Gill v. Canada (Citizenship and Immigration), 2018 FC 649 : Refusal Upheld Where Lengthy Absence From Canada and Limited H&C Factors Did Not Overcome Residency Obligation Breach

The Federal Court reviewed the Immigration Appeal Division’s dismissal of Keranjit Kaur Gill’s appeal from a departure order issued for failing to meet the permanent resident residency obligation. Although Ms. Gill had spent many years in Canada and returned to Malaysia partly because of family circumstances, the IAD declined to grant humanitarian and compassionate relief. The Court upheld that assessment, finding the IAD reasonably considered the reasons for her lengthy absence, her family circumstances, and her establishment in Canada.

Key Principle

A permanent resident who fails to meet the residency obligation may seek H&C relief, but establishment in Canada and sympathetic family circumstances do not automatically overcome substantial non-compliance. The IAD must assess the relevant circumstances collectively, including the extent of non-compliance, reasons for remaining abroad, establishment, family ties, attempts to return, hardship, and any special circumstances. A reviewing court will not reweigh those factors where the IAD’s balancing is reasonable.

Background

Ms. Gill, a Malaysian citizen, came to Canada with her husband and three children in 2001. The family’s refugee claim was accepted in 2003, and they became permanent residents in 2006.

Her daughter Aveena returned to Malaysia in 2008 after experiencing serious mental health difficulties. Ms. Gill’s husband returned in 2010. In October 2011, Ms. Gill also went to Malaysia after her father suffered a heart attack and required care.

When Ms. Gill returned to Canada in April 2016, she had accumulated only 181 days of physical presence during the relevant five-year period, substantially below the 730-day residency requirement. A departure order was issued. The IAD heard her appeal jointly with Aveena’s residency appeal. It allowed Aveena’s appeal but dismissed Ms. Gill’s request for H&C relief.

Court Findings

• Reasons for Remaining in Malaysia Were Reasonably Assessed

The Court upheld the IAD’s finding that Ms. Gill’s father’s health was the principal reason for her lengthy stay. Aveena had returned to Malaysia years before her mother, later studied in India, and did not live with her parents for much of the relevant period. Ms. Gill herself testified that her father’s condition explained why the family remained abroad longer than originally expected.

• Length of the Absence Was Not Adequately Justified

The evidence showed that Ms. Gill’s husband cared for her father before she arrived and again after she returned to Canada. The IAD could therefore reasonably question why Ms. Gill personally needed to remain in Malaysia for nearly five years. It was similarly reasonable to conclude that Aveena’s circumstances did not require her mother’s continuous presence throughout that period.

• Canadian Establishment Did Not Require H&C Relief

Ms. Gill argued that the IAD focused only on her establishment after returning to Canada and overlooked her life in Canada from 2001 to 2011. The Court found that the decision acknowledged her earlier Canadian history and was presumed to have considered the documentary record, including her employment and practical-nursing training. In any event, establishment was only one of the eight Ambat factors and was not independently sufficient to justify H&C relief.

Outcome

The Federal Court dismissed judicial review, finding the IAD’s H&C assessment reasonable and entitled to considerable deference. No question of general importance was certified.

Case Citation:

Gill v. Canada (Citizenship and Immigration), 2018 FC 649 (CanLII)