 
 
 
 IAD File No. / N
o de dossier de la SAI: TA6-13068 Client ID No. / N
o ID client: 3560-6822 
 
   
Reasons and Decision − Motifs et décision 
 
 RESIDENCY OBLIGATION  
  Appellant(s) FXXXXXXXXXXXXXXXXXXXX Appelant(e)(s)                Respondent The Minister of Citize nship and Immigration Intimé(e)  Le ministre de la Citoyenne té et de l’Immigration        Date(s) and Place of Hearing May 20, 2008 Date(s) et lieu de l’audience  Toronto, Ontario        Date of Decision 
July 2, 2008 Date de la décision  
   
   
  Panel XXXXXXXXXXXXXXXX, Q.C. Tribunal  
   
   
  Counsel for the Appellant(s) Represented Self
 Conseil(s) de l’appelant(e) / des appelant(e)(s)          Counsel for the Minister XXXXXXXXXXXXXX  Conseil du ministre      
 
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Reasons for Decision 
[1] This is the hearing of a residency a ppeal brought by FXXXXXXXXXXXXXXXXXXXX (the appellant) from a decision of a visa officer who determined that the appellant did not comply with her residency obligation under section 28 of the Immigration and Refugee Protection Act  (the Act) because the appellant did not reside in Cana da for at least 730 days with respect to the five-year period prior to March 14, 2006, which was the date on which she applied for but did not receive a travel document to return to Canada.  [2] The appellant, who gave the only evidence at the hearing of her residency appeal, did not challenge the legal validity of the visa officer's  decision made with respect to her residency obligation.  The appellant submits, under paragraph 67(1)(c) of the Act that, upon taking into account the best interests of a child directly affected by this decision, sufficient humanitarian and compassionate circumstances warrant special relief in light of all of the circumstances of her case.  [3] This paragraph includes a consideration of many discretionary factors, including but not limited to:  • the best interest of any children directly  affected by the outcome of this appeal; • the nature and degree of non-complian ce with the residency obligation; • the initial and continuing degree of establishment in Canada; • the continuing connections the appellants have in Canada; • the appellants' establishment in their country of residence and citizenship relative to their establishment in Canada; • the appellants' reasons for leaving Canada and their attempts to return to Canada since they left Canada; • the reasons for the appellants' failure to comply with their residency obligations; • a consideration of the extent of the hardship and any dislocation family members in Canada would incur were the appellants found not to be permanent residents of Canada by reasons of the failure of their residency obligations; 
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• generally, any unique and special ci rcumstances that would invoke the Chirwa1 test traditionally relied on by the Immigration A ppeal Division (IAD) in determining the humanitarian and compassionate considerations  which has been defined as "those facts, established by the evidence, which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of granting special relief from the effect of the former Immigration Act now the Act.  [4] The appellant is a 29-year-old married ci tizen of India who resides there with her policeman husband and their two sons who are seven years old and six months old.  [5] The appellant was sponsored for immigration to Canada as her father's dependent child.  She became a permanent resident of Canada on December 14, 1998 and returned to India on December 28, 1998.
2  She has not returned to Canada since then.  She has no assets in Canada.  The appellant stated that she returned to India because she was under pressure from her future in- laws to stay in India.  [6] The appellant's parents and a sister, each of whom are Canadian citizens, reside in Canada.  The appellant has no other family members residing in Canada.  She keeps in regular telephone contact with her parents.  They also exchange the occasional e-mail.  The appellant's mother returned to India twice since the appe llant returned to India in December 1998.  The mother spent two one-week visits with the appellant  and her family at the time the appellant gave birth to each of her sons.  [7] The appellant stated that she returned to  India shortly after her landing in December 1999 because she was then engaged to her husband and that her subsequent marriage to him is a love marriage.  She and her family reside with her in -laws.  The appellant's husband is his parents' only male child.  The appellant's husband has thr ee older sisters, one of whom has recently moved to a residence near her parents' home.  Th is sister-in-law would now be able to care for 
                                                           
1 XXXXXX v. Canada (Minister of Manpower and Immigration ) (1970), 4 I.A.C. 338 (I.A.B.); Bufete Arce v. Canada (Minister of Citizenship and Immigration)  (VA2-02515) Workun, June 16, 2003; XX v. Canada (Minister of Citizenship and Immigration), 2005 F.C. 1323 (CANLII).  
2 Record, p. 8, the appellant recorded on her Application for a Travel Document that she was last physically present in Canada in December 1998.   
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the appellant's in-laws were the appellant and he r family permitted to return or immigration to Canada.  [8] The appellant's older son is attending school  in India.  All members of the appellant's family are in good health.  The appellant and her husband have a "good" network of social contacts in India.  [9] The appellant applied for and received a returning resident's permit on December 11, 2000.  She did not use this permit, deciding to remain  in India.  The panel notes that the appellant got married in India on December 21, 2000.  [10] The appellant's father did not want the appell ant to return to India and to marry in India.  The appellant stated that she did not realize the immigration consequences of her decision to return and remain in India when she left Canada in December 1988.  [11] The appellant pleads for the opportunity of being able to return to Canada where she would live with her parents until her husband and their children could immigrate here.  She would like her children to have the opportunity to  participate in Canadian life and all that it offers.  Analysis  [12] The appellant is a happily married woman residing with her husband and their children in India.  They live with her in-laws.  The appe llant's husband is gainfully employed as a police officer.  There is no evidence of the appellant and her family being under any hardship in India.  The panel finds on the evidence before it that th e best interests of the appellant's two children would not be directly affected by this decision.  [13] The degree of the appellant's non-compliance wi th her residency obligation is substantial.  She did not spent any time in Canada in the five-y ear period prior to her applying for her travel document. 
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[14] The appellant has not returned to Cana da since December 1998.  She has no assets in Canada.  She spent almost two weeks in Canada and now wishes to return for the sake of her children's future.  She has never established herself in Canada.  [15] The appellant's parents and sister reside in Canada.  They remain in contact with each other by telephone and e-mail.  The appellant's father  and sister have not visited the appellant in India since 1998.  Her mother has visited India twice since then and that was to be with the appellant when she gave birth to her two children.  [16] The appellant is well established in India.  She resides with her in-laws.  A sister-in-law and her family live nearby.  The appellant's hus band is working.  Her older son attends school.  The appellant and her husband socialize with friends in India.    [17] The appellant left Canada for personal reas ons.  She wanted to return to her fiancé in India.  She left Canada for India against her father's wishes.  She was 21 years old when she voluntarily left Canada.  She has not returned  to Canada since December 1998.  She had the opportunity to do so when she received her returning resident permit but voluntarily chose not to return to Canada.  [18] There is no evidence to suggest that the appellant's family in Canada would suffer any hardship or their lives be dislocated in any wa y were the appellant not permitted to return to Canada.  The appellant's family in Canada have in tegrated into the fabric of Canadian society.  They are each working and their lives have clearl y centralized in Canada since the appellant left Canada of India over nine years ago.  [19] The panel finds on the evidence before it that there are insufficient humanitarian and compassionate considerations present in this case to warrant special relief.  The best interests of the appellant's children would not be directly affected by this decision.  [20] This residency obligation appeal is dismissed.  
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NOTICE OF DECISION  
The appeal is dismissed.       "XXXXXXXXXXXXXXXX"  
    XXXXXXXXXXXXXXXX. Q.C.      July 2, 2008  
    Date  
 
2008 CanLII 74884 (CA IRB)

