 
 Immigration and Refugee Board   Immigration Appeal Division 
Commission de l'immigration et du statut de réfugiéSection d’appel de l’immigration
 IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992  
Reasons and Decision − Motifs et décision Residency Obligation Appeal 
  Appellant(s)  Appelant(s)
MaXXXXXXXXXXXXXXXXXXXX 
Respondent  Intimé
The Minister of Citizenship and Immigration Le ministre de la CitoyennetéXXXXXXXXXXXXXXXXXXXX  
Date(s) of Hearing  Date(s) de l'audience
April 16, 2008 
Place of Hearing  Lieu de l'audience
Montréal 
Date of decision  Date de la décision
April 16, 2008 Signature of reasons: April 22, 2008 
Panel  Tribunal
Me XXXXXXXXX 
Appellant's Counsel  Conseil de l’appelant(s)
XXXXXXXXX 
Minister's Counsel  Conseil de l’intimé
Me XXXXXXXXXXXXXX 
2008 CanLII 70772 (CA IRB)
IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992 1    
 Oral Reasons for Decision 
[1] In file MA7-02779, an appeal by Mr. MaXXXXXXXXXXXXXXXXXXXX (the appellant), under section 63(4) of the Immigration and Refugee Protection Act
1 (the Act), from a decision made outside Canada on his residency obligation, I am  ready to render the following decision. [2] On December 30, 2004, the appellant was found not compliant with his residency obligation, under section 28 of the Act, in that during the relevant five-year period, that is December 20, 1999 through December 20, 2004, he did not sp end the requisite 730 days in Canada. The visa officer found that there were insufficient humanitarian and comp assionate considerations to justify the appellant’s retention of his permanent residency status so as to overcome the breach of his residency obligation. [3] The appellant admits that he did not comply with his residency obligation stipulated by section 28 of the Act. However, he asks the tribunal to gran t his appeal on the basis of humanitarian and compassionate considerations. [4] The appellant testified by way of telephone in support of this appeal. [5] The appellant was born on November 6, 1977, in Mauritius and came to Canada in 1991, becoming a permanent resident on July 28, 1991. He came to Canada with his parents and his two sisters, all of whom were sponsored by his elder si ster. The appellant testified that he attended grade 9 and lived in East York in Toronto. His parents returned to Mauritius after only three months in Canada, on November 18, 1991. According to the appellant, they were unable to find work and the circumstances were difficult financially. [6] The appellant remained in Canada for another three years, until December 1993, when he claimed that he was obliged to return to Mauritius as his elder sister had returned there, and that given that he was a minor at the time and he was under his sister’s care, he had no choice but to return with her. Given that the appellant was 16 years old at the time, the tribunal finds that this explanation is plausible and credible. The appellant claims that he returned to Mauritius and attended school. His father bought a taxi, incurring considerable debt s and contracted a four-year loan. The appellant 
                                                           
