Canada (Citizenship and Immigration) v. Luo, 2020 FC 543 : Court Clarifies that Overseas Employment Must Be a Genuine Temporary Assignment with an Expected Return to Canadian Employment

The Minister sought judicial review of an Immigration Appeal Division decision that had found Hanying Luo and Huimin Zhou compliant with the permanent resident residency obligation. Although the couple had spent only 78 days in Canada during the relevant five-year period, the IAD accepted that Mr. Luo’s employment in China for a Canadian company allowed the overseas days to count under subsection 28(2)(a)(iii) of the IRPA and subsection 61(3) of the IRPR.

The Federal Court found the IAD’s decision unreasonable because the evidence did not establish that Mr. Luo’s employment abroad was a genuine temporary assignment followed by continued employment with the Canadian employer in Canada.

Key Principle

For time spent working outside Canada to count toward the permanent resident residency obligation under subsection 28(2)(a)(iii) of the IRPA and subsection 61(3) of the IRPR, it is not enough that the permanent resident simply works for a Canadian business abroad. The employment must constitute a genuine full-time assignment outside Canada that is temporary in character, with evidence that the employee is expected to return to Canada and continue working for the Canadian employer after the overseas assignment ends.

Background

Mr. Luo had worked in China for Canada Optimal Nature Inc., a Canadian company exporting health products to China. His employment agreement required 40 hours per week and contained no termination date. It did not state that his employment in China was temporary or that he would return to a position with the company in Canada.

At the IAD hearing, Mr. Luo testified that he had worked approximately 100 days in the most recent year and only 60 to 70 days in earlier years. He also stated that he intended to continue working in China until his employer no longer needed him.

The employer similarly testified that the position in China was ongoing and that there had never been any discussion about Mr. Luo returning to work for the company in Canada.

Court Findings

• “Assignment” Requires More Than Employment by a Canadian Company

The Court confirmed the established interpretation of subsection 61(3) of the IRPR. A qualifying assignment requires:

1. full-time employment outside Canada on a temporary basis; and
2. continued employment with the Canadian employer in Canada after the overseas assignment is completed.

The Court relied on earlier decisions including He, Wei, Jiang, Bi, and Xi.

• The Overseas Employment Was Not Shown to Be Temporary

The evidence did not establish that Mr. Luo’s work in China had any defined end point. His employment contract had no termination date, and both he and his employer treated the position as ongoing.

This was inconsistent with the concept of a temporary foreign assignment contemplated by subsection 61(3).

• There Was No Evidence of Reintegration into Canadian Operations

The Court emphasized that there must be more than a possibility or general assurance that an employee could work in Canada later.

Here, there was no evidence that the employer had committed to employing Mr. Luo in Canada after his work in China ended. In fact, the employer testified that no such plans had ever been discussed.

The Court therefore found that the IAD had drawn an unsupported inference that a Canadian position would be available to Mr. Luo.

• The Residency Exception Cannot Be Used to Avoid Establishment in Canada

The Court reaffirmed that subsection 61(3) cannot be interpreted to allow permanent residents to satisfy their residency obligation merely by accepting permanent employment abroad with a Canadian company.

Such an interpretation would undermine the statutory objective of promoting the successful integration and establishment of permanent residents in Canada.

Outcome

The Federal Court found that the IAD had misconstrued the evidence regarding Mr. Luo’s alleged overseas assignment. There was insufficient evidence that the employment was temporary or that the employer intended to continue employing him in Canada afterward.

The IAD’s decision was therefore unreasonable, was set aside, and the matter was returned for redetermination by a different decision-maker.

Case Citation:

Canada (Citizenship and Immigration) v. Luo, 2020 FC 543 (CanLII)