 
Immigration and  
Refugee Board of Canada  
Immigration Appeal Division  
  
Commission de l’immigration  
et du statut de réfugié du Canada  
Section d’appel de l’immigration  
 
 
 
IAD File No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
Reasons and Decision  Motifs et décision  
 
RESIDENCY OBLIGATION  
 
 
Appellant(s)  XXXXXXXXXXXXXXX  Appelant(e)(s)  
   
   
   
   
   
Respondent  The Min ister of Citizenship and Immigration  Intimé(e)  
 Le ministre de la Citoyenneté et de l’Immigration   
   
   
Date(s) and Place of Hearing  March 21, 2013  Date(s) et lieu de l’audience  
 Toronto, Ontario   
   
   
Date of Decision  April 9, 2013  Date de la décision  
   
   
   
Panel  XXXXXXXXXXXXXXXXX, Q.C.  Tribunal  
   
   
   
Counsel for the  
Appellant(s)  Not Represented  Conseil(s) de l’appelant(e) / 
XXXXXXXXXXXXXXXXX)  
   
   
   
Counsel for the Minister  XXXXXXXXXXXXXXXXXX  Conseil du ministre  
 (by written submissions)   
2013 CanLII 100477 (CA IRB)
IAD Fil e No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
 
 REASONS FOR DECISION  
 
[1] This is the hearing of a residency obligation appeal brought by XXXXXXXXXXXXXXX (the 
appellant) against the decision made outside of Canada with respect to  her residency obligation 
found in section 28 of the Immigration and Refugee Protection Act  (the Act ).   
 
[2] Under paragraph 28(2)(i)(a) of the Act , a person complies with the residency obligation 
with respect to a five -year period if that person is physically present in Canada for 730 d ays 
during that five -year period.  
 
[3] The appellant, a 69 -year -old widowed citizen of India, became a permanent resident of 
Canada on February 3, 2004.  She remained in Canada for four months before returning to India.  
The appellant returned to Canada in 20 06 for four or five months.  She next returned to Canada 
in 2007 where she remained for four months.  She was last present in Canada on August 5, 2007.  
 
[4] On March 2, 2011, the appellant applied for a travel document to return to Canada that 
was denied.  In the five -year period prior to that date the appellant was physically present in 
Canada for 228  days, well short of the requisite 730 days.   
 
[5] The appellant then appealed against the decision made with respect to her residency 
obligation to the Immigration Appeal Division.  
 
[6] The appellant gave the only oral evidence at the hearing of this appeal.  That evidence 
was given by teleconference.   
 
[7] The appellant did not challenge the negative determination made with respect to her 
residency obligation.  She submits  that this appeal be allowed under paragraph 67(1)(a) of the 
Act  that reads as follows:  
 
2013 CanLII 100477 (CA IRB)
IAD File No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
 
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Appeal allowed  
 67. (1)  To allow an appeal, the Immigration Appeal Division must be 
satisfied that, at the time the appeal is disposed of,  
(c) other than in the case  of an appeal by the Minister, 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 the circumstances of the case  
 
[38]  This par agraph includes a consideration of many factors such as:  
 
 the best interest of any children directly affected by the outcome of this appeal;  
 
 the nature and degree of non -compliance with the residency obligation;  
 
 the initial and continuing degree of estab lishment in Canada;  
 
 the continuing connections the appellant has in Canada;  
 
 the appellant’s establishment in his country of residence and citizenship relative 
to his establishment in Canada;  
 
 the appellant’s reasons for leaving Canada and his attempts to  return to Canada 
since he left Canada;  
 
 the reasons for the appellant ’s failure to comply with his residency obligations;  
 
 a consideration of the extent of the hardship and any dislocation family members 
in Canada would incur were the appellant  found not to be a permanent r esident 
of Canada by reasons of the failure of his residency obligations;  
 
 generally, any unique and special circumstances that would invoke the Chirwa1 
test traditionally relied on by the Immigration Appeal Division in determining 
the humanitarian and compassionate considerations  which has been defined as 
“those facts, established by 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 . 
 
 
[8] The appellant was widowed in 2002.  She is the mother of three adult , married sons who 
are each citizens of Canada.  The appellant has one grandchild over 18 years of age and five 
                                                 
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).  
2013 CanLII 100477 (CA IRB)
IAD File No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
 
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minor grandchildren ranging in age  from 10 years to one year.  The appellant has spent 
considerable time living with two granddaughters in India.  She speaks to her older 
grandchildren by telephone.  She said: “Everybody loves me.  They love their grandmother.”  
 
[9] The appellant has no assets  in Canada.  There is no persuasive evidence to show that the 
appellant ever established herself in Canada when she acquired permanent residency status here.  
 
[10]  The appellant stated that she returned to India in 2004 because her third son was then 
living in India.  She had to return to India to help arrange his marriage.  This son married in 
2005, whereupon the appellant lived with her son and daughter -in-law.  
 
[11]  In 2006, the appellant’s third son got his permanent resident visa.  The appellant returned 
to Cana da in order to help this son settle  there .  
 
[12]  The appellant returned to Canada in 2007 for four months to help care for two 
grandchildren.   
 
[13]  The appellant has spent just 228 days residing in Canada in the requisite 730 -day period.  
The nature and degree of  her non -compliance with the residency obligation is significant.  
 