1  Immigration and Refugee Protection Act , S.C. (2001), chap. 27. 
2008 CanLII 70772 (CA IRB)
IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992 2    
 testified that his father passed away in Septembe r 1996, and he testified that he had to take over driving the taxi in order to pay off his father’s debts, which he claimed he did in February 1997; having examined exhibit A-8, I think it may have rather been August 1997, but all the same 1997 I believe he paid off these debts. [7] The appellant also stated that after his father’s  death, his mother began to behave differently. He claimed his mother became ill an d he had to remain in Mauritius in order to look after her. He claims his mother has been better since approximat ely 2005, at which point he decided he would like to return to Canada. [8] The appellant has resided in London, England, si nce approximately February of 2006, where he is currently studying and also working part time. He resides there with his wife, who is also from Mauritius, with whom he has been married since November 2005. [9] Given that the appellant has been non-resident in  Canada since 1993, it is clear that he has not complied with his residency obligation and that  as such, the refusal is valid in law. [10] However, the tribunal has the discretion to allow the appellant’s appeal on equitable grounds, taking into account the best interests of a child dir ectly affected by the decision, if there are sufficient humanitarian and compassionate cons iderations so as to warrant special relief in light of all the circumstances of the case. [11] Prior decision-makers of the Immigration Appeal  Division (IAD) have established that while not exhaustive, appropriate considerations were the appellant’s initial and continuing degree of establishment in Canada, his reasons for departure from Canada, reasons for continued or lengthy stay abroad, ties to Canada in terms of family, whether r easonable attempts to return to Canada were made at the first opportunity, and generally, whether or not  there are unique or special circumstances present in the case. Unique or special circumstances may be  the relationship the appellant has to family in Canada, their personal circumstances, the family circumstances in Canada, and any interdependency between the appellant and the family in Canada and any other relevant factual circumstances. 
2008 CanLII 70772 (CA IRB)
IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992 3    
 [12] The tribunal considers that the degree of non-co mpliance by the appellant in this case is significant and accordingly, would requi re significant humanitarian and compassionate considerations in order to override the refusal and to warrant the granting of special relief. [13] The tribunal acknowledges that the appellant may have had little or no choice but to return to Mauritius when his elder sister left Canada in 1 993. However, the tribunal must assess whether the appellant intended to return to Canada and if so, if he attempted to do so at the first opportunity. The appellant testified also that he was unaware of the requirements of his residency obligation. The tribunal agrees with the submissions of XXXXXXXXXXXXXXX counsel that ignorance of the law is not an excuse and would add that the appellant could have taken measures to inform himself, had he chosen to do so. [14] The main reason invoked by the appellant to ex plain his prolonged absence from Canada is that he was the primary caregiver for his mother, who became ill after his father’s death, in 1996. The tribunal states that it is unclear when his mother first became ill. The appellant testified at first that this was in 1998; then he revised his testimony and claimed that his mother became ill immediately after his father’s death; and finally, when asked when his mother was diagnosed with her illness, he testified that this was in 2003. As far as the eviden ce that has been submitted, the tribunal notes that the first medical report which attests to his moth er’s illness dates from 1998. In the opinion of the tribunal, it is unlikely that there would be no medi cal report and that the mother would not have consulted any doctor until 1998, if in fact she was ill as of 1996, and as it appears from the file, there is no evidence that she did consult a doctor prio r to 1998. When he was questioned, the appellant stated that he was unable to recall when his mother  began to require constant care. The tribunal has a hard time retaining this explanation that the appellant would be unaware when he was required to provide constant care to his mother. [15] Of greater concern is that if we retain the a ppellant’s testimony to the effect that his mother required constant, around-the-clock care, this is c ontradictory with what appears at page 9 of the Appeal Record, where the appellant himself indicat ed that he was driving a taxi up until 1996, and that from 1996 until 2004, he owned a store and he  was self-employed. There was no satisfactory 
2008 CanLII 70772 (CA IRB)
IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992 4    
 explanation provided as to how he could provid e around-the-clock care and still manage to work simultaneously. [16] The appellant testified that he lived with his mother full time while in Mauritius. This appears to be contradicted by the affidavit which we find at exhibit A-3, wher e it is stated in paragraph 5: “Since 1996, our mother has been living alone in  the family house at Palma Road”. There was no satisfactory explanation provided for this contradiction. [17] Furthermore, the appellant, on his application form,
2 lists his current address as being “Petite Retraite, Laventure”, which he claims is his siste r’s address, and which the tribunal notes is not the same address as where his mother lives. The appellant explained that this is due to the fact that his sister submitted his application on his behalf. The tribunal does not find this explanation convincing, especially in light of the other evidence that app ears from the file. If we look at exhibit A-9, which were the telephone records submitted by the appellant, the number which appears to have been dialed, and I look at the second page of telephone record s submitted, there are three different amounts, and it appears to be the number dialed, because it is listed three times, the number 4254079. The appellant claimed that this is the number at his mother’s addr ess where he was residing. It is very difficult to understand how he could have been dialing his own number. Again, no proper explanation was given to resolve this unclear situation. [18] On the whole, the tribunal is not satisfied that the appellant was in fact residing with and caring for his mother on a full-time basis from 1996 until 2005. [19] Furthermore, the tribunal has also considered that the appellant has four sisters living in Mauritius, one of whom was single up until approximately 1998, and, according to the appellant’s testimony, living on her own. There was no reasonabl e explanation why none of his four siblings could have been able to care for his mother so as to allow the appellant to return to Canada sooner if he wished to do so. [20] The tribunal also notes that the appellant ’s claim for humanitarian and compassionate considerations is today based on his mother’s illness.  This claim arose only after the submission of the 
2008 CanLII 70772 (CA IRB)
IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992 5    
 appeal, at the end of 2004, but the explanations only  came to light in 2005, in exhibit A-5, which is dated May 20, 2005. It is not entirely clear or even  credible why the appellant would never have made mention of this before. If we look at page 12 of the Appeal Record, where the appellant, on a separate sheet of paper, takes the trouble to explain huma nitarian and compassionate grounds that he might have in support of his appeal, there is no mention whatsoever made of his mother’s illness, he does not even allude to the fact that his moth er was ill or that he was caring for her. [21] The appellant has spent the majority of his lif e in Mauritius and his entire family, with the exception of his wife, lives there. He has very significant attachments to Mauritius. In the view of the tribunal, the appellant will not suffer any disproporti onate hardship if his appeal were to be dismissed, as he has no family ties to Canada, no assets, nor any attachment to this country, and his life will not be disrupted if he is not allowed to return to Canada, where he has not lived since 1993. [22] The appellant made no attempts to return to  Canada until the end of 2004, and the tribunal does not feel that the appellant has demonstrated that he exercised reasonable efforts to return at the first possible opportunity. [23] The appellant has no children, and there are no ch ildren who will be affected by this decision. [24] In looking at the circumstances in their entiret y, the tribunal concludes that the appellant has not made out a sufficient case for the granting of discretionary relief. The appellant has not met the onus incumbent upon him to show that sufficient humanitarian and compassionate considerations exist to warrant the granting of special relief in light of all the circumstances of the case. [25] Consequently, the appeal is dismissed. 
                                                           
2  Appeal Record, page 8. 
2008 CanLII 70772 (CA IRB)
IAD File No / No. Dossier de la SAI : MA7-02779 Client ID / No ID Client : 2699-8992 6    
  
NOTICE OF DECISION 
 The appeal is dismissed.    XXXXXXXXX  M
XXXXXXXXXXX 
 A pril 22 , 2008  Date 
/jcbo  
NOTE - 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 from counsel as soon as possible, since there are time limits for this application. 
2008 CanLII 70772 (CA IRB)

