver of the right to appeal without adequate explanation and without receiving independent advice such that her consent should be vitiated by reason of not comprehending the nature of the document she was executing, nor the rights that she was abandoning. For this reason, the tribunal considers such documents to be null and void and of no effect.”
The tribunal also noted that Lucy has been the sole provider, both financially and emotionally of her two daughters and they have lived in the same household throughout their lives.
Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.