Jian v. Canada (Citizenship and Immigration), 2016 FC 523 : PR Residency Obligation Not Met Because Foreign Employment Was a Local Hire, Not an Assignment from Canada

The Federal Court reviewed an Immigration Appeal Division (IAD) decision finding that the applicant had failed to meet Canada’s permanent resident residency obligation.

The applicant argued that his employment in China for a Canadian company allowed his time outside Canada to count toward the residency requirement. The Court upheld the IAD’s decision because the evidence showed that he had been hired to work in China rather than temporarily assigned there from Canada.

Key Principle

Employment outside Canada can count toward the residency obligation only where the permanent resident is assigned on a temporary basis by a Canadian business and maintains the required connection to that business, including an expectation of returning to work for it in Canada.

Simply being hired by a Canadian company to work abroad does not establish an assignment under section 61(3) of the IRPR.

Background

The applicant became a Canadian permanent resident in 2002 but spent very little time in Canada during the relevant five-year period. He spent a maximum of 185 days in Canada and argued that his employment in China should qualify under the foreign-employment exception.

He had entered into an employment agreement with a British Columbia company while living in China. The agreement provided for employment in China, and he had never worked for the company in Canada.

The IAD found that he was a local hire in China, rather than an employee temporarily assigned outside Canada.

Court Findings

The Federal Court upheld the IAD’s conclusion.

The Court found that signing an employment contract with a Canadian company was not sufficient to establish an assignment. The evidence showed that the applicant was already living in China when he was hired, his position was located in China, and there was no evidence that he was expected to return to Canada to work for the company.

The Court emphasized that an assignment is forward-looking and must exist at the time the foreign employment begins. The fact that the applicant later obtained or expected to obtain a position in Canada could not convert his original foreign employment into a qualifying assignment.

Because the applicant had not established that his time in China met section 61(3), his days outside Canada could not be counted toward his residency obligation.

Outcome

The Federal Court dismissed the application for judicial review and upheld the finding that the applicant had failed to meet the permanent resident residency obligation.

Case Citation:

Jian v. Canada (Citizenship and Immigration), 2016 FC 523 CanLII