Outcome: Judicial Review Allowed
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Introduction
The Federal Court reviewed an Immigration Appeal Division
(IAD) decision dismissing a permanent resident’s appeal of a removal order for
failing to meet his residency obligation.
The applicant had worked in Libya on assignment for a client
of a Canadian company and argued that this employment counted toward his
required days of residence.
The Court overturned the decision because the IAD failed to
consider the regulatory provision covering full-time assignments to clients of
Canadian businesses.
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Key Principle
A permanent resident’s qualifying employment outside Canada
can count toward the 730-day residency obligation over a five-year period.
Under paragraph 61(3)(c) of the Immigration and Refugee
Protection Regulations, this can include a full-time assignment, as a term of
employment or contract with a Canadian business, to a client outside Canada.
Decision-makers must consider the applicable provision and
the actual employment arrangement, including evidence of an assignment to a
foreign client.
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Background
Mr. Osba became a Canadian permanent resident in 2003 with
his wife and son under the federal skilled worker program.
The family returned to Libya after two weeks. Although his
family later settled in Canada, he continued living primarily in Libya.
In 2006, he signed a contract with Submersible Consulting
and Engineering (SUBCOE), a Canadian company, for 16 hours of work each week,
with the possibility of additional duties.
SUBCOE assigned him to work full-time for its client, Gunny
Oil Field Service (GOS), in Libya. This arrangement continued until October
2009, when he began working exclusively for GOS.
Border officers had previously questioned and cleared him
regarding his residency compliance. However, another officer issued a removal
order in 2012.
The IAD dismissed his appeal, finding that his employment
with SUBCOE was part-time and that GOS was not a Canadian company.
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Court Findings
The Federal Court found that the IAD’s assessment of the
removal order was unreasonable.
The IAD accepted that SUBCOE was a Canadian company but
focused on the contract’s reference to 16 hours of work each week.
It failed to consider the separate provision covering full-time
assignments to clients of Canadian businesses.
The evidence clearly showed that Mr. Osba worked full-time
for GOS on assignment from SUBCOE between June 2006 and October 2009.
The Court explained that this arrangement could count as
employment for the Canadian business itself, even though the client was not
Canadian.
Neither the officer who issued the removal order nor the IAD
considered this possibility. The Minister’s counsel had also argued before the
IAD that employment with a non-Canadian client did not qualify, which may have
contributed to the oversight.
The Court noted that, if Mr. Osba had received credit for
this employment, he would have met his residency obligation.
The error also affected the IAD’s humanitarian and
compassionate assessment.
Although the IAD treated his Canadian ties, his children’s
best interests, and the hardship of removal as positive factors, it found that
negative considerations outweighed them, including his degree of
non-compliance.
Because the flawed residency assessment influenced that
balancing exercise, the Court found the humanitarian and compassionate
determination unreasonable as well.
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Outcome
The Federal Court allowed the application for judicial
review and returned the matter to a different IAD panel to reconsider Mr.
Osba’s appeal of the removal order. No question of general importance was
certified.
Case Citation:
Osba v. Canada (Citizenship and Immigration), 2015 FC 1294 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
