Raj regains permanent resident status

Immigration matters

Sukhram Ramkissoon

Immigration Matter

Raj regains permanent resident status

According to the Immigration and Refugee Protection Act, a permanent resident must be physically present in Canada for a minimum of 730 days for every five-year period immediately preceding the application for entry into Canada.

Quite often, persons who obtain landed status and do not meet the residency obligation have the right to appeal the visa officer’s decision to the Immigration Appeal Division, if they have submitted a Permanent Resident Travel Document to return to Canada. Those who appeal a negative decision usually do not contest the validity of the visa officer’s decision.

For an appeal to be allowed, it must be demonstrated, on a balance of probabilities, that there are sufficient humanitarian and compassionate considerations to warrant special relief.

Let us look at a recent case where a person was granted special relief under humanitarian and compassionate grounds for failing to meet the residency requirement of 730 days. The appellant, who I will refer to as Raj (not his real name),  is 54 years old and was born in India. He became a permanent resident of Canada on December 2009, under the Entrepreneur Class. His wife, daughter and son also became permanent residents at the same time.

Raj and his family members resided in Canada for a very short time after acquiring permanent residence. He and his wife returned to India with their daughter and his son returned to Switzerland, where he was studying. Raj who had lived in Canada for just over four months following his arrival, returned to Canada in 2012 for a few days and then returned for a longer period during which time he was diagnosed with cancer.

Beginning in October 2012, Raj received a series of radiation and chemotherapy treatments. He later underwent surgery and he left Canada on March 30, 2013 to join his family who continued to reside in India, unaware of his severe health problems.

In early 2015, while in India, Raj’s cancer returned and once again he had to  receive treatment . He also had surgery to remove a tumour. His doctor discharged him in late March 2015 and in June 2015, he  submitted his application for a travel document. His application was refused on August 20, 2015.

Raj returned to Canada with his wife in September 2018, a few days after obtaining an entry visa to the United States. They have been in Canada for about five months and he and his wife testified at the hearing.

Raj recently learned that his cancer had returned a third time. He is being treated at a hospital in Toronto and is awaiting the results of recent examinations which will determine appropriate further treatment.

In rendering decisions, presiding members of the Immigration Appeal Division rely on the factors set out by case law. These factors are not exhaustive. Their application varies from one appeal to the other and the weight to be given to each of them  is evaluated on the particular circumstances of each case. These factors are:

  • The length of time the appellant has been in Canada and the degree to which he is established;
  • The continuing contacts that the appellant has in Canada, including contact with family members;
  • The appellant’s reasons for leaving Canada, any attempts made to return and the reasons for remaining outside of Canada;
  • The appellant’s circumstances while away from Canada;
  • Attempts to return to Canada at the first reasonable and available opportunity;
  • The hardship that would be caused to the appellant’s family in Canada if the appellant were to lose his permanent residence and be required to leave Canada;
  • The hardship that would be caused to the appellant if he were to lose his permanent residence and had to return to his country of citizenship.

At the recent hearing, the Representative of the Minister (of Immigration) was of the view that most of the factors set out in the case law are negative and recommended the appeal be dismissed.

While the presiding member agreed with a number of arguments made by the Minister’s Representative, they disagreed with the submissions as to the weight that should be given to the appellant’s reasons for returning to India and the reasons for his lengthy stay outside of Canada.

Raj testified candidly on this subject at the hearing. He said  that while he was in Canada, he hid his illness from his wife and children from the time he received his diagnosis until the end of his treatments – from September 2012 to March 2013.Although he spoke with his wife in India almost every day, but did not let her know about the ordeal he was going through. At the hearing he described the numerous treatments he had to undergo while he was living alone and had little support.

The presiding member found that it would be unreasonable to blame Raj for leaving Canada in these very difficult and trying circumstances and ruled that on a balance of probabilities, there are sufficient humanitarian and compassionate considerations to warrant special relief.

The appeal was allowed and the presiding member ruled that Raj has not lost his permanent resident status.

SUKHRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone