Thursday, January 13, 2011


The residency obligation case below shows how strange things can get under the current immigration legislation. A person who left Canada decades ago suddenly attempted to re-assert residency.  While most cases deal with involuntary absences, or those due to fortuitous circumstances of a few years only, the lenght of the absence in this case is extremely unusual. The IAD dismissed the appeal.

Torkildsen v. Canada (Minister of Citizenship and Immigration)

Per Edvard Torkildsen, appellant, and
Minister of Citizenship and Immigration, respondent

[2010] I.A.D.D. No. 465

[2010] D.S.A.I. no 465

No. VA8-02162

Immigration and Refugee Board of Canada

Immigration Appeal Division

Vancouver, British Columbia

Panel: Renee Miller

Heard: November 25, 2009.

Decision: January 21, 2010.

(9 paras.)
Residency Obligation

Reasons for Decision

1 This is the appeal of Per Edvard TORKILDSEN (the "appellant") from a decision of a visa officer that the appellant had not complied with the requirements of the residency obligations set out in section 28 of the Immigration and Refugee Protection Act (the "Act"),1 which requires a permanent resident to be physically present in Canada for at least 730 days in the five-year period immediately prior to an application for a travel document. The visa officer also held there were insufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the decision, to justify the appellant's retention of his permanent resident status overcoming the breach of the residency obligation. The officer concluded the appellant was inadmissible to Canada pursuant to subsection 41(b) of the Act and refused to issue a travel document.

2 The appellant was not represented by counsel and testified via telephone. I have considered his oral and documentary evidence filed in support of his appeal. I have also considered the contents of the Record filed on behalf of the Respondent (Minister of Citizenship and Immigration).

3 The appellant does not challenge the legal validity of the visa officer's decision. He admits that he has not been physically present in Canada for the requisite period. The appellant became a permanent resident of Canada in April 1960. He lived here for three years until he returned to Norway. He lived in Norway until 1974, when he returned to Canada for 3-4 months. Since 1974 the appellant has lived full-time in Norway. On the basis of that evidence, I find the appellant has not met the residency requirements imposed under section 28 of the Act and the refusal to issue a travel document is valid in law.

4 However, I also have the discretion to allow the appellant's appeal on equitable grounds, taking into account the best interests of a child directly affected by the decision, whether there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case.2 Prior decision makers of the Immigration Division (the "ID") have established that while not exhaustive, appropriate considerations are the appellants initial and continuing degree of establishment in Canada, his reasons for departure from Canada, the reasons for a 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, and generally whether or not there are unique or special circumstances present in the case. Unique or special circumstances may be the relationship the appellant has to family in Canada, their personal circumstances, the family's circumstances in Canada, any inter-dependency between the appellant and the family in Canada, and any other relevant factual circumstances.

5 The appellant obtained permanent residence status in 1960. He lived and worked in Edmonton until August 1963 when he returned to visit Norway. According to his evidence, at the time he left Canada he had no intention of abandoning his permanent residence. He was returning to Norway to celebrate his father's birthday. For a variety of reasons he stayed in Norway. He completed his compulsory military service until September 1964. At that time he asked the Canadian Embassy about returning to Canada but was told it was too late. He then married, had a son, and began work for the government. He has lived in Norway ever since. He chanced upon a website providing information about returning to Canada in 2008, prompting his application for a travel document in April 2008. The appellant said that he always considered Canada his home, and had he not been told he was unable to return to Canada in 1964, he would have. As evidence of his desire to be in Canada, I note that he made a second application to immigrate in 1973, which was refused. He then applied for and obtained a work permit. He arrived with his wife in May 1974, but when the offered employment fell through he returned to Norway. The appellant was able to show he has an emotional attachment to Canada. However, he made conscious decisions in 1963 and 1974 to leave Canada to return to Norway. He only made an application for a travel document by chance, not at the first opportunity. He has resided outside of Canada for 56 of his 59 years. He is well settled there; he is married; he has a child; and is retired with a pension. Those actions do not demonstrate sufficient reason for the appellant to have remained out of Canada for so long, and not made earlier more diligent efforts to return to Canada.

6 The appellant testified that he has no family in Canada, nor any assets. His ongoing connection is to Norway. His wife lives there and does not intend to immigrate to Canada, nor does his son. All his assets are in Norway. His ongoing connection to Norway is not a positive factor when considering all his circumstances.

7 The appellant has no dependent children who are affected by my decision.

8 In looking at the circumstances in their entirety, I conclude the appellant has not made out a sufficient case for the granting of discretionary relief. The appellant has not met the onus on him to show that, taking into account the best interests of the child directly affected by the decision, sufficient humanitarian and compassionate considerations exist to warrant the granting of special relief in light of all the circumstances of the case.

9 The appeal is dismissed.


The appeal is dismissed.

"Renee Miller"

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