In Hu v. Canada (Citizenship and Immigration), 2019
CanLII 42276, the Immigration Appeal Division considered a permanent
resident’s appeal from the refusal of his Permanent Resident Travel Document
for failure to comply with the residency obligation under section 28 of IRPA.
The appellant had been physically present in Canada for zero
days during the relevant five-year period. He conceded that the visa
officer’s refusal was legally correct. The only issue was whether there were
sufficient humanitarian and compassionate considerations to justify special
relief.
Key Principle
A serious breach of the residency obligation does not
automatically prevent H&C relief.
The greater the residency shortfall, the stronger the
humanitarian and compassionate factors required to overcome it. However, even a complete shortfall of 730 days may be overcome in rare circumstances
where compelling evidence explains the absence and demonstrates significant
hardship, strong Canadian connections, and circumstances beyond the permanent
resident’s control.
Background
The appellant became a permanent resident as a child and
lived in Canada for approximately six years with his uncle’s family after his
parents returned to India.
At age 14, his parents required him to return to India
despite his strong objection. After his return, his parents largely withdrew
from his life and he went to live with his grandparents.
The appellant had cerebral palsy and right hemiplegia. While
living in Canada, he had received educational accommodations, therapies, and
other support. In India, he received significantly less educational assistance,
completed only Grade 10, and experienced substantial difficulty obtaining
employment because of his disability.
Court Findings
The IAD characterized the case as highly unusual.
Although the appellant’s total residency shortfall was a
significant negative factor, the IAD found that his departure from Canada had
occurred against his wishes while he was a minor. His parents’ decision
was beyond his control and, on the evidence, was not made in his best
interests.
The IAD also gave positive weight to his previous
establishment in Canada. He had lived with his uncle’s family for six years,
attended school, participated in activities, and developed strong family
relationships. His uncle presented a credible plan for his re-establishment in
Canada, including housing, financial support, continued family care, and
potential employment.
Hardship was particularly significant. The IAD accepted
evidence that the appellant had faced limited educational opportunities,
employment discrimination related to his disability, minimal parental support,
and uncertainty about his future in India once his elderly grandmother could no
longer assist him.
These factors were sufficiently compelling to outweigh even
the complete failure to meet the residency obligation.
Outcome
The Immigration Appeal Division allowed the appeal,
set aside the visa officer’s residency obligation decision, and found that the
appellant had not lost his permanent resident status.
Case
Citation:
Hu v. Canada (Citizenship and Immigration), 2019 CanLII 42276 (CA IRB)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
