The Residency Obligation Under IRPA: Four Years Later
The Immigration and Refugee Protection Act (“IRPA”)[i] states in section 28 that a permanent resident must, with respect to every five year period, be physically present in Canada for a total of 730 days, unless he or she is outside Canada and fits in one of the exemptions specifically provided for in the legislation.
The physical presence requirement and the objective standard set out in section 28 of the IRPA represent a change from the previous provisions set out in the Immigration Act , which was in force until June 28, 2002. While the previous legislation emphasized a permanent resident’s intention to abandon Canada as his or her place of residency, the current provisions provide an objective test, but as the caselaw developed in the last four years shows, a subjective element is still present in the evaluation of the resident’s conduct, and it comes into play before a person can be stripped of permanent resident status. The current legislation introduces, for the first time, two new elements: the application of humanitarian and compassionate grounds relating to a permanent resident; and the consideration of the best interests of the child affected by the parent’s loss of status, both of which must be taken into account prior a to final determination that a person has lost permanent residency in Canada. Surprisingly, there have been relatively few cases dealing with section 28 of the IRPA, and most of the decisions rendered seem to be strongly tied to the facts of each case.
Section 28 of the IRPA states as follows:
28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(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 they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) 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; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
In Kuan v. Canada (Minister of Citizenship and Immigration), Kuan became a permanent resident, returning to Taiwan with his family within five days of landing in Canada. While in Taiwan, he applied for returning resident permits on two occasions, as it was then possible to do, but was refused both times. Upon returning to Canada four years after landing, he was ordered removed on the basis that he had failed to comply with the residency obligation set out in section 28 of the IRPA. His appeal to the Immigration Appeal Division (“IAD”) failed. In a lengthy decision, the IAD held that under the previous Immigration Act, permanent residents could justify extended physical absences by establishing that they did not have the requisite intention to abandon Canada as their place of permanent residence during the relevant period, but that opportunity no longer exists under the IRPA, which provides for a mathematical calculation of a permanent resident’s obligation of physical presence in Canada. More important, in canvassing the possible existence of humanitarian and compassionate grounds, the IAD attempted to develop a test to examine the circumstances of each case, and noted that appropriate considerations in such evaluation included the appellant’s initial and continuing degree of establishment in Canada; reasons for departure from Canada; reasons for continued or lengthy stay abroad; ties to Canada; whether reasonable attempts to return to Canada were made at the first opportunity and, generally, whether unique or special circumstances are present that may have prevented the appellant from returning. In that case, the IAD noted that Mr. Kuan returned to Taiwan to continue working in order to qualify for a Taiwanese pension, but also remained in Taiwan to work and study after qualifying for such pension, and he failed to demonstrate the existence of sufficient humanitarian and compassionate considerations to warrant special relief. The IAD also considered the best interests of the child, but held that they would not be affected negatively by the removal as they resided in Canada with their mother, who had not lost permanent resident status.
The IAD reached a similar conclusion in Kroupa v. Canada (Minister of Citizenship and Immigration)  . In that case, the appellants were citizens of the United States. The husband and wife couple became permanent residents in 1985 when the husband was employed in Canada. They returned to the United States in 1987 in order to look after a mentally ill daughter, and the husband remained employed by a U.S. company in Portland, Oregon. He visited Canada once or twice per month to assist his employer’s Canadian subsidiary. Upon returning to Canada for a visit in 2002, they were issued removal orders on the basis that they had lost their permanent resident status. Their appeal to the IAD was dismissed. The appellant argued that he could avail himself of the exemption provided in section 28(a)(iii), as being employed on a full time basis by a Canadian business. The IAD held that the residency obligation set out in section 28 of the IRPA had not been met and specifically rejected the husband’s argument, nothing that Mr. Kroupa remained employed by a U.S. company and that he only provided services periodically on behalf of his U.S. employer’s parent company to their Canadian subsidiary, thus not falling within the scope of the said exemption. Despite the IAD’s acknowledgment that the primary reason for the couple’s return to the United States was to look after their mentally ill daughter, who was now an adult, the IAD noted that Mr. Kroupa continued to enjoy a comfortable professional life in the United States and his services to the Canadian corporation were only marginal and temporary in nature. Therefore, the IAD rejected his position that he could retain his permanent residence in Canada, and also held that there were insufficient humanitarian and compassionate considerations, as the couple’s mentally ill daughter was already an adult and also lived in the United States.
