RESIDENCY OBLIGATION APPEAL

[Msafiri]

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.

If this is how your counsellor handled the appeal you would have been better off dealing with this yourself. There is no greater importance at any immigration appeal than to appear in person and tell your side of the story. It adds credibility to the appeal and clarifies any questions that arise immediately. I can't believe that the counsellor did not obtain CBSA entry data given that the core dispute centred around the single entry. I'm astounded that you don't know how the day count went from 615 to 450 - so you don't even have your own count or records?

Your employer should have submitted a letter confirming you are based in the country and if need be a schedule of your appointments and/or billed hours to the onsite client in Canada. Sorry I need to read the IAD decision to understand this better. The FC were correct in denying the application on a point of law - you had legal representation and there must have been cross examination and some review of the evidence on file which all appeared to be passive. Leases and utility bills don't prove definitive presence as this can be in place even with your absence. What is done though is done and you are best to plan for the next step of trying to get back to Canada via another route if that is your wish.

The real sad thing about this is that you like so many risked your PR (despite all the trouble to get it) for an employer that will now likely just move onto the next PR (why PRs do this doesn't make sense to me)...can they at least help you get a Work Permit?

Contact the bank via email, e-banking message portal, fax or call your branch and see how the account can be closed and funds transferred to another bank where you are. I recall some banks expect the account to be closed if you are not resident in Canada. You need to look at your tax situation too next year - you may get a refund subject to the tax regime where you are and if there is a tax treaty with Canada.

 

[PMM]

Hi

If this is how your counsellor handled the appeal you would have been better off dealing with this yourself. There is no greater importance at any immigration appeal than to appear in person and tell your side of the story. It adds credibility to the appeal and clarifies any questions that arise immediately. I can't believe that the counsellor did not obtain CBSA entry data given that the core dispute centred around the single entry. I'm astounded that you don't know how the day count went from 615 to 450 - so you don't even have your own count or records?

Your employer should have submitted a letter confirming you are based in the country and if need be a schedule of your appointments and/or billed hours to the onsite client in Canada. Sorry I need to read the IAD decision to understand this better. The FC were correct in denying the application on a point of law - you had legal representation and there must have been cross examination and some review of the evidence on file which all appeared to be passive. Leases and utility bills don't prove definitive presence as this can be in place even with your absence. What is done though is done and you are best to plan for the next step of trying to get back to Canada via another route if that is your wish.

The real sad thing about this is that you like so many risked your PR (despite all the trouble to get it) for an employer that will now likely just move onto the next PR (why PRs do this doesn't make sense to me)...can they at least help you get a Work Permit?

Contact the bank via email, e-banking message portal, fax or call your branch and see how the account can be closed and funds transferred to another bank where you are. I recall some banks expect the account to be closed if you are not resident in Canada. You need to look at your tax situation too next year - you may get a refund subject to the tax regime where you are and if there is a tax treaty with Canada.

One thing that was not in his favour, if you read an earlier post, it appears that he wasn't present at his appeal.

"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."

 

[simplyproductive]

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.

My brother had an issue similar like yours;
Can you make sure that your attorney actually did appeal to FC or do you have any documents that show that FC didn't hear your appeal.

 

[simplyproductive]

My brother had an issue similar like yours;
Can you make sure that your attorney actually did appeal to FC or do you have any documents that show that FC didn't hear your appeal.

 

[reza85]

FC has dismissed the appeal for Leave for Judicial Review.

 

[reza85]

Hi Safari,

Thanks for the detail response....

Did my ex-employer in Canada apply for Permanent resident for me... and what will be the process... or employer can apply for Work Permit only for me ... please advise.... what are the best options to move forward...

 

[zardoz]

Nobody can apply for permanent residence for you. You must qualify to apply for yourself.

 

[Leon]

Employer might be able to sponsor you under PNP and you could use the nomination to apply for PR. You need to talk to the PNP in your province to find out if this is possible and what is needed.

 

[reza85]

Hi Msafiri

Thanks for your reply.... it appears to me that even if there is error in IAD decision due to counting of time in some period, one can not challenge that in some higher court....

 

[zardoz]

Without knowing exactly which of the many residency obligation cases was yours it's difficult to be clear on exactly how they came to the final decision.

 

[Hasher]

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...

To my surprise, why they didn't accept the monthly pay stub as proof of your permanent employment for 2 years from a well known Engineering company?

 

[Msafiri]

Hi Msafiri

Thanks for your reply.... it appears to me that even if there is error in IAD decision due to counting of time in some period, one can not challenge that in some higher court....

You basically lost the appeal when you didn't show up for the hearing but left the responsibility for saving your PR in the hands of a lawyer. FC accepts judicial review if IAD did not follow the law in dealing with your appeal.

