How to appeal a negative residency determination?
According to the Immigration and Refugee Protection Act, permanent residents are required to be physically present in Canada for not less than 730 days out of every five years. Any permanent resident of Canada who has not met his/her residency obligation can lose their status. The determination that a permanent resident has not met the residency requirement and should lose their permanent resident status as a result is usually made in the context of an application to renew a P.R. card or an application for a Travel Document. After losing permanent resident status, the person may appeal IRCC’s decision to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).
When to file an appeal
Residency obligation appeals must be made within 60 days of receiving the decision letter from IRCC. Appellants may be outside Canada or in Canada. If the person is outside Canada, then the IAD may issue an order to provide him/her with a travel document so that they can be admitted into the country for the hearing. In cases where the appellant is outside Canada, the hearing is held via telephone.
The appeal process
Residency obligation appeals involve two parties, the appellant and the Minister’s counsel representing IRCC. Proceedings can be done in the presence of members of the public as well as the media. If the appeal is allowed, the appellant is then allowed to maintain his or her permanent resident status. If the appeal is denied, the person will finally lose their permanent resident status.
A decision of the IAD may be appealed to the Federal Court of Canada by either the appellant or the Minister’s counsel. The court then performs a judicial review of the IAD decision and then chooses to either dismiss the application or return the case back to the Immigration Appeal Division for hearing.
What to expect during the appeal hearing
An IAD member is the one who will decide your appeal. There will also be a Minister’s counsel from the Canada Border Services Agency during the hearing to provide substantial evidence and make solid arguments against your appeal. You as well as the Minister’s counsel are allowed to have witnesses testify for you. You may ask for an interpreter to be there for you during the hearing. Members of the public can also attend the hearing. If you have received an appeal hearing date but are not ready for that date, you must make an application in writing to change the date or time of your hearing stating clearly why you need to make that change.
If you have legal counsel, expect arguments or submissions in your case to be made after you and other witnesses have testified. Witnesses like relatives can be asked to testify via telephone if they are in a different country. Your counsel may question the witnesses and the IAD member may also ask questions. After the hearing, the IAD member can give reasons for the decision immediately or send it to you via mail at a later date.
