 
 
 
  
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  : VB5 -03070  
 
Client ID no. / No ID client : 574 7-3946  
 
Reasons and Decision  Motifs et décision  
 
RESIDENCY OBLIGATION  
   
Appellant(s)  XXXXXXXXXXXXX HKO  Appelant(e)(s)  
 (Also known as XXXXXXXXXXXXXXXXXX )  
and   et 
   
Respondent  The Minister of Citizenship and Immigration  Intimé (e) 
   
   
   
Date(s) of Hearing  October 4, 2016  Date(s) de l’audience  
   
   
   
Place of Hearing  Vancouver, BC  XXXXXXXXXXXXXXXXXX  
   
   
   
Date of Decision  October 4, 2016 (rendered orally)  Date de la décision  
 October 14, 2016  (written decision)   
   
   
   
Panel  XXXXXXXXXXXXXXX  Tribunal  
   
   
   
Counsel for the  XXXXXXXXXXXXXX  Conseil(s) XXXXXXXXXXXXXXX) /  
Appellant(s)   des appelant(e)(s)  
   
   
   
Designated 
Representative (s) N/A  Représentant(e)(s) 
désigné(e)(s ) 
   
   
   
Counsel for the Minister  XXXXXXXXXX  Conseil du ministre  
2016 CanLII 99903 (CA IRB)
IAD Fil e No . / N° de dossier de la SAI : VB5 -03070  
 
 
 
 REASONS FOR DECISION  
 
[1] These are the oral reasons for the decision in the appeal of XXXXXXXXXXXXXXX ( also 
known as XXXXXXXXXXXXXXXXXX)  (the “appellant”),  from a determination made by a visa officer1 
outside Canada concerning his failure t o comply with the residency obligation set out in the 
Immigration and Refugee Protection Act  (the “ Act ”).2  Section 28 of the Act  requires a permanent 
resident to be physically present in Canada for at least 730 days in every five -year pe riod, or 
otherwise  comply with section 28 of the Act . 
 
[2] The visa officer held that the appellant has not met his residency obligation.  He also held 
that there were insufficient humanitarian and compassionate considerations taking into account 
the best interests of a child d irectly affected by the decision to justify the retention of permanent 
resident status to overcome any breach of the residency obligation prior to the determination.  
 
[3] The appellant is present at today's hearing and was represented by counsel.  The 
responde nt in this matter is the Minister of Citizenship and Immigration and the Minister is 
represented by counsel as well.  
 
[4] The appellant does not challenge the legal validity of the visa officer's decision, instead 
arguing that the appeal should be allowed on t he basis that, taking into account the best interests 
of any child directly affected by the decision, sufficient humanitarian and compassionate 
considerations warrant special relief in light of all the circumstances of the case.  
                                                           
1 Record, pp. 2 -3. 
2 Immigration and Refugee Protection Act , S.C. 2001, c. 27.  
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 [5] I have come to the conclus ion that the determination is valid in law.  However, having 
considered all of the evidence  in this case,  I find that taking into account the best interests of any 
child directly affected by the decision there are sufficient humanitarian and compassionate 
grounds in light of all the circumstances of the case for me to find in the appellant's favour.  
Therefore, the appeal is allowed.  
 
[6] By way of backg round, the appellant is 44 years of age and is a citizen of the Republic of 
Belarus.  He obtained his permane nt resident status in 2008, having been landed on the basis of 
his status as a skilled worker.  The appellant is married and has two children, all of whom are 
Canadian citizens.  He was educated in Belarus, and holds professional engineering credentials.  
 
[7] The appellant does not challenge the legal validity of the visa officer's decision.  He 
admits that he has not been physically in Canada for the requisite per iod or otherwise complied 
with s ection 28.  O n the basis of the evidence befo re me, and in light o f this conc ession , I find 
that the appellant has not met the resid ency requirement imposed under s ection 28 of the Act , and 
that the determination made by the visa officer is valid in law.  
 
[8] However, I also have the discretion to allow the appellant's appea l on humanitarian and 
compassionate grounds, taking into account the best interests of a child, or in this case children, 
directly affected by the decision looking at all the circumstances of the case.   
 
[9] In considering the discretionary grounds, the Immig ration Appeal Division have 
established a number of appropriate, though not exhaustive considerations.  
 
[10]  First, we wi ll examine the extent of the breach.  In the case at bar, the appellant has fallen 
short of the 730 days by anywhere from nine to 39 days.  I agree with Minister's counsel, that 
any breach is a significant breach, particularly given the flexibility built into the requirements.  
2016 CanLII 99903 (CA IRB)
IAD File No. / No de dossier de la SAI  : VB5 -03070  
 
 
 
 
 [11]  In my view, the requirement to be here two  out of every five years is not particularly 
onerous.  That having been sai d, I do acknowledge that the extent of the breach in this case is not 
at the most egregious end of the spectrum.  In fact, I do acknowledge that had the appellant been 
aware of the short number of days that he was not present in Canada, he may very well ha ve 
taken steps to  not find himself in breach of s ection 28.  Be that  as it may, he is in breach of 
section 28 of the Act . 
 
[12]  The appellant's initial and continuing degree of establishment in Canada is also a factor.  
As XXXXXXXXXXX counsel pointed out, while the appellant was admitted to Canada as a skilled 
worker, there is very little in evidence before me to suggest that he has availed himself of the 
opportunities of seeking employment in Canada.   It is apparent that he has, during much of the 
period since l anding in Canada, relied on income earned outside of Canada.   This is troubling as 
it suggests to me that the appellant has not made particularly significant efforts to become 
established professionally here in Canada.  It is hoped that his testimony today , that he is seeking 
to obtain professional credentials so as to be able to practice engineering here in Canada, are 
sincere and that they guide him in terms of his future employment.  
 
