Attending a Mock Residency Appeal.
I've done a number of these residency appeals. My most recent case involved was an interesting one where the appellant was not actually provided with the decision and therefore was essentially found to be a nullity. I've taken 2 other cases that were refused by Ms. Kashi Mattu to the Federal Court and succeeded in having them remitted for reconsideration after errors were found by the Court or admitted by the Department of Justice. I have a fairly clear understanding of these issues, but am hoping to learn something new.
> Fact pattern discloses 'Reza', his wife and daughter. Very briefly, the appellants are an Iranian family. Husband had been a structural engineer in Iran and had lived there before coming to Canada. Shortly after arriving, bought a house. After failing to find suitable employment, Reza and three other friends set up a consulting firm. First period of time, firm works only in Iran. Approximately 550 days Reza was in Canada half the time, the other half in Iran. After that father becomes ill and Reza goes back to Iran. Before he leaves, he concludes a contract with his firm to work in Iran exclusively for an indefinite period of time. In more recent times, the firm has picked up, and obtained consulting work in Afghanistan and has hired some employees in Canada. His wife has less residency than Reza and the reason she returns in 2011, their daughter - who had hitherto studied in Switzerland, had decided to pursue further study in Canada. > > Removal order issued June 29, 2012. Daughter has been attending school...house has been rented out to tenants...post removal facts for Reza - he has concluded contract in Iran, he was not given any credit for working outside Canada for a Canadian enterprise...he continues to travel post removal order unlike other family members.
Argument - Chris Veeman (practices in Saskatchewan I believe). He's going to discuss the issues; focus what is a Canadian business or assignment constitutes under R61...
> Whether or not the firm is a Canadian business. It's an Ontario corporation. There are periods that it does not have an ongoing operation in Canada...other issue question of whether 1 man operation can have an assignment abroad. That was the issue in the Derve(sp/ph) case...another issue is 61(2) whether the business operates primarily to maintain PR residency ... not really much need for the company to be in Canada...but it changed over time from that initial status they're doing more business and hired more people...Federal Court ... Zhang? ... 2012 FC 1084 ... in Zhang ... FC created 3 glosses to R61 ... FC said that posting abroad has to be temporary...Wey(sp) person had to demonstrate that there was a position for them to return to...also there has to be some connection to the Canadian employer ... > > First 'gloss' - temporary posting - in the instant case - would probably lose - however fact pattern there is a suggestion - that reason for him to go to Iran for sick father ... can you have a long term but still temporary assignment count ... this position is supported by the publication - Regulatory intent of R61 -
Erin Roth
> one of the aspects that is under utilized - we do have an agreed statement of facts - also - early resolution - if we do have a client where we can settle - something to be said about putting your evidence and submissions together and sending it to the Minister - turning to equity my points ... equity is fact specific ... point out client is consistent and credible, daughter was 16 ... one of the aspects of H&C - corroborate ... perfect example of Sidhu before the FC - panel allowed the appeal and court overturned ... appellant returned to India to take care of the children of his deceased brother ... board found that a good enough reason but no corroboration for this 10 year absence - in case at bar - father's death certificate, business, and proof that appellant had to deal with issues in Iran - important for Reza to have been there, not just any family member - returned at first opportunity - mother did not have the business acumen - letter from lawyer regarding the estate being the only male relative - on the canadian side, put forward contracts that money from Iranian clients being paid to Canadian ... employment contracts for Canadian employees ... corroborating and documenting what they're saying - Haji took language courses ... driver's license ... daughter's enrolment and transcript in Canadian schools...documentation that participation in student clubs...numerous letters from friends...integration into Canadian life...letter of intent from employer...family network and support and ties to Canada...if she's going to leave Canada she would lose or studies would be interrupted...she's also been outside her country since 2006...extent of compliance ... degree of establishment - at first mother and daughter were here for only months - hardship upon return especially for young woman in Iran ...
Minister's counsel rebuttal
Chantal Boucher
> I have a contrary position ... from a legal standpoint that was presented to you by Chris Veeman - we have always have to remind the court that the burden of proof on appellant - certain facts have been added - I represent CBSA but each representative has his or her own way of seeing things - firstly in terms of s.28 ...within the facts ... may 1, 2008 to nov 2009 appellant who does business trips, not an employee because he's a shareholder ... do those days count? its an important question ... rule 61 ... this is more business trips ... i have a tendency ... points on both sides of the equation ... other questions regarding ongoing business - if it was oct 2008 ... 5 permanent residents who all confirm residency at the same time ... no employees ... virtual office ... spend at least half the time ... no contract inside canada .. clearly this would be excluded ... company founded mainly to maintain pr ... other argument ... 2013 ... change in the company ... some contracts from outside iran ... today we do ... minister wouldnt contest r61 ... 61(3) ... notion working abroad ... > > involved with the Zhang case ... facts are slightly different ... therefore ... i know that ... read 61(3) work outside canada for canadian business ... 1 criteria he is an employee ... full time ... i would consider that there is a change from nov 2009 when there is a signed contract who explicitly becomes an employee ... but he's still an employee... could be a contentious point ... in terms of the daughter she is similar to a foreign student ... girl has more positive factors than her parents ... there are alternatives ...
I remember attending a judicial review hearing at one of the past CBA National Immigration Law Conference. Counsel was Barbara Jackman; presiding was Justice Yves de Montigny. It was great to see experienced counsel take part in a real world exercise. I think that experience can be duplicated. I think it would have been more interesting to set up an actual back and forth/debate or submissions between experienced counsel with a Member rendering a decision.
In this case, and Ms. Roth seemed to touch upon it, the key for the appellant is detailing the equity considerations. I did not actually hear a formal application of the Ribic and Chieu factors applied to the case [Ms. Roth's paper, however, does]. On the other side, Minister's counsel could have pointed out the lack of hardship or the decision that this family has made in maintaining ties outside Canada. Further, none of the panellists seemed to note that time or days spent in Canada after the removal order doesn't count and the IAD can't take them into consideration.
Raj Sharma JD LLM
Partner
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