Interesting and unusual case: applicant became well established in her own right, seems to have been misinformed about the appropriate way to proceed after she wished to return to Canada and wrongly assumed that her residency was no longer valid. Had she received good and timely legal advice, she would have discovered that she was still a resident of Canada as there was no determination by immigration authorities that she was no longer a resident. Note the tribunal's comments at the end of the decision, invoking the interests of Canada and praising the applicant. The facts of this case are very unusual. Perhaps teh whole matter could have been avoided had she known that she wa sitll a resident of Canada.
Mock v. Canada (Minister of Citizenship and Immigration)
Between
Julia Simone Mock, Appellant(s), and
The Minister of Citizenship and Immigration, Respondent
[2011] I.A.D.D. No. 1252
[2011] D.S.A.I. no 1252
IAD File No. TB0-06968
Client ID No. 3475-0279
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: William T. Short
Heard: June 22, 2011.
Oral decision: June 22, 2011.
Released: July 13, 2011.
(32 paras.)
________________________________________
• Reasons and Decision
• RESIDENCY OBLIGATION
• Reasons for Decision
Introduction
1 These are the written reasons for the oral decision with regard to an appeal by Julia Simone MOCK (the appellant) from the decision of a visa officer at the Canadian Embassy in Berlin that she has failed to comply with the residency obligations for permanent residents set out in section 28 of the Immigration and Refugee Protection Act (IRPA).
2 The parts of section 28 of IRPA which are pertinent to this appeal read as follows:
Residency obligation
• 28.
(1) A permanent resident must comply with a residency obligation with respect to every five-year period.
Application
• (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
3 Non compliance with the minimum residency requirements of section 28 renders a permanent resident inadmissible under the provisions of section 41(b) of IRPA, which reads as follows;
Non-compliance with Act
• 41. A person is inadmissible for failing to comply with this Act
• (b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28.
Issue
4 The appellant brings this appeal pursuant to subsection 63(4) of IRPA. She does not challenge the legal validity of the visa officer's decision and thus bears the onus of establishing that, taking into account the best interests of a child or children directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
Decision
5 The appellant, who was not represented by counsel, testified in person at the hearing and did not require the use of an interpreter as she speaks fluent English. I have considered her testimony, the Record of Appeal, other materials filed, as well as submissions made on behalf of the appellant, and the written submissions made on behalf of the Minister of Citizenship and Immigration (the Minister). Counsel for the Minister did not personally attend the hearing, but asked in written submissions that the appeal be dismissed.
6 I find that the refusal is valid in law. During the pertinent five-year period considered by the visa officer, that being March 19, 2005 to March 18, 2010, the appellant was physically present in Canada for 365 days only. I have, however, come to the conclusion that, taking into account the best interests of a child directly affected by the decision, (there are none in this case) sufficient humanitarian and compassionate considerations do exist to warrant the granting of special relief in light of all the circumstances of the case. The appeal is accordingly allowed for the reasons which follow.
Background
7 The appellant is a single, 27-year-old woman. She is a German citizen and was granted permanent resident (PR) status along with her parents in May 1998.
8 The family only stayed in Canada for about one year and three months as the appellant's parents had to return to Germany to look after their aged parents who had become quite ill. The appellant, at the age of 15, was an un-emancipated child at the time and had no option but to return to Germany with her parents.
9 The appellant said that she was determined to come back to Canada one day and chose to obtain her higher education at an institution where the courses are taught in English. The appellant obtained a Master of Business Administration degree and sought out career opportunities at a company that had operations in Canada.
10 The appellant was successful in obtaining an internship with a German company which manufactures food handling equipment and which has an office in Mississauga, Ontario.
11 The appellant returned to Canada in April of 2009 and applied for a work and travel visa as she had assumed that her PR status had expired. At the end of her internship the appellant was offered a permanent job with the company's operation in Mississauga, Ontario. She was forced to apply for a Young Professionals Work permit, before discovering that she might still be able to revive her PR status.
12 The appellant filed an Application for a Travel Document with the Canadian Embassy in Berlin on March 18, 2010,1 but was found to have spent only 365 days in Canada in the relevant five-year period and the application was refused. The appellant appealed.
Analysis and Finding of Fact
13 The appellant did not dispute that she has not complied with the residency requirements of IRPA and I accept that the appellant has only been physically present in Canada 365 days out of the requisite minimum of 730 during the requisite five-year period.2 I accordingly find that the visa officer's decision is valid in law.
