Baraily v. Canada (Citizenship and Immigration), 2014 FC 460 : Permanent Resident Residency Obligation Refusal Upheld Because Overseas Employment Did Not Qualify as a Temporary Assignment

The Federal Court reviewed an Immigration Appeal Division decision finding that the applicants had failed to meet their permanent resident residency obligation and that their circumstances did not justify H&C relief.

The Court upheld the decision because the principal applicant’s employment with a Canadian company outside Canada did not qualify as a temporary assignment under subsection 61(3) of the Regulations.

Key Principle

A permanent resident working outside Canada for a Canadian business cannot automatically count those days toward the residency obligation simply because the employer is a Canadian company.

Under subsection 61(3) of the IRPR, the employment must involve an assignment outside Canada that is temporary in nature, with a continuing connection to the Canadian business and an indication that the employee will return to work for the Canadian business in Canada.

Background

The applicants were citizens of Nepal who became permanent residents of Canada in 2005 but left Canada shortly afterward.

The principal applicant worked for LEA International Ltd., a Canadian company. He completed several overseas contracts, including projects in Africa and India, and argued that this employment should count toward his Canadian residency obligation.

When he later applied to renew his permanent resident status, the application was refused because he and his son had not met the residency requirements.

The IAD found that although the principal applicant had worked full-time for a Canadian company outside Canada, he had not demonstrated that he had been temporarily assigned abroad or that he had a firm commitment to return to a position in Canada.

The IAD also found insufficient H&C grounds to overcome the residency breach.

Court Findings

The Federal Court upheld the IAD’s interpretation of subsection 61(3).

The Court confirmed that an overseas position with a Canadian company does not automatically qualify. The concept of being “assigned” outside Canada requires a temporary connection to the Canadian employer and an expectation that the employee will return to Canada after the assignment.

In this case, the applicant’s contracts involved employment outside Canada from the beginning. After each contract ended, he was re-hired for another overseas position. There was no evidence that LEA International had provided a firm offer or substantial commitment to relocate him to Canada after his overseas work ended.

The applicant testified that his employer had given him some assurances about a possible position in Canada, but the Court found that this was insufficient evidence of the required continuing connection.

The Court also upheld the IAD’s H&C assessment. The applicants had weak ties to Canada, had spent very limited time in Canada and had no significant property, family or social ties there. Although the applicant had acted in good faith and worked to support a Canadian company, those circumstances were insufficient to overcome the residency breach.

Outcome

The Federal Court dismissed the application for judicial review and upheld the IAD’s decision finding that the applicants had failed to meet the residency obligation and did not qualify for H&C relief.

Case Citation:

Baraily v. Canada (Citizenship and Immigration), 2014 FC 460 CanLII