Help, please! Appeal on residency obligation

[walnutcracks]

My mom has been refused by the Canadian immigration officer in Hong Kong on applying the travel document due to her expired PR card.
One thing I don't really understand is when they stated that she has not met the residency obligation. But the the fact is that she has been staying with my father (Canadian citizen) at all time while living in Taiwan.

We mailed the Hongkong office my mom's entry and exit record and my parents marriage license, the household record (showing they actually lived together), copies of my dad's passport record (both Taiwan and Canada), copy of my dad's citizenship card, but they just simply ignored it and stated that she has not meet the residency obligation.

We wish to go back to Canada to do the appeal in person, however, we are not sure what would happen next. Would the immigration officer actually listen to us and change their decision? We are planning to bring all the document mentioned above and bring even more evidence, such as their photos from the past five years, and some bills they both shared, and possibly medical records, and travel ticket. Is the lawyer necessary if we decide to do an appeal? My dad, and my sister's family and me will also be at the appeal, therefore, we are not too sure if a lawyer is necessary since she really did met the residency obligation.

Has anyone been through what we are experiencing right now?

 

[northyork_beaver]

In my opinion, you have a big chance to overturn the decision by the CIC-Hongkong.
To maintain your mom status as a permanent resident, there are few requirements she must fulfill. One requirement is the residency obligation. Your mom must live in Canada for at least two years within a five-year period. During this time you must be here physically.

The two years may not need to be continuous. An officer can confirm if your time in Canada counts when you:
• re-enter Canada,
• apply for a Permanent Resident Card, or
• apply to be a Canadian Citizen.

Time spent outside Canada may also count towards the two years if you are:
• travelling with your spouse or partner who is a Canadian citizen,
• a child travelling with a father or mother who is a Canadian citizen,
• an employee of (or under contract to) a Canadian business.

Other option:
If your mom can travel with your dad to US and cross the border with her landing paper, the officer will let her in, but if she got reported for not meeting the RO, then you can appeal.
Good luck..

 

[on-hold]

The quote you have there is not quite correct: it should read --

OPTION 1. Accompanying a Canadian citizen outside Canada

You may count each day that you accompanied a Canadian citizen outside Canada provided that the person you accompanied is your spouse, common-law partner or parent (if you are a child under 22 years of age).

In this case, the Canadian citizen spouse has been living in the home country of the PR -- if CIC wanted to be sticky, they could make a case that she has not accompanied him abroad (where he went to work or perform another obligation), but he has accompanied her. It might be a good idea, if possible, to find evidence that the citizen spouse has a reason for being in Taiwan. I don't know if CIC actually cares about this distinction, but it is at least implied in the language.

Note: the evidence that CIC requires to claim this time suggests that they don't actually care why the Canadian citizen spouse is out of the country, only that the PR is with them.

 

[Msafiri]

walnutcracks,

1. Does your mom hold a HKSAR or Taiwan passport (with ID number)?

2. Does she hold a valid US Visa

3. On what date did she land (MM/YYYY)?

4. How many days does she have in Canada in the 5 years covered by the Residence Obligation?

5. Has she been to Canada at least once in the 365 days prior to the PRTD refusal?

6. The travel records you refer to are for travel between Honkong and where? Canada? Taiwan? Other 3rd country?

7. So does the Hukou /Registration definitely show they were together all the time. I thought it just showed the initial registration unless they moved? If it was just the original registration then how does CIC know she was at the same address? Do you have any other proof like joint utility bills and any formal income tax paperwork with the same address?

If yes to 1 then she shouldn't have applied for the PRTD as both passports are visit visa exempt to Canada and she should have got a flight back to Canada (airline would assume she is a tourist) and could have dealt with the PR Card issue in country.

She should immediately appeal the refusal as the appeal clock of 60 days from receiving the refusal has started to count down. It appears there is an admin error somewhere unless the visa post was somehow able to have your father's travel records also pulled and it seems he was not in the same place as your mom.

Case law has ruled that it doesn't matter who accompanied who - CIC had tried to convince a FC Judge that a Citizen spouse had accompanied a PR not the other way round in a RO appeal. The FC rightly bounced CIC on this...the meaning of accompanying is 'to be with' in its simplest definition so CIC playing semantics didn't fool the Judge.

