Tuesday, February 8, 2011


In this case, the family of a surgeon from Haiti was spending considerable time abroad and they did not meet the residency obligation.  Interestingly, the appellant appears to have been unrepresented, so perhaps keeping her residency was not that important to her. One would assume that facing an important legal process would warrant hiring an immigration lawyer to present the case fully and professionally.

Many people are under the misconception that they can be absent for regular periods of time without complying with the residency obligation of 730 days of physical presence in a 5 year period, as long as they return often. That assumption is incorrect.

Individuals who travel should consult with an immigration lawyer in advance to plan their absences properly and not run afoul of the legalisation.

Charlot v. Canada (Minister of Citizenship and Immigration)
Marie Berline Charlot, appellant, and

Minister of Citizenship and Immigration, respondent

[2010] I.A.D.D. No. 734

[2010] D.S.A.I. no 734

No. MB0-02568
Immigration and Refugee Board of Canada

Immigration Appeal Division

Montreal, Quebec
Panel: Me Ivan Lerner
Heard: December 13, 2010.

Decision: December 22, 2010.

(13 paras.)
Residency Obligation Appeal

Reasons for Decision

1 Marie Berline CHARLOT (the appellant), a citizen of Haiti, appealed pursuant to section 63(4) of the Immigration and Refugee Protection Act (the IRPA),1 the decision refusing to issue her a travel document because she failed to comply with her residency obligation.

2 The refusal letter, dated April 12, 2010, states that the application was denied because the appellant had not complied with the residency obligation enunciated in section 28 of the IRPA and was not entitled to the relief provided in paragraph 28(2) (c). Section 28 of the IRPA reads as follows:
• "28. (1) A permanent resident must comply with a residence obligation with respect to every five-year period.

• (2) 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 partner,

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

• (iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner 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 public service of Canada or 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 obligations 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."

3 The refusal letter examined the five-year period immediately before April 8, 2010, the date of receipt of the appellant's application.3 The appellant was present 345 days in Canada during that period.4 The visa officer also mentioned in the CAIPS notes that he refused to issue the appellant a travel document "car je ne vois aucune consideration humanitaire ou de meilleur intérêt de l'enfant qui pourrait venir modifier cette décision"5 and the panel notes that, in her application for a travel document, the appellant left blank the space reserved for "motifs d'ordre humanitaire".6

4 The appellant did not contest the legal validity of the refusal and the panel notes no error in law or fact in the visa officer's decision. However, the appellant claimed that her appeal should be allowed at the IAD de novo hearing because, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.7 The appellant was the sole witness at the hearing. She testified via telephone from Miami where she had flown in order to have a guaranteed connection on the telephone.

5 The panel is guided by the considerations outlined by Member Kim Workun in the case of Yik Kwan Rudy Wong v. The Minister of Citizenship and Immigration:8

• "In my view, appropriate considerations include an appellant's initial and continuing degree of establishment in Canada, his or her reasons for departure from Canada, reasons for continued, or lengthy stay abroad, ties to Canada in terms of family, especially those ties giving rise to humanitarian and compassionate considerations, 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 such as meet the Chirwa [citation omitted] standard for equitable relief. Again, these considerations are not exhaustive however they do provide a useful starting point in the assessment of this new type of appeal under the current Act. The requirement under the Act that the humanitarian or compassionate considerations be sufficient in my view, is a legislative recognition that, in most appeals, there will, necessarily, be some humanitarian and compassionate considerations present on the facts of the case. For example, I note that in all appeals from family class sponsorships, the issue of family re-unification is present to a lesser or greater degree. The inclusion of sufficient along with the requirement that humanitarian and compassionate considerations warranting relief be assessed in light of all the circumstances of the case suggest that a balancing or weighing process must take place."

6 The appellant was born in Haiti on July 9, 1974. She was landed on March 3, 2004, in the skilled worker category.9 She arrived with her husband and her two sons, who were born on November 5, 2000, and May 2, 2002, in the United States.10 By May 7, 2004, the appellant had left Canada and she returned on November 1, 2004,11 thus establishing a pattern of travelling back to Haiti for six months and then coming back to Canada for a shorter period. According to her testimony, her last stay in Canada was from April 2009 until she left Canada on June 1, 2009.12 She also testified that sometimes her husband accompanied her back to Canada; her children accompanied her back less often.

7 The reason that the appellant and her family went back to Haiti so quickly was that her husband, a surgeon, could not integrate into the medical field in Canada. The appellant and her husband never bought a home in Canada; they all lived with the appellant's female cousin in Montreal.13 The appellant never worked in Canada and neither did her husband. In Haiti, the appellant's husband runs his own clinic and the appellant is working as a computer operator at the Direction Générale des Impots (DGI), a position she has held since 1998.14 The appellant's children never attended school in Canada; in Haiti her children are in grades 3 and 4.

8 The panel understands that the appellant lived through the trauma of the earthquake of January 12, 2010, and that the house she was renting was flattened. However, the appellant and her husband and children are now living with the appellant's parents. The panel also notes that the appellant sent her sons to Florida to stay with her aunt after the earthquake and brought them back to Haiti six months later so presumably the appellant feels that the situation in Haiti is tolerable, at least for her family. The appellant has a tourist visa to the United States, issued in 2007 and valid for five years, but she did not accompany her American-born children to Florida; they went with one of her sisters.

9 Besides her parents, all the appellant's siblings also live in Haiti. The appellant did lose a sister in the earthquake.


10 The panel agrees with the Minister that the appellant never established herself in Canada. Her closest relatives live in Haiti. The panel understands that the appellant's husband is now willing to go back to school if necessary to qualify as a doctor in Canada but as Phelan J. recently warned: "Permanent resident status is not an expedited visitor's visa and is not a status to be lightly given away."

11 The panel therefore concludes that the decision is well founded in law and fact.

12 The panel further concludes, on a balance of probabilities, that the appellant has not established that, taking into account the best interest of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.

13 In consequence, the appeal is dismissed.


The appeal is dismissed.

"Ivan Lerner"

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