Reasons and Decision Motifs et décision

Transcription

1 Immigration and Refugee Board of Canada Immigration Appeal Division Commission de l immigration et du statut de réfugié du Canada Section d appel de l immigration IAD File No. / N o de dossier de la SAI : TB Reasons and Decision Motifs et décision Residency Obligation Appellant(s) NAZNIN ALI Appelant(s) Respondent The Minister of Citizenship and Immigration Le Ministre de la Citoyenneté et de l Immigration Intimé Date(s) and Place of Hearing Date of Decision March 4, 2013 Toronto, Ontario March 4, 2013 April 2, 2013 signed reasons Date(s) et Lieu de l audience Date de la Décision Panel Vandana Patel Tribunal Appellant s counsel Saidaltaf Patel Barrister and Solicitor Conseil de l appelant(s) Minister s counsel Ronald Bridgewater (written submissions only) Conseil de l intimé IAD.34.1 (October 2007) Disponible en français

2 1 REASONS FOR DECISION INTRODUCTION [1] These are the oral reasons for the decision in the appeal of Naznin ALI (the appellant) who appeals from the decision of a visa officer who concluded that she was inadmissible as she failed to comply with the residence obligations for permanent residence as set out in section 28 of the Immigration and Refugee Protection Act (IRPA). [2] The appellant did not challenge the legal validity of the visa officer s decision but appeals that there are sufficient humanitarian and compassionate factors that would warrant special relief in light of all the circumstances of the case. [3] The appellant, who was represented by counsel, testified at the hearing via teleconference. Her son also testified in person. I have considered their testimonies, the documentary evidence, the materials contained in the Record, as well as the written submissions of Minister s counsel and the oral submissions of appellant s counsel. [4] Section 28 of IRPA requires the appellant to be physically present in Canada for 730 days in the pertinent 5-year period, or outside Canada under limited circumstances. DECISION [5] After reviewing all the evidence, I find that the visa officer s decision is valid in law. The appellant was in breach of her residency obligation as she was not in Canada for 730 days in the relevant 5-year period considered by the visa officer, which is the 5-year period before September 19, 2011.

3 2 BACKGROUND [6] The appellant is a 67-year old citizen of Bangladesh. She landed in Canada on February 20, She has six children. She is a widow. Five of her children have status in Canada and one is in Bangladesh. All of her children are married. [7] The appellant signed her Application for a Travel Document on September 19, It indicates that she was in Canada last on March 8, [8] The visa officer s refusal letter is dated October 9, [9] The Minister s counsel did not appear at the hearing, but indicated in writing that the appeal should be dismissed. ANALYSIS [10] Section 67(1)(c) of IRPA states: Appeal allowed 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (c) other than in the case of an appeal by the Minister, 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. [11] In considering this question, I am guided by the decisions in Bufete Arce 1 and Kok. 2 Those cases suggest that in addition to the best interests of a child directly affected, the following factors are particularly relevant to residency obligation appeals: 1 Bufete Arce, Dorothy Chicay v. Minister of Citizenship and Immigration (IAD VA ), Workun, June 16, Yun Kuen Kok & Kwai Leung Kok, v. The Minister of Citizenship and Immigration (VA ), Boscariol, July 16, 2003

4 3 (i) The extent of the non-compliance with the residency obligation; (ii) The reasons for the departure and stay abroad; (iii) The degree of establishment in Canada, initially and at the time of hearing; (iv) Family ties to Canada; (v) Whether attempts to return to Canada were made at the first opportunity; (vi) Hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada; (vii) Hardship to the appellant if removed from or refused admission to Canada; and, (viii) Whether there are other unique or special circumstances that merit special relief. [12] I have considered those factors. I am also mindful that these factors are not exhaustive and that the weight given to each may vary depending on the circumstances of each individual case. Extent of non-compliance [13] The visa officer accepted that the appellant was in Canada for 162 out of 730 days, which means she fell short of meeting her residency obligation by about 568 days. I find that her breach is serious and this is a negative factor. Reasons for departure and stay abroad [14] With respect to her reasons for leaving Canada and staying abroad and her attempts to return to Canada, I am mindful of the objectives of IRPA, which are set out in section 3(1) of IRPA. I find that Parliament expects something from immigrants in exchange for the right to enter and remain in Canada as permanent residents, and the residency obligation set out in section 28 of IRPA has to be read in light of these objectives.