14 I turn now to the issue of special relief. This aspect of the appeal is based on section 67(1)(c) of IRPA, which reads as follows:
Appeal allowed
• 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time the appeal is disposed of,
• (c) other than in the case of an appeal by the Minister, 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
15 In considering this question, I have been guided by the reasoning in Bufete Arce3 and Kok.4 Those cases suggest that, in addition to the best interests of a child directly affected, the following factors are particularly relevant to residency obligation appeals:
• * the extent of the non-compliance with the residency obligation;
• * the reason(s) for the departure and stay abroad;
• * the degree of establishment in Canada, initially and at the time of hearing;
• * family ties in Canada;
• * whether attempts to return to Canada were made at the first opportunity;
• * hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada;
• * hardship to the appellant if removed from or refused admission to Canada; and
• * whether there are unique or special circumstances that merit special relief and which meet the standard laid down in Chirwa5 for discretionary relief.
16 These factors are not exhaustive and the weight given to each may vary depending on the circumstances of each individual case. A review of these factors as applied to the present case is as follows:
Extent of non-compliance
17 The appellant has spent only one-half of the requisite minimum of 730 days in the five-year period under review, that being March 19, 2005 to March 18, 2010. The extent of the non-compliance is significant.
Reasons for departure and for staying abroad
18 The appellant left with her parents to return to Germany in 1999. She was 15 years of age at the time.
Degree of establishment in Canada
19 The appellant has a full time job in Mississauga, Ontario as a junior manager. This is a permanent position. She files income tax returns and has an annual income in the low $40,000s. Although she presently rents a town house with some friends, the appellant testified that she will soon be moving to her own place. She has a bank account with a balance of approximately $13,000. She has a drivers licence and owns a car and also has a visa credit card.
20 The appellant, as noted earlier, speaks fluent unaccented English.
21 In the circumstances, I am satisfied that the appellant is quite well established in Canada.
Family ties in Canada
22 This is, to my mind, the most problematic part. The appellant has no family in Canada.
Hardship and dislocation to family in Canada
23 Inasmuch as the appellant has no family in Canada, there can be no hardship to a family here if she is forced to leave.
Hardship to the appellant
24 The appellant has been living and working in Canada for a little over two years. She has a high degree of establishment here and it would, in my view, be a hardship for her if she were forced to leave, the extent of such hardship would, however, be difficult to quantify.
• Unique or special circumstances that merit special relief
25 In this instance the appellant has testified that she always wanted to return to Canada, which is a refrain one hears with some frequency in theses type of cases. What makes this case different is that the appellant has shown that she actually did something about it. She specifically improved her English and went to the extent of obtaining her higher education in English language courses. She then sought out German companies doing business in Canada so that she could obtain an intern position here.
26 I suppose that it can be argued that the appellant could have come back to Canada as soon as she was an adult, which would have been about 2001. I am prepared to excuse that because being legally able to do something and financially able to do something is often quite different. I am satisfied that the appellant came back to Canada as soon as she understood herself to be able to do so.
• Best interests of children directly affected by the decision
27 There are no children, who would be directly affected by this decision.
Conclusion
28 In weighing all of the above factors I have determined that the appellant has indeed met the burden of establishing that there exist sufficient humanitarian and compassionate considerations to warrant special relief.
29 Although the appellant has no family here and had been out of the country a very long time, I am swayed by the fact that the appellant has really established herself in Canada. She has a promising career here and has gone to considerable efforts to become a contributing member of Canadian society.
30 I do not wish to leave this matter without pointing out the irony that if the appellant had waited another year to apply for a travel document then in that case she would have been in compliance with the minimum residency requirements of IRPA because she would have at that point spent at least 730 days in Canada in the preceding five years. As a matter of fact, at this point, with the exception of a brief trip to Germany, the appellant has been residing and working and paying tax in Canada continuously since April of 2009. I do not see what point would be served by sending her out of Canada at this time. Nor do I see the point of forcing her to re-apply for immigration.
31 Moreover it is my strong view that in exercising my discretion I may also take into account considerations that are in the best interests of Canada. I am of the opinion that it is certainly in Canada's best interest that people such as this well educated and enterprising young woman remain in Canada to contribute to the growth and betterment of this country.
32 The appeal is accordingly allowed.
• NOTICE OF DECISION
The appeal is allowed. The decision of the officer made outside of Canada on the appellant's residency obligation is set aside. The Immigration Appeal Division finds that the appellant has not lost her permanent resident status.
William T. Short
July 13, 2011
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