Residency Obligation Appeals before the Immigration Appeal Division: Questions & Answers

Transcription

1 Residency Obligation Appeals before the Immigration Appeal Division: Questions & Answers 16 th Annual Immigration Law Summit 2008 November 26 and 27, 2008 Toronto, Ontario Joel M. Rubinoff, Legal Advisor Legal Services, Immigration and Refugee Board of Canada Central Region Office 1 November 12, Any opinions expressed or positions taken in this paper are solely those of the author and do not necessarily represent positions of Legal Services, Immigration and Refugee Board of Canada or, of the Immigration Appeal Division.

2 I Introduction What is this paper about? The purpose of this paper is by a question and answer format to provide an overview of the essential aspects of a residency obligation appeal before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (the Board ). Reference will also be made to the relevant provisions of the Immigration and Refugee Protection Act (IRPA), 2 the Immigration and Refugee Protection Regulations (IRP Regulations) 3 and the IAD Rules. 4 The most relevant case law will be discussed; 5 however, this paper will not contain a comprehensive review of case law. 6 What is the mission of the Immigration and Refugee Board? The Board is Canada's largest independent administrative tribunal. Its mission is to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly, and in accordance with the law. Under what legislation does the IAD operate? The IAD operates under the authority of IRPA, which came into effect on June 28, 2002; prior to that date the provisions of the former Immigration Act (the former Act ) and the former Immigration Regulations, 1978 (the former Regulations ) applied to the IAD. II Appeals to the IAD Can an appeal be made against a departure order that is based on a contravention of the residency obligation? Subsection 63(3) of IRPA provides a right of appeal to the IAD to a permanent resident against a decision by an immigration officer at an examination to make a departure order for contravening the residency obligation. 7 2 S.C. 2001, c SOR/ as amended 4 SOR/ See also commentary to the IAD Rules. 5 Digests for most of the IAD decisions referred to in this paper can be found in RefLex, which is a Legal Services' publication of digests of recent immigration and refugee protection decisions of the Board. RefLex is available on the Board s website: 6 For a comprehensive review of the relevant case law and a detailed discussion of the issues related to residency obligation appeals at the IAD I refer you to my paper, Maintaining And Demonstrating Permanent Residency at the Immigration Appeal Division, Canadian Bar Association, The Citizenship and Immigration CLE Conference, Niagara 2008: On the Shores of the Canadian Borders, May 16 & 17, IRPA subsection 44(2) and IRP Regulations subsection 228(2). 2

3 Can an appeal be made against a decision made outside of Canada that a permanent resident has contravened the residency obligation? Under subsection 63(4) of IRPA, a permanent resident may appeal to the IAD against a decision made outside of Canada by an officer 8 on the residency obligation. The appeal is against the decision on the residency obligation; it is not an appeal against the decision of the officer not to issue to the appellant a travel document (returning resident permit) based on that determination. Will an appellant have a right of appeal if she signed a Voluntary Relinquishment of Permanent Resident Status? 9 The IAD has held that there is no appeal to the IAD against a residency obligation determination where the appellant has signed a consent form giving up her right to appeal to the IAD, as the panel concluded that to do otherwise would make the signing of the declaration a meaningless exercise. 10 However, in Sorbrado 11 although the appeal was dismissed for lack of jurisdiction, the decision suggests that such a right of appeal would exist if the appellant validly withdrew the relinquishment within the time period allowed for by CIC (30 days if removal order based and 60 days if there was an outside of Canada determination). The panel held that it was not sufficient to file a notice of appeal within the time period allowed to withdraw the relinquishment where the relinquishment was not itself withdrawn. What results can be obtained from an IAD appeal? The IAD may allow or dismiss a residency obligation appeal made under either subsections 63(3) or 63(4). While in a subsection 63(3) appeal the IAD has the power to stay the departure order, this is not a likely disposition due to the nature of these appeals. Although unlikely, it is possible for an appellant to have residency obligation appeals under subsections 63(3) and 63(4) before the IAD at the same time in which case the IAD may consider both appeals in one hearing. What happens if the appeal is allowed? In a subsection 63(3) appeal, the departure order made by the officer at the examination will be quashed and the appellant will be considered to be complying with the residency obligation. 12 The appellant will be able to remain in Canada as a permanent resident. 8 For ease of reference, I have not differentiated between Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA). 9 For CIC policy see OP 10 s. 13 & s and ENF 23 s & Bent, Rubert Valentine v. M.C.I. (IAD TA ), Sherman, April 22, 2008 reasons signed May 20, Sorbrado, Adelia Maria Alves v. M.C.I. (IAD TA ), Ross, March 30, Where the appeal is allowed the appellant s physical presence in Canada since the determination by the officer will be counted towards any future determination of the residency obligation in accordance with subsection 62(2) of the IRP Regulations. 3

