Thursday, September 13, 2007

A DAY IN MR. X’S LIFE - Part II - By Rezaur Rahman (Barrister & Solicitor)

“Well, I have a big business in Dhaka. I cannot stay in Canada for long time. However my wife and children would be here and I will be visiting them once or twice a year to spend a month or so with them….so what do you think Mr. Rahman ?” asked Mr. X with a glare of confidence in his eyes.

Mr. X a new immigrant to Canada thinks he has made the choice to become an immigrant not for himself but for his two kids who would be having “good life” and “good education” in this wonderful country.

The more I was trying to explain to him the mandatory requirement of the Immigration and Refugee Protection Act (IRPA) for an immigrant to stay in Canada for a minimum of 730 days out of every five years , the more he was trying to avoid that issue.

He had his own plan. Some of those are absolutely illegal and unethical. At one point I simply asked him “If you go to a physician and tell your problem to him, who decides what medication is appropriate for you ?” He smiled and said “Of course the physician , but what relevant does it have to my situation ? I asked him “But if he prescribes you a medicine that tastes absolutely bitter, would you ask the physician to give you the one that tastes good ?” He became impatient and said “Of course not ….but why are you asking me this …”

I told him “Mr. X , when you go to a lawyer , he will give you the appropriate advice that he is authorized to provide you on the basis of your circumstances…..if you try to get your illegal plan approved by a lawyer because it suits you, he will not do that”. Now he understands the situation and became very humble. I asked him if he had the mind to listen to me carefully so that he knows what legal options were open for him to follow. Mr. X took a deep breath and said "Yes, please"

I told Mr. X that the word “’permanent resident’ signifies the responsibility of the holder of this status. It means you are required to live in Canada permanently . Living permanently means taking up a place of residence, working or doing business or going to school or carrying out other works that a person who lives in a country normally does. You are not a visitor who would go back to his country of citizenship or residency once the visa expires.

The IRPA says that you need to stay in Canada physically 730 days in every five years. The five year period is counted from the day you become the permanent resident of Canada. If you become a permanent resident in September 2007, you must stay 730 days in Canada till August 2012.

Your Permanent Resident Card will be renewed in every five years . So, a new five-year period will start from 2012 and that will last till 2017.

You can become a Canadian Citizen after you have lived 3 years in Canada since you have become a permanent resident . So if you become a permanent resident in September 2007 and continue to live in Canada till August 2012 you will be able to apply for the Canadian citizenship at that time.

Once you become a Canadian citizen you will become free from the requirement of living in Canada for a certain amount of time. If you chose to live in another country for the rest of your life, you will not lose your Canadian citizenship for doing so.

If any of the permanent residents of Canada like Mr. X who wants to go back to Bangladesh and live there can still retain his Permanent resident status of Canada if he is employed by a Canadian business organization and work for that Canadian company in Bangladesh.

The Canadian company that employs a permanent resident can be a federal or provincial corporation or other form of company. It must have an ongoing operation in Canada. The business organization must be run with an anticipation of making profit and must be capable of generating revenue.

However the law excludes a business organization form this category which is created and run mainly to allow a permanent resident to comply with his residency obligation while living in abroad.

As an example, Mr. X is employed by a Canadian Business Corporation “Last Chance Inc.” to look after its business interests in Bangladesh and he returns to Canada after 4 years. His absence from Canada will be treated as if he lived in Canada in all those years.

If he were not employed by a Canadian business but came back to Canada after 3 years from Bangladesh, the Immigration Officer will allow him to enter Canada provided the officer is satisfied that Mr. X would be living in Canada for the next two years to fulfill his residency obligation.

A permanent resident is considered to be in compliance of fulfilling the residency obligation even though he is not physically present in Canada for the required period of time , if one of the following happens:

1. He is employed full-time basis by a Canadian business or in the public service of Canada or of a province and is living in another country as a requirement of his job.

2. He is accompanying his spouse of common-law partner who is a Canadian citizen.

3. He is a child and accompanying his parents one of whom is a Canadian citizen.

4. He is accompanying his spouse or common-law partner who is a permanent resident and who is employed full time basis by a Canadian business or in the public service of Canada or of a province and is living in another country as a requirement of his job.

5. He is child who is accompanying his parents to another country and one of those parents is employed full time basis by a Canadian business or in the public service of Canada or of a province.

Even if someone fails to meet the residency obligation the Immigration Officer may allow him to retain his permanent resident status after making the humanitarian and compassionate considerations and taking into account the best interest of a child directly affected by this determination.

As an example let us think about someone who came to Canada with his wife , stayed for a year and went back to his country of birth to visit his ailing mother. He left his wife behind who was pregnant. His wife expected that he would come back at the time of the birth of their child . Unfortunately he could not come back because the condition of his mother deteriorated.

His wife gave birth to a child . He continued to support his family by sending money from abroad. His mother became terminally ill. He was the only child of his parents and his father had died long time ago. He could not leave his mother and return to Canada because there was none to take care of her. His mother passed away recently. He returned to Canada permanently after four years.

If it is proven on the basis of medical evidence and other relevant evidence that it was absolutely necessary for him to stay with his mother and he tried to return to Canada at his earliest opportunity the immigration officer would definitely consider the humanitarian and compassionate grounds in determining his residency obligation.

The Immigration Officer would also have to examine the impact on the child if his father loses the permanent resident status.

However if the Immigration Officer declares that there was no humanitarian and compassionate ground that would support the retention of permanent resident status , the permanent resident does not lose his status immediately. He can file an appeal at the Immigration Appeal Division of the Immigration and Refugee Board against that decision.

Some people still talk about the Returning Resident Permit. That was a requirement under the old Act. Prior to IRPA , a permanent resident could not have lived in a foreign land more than 180 days in a year. In order to stay longer than that period one had to obtain permission or a permit from the Immigration authority. That permit is no longer issued because the limitation of 180 days is no longer in effect.