TRAVEL DOCUMENT Issuance on H&C Grounds

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 [/i] [/b] 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.