4 In a subsection 63(4) appeal, the decision of the officer made outside of Canada will be quashed and the appellant will be considered to be complying with the residency obligation. 13 CIC should provide the appellant with a travel document to come to Canada as a returning permanent resident. If an appeal is allowed is an appellant free to travel outside of Canada? If a successful appellant leaves Canada and tries to return, she may be subject to another residency obligation determination at a port-of-entry or at a visa post in an application to obtain a returning resident permit. At issue is the extent that subsection 70(1) of IRPA 14 assists the appellant when an officer considers residency obligation compliance where the IAD has previously allowed a residency obligation appeal. In Wan, 15 an IAD panel allowed a subsection 63(4) appeal based on humanitarian and compassionate considerations. The appellant left Canada shortly after the appeal was allowed and when he tried to return to Canada after a brief period an officer refused to issue the appellant a travel document as the officer found that the appellant was not in compliance with the residency obligation and the officer did not find sufficient humanitarian and compassionate considerations in favour of the appellant to retain his permanent residence. On a second appeal to the IAD, the residency determination was found to be valid in law as in the five-year period prior to the new determination the appellant had not met the 730-day residency requirement. The appellant did not get any special treatment in calculating the period as result of the first IAD appeal decision; however, the appeal was allowed for a second time on humanitarian and compassionate grounds. Accordingly, a successful appellant might wish to remain in Canada until such time as he satisfies himself that he will be in compliance with his residency obligation as calculated as at the date of his anticipated return to Canada. What happens if the appeal is dismissed? When a subsection 63(3) appeal is dismissed the departure order becomes enforceable in accordance with sections 48 and 49 of IRPA and the appellant loses her permanent resident status as provided for in paragraph 46 (1)(c) of IRPA. For a discussion of the 13 If the appellant was able to return to Canada for her hearing subsection 62(2) of the IRP Regulations will apply. 14 Subsection 70(1) of IRPA reads as follows: An officer, in examining a permanent resident or a foreign national, is bound by the decision of the Immigration Appeal Division to allow an appeal in respect of the foreign national. 15 Wan, Lap Him Kris v. M.C.I. (IAD TA ), Nahas, May 16, For a decision that does not follow Wan on the impact of a prior IAD appeal decision, see Ibrahim, Asim v. M.C.I. (IAD TA ), Ross, August 5,

5 issue including the meaning of final determination, I refer you to the Federal Court decision in Ikhuiwu. 16 When a subsection 63(4) appeal is dismissed, the appellant loses his permanent resident status in accordance with paragraph 46 (1)(b) of IRPA. Where an appellant is able to attend a subsection 63(4) appeal hearing in person, consideration must be given to the impact of subsection 69(3) of IRPA. That subsection requires that where an appeal under subsection 63(4) is dismissed and the appellant is in Canada at the time the appeal is disposed of, the IAD shall make a removal order. The IAD has interpreted this to mean the making of a departure order. 17 Accordingly, counsel should advise an appellant that if she stays in Canada and the appeal is dismissed a departure order will be issued by the IAD. The departure order is usually found in the reasons and decision issued by the member, and shortly after the issuance of the reasons and decision a form will be sent by the IAD Registry that further documents the making of the departure order. It is my understanding that there is a lack of clarity as to the date CIC uses as the date of the issuance of the departure order - the date of the reasons and decision or the date that the Registry form is signed. It is important that counsel make it clear to an appellant that if she intends to leave Canada after the hearing of the appeal, satisfactory evidence of the appellant having left Canada should be provided to the IAD and CIC, otherwise the IAD may make a departure order in the event that the appeal is dismissed and this departure order could become a deportation order. 18 III Filing the Notice of Appeal When must an appellant file a notice of appeal? It is important to remember that there are different filing deadlines for appeals under subsections 63(3) and 63(4) of IRPA. An appellant has 30 days to file the notice of appeal and the removal order in a subsection 63(3) appeal (IAD Rule 7(2)). While in a subsection 63(4) appeal, the appellant has 60 days to file the notice of appeal and the officer s written decision (IAD Rules 9(1) & 9(2)). If an appellant wants to return to Canada to attend the appeal hearing, this must be stated in the notice of appeal Ikhuiwu, Emmanuel Ese v. M.C.I. (F.C., no. IMM ), Mosley, March 13, 2008; 2008 FC The IAD has also made departure orders where appeals have been abandoned or withdrawn. Subsection 224(2) of the IRP Regulations. 5

