Appeal- Residency Obligations

When you become a Canadian Permanent Resident (PR), you must meet the residency obligations.

What is the Canadian permanent residency obligation under section 63(4) of the Immigration and Refugee Protection Act (IRPA).

To keep your permanent resident status, you must have been in Canada for at least 730 days during the last five years. These 730 days don’t need to be continuous. Some of your time abroad may count towards the 730 days.

If you do not meet the residency obligations when you cross the border to enter Canada the Canadian Border Service Agency’s officer (CBSA) might stop you and issue a removal order.

If you are outside of Canada and your Canadian PR card is expired, you will need to apply for a Travel Document to travel to Canada which might trigger losing your Canadian PR status.

You have the right to appeal a decision made outside Canada by Immigration, Refugees and Citizenship Canada (IRCC) on your failure to meet permanent residency obligations, under section 63(4) of the Immigration and Refugee Protection Act. If other members of your immediate family are also affected by the IRCC decision, they must submit their own Notice of Appeal form.

An officer might determine that you have not complied with the requirements of the residency obligation under section 28 of the Immigration and Refugee Protection Act.

Pursuant to subsection 28(2) of the Act, a permanent resident complies with the residency obligation provisions with respect to a five-year period if, for at least 730 days in that five-year period, the permanent resident is: 

(i)                  physically present in Canada;

(ii)                is outside Canada accompanying Canadian citizen who is their spouse or common-law partner or is a child accompanying a parent;

(iii)               iss outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province;

(iv)               (iv) is an accompanying spouse, common-law partner or child of a permanent resident who is outside Canada and is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province. 

For the purposes of determining whether you have met the residency obligation, the officer examines the five-year period immediately prior to the date you have submitted your application for a travel document. After careful examination of all the documentation that you have provided in support of your application for a travel document. The officer might conclude that you have not complied with the residency obligation for at least 730 days in the five-year period immediately before the date of submission of your application. The officer might exercise the officer’s discretion in reviewing the humanitarian and compassionate considerations connected to the personal circumstances that you have presented with your application. 

The officer also takes into the best interests of the child directly affected by the determination of your residency status. 

A person loses permanent resident status only on a final determination of a decision made outside of Canada that the person has failed to comply with the residency obligation under section 28 of the Act. The appeal provisions under subsection 63(4) provide a permanent resident the right to appeal to the Immigration Appeal Division of the Immigration and Refugee Board against a decision made outside of Canada on the residency obligation under section 28 of the Act.

Under the Immigration Appeal Division Rules, an appellant must provide a copy of the letter received aboard as well as a completed Notice of Appeal form and a copy of the Letter Notifying Applicant of Appeal Rights (see enclosures). The completed forms must be received by the registry office of the Immigration Appeal Division for the region in Canada where you, the appellant, last resided no later than SIXTY (60) DAYS after having received the written decision. 

Should you choose to submit an appeal of the decision concerning your non-compliance with the residency obligation under section 28 of the Act, your appeal will take place in Canada before the Immigration Appeal Division of the Immigration and Refugee Board. If you wish to return to Canada for the hearing of the appeal you must state this in the Notice of Appeal that you send to the Immigration Appeal Division.

If you have been in Canada at least once during the past 365 days, you are entitled to a travel document to enable your return to Canada which can be obtained from the visa section of the Canadian Embassy in Ankara, Turkey.

If you have not been in Canada at least once during the past 365 days, you must apply to the Immigration Appeal Division for authorization to be physically present at the hearing of your appeal in Canada. To be granted authorization to do this, you must first file your appeal with the Immigration Appeal Division no later than SIXTY (60) DAYS from the date you receive this letter. 

Your request to be present at your appeal hearing may be submitted on the “Notice of Appeal” form that is attached to this letter. However, you submit your request to attend the appeal hearing, your request must be submitted no later than SIXTY (60) DAYS after you file the Notice of Appeal. If the Immigration Appeal Division is satisfied that your presence is required at the hearing, a travel document will be issued to enable you to return to Canada. You will be asked to present your passport and appeal documents to this office before the travel document is issued. 

Should you choose not to submit an appeal of this decision to the Immigration Appeal Division in Canada, this decision concerning your non-compliance with the residency obligation under section 28 of the Act will become a final determination of your residency status. You will be inadmissible to Canada as a permanent resident for failing to comply with section 28. You will be considered to have lost your status as a permanent resident of Canada, in accordance with paragraph 46(1)(b). You will not be allowed to enter Canada as a permanent resident, in accordance with subsection 19(2).

Can I apply for a travel document if my Permanent Residence Card has expired when outside Canada?

Depends:

you are entitled to a travel document pursuant to paragraph 31(3)(c) of the Immigration and Refugee Protection Act, which states: 

31.(3) A permanent resident outside Canada who is not in possession of a status document indicating permanent resident status shall, following an examination, be issued a travel document if an officer is satisfied that 

(c) they were physically present in Canada at least once within the 365 days before the examination and they have made an appeal under subsection 63(4) that has not been finally determined or the period for making such an appeal has not yet expired.

If you have not been physically present in Canada at least once within the 365 days then you are not entitled to a travel document.

However, you may apply to the Immigration Appeal Division for permission to travel to Canada for your appeal hearing.

175. (2) In the case of an appeal by a permanent resident under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the permanent resident and if satisfied that the presence of the permanent resident at the hearing is necessary, order the permanent resident to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose.

If you wish to return to Canada for the hearing of the appeal, you must make an application to the Immigration Appeal Division. Information stating how to apply to return to Canada for your hearing can be found on the attachment entitled “Important Instructions.”

If you do not wish to return to Canada, your appeal may be conducted through telecommunication with the Immigration Appeal Division.

Contact to speak to Vancouver Immigration lawyer

YA Law Corporation

504-938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.620.9598 | Fax: 604.620.9597
Email: info@yalaw.ca