5 4 [15] I start by noting that her son sponsored her to Canada and that the objective of family reunification is engaged in this appeal. [16] The appellant testified that she left Canada in 2007 because she had to take care of property that her husband left behind for her when he passed away. She said that she went there and that the problems were overwhelming for her and she had her son come to help her. He did come to help her. When it was time for her to return, her health situation prevented her from coming back to Canada. Based on the oral and documentary evidence, I am prepared to accept that her health condition was an issue in her not returning to Canada once the property issues had been settled. [17] The appellant and her son testified that at this time the property and health issues which kept her in Bangladesh in breach of her residency obligation are no longer issues at this time. [18] The appellant testified that once her health condition improved and she was able to travel, she had her son come back to Bangladesh to bring her back to Canada, but she was prevented from coming back to Canada because a travel document was denied to her. [19] Since landing in Canada, the appellant has been living in Canada for about two and a half years until she returned to Bangladesh after her husband passed away. After she and her children went to Bangladesh with respect to her husband s passing away, she did return to Canada and she has essentially been going back and forth between Bangladesh and Canada. [20] Based on the evidence, I am prepared to accept that it was her health condition that prevented her from coming back to Canada in time so that she would not be in breach of her residence obligation. This is based on the evidence that the property issue has been going on for some time and it was only in 2011 that she was found to be in breach of her residency obligation.

6 5 Family ties to Canada [21] I find that the appellant has significant family ties in Canada. She and her son testified that five of her children have status in Canada. She has one daughter who lives in another district of Bangladesh, is married and has her own family to take care of. At the moment, she has another daughter in Bangladesh but this daughter has status in Canada and intends on returning to Canada. She has grandchildren in Canada as well as in Bangladesh. [22] The appellant s son testified that he brought her to Canada and wants her to stay with him, that he has bought a home and there is a room for her in that home, and that in Bangladesh she does not have someone to take care of her on a permanent basis. [23] Thus, I find that family ties in Canada is a positive factor. Hardship [24] The appellant is from Bangladesh and has spent most of her time in Bangladesh. Even after she landed in Canada, she has spent a significant amount of time in Bangladesh. Thus, her continuing to stay in Bangladesh does not, in my view, present a hardship to her. She has property in Bangladesh. She also has a daughter in Bangladesh. She has a daughter who has come from Canada and is in Bangladesh at this time. The appellant s son testified that he has gone back to Bangladesh to take care of his mother as well. [25] The appellant has a lot of family in Canada. Her son sponsored her to Canada and he testified in a credible and emotional manner that he intends to take care of her and wants her to be in Canada. He testified that it is not easy for him to go to Bangladesh and take care of his mother because he has his family and his business here in Canada. [26] Thus, I do find that there is some hardship to her son in Canada who sponsored her and has taken steps in the past years to take care of his mother in Bangladesh.

7 6 [27] The appellant is a 67-year old widow and the evidence is that she went to Bangladesh not with an intention of permanently leaving Canada but to take care of some property issues and that her intention was to come back to Canada. [28] Essentially, I find that the hardship arises from her separation from her children in Canada, who are attached to her. I have also noted the letters from the grandchildren and the other support letters in the documentary evidence, which speak to their attachment to their mother/grandmother. While her children and grandchildren in Canada are not financially dependent on her, there is a strong emotional connection between them. [29] I am satisfied that at this time that the appellant intends on returning to Canada, living with her son and being closer to her children and grandchildren in Canada. CONCLUSION [30] Having considered the totality of the evidence, and after examining and weighing all of the above factors, including that the appellant does not have establishment of her own in Canada but that her children are established in Canada, I find that the appellant has met the burden of establishing that there are sufficient humanitarian and compassionate factors that would warrant special relief in light of all the circumstances of her case. [31] Therefore, at this time, I am allowing the appeal. [32] The appellant is reminded to be mindful of the permanent residence obligation and to not find herself in the same position. [33] The appeal is allowed. [Edited for clarity, grammar, footnotes, citations and/or syntax.]

8 7 DECISION The appeal is allowed. appellant s residency obligation is set aside. appellant has not lost her permanent resident status. The decision of the officer made outside of Canada on the The Immigration Appeal Division finds that the Vandana Patel Vandana Patel April 2, 2013 Date Judicial Review Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for this application