6 What if an appellant misses the filing deadline? If the notice of appeal has not been filed in a timely manner, an application can be made to extend the time to file the notice of appeal under IAD Rules 58(d) and 43. The IAD has jurisdiction to consider such an application. 19 Factors considered may include whether an adequate explanation for the delay has been provided by the appellant and whether there was a continuing intention to appeal. 20 IV Pre-hearing Matters Must counsel comply with the IAD Rules? It is important for counsel to be aware of and comply with the relevant IAD Rules. Failure to comply with the IAD Rules may result in an adverse ruling by the IAD. For example, in Bourdiert the IAD s refusal to consider additional documents that the appellant had asked to file on the day of the hearing was upheld by the Court. 21 Counsel should pay particular attention to: a) IAD Rule 13 - provision of information including contact information; b) IAD Rules 28, 29, 30 and 31 - timely disclosure and provision of documents in the appropriate format; and c) IAD Rule 37 timely identification and disclosure of witnesses. V Attending the hearing Do appellants get to testify in person at subsection 63(4) residency obligation appeals? In most subsection 64(3) appeals the appellant will be testifying by teleconference from her home country as the appellant has not been able to return to Canada for her hearing. In advance of the hearing you should confirm the practice of the IAD Regional office where the hearing is being held with respect to use of teleconferencing, including the use of calling cards. Are there situations where an appellant has a right to return to Canada for her subsection 63(4) hearing? The key to the right to return is whether the appellant was in Canada within the year prior to the residency determination. An officer shall issue to the appellant a travel document, if the officer is satisfied that the appellant was physically present in Canada at least once 19 Rumpler, Eluzur v. M.C.I. (F.C., no. IMM ), Blanchard, December 13, 2006; 2006 FC Kasba, Baljit Singh v. M.C.I. (IAD VA ), Workun, October 3, 2007 and Ikhuiwu, Emmanuel Ese v. M.C.I. (F.C., no. IMM ), de Montigny, January 10, 2008; 2008 FC Bourdiert, Enilda v. M.C.I. (F.C. No., IMM ), Lagacé, May 3, 2007; 2007 FC

7 within the 365 days before the examination and they have made an appeal under subsection 63(4) of IRPA that has not yet been finally determined or the period for making such an appeal has not yet expired. If the appellant does not have a right to return, can she still apply to attend her hearing in person? As previously noted, if an appellant wants to return to Canada to attend the appeal hearing in person, this must be stated in the notice of appeal. Where a subsection 63(4) appellant does not have a right to return to Canada, she may make an application to the IAD for an order that she physically appear at the hearing under subsection 175(2) of IRPA and IAD Rules 43 and 46. The IAD may grant the order if it is satisfied that the presence of the appellant at the hearing is necessary. An application to return to Canada should be supported with reasons as to why the appellant s physical presence at the hearing is required. The IAD has ruled that to succeed in an application to return there must be something more than a desire to attend the hearing in person. 22 The IAD granted an application to return where the appellant was hearing impaired and required the assistance of a sign language interpreter at his hearing. 23 VI Legal Challenges Have there been any Charter challenges against the residency obligation provisions? In Chu 24 the Federal Court found that the legislative scheme did not contravene section 7 of the Charter. The Court also found that the residency obligation provisions are valid retrospective legislation. If an appellant wants to challenge the legal validity of the residency obligation determination, what is the reference period for the determination? It is important to remember that the residency obligation is a continuous obligation that must be met as long as a person is a permanent resident. The reference period is the fiveyear period prior to the determination under appeal. In order to meet the residency obligation the appellant must be able to prove that she was physically present in Canada for at least 730 days of the five-year reference period or as otherwise provided in 22 Alipanah, Abolfazl v. M.C.I. (IAD TA ), Néron, September 15, Al-Gumer, Nazer Jassim v. M.C.I. (IAD TA , Néron, November 16, Chu, Kit Mei Ann v. M.C.I. (F.C., no. IMM ), Heneghan, July 18, 2006; 2006 FC 893; reported 2007 FCR 578. Appeal dismissed Chu, Kit Mei Ann v. M.C.I. (F.C.A., no. A ), Décary, Linden, Sexton, May 29, 2007; 2007 FCA

