This recently reported case highlights some of the misconceptions that some people have: Canada is not a place for transient residency even if some people get away with that, and from the comments by the Board member, one can easily discern how displeased he was at the idea that people can retain the benefits of residency without any of the obligations. Also, one is left to wonder why the appellant represented himself in such an important matter in his life.Case dismissed....
Chen v. Canada (Minister of Citizenship and Immigration)
Chao Ying Chen, appellant, and
Minister of Citizenship and Immigration, respondent
[2010] I.A.D.D. No. 292
[2010] D.S.A.I. no 292
No. TA8-24466
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Kenneth D. MacLean
Heard: February 18, 2010.
Decision: March 31, 2010.
(34 paras.)
Appearances:
Appellant's Counsel: The Appellant is Self Represented.
Minister's Counsel: Carol-Ann Gibbs.
________________________________________
Residency Obligation
Reasons for Decision
1 These are the reasons in the appeal of Chao Ying CHEN (the appellant) from a decision made outside Canada on his residency obligation.
2 The appellant, who was born in March 1961 in Inner Mongolia, China, became a permanent resident of Canada in September 1999 in the independent immigrant class.
3 On or about November 18, 2008 he made an application for a travel document at the Embassy of Canada, Beijing, China. This application was assessed starting on November 21, 2008. By letter dated November 24, 2008 a visa officer determined that the appellant had not satisfied his residency requirement that he be physically present in Canada for 730 days in the five-year period immediately preceding his application to return or that he otherwise met the requirement on the basis of the other criterion as set out in section 28(2) of the Immigration and Refugee Protection Act (the Act).
4 The appellant filed Notice of Appeal on or about December 11, 2008 under section 63(4) of the Act.
Substantive Issues
5 (1) Is the refusal valid in law?
• (2) Are there sufficient humanitarian and compassionate grounds to warrant the exercise of special relief to allow the appeal?
Decision
6 The refusal is valid in law. There are insufficient humanitarian and compassionate grounds to warrant the exercise of special relief to allow the appeal. The appeal is dismissed for the reasons set out below.
Hearing and Submissions
7 The appellant attended the hearing in person having been granted a RX-1 visa pursuant to section 31(3)(c) of the Immigration and Refugee Protection Regulations (the Regulations).
8 The panel has considered the testimony of the appellant, his daughter Chen Wei, and the Record of the Appeal (the Record). The appellant filed no documentary disclosure in support of his appeal.
9 By way of letter dated February 17, 2010, the respondent informed the panel that she was not attending the hearing. In the letter the respondent made written submissions on behalf of the Minister of Citizenship and Immigration. It is the Minister's position that the refusal is valid in law and that there are insufficient humanitarian and compassionate grounds to warrant special relief. The Minister asked for an order dismissing the appeal.
Relevant Law
10 Section 28 of the Act sets out the residency obligations of a permanent resident.
• 28.
(1) Residency obligation - A permanent resident must comply with a residency obligation with respect to every five-year period.
• (2) Application - The following provisions govern the residency obligation under subsection (1):
• (a) 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) physically present in Canada,
• (ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
• (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,
• (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or
• (v) referred to in regulations providing for other means of compliance;
• (b) it is sufficient for a permanent resident to demonstrate at examination
• (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
• (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
• (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
Analysis
11 To allow an appeal under section 63(4) of the Act the appellant must be able to show that the refusal is not valid in law, a principle of natural justice has been breached or that taking into consideration the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate grounds warrant special relief in respect of all the circumstances of the case.
12 The appellant does not challenge the legal validity of the refusal to grant him a travel document. Nevertheless, the panel has considered the legal validity in respect of the five-year period from November 22, 2003 until November 22, 2008, the date the application for a travel document was received.
13 Accordingly to the information provided by the appellant in his application he had 452 days of physical presence in Canada in the five-year period. Pursuant to subparagraph 28(2)(a)(ii) the appellant claimed 54 days spent outside Canada while accompanying his Canadian citizen wife, Wei Hong, to various locations in the United States of America. The appellant does not claim nor does the panel find that any of the exceptions to physical presence as related in subparagraphs (iii) through (iv) or subparagraph (v) of paragraph 28(2)(a) apply to the facts of this case. The appellant has not testified to any more days that were unaccounted for. The visa post found that it could only account for 366 days of physical presence based on its analysis of entry and exit stamps in the appellant's Chinese passport. Regardless, whether the panel relies on the appellant, the appellant is short of the 730 days required by either 224 days or 310 days and, as such, he is in breech of his residency obligation. The panel finds the refusal to issue the appellant a travel document valid in law.
