TRAVEL DOCUMENT Issuance on H&C Grounds

[kaku]

Hi Dears

Please find below my application for issuance of travel document on Humanitarian and compassionate grounds as I didnt fulfill my residency obligations.

Please give your expert opinios about getting the Travel document.


The applications starts here:


I got permanent residence along with my wife on April 22, 2005.My son was born there and is a Canadian citizen.

I would like to update about my special family circumstances. I am currently living here at Pakistan with my wife, son and mother. My mother, is a patient of Parkinson disease for last 9 years. She needs continuous care and her health is deteriorating day by day. There is no one to look after her except me. The medical records of my mother are attached (See Annexure-C).She has been under treatment of Dr. from 2001; however we have been consulting other local and foreign doctors as well to have opinions about her health but all diagnosed the same disease i.e. Parkinson in which a patient gets gradually totally paralyzed.

It was stated earlier in last correspondence that I could not go back to Canada to meet the residency obligation due to the severe illness of my mother. My youngest sister, who got married last year, was not mature enough to handle the circumstances alone. There was no other option left with me except to stay with my mother here in Pakistan.

My elder brother is living in Canada with his family and is Canadian citizen. His passport number is attached as Annexure-D. His current address is .

This is worth mentioning here we have been very much worried about our PR status and our son`s future. Being Canadian citizen it is the right of the child to get Canadian education and other facilities. A difficult decision was taken for the future of our son that my wife along with our son went to Canada last year in June 2008 to stay with the family of my brother to meet the residency obligations but my family especially my son could not live there without me and other problems and finally they had to come back to Pakistan (copies of old passports attached as Annexure-E).

Now after the marriage of my sister (Marriage certificate attached as Annexure-F), on my requests, my youngest sister and brother in law are agree to stay at my home with my mother to look after her in my absence.

Keeping in view of the above mentioned circumstances, it was not possible for me to move back to canada that’s why I could not fulfill my residency requirements as the circumstances were beyond my control. I had no other option but to stay with my mother and to wait for some favorable circumstances.


Now, I am able to move back to Canada and planning to leave permanently in order to ensure a prosperous future of my son as well as ours.

It is hereby humbly requested to consider our application on humanitarian and compassionate grounds for issuance of travel document along with waiver of already committed residency obligation violation, keeping in view, the reasons beyond my control, the hardships suffered by my family and the best interest/future prospects of my child who will be the ultimate sufferer in case our application is rejected.

The duly filled application forms along with processing fee receipts and other relevant documents are attached for processing please.

Thanking you in anticipation.

Best regards

 

[Leon]

I can't tell you what the odds are of getting approved but it's always worth a try. If they say no, you can still apply for PR again from scratch.

 

[kaku]

The below mentioned case was weaker than mine one but the guy got Travel Document in first attempt , however refused second time when he didnt go. Please check.

Reasons and Decision − Motifs et décision



RESIDENCY OBLIGATION





Appellant(s)
ASIM IBRAHIM
Appelant(e)(s)





















Respondent
The Minister of Citizenship and Immigration
Intimé(e)


Le ministre de la Citoyenneté et de l’Immigration










Date(s) and Place of Hearing
July 17, 2008
Date(s) et lieu de l’audience


Toronto, Ontario










Date of Decision
August 5, 2008
Date de la décision













Panel
Hazelyn Ross
Tribunal













Counsel for the

Appellant(s)
Represented Self
Conseil(s) de l’appelant(e) / des appelant(e)(s)













Counsel for the Minister
Ian Catterall
Conseil du ministre












Reasons for Decision



[1] The appellant, Asim IBRAHIM, appeals from the decision of an immigration officer in Islamabad, Pakistan to refuse his application for a travel document as a permanent resident abroad. The officer based his refusal on his finding that the appellant was in breach of the residency obligation set out in Section 28(a) of the Immigration and Refugee Protection Act.[1]



Background to the Appeal



[2] This is the second time that the appellant has been found to be in breach of the residency obligation. He became a permanent resident of Canada on the 28th October 1998, having been granted admission as an independent applicant. He returned to Pakistan after he was landed. However, the appellant was issued a returning residents’ permit on the 28th January 2000. The visa post refused his subsequent request to extend the expiry date of the permit.[2] Ultimately, the appellant did not use this returning residents’ permit to return to Canada. When he applied for a travel document, on the 14th November 2002, the then Second Secretary, Immigration, found that in the five-year period immediately before the 22nd August 2002, the appellant had not spent the required 730 days in Canada. The second secretary found that the appellant had failed to comply with the residency obligation and refused to issue a travel document to him.



