Is a permanent resident required to live in Canada throughout sponsorship?

[SenoritaBella]

So this question has come up time and again and there have been many recommendations. Some say, PRs should not travel outside Canada for more than 2 weeks, etc. So I decided to search for an actual case, to find some more information. So here is a case I thought was interesting.

http://www.canlii.org/en/ca/irb/doc/2013/2013canlii64635/2013canlii64635.html

Of note are these parts:

Jurisprudence

[11] The term resides in Canada is not defined in IRPA. The panel can identify no case law from the Federal or high courts that provides any guidance on the matter. Previous panels have taken guidance from the jurisprudence of the Immigration Appeal Division (IAD) which interprets what it means to reside in Canada. The panel has canvassed the IAD jurisprudence for principles and factors that should be taken into consideration. The panel starts with Syed v. Canada (Minister of Citizenship and Immigration),[1] wherein Member Collison considered the jurisprudence under the former Immigration Act[2] and that which had been developed under IRPA up to the time of his decision issued as it was in February 2006. [3]

[12] Drawing on this series of decisions Member Collison held that.

…to reside in Canada, a sponsor does not have to be physically present in Canada. What is required is a demonstrated ongoing connection to Canada. Clearly, no definitive set of factors can apply to every situation and the weight to be given different factors will vary with the facts of each case.

[15] Member Morris in Majeed, drew on the teaching of Shariat and asked the following questions not dissimilar to those asked in Syed, wherein the panel held that:

... a person who was absent from Canada can be considered to reside in Canada within the definition of “sponsor” if they maintain distinct links to Canada. The links identified include: whether the appellant has maintained a residence in Canada; whether a spouse and/or children maintained a residence in Canada; whether the appellant has maintained his personal and family assets in Canada; whether the appellant has paid Canadian income tax on his global income; whether the appellant has maintained investments in Canada; whether the appellant has visited Canada whenever he can; and whether the appellant has maintained such things as bank accounts, health insurance, and club memberships in Canada.

 

[keesio]

I always understood it as a PR must live in Canada or qualify as fulfilling their residency obligation if living abroad (like living with a Canadian spouse or working for a Canadian business or the government in a position that requires you to be abroad like military or foreign services). The latter sounds like the "demonstrated ongoing connection to Canada" as described in that link.

 

[SenoritaBella]

Well, a PR must fulfill residency obligations anyway. After reading this case, it appears to me the appellant(Sponsor) was not successful on appeal because she did not "demonstrate ongoing connection to Canada". That is, the evidence showed she did little to make Canada her home and only visited in a "purposeful way" e.g. to pick a renewed PR card. See [30] for the 6 factors used to arrive at the decision.

It definitely leads one to believe had the answers to all 6 factors(or some of them) been 'Yes', she would have been successful on appeal.

So now this poses a new question:
1. If a PR sponsor is abroad for 6 months, and submits their sponsorship application while outside Canada. Will they be approved IF they can "demonstrate ongoing connection to Canada"? Afterall, "a person who was absent from Canada can be considered to reside in Canada within the definition of “sponsor” if they maintain distinct links to Canada." Interesting, aye?

 

[sunshinemrc]

Well, a PR must fulfill residency obligations anyway. After reading this case, it appears to me the appellant(Sponsor) was not successful on appeal because she did not "demonstrate ongoing connection to Canada". See [30] for the 6 factors used to arrive at the decision.

So now this poses a new question:
1. If a PR sponsor is abroad for 6 months, and submits their sponsorship application while outside Canada. Will they be approved IF they can "demonstrate ongoing connection to Canada"? Afterall, "a person who was absent from Canada can be considered to reside in Canada within the definition of “sponsor” if they maintain distinct links to Canada." Interesting, aye?

The answer would be no.

Sponsor

130. (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who

(a) is at least 18 years of age;

(b) resides in Canada; and

(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.

Sponsor not residing in Canada

(2) A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes an application referred to in subsection (1) and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.


If what you suggest was allowed, than one could argue that to meet the PR residency obligation all you would need is to maintain distinct links to Canada and not to be present in Canada physically.

 

[SenoritaBella]

I'm not suggesting anything, but posing questions. Read the case from the beginning, if you haven't.

Most people think "resides in Canada" means physically in Canada but this case states, "The term resides in Canada is not defined in IRPA." So where did you get your definition from?

It also says:

"... a person who was absent from Canada can be considered to reside in Canada within the definition of “sponsor” if they maintain distinct links to Canada. The links identified include: whether the appellant has maintained a residence in Canada; whether a spouse and/or children maintained a residence in Canada; whether the appellant has maintained his personal and family assets in Canada; whether the appellant has paid Canadian income tax on his global income; whether the appellant has maintained investments in Canada; whether the appellant has visited Canada whenever he can; and whether the appellant has maintained such things as bank accounts, health insurance, and club memberships in Canada."

 

[sunshinemrc]

If what you suggest was allowed, than one could argue that to meet the PR residency obligation all you would need is to maintain distinct links to Canada and not to be present in Canada physically.

I did read it, I am saying that any good lawyer, can argue the above if the term "reside" does not mean to be physically present. I am sure in certain circumstances that it would be allowed for a PR to be outside, but as you know there are thousands of PRs that repeatedly don't meet residency obligations in Canada, they don't really settle in Canada, they coast until they meet the Citizenship requirements.

In your case, you were settled, you maybe took a leave of absence or prolonged vacation, therefore you were established in Canada, thus your lawyer did not see you leaving as being a problem.

I just sent you another case, which is relevant and in which case an appeal was allowed.

 

[SenoritaBella]

Gotcha! That's an interesting case, shocked they even denied her at first. Just goes to show, the Immigration Act is not set in stone. Not sure if it's a good or bad thing. lol Now we know why lawyers charge a lot $$$.

I did read it, I am saying that any good lawyer, can argue the above if the term "reside" does not mean to be physically present. I am sure in certain circumstances that it would be allowed for a PR to be outside, but as you know there are thousands of PRs that repeatedly don't meet residency obligations in Canada, they don't really settle in Canada, they coast until they meet the Citizenship requirements.

I just sent you another case, which is relevant and in which case an appeal was allowed.

 

[sunshinemrc]

As long as you can make a good argument, and substantiate it with proof, there is always a chance.

and another one. Appeal dismissed.

http://www.canlii.org/en/ca/irb/doc/2013/2013canlii62899/2013canlii62899.html?searchUrlHash=AAAAAQAycmVzaWRlbmN5IHNwb25zb3JzaGlwIHNwb3VzZSBjYW5jZWxsZWQgYXBwbGljYXRpb24AAAAAAQ

In this case they refer to another one, which I just found. http://www.canlii.org/en/ca/irb/doc/2008/2008canlii77952/2008canlii77952.html?searchUrlHash=AAAAAQAQT3N0cm93c2tpIGluIFpodQAAAAAB

I think bottom line is that if a PR leaves during when their spousal sponsorship application is being processed, and the VO learns about it, the VO can reject the PR application. When the PR goes to appeal chances are if the PR is established in Canada, continues to be employed, continues to have their primary residence here in Canada and if there was a good reason why the PR left Canada the PR has a chance to win the appeal. Otherwise, the appeal may also be dismissed.