Every permanent resident of Canada needs to comply with the residency obligation; that is to be physically present in Canada for 730 days out of a 5 year period.
For a myriad of reasons, many permanent residents are unable to comply with the requirement that they be in Canada for 2 years out of 5. In the situation that I will be discussing today, the client was a citizen of India and originally came to Canada under the Federal Skilled Immigrant Class in 2005 along with his wife and four children. Both his wife and one of his children suffer from a disability in the form of blindness. Prior to coming to Canada, the client resigned from his employment in the Middle East and attempted to obtain employment in Canada. However, he was unable to do so. After arriving in Canada, the applicant stayed in Canada for a short period of time and then, having to support his family, left Canada to continue working abroad. He left his family here (a common fact scenario in these matters).
He returned and again attempted to find Canadian employment, but this was in the midst of an economic recession and was again unsuccessful. In his various efforts to obtain Canadian employment, the client applied for roughly 70 to 80 engineering jobs.
Eventually a determination was made that he did not meet the residency requirement. A removal order was issued against him. The client filed an appeal to the Immigration Appeal Division. Before the IAD, the client did not challenge the legal validity of the removal order but advised that extenuating circumstances ought to be considered. Notably, the client did not retain legal counsel for this adversarial hearing with very serious consequences.
Before the Immigration Appeal Division was evidence that the client satisfied the requirements for registration as a Professional Engineer in Canada; that he received additional certification but most importantly that the client had, after many efforts, obtained employment with a Canadian employer. Nevertheless, the Immigration Appeal Division did not find in the client's favour and rejected his appeal.
The client then sought our opinion; we advised that the IAD appeared to have committed a reviewable error. We filed an application for leave and judicial review almost a year ago. On September 6, 2013, the Court granted leave and this matter will be heard in December 2013. One aspect of the decision that I will be exploring is the finding by the IAD that any hardship would be mitigated by the fact that the client's (blind) wife can sponsor him back to Canada. There was simply no evidence before the IAD that the wife was eligible; moreover, the IAD made no finding as to the hardship that would result to the family given the client's loss of employment while he awaited sponsorship from abroad.
We relied on a case - Lello v. MCI - where the IAD similarly found that the separation of the applicant from her family in Canada need only be "temporary in nature" given that the applicant's daughter could sponsor her for permanent residence in Canada.
In finding that the panel had erred in considering this issue, Harrington J. stated that:
"The evidence shows that although Sandy [the applicant's daughter] wishes to improve her situation, she currently has a very low paying job, and might never have the wherewithal to sponsor her mother. The Board is not a puppet mistress and the people appearing before it are not marionettes. The question which should have been considered was whether Sandy was able to sponsor her mother right now, and, if not, whether the failure to maintain the required number of days in Canada should have been waived. The Board had completely the wrong mind-set. In the context of this case, sponsorship fettered the member's discretion."
I look forward to appearing before the Federal Court on this matter.
Raj Sharma JD LLM
Partner
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