In Wong v. Canada (Minister of Citizenship and Immigration) , the IAD reached a different conclusion. The appellant became a permanent resident in 1997 but returned to Hong Kong within one month of his arrival in Canada. He re-entered Canada in 2002 and was ordered removed on the basis that he had failed to comply with the residency obligation set out in the IRPA. The appellant did not contest his absence, but asked the IAD for discretionary relief. The IAD allowed the appeal and reiterated that the caselaw which had developed in the area of discretionary relief in sponsorship and removal appeals under the previous Immigration Act continued to be relevant under the IRPA, and that the appropriate considerations for such relief included those set out in Kuan [vi]. In this case, the appellant had terminated his employment in Hong Kong prior to coming to Canada and returned there to dispose of his home and arrange his affairs, planning his relocation to Canada, which was complicated by the ongoing care of his elderly father, who was diagnosed with cancer shortly after he returned to Hong Kong. Since the appellant was his father’s primary caregiver until his father’s death in September 2001, and even though he did not return to Canada immediately as he wished to observe the traditional mourning period, the appellant met the onus of demonstrating the existence of sufficient humanitarian and compassionate considerations to warrant granting special relief in light of all the circumstances of the case.
The consideration of special circumstances can also extend to those in existence prior to a resident leaving Canada. In Thompson v. Canada (Minister of Citizenship and Immigration) , the IAD considered an appeal brought by a permanent resident who had left Canada to give birth to a child. Ms. Thompson had become a permanent resident at age 14 in 1975, and had an affair with a Canadian citizen. In 1988, she returned to Trinidad to give birth to her child. However, the father of the child obtained a custody order in Trinidad allowing him to bring the child back to Canada. A year later, Ms. Thompson came to Canada to be near her child, but a departure order was made against her after it was determined that she had failed to meet her residency obligation. The IAD allowed her appeal, taking into account the best interests of the child. In considering the existence of humanitarian and compassionate considerations, the IAD noted that the appellant had lived a productive and law-abiding life in Canada before returning to Trinidad because of her pregnancy, and accepted her evidence that she only returned there in order to avail herself of the support of her close family members. The IAD accepted her evidence that she had made several attempts to rekindle her relationship with the Canadian father of the child and that she was hopeful to resolve that situation. The IAD noted that the child was doing very well in school in Canada and had re-established her bond with the appellant, and therefore the child could be affected negatively if the appellant returned to Trinidad.
A number of different arguments were advanced in Angeles v. Canada (Minister of Citizenship and Immigration) . In that case, the appellant was an airline employee, a citizen of the Philippines and a permanent resident of Canada for several years. However, during the relevant five-year period for the calculation of his residency obligation, the appellant had only spent 360 days in Canada. He was ordered removed for failure to meet his residency obligation. The IAD discussed his appeal, and he pursued a judicial review application at the Federal Court. In his judicial review application, the appellant impugned the IAD’s decision to dismiss his appeal, advancing three distinct arguments to attack the IAD decision: first, he argued that he was deprived of the assistance of an interpreter; second, that the IAD breached the principles of fundamental justice by falling to ensure that he was properly represented by competent counsel; and third, that the immigration officer who made an adverse determination concerning his permanent resident status was obligated to consider humanitarian and compassionate grounds prior to making such determination. The court rejected all of the arguments advanced by the appellant. The court noted that a standard of patent unreasonable is to be applied in reviewing IAD decisions and that, based on the evidence on the record, the court was satisfied that the IAD had properly examined the relevant matters. The court agreed that the factors set out in Kuan concerning an individual’s intention throughout the periods of extended absence from Canada are relevant factors to be considered in the assessment of discretionary relief, and that since the appellant had not demonstrated a clear intention to establish himself in Canada, while maintaining his domicile on a permanent basis in the Philippines with his wife and children whom he never attempted to sponsor, such relief could not be granted. The court noted that the appellant’s intention to “to perhaps settle in Canada at some point in the future in the hope of improving his family’s standard of living”  was not sufficient to warrant special relief.
With respect to the appellant’s argument that the immigration officer who made the initial determination of loss of status, was obligated to consider humanitarian and compassionate grounds the court held that he was not obligated to do so unless the appellant advanced those arguments. Having failed to do so, the appellant had not discharged the onus that fell upon him, and therefore the immigration officer had no obligation to explore them. This aspect of the decision confirms that it is the obligation of the person concerned to advance all humanitarian and compassionate considerations at the earliest possible opportunity.
