RESIDENCY OBLIGATION APPEAL

[reza85]

The immigration officer at the port of entry of Canada has made a residency obligation against me with determination that I have lived only 615 days during last 5-years period. He further mention that around 400 days are unclear due to missing stamps.

I have made an appeal to the IAD. The IAD determines that I have only lived 450 days and rejected the appeal. From my side my Councelor appears, who did not defend the case strongly. The court did not consider my period where I have worked in Canada for about 2-years due to the reason that one entry stamp was missing in my passport. Though I have presented salary slips for that period.

Then I went for application for leave for judicial review in the next court, which was also not accepted.

Could anyone advice for some option how I can proceed further... can I appeal to some other court with all the evidences of my stay in Canada, as IAD has totally ignored my 2-years stay.

 

[Msafiri]

So you appealed to the IAD and lost then went to the Federal Court (FC) who denied leave for an appeal before them or did the FC hear the appeal and also dismiss it? Unfortunately its not possible to appeal the FCs decisions for cases under the Immigration and Refugee Protection Act (IRPA) to the Federal Court of Appeal (FCA). However for both the IAD and FC to dismiss a residency obligation appeal means you would likely be wasting your time taking this further even if you could.

Sorry but without knowing your whole story it seems that your payslips were disregarded which is unusual meaning they were deemed not credible and you were not really working in Canada. Were you working for a 'normal/regular' Canadian employer eg a major bank or major retail store etc on a full time basis say 40 hours a week paid by direct deposit and with taxes filed or was this for some small mom and pop type family business that wasn't even registered with the Province? What else did you provide as proof of physical presence?

Is this employer willing to support a work permit application for you so you can eventually re-apply for PR?

 

[reza85]

Thanks for the quick reply...

FC did not hear the appeal... they simply did not accepted the leave application for judicial review.

The company, I was working was not a mom and pop company... it is a leading engineering company. I was a full time employee for 40 hrs/ week.

I can present the medical record, where I went to the clinics for several times during this period.

Paid all tax returns with T4 slips... have an apartment lease, etc.

 

[benk]

reza85,

Do you mind sharing your entries and exits and which entry was not considered because there was no stamp? Also, why is wasn't stamped when you entered? Also did the IAD provided their clear reason why they didn't accept the appeal?

 

[PMM]

Hi

The immigration officer at the port of entry of Canada has made a residency obligation against me with determination that I have lived only 615 days during last 5-years period. He further mention that around 400 days are unclear due to missing stamps.

I have made an appeal to the IAD. The IAD determines that I have only lived 450 days and rejected the appeal. From my side my Councelor appears, who did not defend the case strongly. The court did not consider my period where I have worked in Canada for about 2-years due to the reason that one entry stamp was missing in my passport. Though I have presented salary slips for that period.

Then I went for application for leave for judicial review in the next court, which was also not accepted.

Could anyone advice for some option how I can proceed further... can I appeal to some other court with all the evidences of my stay in Canada, as IAD has totally ignored my 2-years stay.

Basically it is over. I assume you were issued a departure notice, if you don't leave Canada, CBSA will enforce that order and it can turn into a deportation order.

 

[reza85]

Hi benk: IAD simply mentioned that ... not stayed in Canada for 730 days... not considered period of around 2 years because of one missing entry stamp on passport...

Hi PMM: I am already outside of Canada... staying illegal way is totally out of question... the question is that for a time frame of around 2 years, there is a error in the decision...

 

[benk]

reza85,

In your original post when you were at the port of entry, you mentioned that the immigration officer determined that you have lived for 615 days in the last five years....Is that accurate? Do you get the exact same computation of your days of residence in Canada in the last 5 years? If you get different result, how many days did you calculate? Is your calculated days at least 730 days in the last 5 years?

Also, in your original post, you mentioned that the immigration officer added that the 400 days are unclear due to missing stamps? Are these 400 days part of the 615 days that the IO determined for you for the last 5 years?

Also, do you know why the IAD determined that you have lived only for 450 days in the last 5 years?

Finally, did you consider requesting from CBSA your record of entries to Canada? If there were missing stamps in your passport, maybe those entries are recorded by CBSA?

 

[zardoz]

This does raise a couple of questions.

1) Whose responsibility is it to ensure that entry stamps are made?
2) Under what circumstances does an IO "forget" to apply an entry stamp?

 

[Alurra71]

This does raise a couple of questions.

1) Whose responsibility is it to ensure that entry stamps are made?
<b>2) Under what circumstances does an IO "forget" to apply an entry stamp? </b>

I would argue, why would every IO have to apply an entry stamp? I have never gotten a stamp in my passport when going back and forth between the US and Canada. I have not really witnessed anyone getting a stamp in their passport upon return into Canada. I might be totally off base here, but isn't / shouldn't it be the resonsibility of the PR holder to ensure they are complying with their residency requirements? I have little to NO sympathy for those who work to get PR, pay the cost, land and then run off a week or a month later and then complain when they can't complete their residency and have hundreds of reasons why they can't, but none of them applied with they were doing the paperwork ...

Sorry, I just feel that if you take the time to jump through all of the hoops, you should take the time to move to your newly adopted home (as per your own personal request, not that of the Canadian government) and assimilate to the best of your ability to that culture.

Because this gentleman is having to quibble about how many days he spent in the course of a 5 year period tells me he doesn't give two rats about his PR otherwise, he would've likely had more than enough days to not even be a question.