8 subsection 28(2) of IRPA. If an appellant is short by even a day then she is in breach of her residency obligation, although this may support the exercise of discretionary relief. 25 What must be proved to show physical presence in Canada? An appellant should provide the IAD with an evidentiary basis to support the allegation of physical presence including dated receipts signed by the appellant. 26 Documents that could have been obtained by another person or that do not show physical presence may not support a challenge to the legal validity of the determination. Can the appellant get credit for time in Canada after the residency obligation determination has been made? Time spent in Canada after the issuance of a subsection 44(1) report or after an outside of Canada decision has been made cannot be included in the section 28 calculation further to section 62 of the IRP Regulations unless as previously noted the determination is overturned. 27 What happens if the determination was made within five years of the appellant having become a permanent resident? If the appellant s residency obligation determination took place within five years of becoming a permanent resident the appellant should receive credit for the number of days left from the date of determination to the end of the five-year period. 28 Will an appellant get credit for accompanying his spouse or common-law partner outside of Canada? Credit for presence in Canada is given where the permanent resident is outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent. 29 The IAD has found that it does not matter that the Canadian citizen spouse followed the permanent resident in order for the permanent resident to receive credit for accompanying the Canadian citizen spouse. 30 Under subparagraph 28(2)(a)(iv) of IRPA, where the spouse or common-law partner is also a permanent resident then the provision giving the credit is more restricted. 25 In Ul Hasan the appellant who was short by three days had the appeal allowed by the IAD on humanitarian and compassionate considerations. Ul Hasan, Syed Fareed v.m.c.i. (IAD TA ), Collison, February 21, For example bank statements and animal clinic reports. Vong, Boon Lim v. M.C.I. (F.C., no. IMM ), Beaudry, December 15, 2006; 2006 FC See Angeles, Antonio Ramirez v. M.C.I. (F.C., no. IMM ), Noël, September 16, 2004; 2004 FC Subparagraph 28(2)(b)(i) of IRPA. See also subsections 328(2) and 328(3) of the IRP Regulations where the appellant had obtained returning resident permits under the former Act. 29 Subparagraph 28(2)(a)(ii) of IRPA and subsection 61(4) of the IRP Regulations. 30 Abraham, Bobby Mathew v. M.C.I. (IAD TA ), Bousfield, July 29,

9 Is possession of a permanent resident card sufficient to show that the determination is not valid in law? The Federal Court has held that mere possession of a permanent resident card is not conclusive proof of permanent resident status in Canada. 31 Can a permanent resident obtain residency credit for work outside of Canada for a Canadian business? 32 The IAD has dealt with the issue in a number of appeals, however limited guidance has been given due to the fact situations dealt with by the IAD. 33 For a full discussion of the issue I refer you to a paper prepared by Carter C. Hoppe for the CBA 2008 Citizenship & Immigration Law CLE Conference: Maintaining and Demonstrating Permanent Residency: The Practitioner s Tale. VII Humanitarian and Compassionate Relief If an appellant disagrees with an officer s humanitarian and compassionate decision, can that aspect of the decision be challenged at the IAD? It is not the role of the IAD to review the correctness of the decision of an officer made under paragraph 28(2)(c) of IRPA, as the IAD is to make its own decision on humanitarian and compassionate considerations under paragraph 67(1)(c) of IRPA based on the evidence presented at the IAD hearing. What is the statutory test for humanitarian and compassionate relief? As in all IAD appeals (other than in the case of an appeal by the Minister) paragraph 67(1)(c) of IRPA sets out the statutory test. If the IAD allows an appeal on humanitarian and compassionate grounds, it must be satisfied that at the time the appeal is disposed of, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. 31 Ikhuiwu, Emmanuel Ese v. M.C.I. (F.C., no. IMM ), de Montigny, January 10, 2008; 2008 FC Subparagraphs 28(2)(a)(iii) and (iv) and section 61 of the IRP Regulations. 33 See for example Franklin, Usha; et al. v. M.C.I. (IAD TA et al.), Whist, February 22, 2008 and Li, Guo Ping v. M.C.I. (IAD VA ), Ostrowski, August 9, 2007 and Ai, Xie Yang v. M.C.I. (IAD VA ), Mattu, February 12, 2007.Wong, Tsz Cheung v. M.C.I. (IAD VA ), Shahriari, April 18,