[3] The appellant appealed this refusal to the Immigration Appeal Division, (“the IAD”). At the hearing he detailed a number of reasons for leaving and remaining outside Canada.[3] He stated that, initially, he returned to and remained in Pakistan to care for his sick father; he then became involved in the matchmaking for his younger sister. Both tasks fell to him because his mother was dead and his father was ill and his brother was not living in Pakistan. The appellant claimed that his attempts to return to Canada were frustrated by the visa posts refusal to issue him a returning residents’ permit. However, acting on the advice of legal counsel, in August 2002, he submitted an application for a travel document, which application was refused.



[4] After examining the evidence, Member D'Ignazio concluded that the Second Secretary’s decision to refuse to issue the appellant a travel document was valid in law. However, Member D’Ignazio found that there was sufficient humanitarian and compassionate consideration to warrant the grant of special relief. Accordingly, he allowed the appeal.[4]



[5] That the appellant did not remain in Canada after his appeal was allowed in November 2003 is self evident. He testified that he travelled to Canada in February 2004. He remained in Canada until the 15th June 2004, when he returned to Pakistan. The appellant filed an application for a travel document on the 9th May 2007. It is the refusal of that application that brings us to the current appeal.



The Appellant’s Position



[6] The appellant took the position that the visa officer’s decision was wrong in law. He argued that he was not legally permitted to travel to Canada between May 2002 and February 2004; which is the period immediately following the first refusal and the issuing of a travel document following his successful appeal. In the appellant’s opinion, this period ought not to be included in the calculation of his residency obligation. He argued that his present status ought to be determined only from the period when he regained status. He also argued that he had submitted his application for a travel document in sufficient time to meet his residency obligation.



The Minister’s Position



[7] While agreeing that the period to be considered should be the five-year period immediately from the 16th February 2004, the Minister’s counsel was of the view that the officer’s decision was valid in law. He pointed out that the visa post received the appellant’s application for a travel document on the 11th May 2007, at which time the appellant had spent only 38 days in Canada and he argued, that as of that date there was not enough time for the appellant to meet the residency obligation. The Minister’s counsel also submitted that there were insufficient humanitarian and compassionate factors to warrant special relief. In the view of Minister’s counsel, the appellant had abused the IAD’s humanitarian and compassionate jurisdiction by deliberately leaving and remaining outside of Canada as he did.



Analysis and Findings of Fact



[8] IRPA Section 28 governs the residency obligation. The pertinent paragraphs provide as follows:



28.(1) Residency obligation – A permanent resident must comply with a residency obligation with respect to every five-year period.



28.(2) Application – The following provisions govern the residency obligation under subsection (1):



(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are



(i) physically present in Canada,…



(b) it is sufficient for a permanent resident to demonstrate at examination



(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;



(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.



[9] In the instant case, the panel considered the appeal in light of Section 28(2) as the consensus was that it was appropriate to consider the five-year period immediately after the appellant regained status as a permanent resident on the 16th February 2004.



[10] The appellant testified that after his previous appeal was allowed, he received a travel document on the 16th February 2004. However, he did not immediately return to Canada. He travelled on the 17th May 2004. He stayed for 38 days, returning to Pakistan on the 14th June 2004. The panel calculates that as of the 11th May 2007, the date when the visa post received his application for a travel document, it was 1,181 days since the appellant had been put back in status. Applying, Section 28(2) to the appellant’s case, the applicable five-year period would run from the 16th February 2004 to the 16th February 2009. Therefore, as of the 11th May 2007, there was only a further 646 days that could be credited to the appellant.



[11] However, as the appellant had only been in Canada for 38 days up to that point, even with the credit of the remaining 646 days, and even if the appellant had returned on the 11th May 2007, he could not meet the residency obligation. Accordingly, the panel finds that the visa officer’s decision is valid in law.



The Case for Relief on Humanitarian and Compassionate Grounds



[12] In considering whether, “taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all of the circumstances of the case” the panel applied the criteria set out by Member Workun in Arce.[5]



[13] Examining the evidence in light of the applicable factors it is safe to say that the appellant’s economic and social establishment in Canada is negligible, if not nonexistent. While he may have friends in Windsor, Ontario; he has no relatives in Canada. He has no assets in Canada. Neither was he employed in Canada during his most recent sojourn, nor has he sought employment in Canada.