One interesting aspect of Angeles is how the court dealt with the appellant’s argument that the IAD was obligated to ensure that he had the assistance of competent counsel. In that case, the appellant had designated his sister to be his legal representative. The court determined that the appellant had been given every opportunity to secure legal counsel and that, having designated his sister to act as his representative, he was responsible for that choice, notwithstanding the fact that it was apparent from the record that she had difficulty understanding and meeting the procedural requirements of the hearing at the IAD, and although her request for a postponement to allow for the proper production of documents was denied. The court noted that there was no evidence that the appellant or his representative ever indicated to the IAD that they had concerns about the retention of competent counsel, and cited with approval the decision in Huynh v. Canada (Minister of Employment and Immigration), where it was held:
“[…] That the applicant’s story was not told or did not come out clearly may have been a fault of counsel or it may have been that the applicant did not properly brief counsel. As I understand the circumstances, counsel was freely chosen by the applicant. If counsel did not adequately represent his client, that is a matter between client and counsel”.
The court dismissed the appellant’s contention of lack of competent counsel and held that the IAD had no obligation to intervene regarding his choice of representative. The court’s decision concerning this issue should serve as a warning sign to the public to carefully consider the competency of their representatives before engaging them in legal matters. It must be noted that this case was heard by the IAD prior to the amendments to the IRPA requiring that only licensed representatives may appear before immigration tribunals, but given the lack of appropriate education and training standards for non-lawyers, a similar result could ensue if an appellant attempts to argue that counsel was not competent. Such line of argument appears to have been foreclosed by the courts.
The consideration of humanitarian and compassionate grounds also arose in Lello v. Canada (Minister of Citizenship and Immigration) . In that case, the appellant came from England to live in Canada in the 1960’s with her husband and had a Canadian-born daughter. She returned to England but came back to Canada in the 1970’s with her second husband for a short time. She returned again to Canada after the end of her second marriage but went back to England in 1983 to care for her ill parents. In 2003, the appellant decided to settle in Canada, where her daughter and her grandson were living, believing that she was still a permanent resident. The visa officer refused to waive her residency requirements on humanitarian and compassionate grounds, and determined that she was in breach of her residency obligation. At the IAD, the appellant and argued unsuccessfully that humanitarian and compassionate considerations existed based on the testimony that her daughter, she would have to seek social assistance to support herself and her son if the appellant was directed to leave Canada. The IAD interpreted that statement as a threat and dismissed the appeal. The Federal Court held that the IAD had applied the wrong test in its consideration of humanitarian and compassionate grounds, and that the IAD should have asked whether the daughter was able to sponsor the appellant and, if not, her failure to maintain the required number of days of physical presence in Canada should have been waived. Although the decision in this case was positive, it must be cautioned that the factual context appears to be very narrow in scope.
Having regard to the caselaw developed in the four years since the IRPA came into force, it is apparent that, while section 28 of the IRPA provides an objective test for determining whether a permanent resident has maintained his or her obligation to reside in Canada, the consideration of humanitarian and compassionate grounds continues to be a relevant factor that must be carefully canvassed before a permanent resident can be held to be in breach of the residency obligation. However, the onus rests with the applicant to ensure that all facts and arguments are presented at the earliest possible opportunity. The skilful presentation of humanitarian and compassionate considerations is crucial in the success of a challenge to a decision that a person is no longer a permanent
2 R.S.C. 1985, C.12 Section 24
3 34 Imm. L.R. (3d) 269
4 34 Imm. L.R. (3d) 55
5 35 Imm. L.R. (3d) 320
7 35 Imm. L.R. (3d) 308
8 2004 F.C. 1257; 38 Imm. L.R. (3d) 308
9[ix] Supra para 13
S.C. 2001, c.27
10 (1993) 65 F.T.R. 11 (Fed Ct. T.D.)
11 Angeles v. Canada, Supra, para.15
12 45 Imm. L.R. (3d) 95
About The Author
Sergio R. Karas is a Canadian lawyer (Barrister and Solicitor) and a Certified Specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada. Mr. Karas is a recognized expert in Canadian immigration law, and is dedicated to the successful settlement of qualified immigrants including professionals, self-employed, entrepreneurs and investors, and to assisting corporations to implement successful migration and relocation strategies for managerial, executive and other qualified personnel. He also represents family class immigrants and sponsored relatives and assists clients with US Consular processing and NAFTA petitions. Mr. Karas' law firm, Karas & Associates, headquartered in Toronto, Canada.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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