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Refugee Protection

Do I need to Appeal to IAD or Waive my Right of Appeal?

Q. I have landed in Canada with my family as permanent residents in May 1996, but I had to go back to India with my family in August 1996. In August 2002, I intended to return to Canada and wrote to the Canadian High Commission in India to clarify my status and issue me an Authorization to return. Since I had not received any response and telephonic discussion was not being entertained, I made a new application in December 2002, just for not losing my PR status. Now I received a response to my application for PR made in Dec. 2002 saying that we are still permanent residents who did not comply with the residency obligation and must sign a Consent to Decision of Residence and Waiver of Appeal Rights, to continue my application. Signing this document removes the PR status also waives the right of appeal of the removal of this status. They continue to say that if we believe we are still PRs, then we must apply for a Permanent Resident Travel Document. They gave us 30 days to provide a response. What is your advise in this case, please?

A. This is a frequent question that we receive. When you left Canada, under the old Act and Regulations, you still had to comply with the residency obligation, meaning at that time that you could not be out of Canada for more than 6 months within any 12-month period. Obviously, you did not comply with this requirement. When you applied for a RRP (Returning Resident Permit) in August 2002, the new legislation was in place as of June 2002, and this type of application was no longer available- hence no response from the visa office. At this point in time, as per the visa office’s letter, you must decide whether to apply for a travel document, which will be refused and then challenge the decision in court (IAD) or, just sign the waiver and continue with your new application. Without knowing all the details of your case, I believe it will be very difficult to demonstrate in court that you complied with the residency obligations and win your case. A permanent resident application may be the better option but consult with an immigration lawyer before any decisions.

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