Residency Appeals Lawyer Toronto

Canadian permanent residents are required to be physically present in Canada for 2 years (730 days) out of the previous 5 years. The determination on whether or not a permanent resident has complied with this residency requirement is generally made when an application to renew a permanent resident card or an application for a travel document is submitted.

After the application is made, Canadian immigration authorities will assess whether the applicant meets the residency requirement and/or if they fall into any of the exception categories.

Exceptions for residency requirements:

  • Working as a full-time employee for a Canadian business or organization and being temporarily assigned outside Canada by the company;
  • Accompanying a spouse, common-law partner or a parent who is a Canadian citizen residing abroad:
  • There are sufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the determination, to justify the retention of permanent resident status despite any breach of the residency obligation.

Losing Canadian permanent residency

If the applicant does not meet the 2-year residency threshold, and/or does not meet any of the exception categories, the immigration authorities will issue a refusal letter stating that the applicant has lost their permanent residency. At this point, the applicant can file an appeal with the Immigration Appeal Division (IAD) within 60 days.

It also sometimes occurs that a permanent resident arrives at a Canadian airport or at the land border between Canada and the USA with expired or expiring PR documents, and is assessed by the immigration authorities at the port of entry as having failed to meet the residency requirement and is issued a removal order. In this instance an appeal can be made to the IAD within 30 days.

The Residency Appeal Process

Residency obligation appeals are initiated by filing a Notice of Appeal to the local office of the Immigration Appeal Division. If the appellant is not in Canada then they should file the appeal through the office that serves the place of their last residency in Canada.

Once the appeal is filed the immigration authorities will produce a tribunal record. The record will contain a copy of the appellant’s immigration application and the computer notes of the immigration officer who refused the application, providing a detailed explanation for the refusal decision.

The IAD will review the record to see if the case is straight-forward or simple enough to be resolved at an Alternative Dispute Resolution (ADR) conference. An ADR conference is a meeting between the appellant and the lawyer for the immigration department to see if the case can be settled without the need to go to a full hearing. If the IAD believes the case is suitable for an ADR, they will invite the appellant to provide submissions explaining why their case should be allowed to go to an ADR. The Minister may also provide submissions. If the IAD schedules an ADR then this usually occurs within a few months of the appeal being filed and provides an opportunity for an early resolution of the case.

If there is no ADR, or the ADR is unsuccessful, the case will go to a full hearing before an IAD judge, known as a Member.

Residency Appeal Hearings before the IAD

Hearings before the IAD are similar to a court hearing in that there will be a presiding Member, a prosecutor who represents the immigration department (called a Minister’s Representative) and the appellant and their representative if they have one. The process is adversarial and it will be up to the appellant to prove their case on the balance of probabilities. The appellant will testify and is able to call other witnesses to testify, bring new evidence in support of their case, and can be represented by a lawyer who can lead the testimony and make legal submissions on the appellant’s behalf.

Decisions made by the immigration authorities that a permanent resident has lost his or her permanent residence for failure to meet the residency requirement are generally challenged on two major grounds.

  1. First, the decision can be challenged on a legal basis if the immigration authorities incorrectly assessed the period of time that the appellant was outside of Canada, or failed to properly consider one of the exception categories.
  2. Second, if the decision is correct in law, then the appeal can be made on humanitarian and compassionate grounds.

Assessing Humanitarian & Compassionate Grounds for Residency Appeals

In assessing H&C considerations regarding the residency obligation of permanent residents, the IAD usually applies the factors set out in the case of Bufete Arce v. Canada (Minister of Citizenship and Immigration) [2003] IADD No 370. These factors include:

  • The appellant’s reasons for departure from Canada, reasons for continued, or lengthy, stay abroad, and whether reasonable attempts to return to Canada were made at the first opportunity:
  • The degree of non-compliance with the residency obligation;
  • The degree of establishment in Canada
  • Family ties in Canada;
  • Degree of establishment outside of Canada;
  • The best interests of any children affected by the decision.

The IAD judge will assess all of the evidence and will consider the submissions of the Minister’s representative and the lawyer for the appellant before making a decision in the case. Decisions are usually made in writing after the appeal hearing has been held. If the decision is in the appellant’s favour, then they will be allowed to keep their permanent residence. If the appeal is denied, they will be issued a removal order. In this instance there would be a further appeal to the Federal Court.

Benefits of using a Lawyer

Residency appeals before the Immigration Appeal Division involve complex issues of law and of procedure. Obtaining the services of an experienced immigration lawyer will greatly increase an appellant’s chances of successfully winning their appeal. From gathering the right evidence to knowing what to expect at the hearing and representation at the hearing, a lawyer will guide you through the entire appeal process. It is also important to understand that the process before the IAD is adversarial, meaning that the immigration department will have their own lawyer at the hearing who will be opposed to the appeal and who will present evidence and ask questions to build a case against the appellant.

Those who go to a hearing unrepresented therefore do so at considerable risk to their case. By retaining the services of an experienced immigration lawyer, an appellant can defend themselves against the case that will be made against them by the immigration department’s lawyer.

At the Law Office of Matthew Jeffery, we have over 20 years of experience successfully assisting clients with residency appeals.

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