<b>***These thoughts are my own and are in no way associated with this website or the owners of this forum. I take responsibility for my own thoughts.******</b>

 

[Leon]

There is another thread about travelling between US and Canada by bus or train and somebody there was saying that the passports are not always stamped but entries have been recorded by CBSA anyway.

The only way to find out if entries had or had not been recorded would be to order the CBSA report. If some entries or exits are missing, it may be possible to trace them by ordering entry/exit reports from the countries visited if they keep such records.

 

[Dejaavu]

Yes indeed. It was my entry into Canada by land from the US that was recorded by CBSA when the IO didn't even scan my PR card nor did he look at my passport. He just waved me in.
I ordered my entries to Canada two months ago and I was surprised to see that specific entry recorded.

On the other hand, when I arrived into Toronto by air from the US, the IO scanned my pr card but didn't stamp my passport and that entry was missing from the CBSA report. At least I have the boarding to prove my arrival into Canada that specific date.

 

[Msafiri]

This does raise a couple of questions.

1) Whose responsibility is it to ensure that entry stamps are made?
2) Under what circumstances does an IO "forget" to apply an entry stamp?

These would be questions raised for certification before the Federal Court if they have not already been done so in the multitude of case law to date. I think the chances for certification success would be low - burden of proof is always on the applicant to prove presence coupled with the likely take that FC will deem it unreasonable to restrict/define the operational aspect of admission.

........ I might be totally off base here, but isn't / shouldn't it be the resonsibility of the PR holder to ensure they are complying with their residency requirements? I have little to NO sympathy for those who work to get PR, pay the cost, land and then run off a week or a month later and then complain when they can't complete their residency and have hundreds of reasons why they can't, but none of them applied with they were doing the paperwork ...

Sorry, I just feel that if you take the time to jump through all of the hoops, you should take the time to move to your newly adopted home (as per your own personal request, not that of the Canadian government) and assimilate to the best of your ability to that culture.

Because this gentleman is having to quibble about how many days he spent in the course of a 5 year period tells me he doesn't give two rats about his PR otherwise, he would've likely had more than enough days to not even be a question.......

This section of the forum is replete with 'how do I get in despite my breach of the Residence Obligation without being reported' threads...I agree that its a scenario that appears almost unique to Canada where a significant proportion of PRs play roulette with the weakest RO there is in the major immigration countries at a really paltry 40% (2/5 years). Parliament messed up on the RO aspect of the IRPA - its too generous and easily abused/bypassed but as often with such situations when you get busted its hard to get any success from the courts. If only these PRs worked as hard on maintaining the RO as they do breaching it eh!

Hi benk: IAD simply mentioned that ... not stayed in Canada for 730 days... not considered period of around 2 years because of one missing entry stamp on passport...

Hi PMM: I am already outside of Canada... staying illegal way is totally out of question... the question is that for a time frame of around 2 years, there is a error in the decision...

You get circa 12 months to prepare for appeal so you had plenty of time to obtain solid documentary proof of your physical presence in the relevant 5 year period. Yes IAD will sometimes get it wrong but the FC to refuse your application means no issues on a point of law with IAD decision.

You should have submitted the lease and medical records you mention. Was there an employment letter? Did you submit pay stubs with corresponding bank statements showing salary credits by direct deposit which is the norm for most major employers? Do your NOAs show an income consistent with declared income? Did you show these to the IAD. Did you submit CBSA record of entries? Did you provide official entry/exit records from the countries you went to? How did you prove the disputed date - was there an itinerary, e-ticket, boarding pass? Were you and the IAD reviewing the same 5 year period or did the 2 years you refer to fall out the review period. Or is the 2 year period what reduces the day count from 615 at port of entry to 450 before the IAD? What were the reasons for your absences? What region was your travel to ME/ Asia etc?

I fail to see how the CIC lawyer would have won the case solely on one disputed entry so something is seriously wrong here. Did your lawyer get a record of what CIC had on file? What issues did you lawyer raise? Did he ask for anything to be certified? Is it the same lawyer at IAD as for the FC application? Really the only way to figure this out is to read the published IAD decision but that means the whole forum will know your situation including name which understandably is not ideal.

 

[scylla]

I agree with Msafiri. With so much evidence it should have been easy to prove the residency requirement was met. I would assume/hope that more than just the salary slips for this period were presented to make your case.

 

[reza85]

Hi Msafiri,

Appreciate your comments... please see the following. Appreciate your advise.

I hired the counselor, who has submitted the file... lease agreement along with all utility bills were submitted.... medical record was not submitted.... it should have been submitted, but my counsellor did not advised so.... pay stubs with bank statements were submitted... income was consistent with the tax returns... CBSA record was not available... exit-rentry was as stamped in the passports... the disputed dates could have been proved if I could have submitted the medical record. Although, I have submitted the pay stubs, but the judgement is that these salaries may be based on my work with the company outside of Canada which is not the case... Not sure how the calculations for 615 and 450 days were done...

In fact I travelled a lot to and fro from Canada and there were lot of stamps from other countries... the major problem was that I could not manage to appear in the court as my counsellor advise me that it will not have any impact... he himself also send some other counsellor... As such my case was not suitably defended in the court and IAD has given the decision against me.

For leave application, I hire the law firm, who also could not maneged to get through...

Now I am outside Canada... still have bank account in Canada... do not know how to manage that.

 

[turboracer]

Bro which airport did this incident happen ?