14 The appellant has not alleged that there has been breach of natural justice and the panel perceives none in the manner in which his application has been handled by the visa post.
15 Turning to the humanitarian and compassionate grounds for allowing the appeal, the Immigration Appeal Division relies on an analytical framework developed in its own jurisprudence and in particular as articulated in the Board's 2003 decision in Buffete-Arce.1 The non-exhaustive factors that are considered include:
• -
the extent of the non-compliance and efforts to return to Canada,
• -
appellant's initial and continuing degree of establishment in Canada,
• -
his reasons for departure from Canada,
• -
reasons for continued, or lengthy, stay abroad,
• -
ties to Canada in terms of family,
• -
whether reasonable attempts to return to Canada were made at the first opportunity
• -
whether in dismissing the appeal the appellant or his family, in Canada, would suffer any undue, undeserved or inordinate hardship,
• -
the best interests of a child directly affected by the decision, and,
• -
whether or not there are unique or special circumstances present in the case which establish sufficient grounds for "special relief."
16 The appellant is a personable man with a very practical bent. His testimony was frank, spontaneous and considered. He is entirely credible.
17 The appellant testified that having immigrated to Canada with his wife and daughter in 1999 he found work in 2000 with the paving division of Lefarge Canada. The appellant is an engineer. He remained working in Canada until 2003 when a friend invited him to return to China to work for the China Petroleum Engineering Construction Company. The appellant testified that his work in Canada was not challenging and that paving parking lots lacked the excitement of working on large paving jobs that China offered. The appellant remained at this job until 2005 when he started working for Y & J Highway Engineering Company of Beijing (Y & J). The appellant testified that he continues to work for Y & J, but that he is also looking to start his own business (in China).
18 In the course of his testimony the appellant sent mixed messages. He is fulfilled by his work in China. He is earning around 10,000 Chinese Yuan a month. He is seeking further opportunity there. Y & J expects its business to grow. He does not want to sacrifice his family. He has been separated from his daughter for a long time. He is living as Spartan existence in China renting a single room from his friend with whom he works. His wife and daughter are comfortable here and do not want to return to China. He wants to be with his family. He is returning to China on February 20, 2010 to resume his work. He plans to return to Canada in May 2010.
19 The appellant's daughter is 19 years old and is in the process of finishing her post-secondary school in Toronto. She testified that she is reasonably close to her father and that it is nice to have him around.
20 The appellant's wife and daughter live in a condominium apartment they own. The appellant's wife is employed as a kindergarten teacher at a non-profit school. The appellant testified that his wife is very comfortable here.
21 Asked what hardship he faced is he were to lose his permanent resident status the appellant testified that he would lose the convenience of travelling freely back and forth to Canada without the need of obtaining a temporary resident visa.
Conclusion
22 This was not the first or the last time that the panel will hear a tale of immigration to Canada followed by return to the homeland where the grass is actually greener. The appellant is somewhat different than most seen by this member because at least he attempted to make a go of it here in his first three years before he decamped for better opportunities in China. Many that the panel sees leave in days or weeks of landing to return to their homelands and the jobs they never left or to the better opportunity that they find elsewhere. And why should he (or others for that matter) not do this?
23 It has been said by a greater mind than that of the panel, that Canada has a particularly benign immigration law. Canada requires very little of immigrants in terms of residency. Indeed, the policy facilitates the type of yo-yo lifestyle exhibited by the appellant, one in which he never has to decide in which tent he will make his bed permanently. As long has he keeps the calendar in mind he can continue to move back and forth indefinitely enjoying the benefits of a permanent resident; for example, free health care, access to a future old age pension, subsidized education for his child, without actually having to live here and pay taxes to support the very system that he stands to benefit from (at least in this case his wife is working and presumably paying taxes in Canada).
24 Clearly the appellant has structured his life around this duality. His pattern of movement has allowed him to maintain contact with his family while at the same time freely pursue his career and business opportunities abroad. The panel cannot fault the appellant for taking advantage of the rules of the immigration to his advantage. In this case the appellant was careless and he failed to watch the calendar, presumably because he was too busy fulfilling himself in China and also presumably because he had faith that the benignity of Canada's immigration laws would allow him to retain his status regardless of his conduct or future intentions.