It seems IAD did follow the law..they reviewed the evidence and it wasn't enough to overcome the breach of the RO. This may sound harsh but the fact that you personally don't seem to know how many days you have (you never mentioned your own day count in this thread) indicates you probably realize the Immigration Officer was correct. Its your responsibility to keep track of your days. Did you have an in person consultation with your lawyer or were you just sending documents back and forth to him via email etc? The fact that you had legal representation means the FC won't even give you the benefit of the doubt that a self represented person has because they are credible but are not legally trained/ don't know how to represent themselves.

I suspect the CIC lawyer cross examined your lawyer and he either failed to answer the questions or just conceded...they already have your money so its not necessarily a big deal to them if you lose the case right? If your lawyer failed to ask CIC for their records so he could cross examine them then its his fault the judge won't help you or the CIC with this. The lawyer telling you not to attend an appeal was a huge warning as to their competency...immigration appeals have a significant credibility aspect so you should drop everything else and always show up in person unless the lawyer or you and the lawyer decided you would fail the credibility issue and he took a risk to get through the appeal without you? Why did you listen to him?

If you want peace of mind you should ask your lawyers for:

1. A copy of the IAD record - what he submitted/ what CIC submitted (IAD lawyer)
2. A copy of the full IAD judgement (IAD lawyer)
3. A copy of the filed application to the FC (Leave to appeal lawyer)
4. A copy of the FC's judgement (Leave to appeal lawyer)

These documents should have the IADs/FCs date stamps to confirm the on time filing.

Do you have any family in Canada? Did your lawyer raise any H&C grounds? Was he a 'lawyer' or an 'immigration consultant'?

How did you originally get your PR - sponsorship/ FSW etc? Ask your employer the simple question 'I need a Work Permit to work for you in Canada - what date can this be filed by HR so I can apply for the relevant visa?'. You don't really have a choice as you need to let them know you can't work in Canada. Why didn't your employer write you a letter confirming you physically work in Canada for the appeal - I guess you kept quiet about the appeal right?

Sorry you can't keep blaming the IAD and FC on this..you and your legal team messed this up by not dealing with the issue of one disputed entry which could be easily resolved by CBSA data or other proof of physical presence. You can go back to the courts and try to re-open this by saying you had a bad/ incompetent lawyer but the FC will bounce this right away. I think you are better off accepting the loss of PR and moving on. If you can't get help from your employer go to the CIC website and see what routes are available for PR.

Let this be a harsh lesson for all PRs that risking your PR for an employer is just plain unwise!

To my surprise, why they didn't accept the monthly pay stub as proof of your permanent employment for 2 years from a well known Engineering company?

Seems the OP was working abroad..a contract of employment and an employer letter would have resolved this to some extent. The IAD do consider/ look into the type of company sending such letters...they are more likely to believe a letterhead from a major engineering firm with a contact number of a HR Manager coupled with a contract to show someone is based in Canada. The same letter from a friend employing you in some small mom and pop family set up won't carry the same weight especially if the 'employing company' has been making a loss in trading for multiple years as per tax records...the courts have seen all types of 'efforts' to show PR presence - some credible and some blatantly laughable.

 

[Hasher]

Msafiri Excellent, I gave +1 to you.

The reason I asked this question and I was shaken me up becoz I am working for world known company as a consultant in Canada, their pay stub, direct deposit and their letter confirming that I am working for them for last one year is my asset, as one of solid proof of my daily presence in Canada. Earlier I worked six month as employee to another well known company and proof is T4 issued. I would be applying for PR card renewal soon and if this proof (Pay stub) is not enough than I would be struggling as I very rarely went to doctor & dentist in last five years, except for last three months since I become aware how important it is. My other strong proofs of residence are my travelling within Canada n my passport with no stamps for last 2 1/2 yrs. Before that I have so many travelling abroad that really worries me.

Thanks for clarification.

 

[Msafiri]

Thanks Hasher.

Does your contract clearly define your location of the consulting activities as being inside Canada by clearly referring to a physical location within Canada's geographical borders? The OP had extensive travel abroad and the IAD didn't buy the pay stubs on their own. Case law means there are several factors (parts) to be considered...some have more weight than others and the whole/ sum depends on the parts...the OP had weak 'parts' hence weak overall sum hence appeal fail.

CIC appear to have the term 'consulting' when used for employment in their cross hairs...unfortunately the term has been heavily associated (rightly or wrongly) with residence fraud for both maintaining PR status and citizenship applications.

 

[Hasher]

Msafiri,

I just went through my both contract, paystub and T4, (I don't know if I should open a new thread for this, but just to be quick) one company pay stubs shows my address, work location everything in Canada but the Company is itself shows address of Houstan, USA. On the other hand, the other company contract and everything in Canada and my address on pay voucher (in contract also) in Canada but no where work location written neither they issued T4, as contract says I will be responsible for my Taxes, company is agree to provide me experience letter though. I think should ask my HR to mention clearly that I am working in Canada, they have a set format for these types of letters though.

Thanks for reply