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It is important for permanent residents of Canada to meet their residency obligation of 730 days of physically being in Canada for every five-year period. Otherwise, they may lose their permanent resident status.
However, it is also important for permanent residents to understand the reasons the visa officer must analyze when deciding. Each case is different and the case below shows how someone can prevent the loss of his permanent resident status even though he did not meet his residency obligation.
The Appellant received his permanent resident status in August 2010 at the age of 7 years old. He landed with his parents as a dependent child. However, for health reasons, his family left Canada once in 2010 and again in 2015.
At the age of 18 years old, the appellant applied to return to Canada in May 2019 but was refused by the visa officer on grounds of violating section 28 of the IRPA which states:
IRPA 28 (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are:
I - Be physically present in Canada…
The appellant filed an appeal on Humanitarian and Compassionate (H&C) grounds. He understands that he did not meet the residency obligation of a permanent residence and had only been in Canada for 20 days during the five-year period relevant to his application.
His request was for special relief based on IRPA 67(1)(c). The relevant factors considered positively for this case’s appeal were:
II - Whether attempts to return to Canada were made at the first opportunity
III- Hardship to the appellant
IV- Whether there are other unique or special circumstances that merit special relief
The appellant was a minor when he left Canada and had no choice but to follow his parents. Once he turned 18 years old, he applied to travel back to Canada which showed his attempt to return at the first opportunity. In addition, if he were to remain in his home country, he would have to serve in military service which will be a great hardship for him due to the current state of his home country. During the hearing, the appellant was found to be intelligent and mature for his age. It would be in the best interests of Canada to prevent him from enrolling in military service.
In conclusion, due to reasons of significant hardship to the appellant, his attempt to return to Canada at the first opportunity and the best interest of Canada as a unique or special circumstance that merit special relief, the appeal is allowed. The Immigration Appeal Division (IAD) concludes that he has not lost his permanent resident status.
The blog post was written by our Immigration Consultatant-in-Training Olive Chang.
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