25 However, the panel cannot help but wonder if this is what Parliament had in mind when it enacted its immigration policy into law. Did it intend immigration to Canada to be but a swinging door for immigrants or in establishing the objectives of immigration did it intended for immigrants to Canada to actually desire to want to come here enough that they would want to live, work and build their lives here and that of their family for the greater good of themselves and Canada?
26 The panel considered the objects of immigration as set out in section 3(1) of the Act which provides:
• 3. (1) Objectives - immigration - The objectives of this Act with respect to immigration are
• (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
• (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;
• (b.1) to support and assist the development of minority official languages communities in Canada;
• (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;
• (d) to see that families are reunited in Canada;
• (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;
• (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;
• (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;
• (h) to protect the health and safety of Canadians and to maintain the security of Canadian society;
• (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and
• (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.
27 Based on these objectives the panel must conclude that Parliament meant Canada's immigration policy to be something more than a swinging door and that Parliament actually expects something of immigrants in exchange for the right to enter and remain in Canada as permanent residence. That something, in the panel's humble estimation, is a certain degree of loyalty to Canada and to the objectives of immigration --constancy let us say, faithfulness, commitment, steadfastness, a desire even to be part of the great Canadian experience and a desire to call this place your home. The same desire that caused so many in past generations to give up their attachment to their homeland in Europe, Asia and elsewhere, to persevere through work, hard work in most cases, to struggle, to strive and often to suffer in order to build a life here. Not a life in the homeland from which so many fled seeking opportunity and freedom.
28 Clearly from his testimony the appellant is not ready to remain permanently in Canada. Indeed, he was on the cusp of returning to China even as he was appealing for the right to remain here as a permanent resident. The appellant wants to start a business in China. Y & J is about to do more business. There is opportunity in those far hills. For this appellant the opportunity certainly does not lie here. If the grass is greener best return to and remain in those hills.
29 The appellant's wife and daughter are securely ensconced in Canada as citizens where they are pursuing there own dreams through employment and education. Indeed, they are the ones pursuing the objectives of Canadian immigration. They are apparently either accepting of or resigned to the appellant's nomadic ways. They have the benefit of the appellant's periodic lengthy visits.
30 The appellant's daughter is an adult who is "reasonably" close to her father and it would be "nice to have him around." Hardly a compelling case for allowing the appeal on the basis of the best interests of the child. Indeed, it could be argued that her father's work and business opportunities in China suggest that her interests are best served by her father remaining in China and seeking his and the families' fortune there doing what he enjoys, building roads in the burgeoning Chinese economy. There is no shame in this. It is just inconsistent with retaining ones permanent residency in Canada.
31 While the appellant desires the convenience of permanent residence to facilitate his travels to and from Canada, there is nothing apparently stopping him from obtaining a multiple entry temporary resident visa which would allow him to do the same thing and at the same time supporting, in a small way through the application fee, the cost of running this country. Convenience is also not one of the express objectives of immigration.
32 Similarly there is nothing, save applying for and obtaining entry visas to China, stopping either his Canadian citizen wife or daughter from travelling to China to visit the appellant in the course of his work for the betterment of himself and China. These things are all possible without permanent residency. When the appellant is truly ready to call Canada his home as a permanent resident then his wife or daughter is free to pay the fee and sponsor his return.
33 To quote the Federal Court Trial Division in Jhammat from many years ago, "benign as Canadian immigration law is, this Court will not countenance its dilution down to sentimental mush when manipulative applicants such as these, with rational alternative courses to pursue, present in order to obtain discretionary relief." This panel shares the Courts frustration as expressed and similarly it will not, in this case, in the near absence of compelling humanitarian and compassionate grounds, debase the currency of "special relief" by allowing this appeal on such grounds.
34 For the reasons stated, the appeal is dismissed.
NOTICE OF DECISION
The appeal is dismissed and a departure order is made against the appellant. Under section 69(3) of the Act and section 224 of the Immigration and Refugee Protection Regulations, the Immigration Appeal Division therefore orders your departure from Canada.
The following persons are included in this order:
SURNAME
GIVEN NAMES
DATE OF BIRTH
CHEN
Chao Ying
March 8, 1961
"Kenneth D. MacLean"
31 March 2010
No comments:
Post a Comment