[14] By contrast, the appellant is better established in his native land, where, according to his testimony, he owns his own home and where, until recently, he was employed. In fact, the appellant has been continuously employed in Pakistan since April 2002[6] and while he testified that he had been laid off from his job, the panel is not persuaded that, given his professional qualification as a geologist, the appellant could not find other employment.



[15] In any case, the appellant testified that even without employment he was able to support himself adequately from the income from his father’s property. As he did not indicate that anything had changed with his father’s death, the panel infers that remaining in Pakistan would not cause the appellant any economic hardship.



[16] The appellant testified that in the three-year interval following his return to Pakistan in June 2004 and the time he made the application for the travel document in May 2007, he was taking care of his father, who suffered from schizophrenia and cancer. When asked, he testified that he, and not his brother who had returned to Pakistan from the United States of America, was more capable of taking care of their father. However, the extent and materiality of the appellant’s involvement with his father’s care is called into question by the fact that he has been employed during that period[7] and also by the fact that he had the assistance of his brother and sister-in-law and additional household help in the form of a cook.



[17] The appellant’s father has died, however, he did not tender any independent evidence of his father’s illness and death. As the question of his father’s health was an on-going one that had been raised at the previous appeal, the panel would have expected the appellant to put independent evidence of his father’s illness and subsequent death before her. He did not do so. Thus, it is an open question as to whether the appellant’s father was indeed ill or is deceased as he claims.



[18] The appellant is single. There are no children whose best interests have to be considered.





Can the Appellant establish Himself in Canada?



[19] The panel does not doubt that the appellant would be able to work and to establish himself in Canada, if it is the panel’s determination that his appeal should be allowed. However, on the evidence before her, the panel is not persuaded that allowing the appeal is the appropriate determination to be made. Member D’Ignazio allowed the appellant’s prior appeal on humanitarian and compassionate grounds. The appellant was then issued a travel document; however, it would take him a further three months before he returned to Canada. When he entered Canada, an immigration officer cautioned him about his residency obligation. Nonetheless, he returned to Pakistan after a 38-day stay. While he stated that he returned to take care of his father, he put no evidence of his father’s illness and subsequent death before the panel.



[20] The appellant is a well-educated man, who made knowledgeable arguments about the legal position of the refusal, therefore, in the panel’s view he is to be held to a higher standard as far as the presentation of his appeal. The panel draws a negative credibility inference from the appellant’s failure to present independent evidence of his father’s illness, death, and date of death.



[21] Nor is the panel satisfied that, if the appeal is allowed, the appellant would remain in Canada. His personal history shows that the appellant has been gainfully employed in his field in Pakistan from the time he first returned in 1999 and the panel is not satisfied that he would not, once again, return to similar employment in Pakistan.



[22] In light of the above analysis, the panel finds that the appellant has failed to meet his onus to show that taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all of the circumstances of the case. Accordingly, the panel would dismiss the appeal.



[23] The appeal is dismissed.

 

[kaku]

Thanks Leon.


H PMM


Please give your valued comments keeping in view above case where the applicant got Travel Document in his first time.


rgds

 

[PMM]

Hi

Thanks Leon.


H PMM


Please give your valued comments keeping in view above case where the applicant got Travel Document in his first time.


rgds

The applicant was given a second chance and then went ahead proved to CIC/CHC that the first decision was the correct one in that he had no intention of establishing himself in Canada. To get a better idea of the residency requirement and the consideration of H.& C. read some the the following rulings from the IRB http://tinyurl.com/ybemy65 As you can see after a few of them, it is tough to establish H.& C.

PMM

 

[chris15]

HI

We suffered a very tragic loss in the family and my mother went into a big depression and delicate health conditions and I had to come back after 21 days of landing in Canada; it´s been almost 5 months and I want to go back since my wife is in Canada and my mother is stable now.

I have all medical documents and will explain the situation in the application, but also wanted to know if there´s specifi info that I should send, should I state that my wife is already in Canada, or it isn´t a compelling reason and I just state my mother´s condition?

I will start my application for a travel document under H&C grounds; I have to do it through the office in Guatemala. Any of you knows how long does it take? will they issue like a visa for me to come back or is it a document like the immigration confirmation paper?
Need some advice...

 

[Karlshammar]

From what you wrote you already landed, and it's been only 5 months, so your PR status should still be intact and you should get a travel document with no problems.

 

[Suin]

has your wife who is in Canada received your PR card? it might be easier just to mail it to you.

 

[imbulap]

Hi Kaku,

What was the outcome of your application.Was it successful. I too in a similar situation. Appreciate if you can describe your wxperience