 

[walnutcracks]

walnutcracks,

1. Does your mom hold a HKSAR or Taiwan passport (with ID number)?

My mom holds a Taiwan passport. We mailed them both the old and new passport.

2. Does she hold a valid US Visa

She doesn't have a valid US visa, but we are free to enter US without a US visa by using Taiwan passport right now.

3. On what date did she land (MM/YYYY)?

She landed on 12/1998

4. How many days does she have in Canada in the 5 years covered by the Residence Obligation?

I believe she only lived in Canada for no more than 130 days.

5. Has she been to Canada at least once in the 365 days prior to the PRTD refusal?

She has been to Canada once last year on June.

6. The travel records you refer to are for travel between Honkong and where? Canada? Taiwan? Other 3rd country?

The travel record shown is from Taiwan, showing all the entry and exit. Many of the dates synchronized with my dad's entry and exit time since they travel together a lot as well.

7. So does the Hukou /Registration definitely show they were together all the time. I thought it just showed the initial registration unless they moved? If it was just the original registration then how does CIC know she was at the same address? Do you have any other proof like joint utility bills and any formal income tax paperwork with the same address?

The Hukou registration I applied is the newest version which I just applied on March this year in order to send to Hong Kong. It did showed home address and who has been living inside. I have it translated to English, and it is the original document stamped by the Taiwan Hukou registration office. I didn't mail them the shared bill. But I decided to pull out all the bill record and medical record this time for the appeal and perhaps all the travel booking in the past five years and the Taiwan ID translated into English since it also shown wether or not the person is married and where they currently live. My parents also just got a new house last year in Canada hw in has they name on it as the house owner.

If yes to 1 then she shouldn't have applied for the PRTD as both passports are visit visa exempt to Canada and she should have got a flight back to Canada (airline would assume she is a tourist) and could have dealt with the PR Card issue in country.

She should immediately appeal the refusal as the appeal clock of 60 days from receiving the refusal has started to count down. It appears there is an admin error somewhere unless the visa post was somehow able to have your father's travel records also pulled and it seems he was not in the same place as your mom.

I believe there's some admin error since they usually travel together or the immigration office just doesn't care to go through all the document I have sent. They have same entry and exit date most of the time. They usually come to Canada together as well. Despite of the travel time, they are in Taiwan most of the time anyway. I have a major headache on why they are making this kind of decision which is terribly negligent.

Case law has ruled that it doesn't matter who accompanied who - CIC had tried to convince a FC Judge that a Citizen spouse had accompanied a PR not the other way round in a RO appeal. The FC rightly bounced CIC on this...the meaning of accompanying is 'to be with' in its simplest definition so CIC playing semantics didn't fool the Judge.

 

[Msafiri]

You gave the visa post what appears to be good evidence especially with a matching exit/entry record and that the Canadian Citizen spouse provided all passports. Visa posts can and do make these types of errors.

1. As per my initial response appeal this within 60 days. The refusal should have included details of the appeal process. She can either appeal while overseas or head back to Canada and appeal in country.

2. Holding a Taiwan/ROC passport with National ID number will give her visit visa free access to Canada. She should go to the PR line and explain her situation as she will likely find she is flagged for the refused PRTD. CBSA will admit her. She is a PR until either the appeal period passes without her appealing or the courts make a decision on her appeal.

3. It would be useful to apply for a PR Card. As she is under appeal she will get one year validity cards until the appeal is decided. CIC may require her to fill out a residence questionnaire and/or attend interviews or even pick up her PR Card in person. The RQ/ interviews means PR Card issuance is delayed.

4. Appeal listing before the IAD can be 12-18 months. Hearing will be at the IAD office in her (or closest to) last city of residence in Canada.

5. It is better to appear at the appeal/ oral hearing because your credibility can be evaluated by the Judge and it can make or break the appeal (though in this case it seems she will win easy if she has all the documents she submitted for the PRTD). The IAD usually disregard any material submitted that was not before the Visa Officer.

6. Any party that has a loss to the IAD appeal can proceed to the FC and ask for its permission (seek leave) to appeal the IAD's decision. FC will only do this on a point of law e.g CIC disregarded evidence before them. So the threshold is high and most leave applications get bounced.

7. Its better for the PR to be in Canada during the appeal hearing. However as the regulations exempt PRs accompanying citizens from the RO by physical presence it may not be a major issue in this case.