10 How has the IAD applied humanitarian and compassionate considerations in subsection 63(4) appeals? In Bufete Arce, 34 in addition to the best interests of a child directly affected by the decision, the panel identified the following non-exhaustive considerations: - an appellant s initial and continuing degree of establishment in Canada, - his or her reasons for departure from Canada, - reasons for continued, or lengthy, stay abroad, - ties to Canada in terms of family, - whether reasonable attempts to return to Canada were made at the first opportunity, and - generally, whether or not there are unique or special circumstances present in the case such as meet the Chirwa 35 standard for discretionary relief. How has the IAD applied humanitarian and compassionate considerations in subsection 63(3) appeals? In Kuan, 36 the panel noted that the Ribic 37 factors continue to be a useful, general guideline in the exercise of discretion. Including the best interests of a child directly affected by the decision, the panel in Kuan identified the following other relevant considerations: - an appellant s initial and continuing degree of establishment in Canada - his or her reasons for departure from Canada, - reasons for continued, or lengthy, stay abroad, - ties to Canada in terms of family, and - whether reasonable attempts to return to Canada were made at the first opportunity. How does a panel weigh the various humanitarian and compassionate considerations? It is important to note that none of the humanitarian and compassionate considerations are determinative and an assessment of all the circumstances in a given case may involve giving lesser or more weight to one consideration than another, depending on the compelling nature of the consideration within the context of the individual case before the panel Bufete Arce, Dorothy Chicay v. M.C.I. (IAD VA ), Workun, June 16, See also Chen, Xiao Qiang et al v. M.C.I. (IAD VA , VA /6), Workun, December 10, Chirwa v. Canada (Minister of Manpower and Immigration) (1970), 4 I.A.C. 338 (I.A.B.). 36 Kuan, Chih Kao James v. M.C.I. (IAD VA ), Workun, September 24, Ribic, Marida v. M.E.I. (I.A.B ), D. Davey, Benedetti, Petryshyn, August 20, 1985 and confirmed in Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 2002 SCC Chen, supra, footnote 34, at paragraph 8. 10

11 In preparing for a residency obligation appeal based on humanitarian and compassionate grounds, are there issues that should be discussed with an appellant? It is important to review with an appellant issues that may be relevant to the appeal including: 1. Under what immigration category did the appellant obtain permanent resident status, and what if any impact might this have on his appeal? 2. If the appellant came under a visa that required her to do something (for example start a business), did the appellant fulfil the condition of the visa before departing? 3. How long did the appellant reside in Canada before departing? 4. What led to the appellant leaving Canada? 5. Did the appellant have an intention to return to Canada at the time of departure? 6. Why was the appellant s return delayed? 7. Where there reasons beyond the appellant s control, such as taking care of an ill family member that delayed their return and prevented them from returning to Canada? 8. Was the appellant established in Canada and what is the appellant s continuing degree of establishment in Canada including length of time in Canada? 9. Where an appellant resided in Canada for only a short time period after becoming a permanent before departing, what was the explanation for the short stay? 10. Did the appellant sever his connections to his home country after becoming a permanent resident including quitting his job or, selling his home or business. If not, why not? 11. What and when were attempts made by the appellant to return to Canada? Were they made at the first opportunity? If there was a delay in return, what were the reasons for the delay? 12. Did the appellant have an ongoing intention to return to Canada even during a period of absence? 13. What are the appellant s on going and continuing ties to Canada in terms of family ties and other ties? 14. Are there any unique or special circumstances present in the case? 11

12 15. What is the degree of hardship that would be caused to the appellant by loss of status in Canada including country conditions in the appellant s home country? 16. What would be the impact of the loss of status on the appellant s family in Canada? 17. If an appellant left Canada as a child, consider carefully the case law on the issue While not determinative, the best interests of a child directly affected by the decision can be a positive consideration in many appeals. It is important to discuss the issue fully with an appellant, and to consider obtaining documentation including psychological reports that support the factor. 19. Documents what documents does the appellant have or can be obtained to support the appeal? 39 In Lai, the Court concluded by finding that a child s status may have been jeopardized by the decisions of the child s parents, but the child s claim to relief should not be enhanced by those parental decisions. Lai, Chih-Yin v. M.C.I. (F.C., no. IMM ), Barnes, November 9, 2006; 2006 FC Also see IAD decisions on this issue. 12