November 21, 2022
Navigating through Residency Obligation Appeals
Our office has previously briefly touched upon Residency Obligation Appeals, and this post expands on that topic.
Once the Notice of Appeal has been filed and the Appeal Record has been provided to the parties, the Immigration Appeal Division will schedule a hearing to assess the Appellant’s circumstances and determine: 1) whether the officer’s decision that the Appellant did not meet his residency obligation is valid in law, and if so, 2) whether there are any humanitarian and compassionate factors exist in the case that could justify retention of permanent resident status. Generally, if the person failed to meet their residency obligation (i.e. to be physically present in Canada for 730 days within the previous 5-year period (counting back from the date of determination by the officer), and exceptions available in law do not apply, the negative residency obligation determination will be found to valid in law, so the appellant would resort to presenting and arguing humanitarian and compassionate considerations. There is no one single factor that would outweigh other considerations – the more significant the breach is (of residency obligation), the more H&C factors the appellant would need to establish.
Canadian courts have established that the following humanitarian and compassionate factors are relevant to the decision-maker’s assessment of the case:
- The extent of the non-compliance with the residency obligation;
- The reasons for the departure from Canada;
- The reasons for continued or lengthy stay abroad;
- Whether attempts to return to Canada were made at the first opportunity;
- The degree of establishment in Canada, both initial and continuing;
- Family ties to Canada and whether they can be sponsored;
- Hardship and dislocation that would be caused to the appellant and his family in Canada if the appellant were to be removed to his country of nationality or is refused admission to Canada;
- The best interests of any child directly involved;
- Whether there are other unique or special circumstances that merit special relief.
It is crucial that the appellants collect and provide the Immigration Appeal Division with as many documents as possible to address the above listed factors and establish that there are sufficient humanitarian and compassionate factors exist in their case, to retain their permanent resident status.
Bellissimo Law Group PC has extensive experience with residency obligation hearings. We always thoroughly and carefully review the documents, prepare the appellants and witnesses, and passionately argue on behalf of our clients, which has assisted hundreds of our clients succeed with their appeals and retain their permanent resident status in Canada. Contact us now to discuss your case!