[14]  The appellant stated that she has not returned to Canada since 2007 because she had 
health problems.  She has, since that date, undergone gynaecological  surgery and she has also 
had a stent  placed in her heart.  She stated that she was last in the hospital in 2007.  She takes 
prescribed medication.  She state d that she is now feeling well.  Her hospital care has been 
covered by medical insurance.  Doctor ’s visits, hospital outpatient service s and drug care are not 
covered under her medical plan.  
 
[15]  The appellant stated that she owns a small flat where she sometimes lives.  She receives 
8,000 to 9,000  rupees per month as interest from a lump sum retirement pension her late husband 
received.  She  is able to live off her pension income.  If she requires more money, she can rely 
on her son’s support.  
2013 CanLII 100477 (CA IRB)
IAD File No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
 
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[16]  One of the appellant’s sons has been residing and working in Banga lore  for two or three 
years.  The appellant resides with this son and his family.  S he returns to her own home, which is 
about a one -hour air flight away from her son’s residence, every now and then for 10 days.  At 
the date of this hearing the appellant was residing in her flat.  
 
[17]  The appellant’s son is now desirous of returning to Canada  with his family.  If this son 
returns to Canada, the appellant will be alone in India.  While she has several siblings who reside 
in India, the appellant is basically estranged from them since that her relationship with her 
siblings and other family membe rs in India is not a close relationship.  
 
[18]  The appellant has a few friends in India.  She may on occasion visit her friends at their 
home.  She attends her place of worship and she enjoys reading holy books.  
 
[19]  Were the appellant to reside in Canada, she wou ld live with her XXXXXXXXXXX in Edmonton, 
Alberta  with  his wife and two daughters.  She would keep her flat in India.  She would like to 
accrue interest on her savings account in India so that ultimately she may be able to benefit her 
grandchildren in Canad a.  The appellant would be supported in Canada in a traditional and 
customary manner by her sons.   
 
[20]  The appellant stated that were she unable to reside in Canada she would have to “send her 
second son back to Canada where he now wishes to return.”  She st ated that this son has been 
“stuck in India ” because of her.   
 
[21]  Minister’s counsel did not appear in person, electing instead to file written submissions.  
Minister’s counsel submitted that the determination made with respect to the appellant’s 
residency o bligation is valid in law and that there are insufficient humanitarian and 
compassionate grounds for the Immigration Appeal Division to exercise its special power to 
grant relief.  This submission is predicated upon : a) the appellant’s serious violation of  her 
residency obligation ; b)  her stay in Canada was analogous to that of a visitor rather than that of a 
permanent resident ; c)  there is no evidence of financial hardship ; d)  she has several siblings who 
reside in India ; and e)  she would suffer no hardshi p were her son to return to Canada.  The 
2013 CanLII 100477 (CA IRB)
IAD File No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
 
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appellant underwent surgery in India in 2007 and 2008 and has made no attempt to return to 
Canada until 2011.  
 
ANALYSIS  
 
[22]  This appeal is a hearing de novo  in a broad sense and is brought as if the matter comes 
befor e the Immigration Appeal Division for the first time.   
 
[23]  The appellant has resided in Canada for 228 days, well short of the required 730 days, 
such that the determination made with respect to her residency obligation is valid in law.  The 
appellant has a loving relationship with her grandchildren.  She has the respect and support of 
her sons.  She has spent a considerable portion of her time over the last two to three years 
residing with her second son, his wife and their children.   
 
[24]  The panel finds that the best interests of the appellant’s minor grandchildren would be 
directly affected by this decision.  The appellant also speaks to her grandchildren who reside in 
Canada on occasion by telephone.   
 
[25]  The appellant will soon have no close family members up on whom she can rely who live 
in India, especially once her second son returns to Canada from India with his family.  The 
appellant’s life has always been centered around her family.  Her health issues have been 
stabilized  for some time .  T here is no persu asive evidence of any significant demand for medical 
services.  She would like to resume the role of mother and grandmother and this can only be 
done in Canada.   
 
[26]  The panel has considered  the submissions made by Minister’s counsel.  Upon the careful 
revie w of all of the evidence and the consideration of the submissions, the panel finds, with some 
degree of reluctance, that there are sufficient humanitarian and compassionate circumstances to 
grant special relief in light of all of the circumstances of this marginal case.   
 
2013 CanLII 100477 (CA IRB)
IAD File No. / No de dossier  de la SAI:  TB1 -08267  
Client ID No. / No ID client:  4149 -2659  
 
 
 6 
[27]  Accordingly , the determination made with respect to the appellant’s residency obligation 
is valid in law . 
 
[28]  This appeal is allowed.   
 
 
NOTICE OF DECISION  
 
The appeal is allowed .  The decision of the officer made outside of Canada on the a ppellant’s 
residency obligation is set aside.  The Immigration Appeal Division finds that the appellant has 
not lost her permanent resident status.  
 
 
 
   “XXXXXXXXXXXXXXXX, Q.C.”    
   XXXXXXXXXXXXXXXXX, Q.C.  
 
 
   April 9, 2013    
   Date  
 
 
 
Judicial Review – Under section 72 of the Immigration and Refugee Protection Act, you may make an application to 
the Federal Court for judicial review of this decision, with leave of that Court.  You may wish to get advice fr om 
counsel as soon as possible, since there are time limits for this application.  
 
2013 CanLII 100477 (CA IRB)