[13]  I do note, however, that the appellant has a property here in Canada an d, while it is 
registered in his wife's name, there is evidence that the property had been fully paid for.  
 
[14]  There is also evidence that the appellant has been involved in several different groups 
within his community, including what I believe is referred t o as Operation Red Nose to avoid 
people who are impaired from being found guilty of impaired driving, as well as involvement in 
his local park clean -up, and in the schools of his children.  
2016 CanLII 99903 (CA IRB)
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 [15]  One of the most significant issues for me are the reasons for the continued or lengthy stay 
abroad.  It is clear that the appellant's father's illness began in 2015.  This makes it difficult to 
assign that as being the reason for his lengthy absence from Canada prior thereto.  
 
[16]  I am cognisant, however, of the fact that ha d his father not taken ill when he did early in 
2015, that the appellant would most likely have met his residence obligation and not been here.  
 
[17]  I am also sensitive to his evidence that he was required as the only surviving child of his 
father to be availa ble to assist him in his medical rehabilitation.  I note too, that the appellant 
whose mother died when he was young, has a step -mother who has been in his life since he was 
a teenager and that there is evidence before me that his step -mother suffers from the effects of 
Parkinson's disease and, in fact, relies on the appellant's father to help care for her.  
 
[18]  Accordingly, I find that many of the reaso ns for the appellant's, in particular, recent 
absences from Canada are satisfactory with respect to a determi nation of compassionate and 
humanitarian considerations.  
 
[19]  The appellant has extensive ties to Canada in terms of his immediate nuclear family, his 
wife and children live here.  His wife has recently comm enced employment here in Canada a nd 
the children are ensconced  in schools.  It is apparent from the evidence that the appellant takes a 
keen interest in his children's education.  
 
[20]  Were reasonable attempts made to return to Canada at the first opportunity?  It is possible 
that the appellant sought to return a t the ea rliest opportunity.  However, I a m not satisfied that he 
was not primarily motivated during that time by availing himself with the economic 
opportunities available to him in Belarus with what, as the Minister has correctly pointed out, 
was a succes sful online business.  
 
2016 CanLII 99903 (CA IRB)
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 [21]  While it is understandable that the appellant would seek to avail himself of the financial 
benefits of a business in Belarus, one must also bear in mind that when he came to Canada he 
committed to doing so with the idea of establishi ng himself permanently here.  Under those 
circumstances one would have normally expec ted him to have severed business ties to Belarus 
long before he did and, certainly, long before his father took ill.  
 
[22]  In my view there are no particularly unique or specia l circumstances present in this case.  
However, the best interests of the children in my view are paramount.  The Supreme Court of 
Canada in Baker3 have determined that the best interests of a child, or children, must be given 
particular importance in dete rmining whether or not special  relief is to be granted.  I n this case I 
find it very difficult to conclude other than that it would be in the best interests of the children 
for the appellant to remain in Canada.  
 
[23]  In the past, as the Minister has pointed ou t, choices have been taken by the appellant to 
not be present in Canada and o ne must be careful not to selectively determine the best interests 
of the children.  The appellant in the past must have felt comfortable leaving Canada, whether it 
was to continu e to foster his business in Belarus or to care for his father and/or step -mother.   
 
[24]  While I realize that people may choose  to return to their country of origin, absent any 
particularly prevailing reason for doing so, in this case I do believe that the cho ice was made 
particularly during 2015, in the face of the family's medical crises, if you will, in Belarus.  
 
[25]  Clearly, the best interests of the children are now, and in the future, for the family  to be 
united here in Canada a nd one hopes that the undertaki ngs taken by the appellant, that he shall be 
nailing his colours to the mast here in Canada and returning to Belarus only so as to insure 
regular contact with his father and step -mother occur as the appellant has committed to.  
 
                                                           
3 XXXXX v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817.  
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 [26]  The oral evidence to day was given under oath.  T he appellant presented as a credible and 
believable witness who answered questions on balance in a direct and straightforward manner.  
 
[27]  I am troubled by the manner in which the income tax information was provided.  It would 
appear to me,  on a balance of probabilities, that the appellant has only been reporting sufficient 
income here in Canada so as to avoid paying any income tax in Canada.  
 
[28]  It is clear, given his RESP assets, his real property assets, and other financial assets as 
well a s being able to pay for ongoing family living expenses, that the appellant has had som e 
other source of income.  The appellant  testified  to having taken a tax preparatio n course, is aware 
Canada expects its permanent residents and citizens to report all of  their global income.  That 
would mean that any taxes that the appellant paid overseas would be subject to reporting on 
Canadian income tax returns.  
 
[29]  In conclusion it is, therefore, my decision that the visa officer's determination of the 
contravention of the residency obligation is legally valid.   
 
[30]  However, taking into account the best interest of the children, in this case, who would be 
directly affected by the decision, I find that there are sufficient humanitarian and compassionate 
considerations to wa rrant special relief in light of all the circumstances of the case.  
 
[31]  This appeal is allowed.  
 
[Edited for spelling, grammar and syntax.]   
 
2016 CanLII 99903 (CA IRB)
IAD File No. / No de dossier de la SAI  : VB5 -03070  
 
 
 
 
 NOTICE OF DECISION  
 
 The appeal is allowed.  The decision of the officer made outside of Canada on the 
appellant’s r esidency obligation is set aside.  The Immigration Appeal Division finds that the 
appellant has not lost his  permanent resident status.  
 
 
(signed)  “XXXXXXXXXXXXXXX”  
 XXXXXXXXXXXXXXX  
 
October 14, 2016  
 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 from counsel as soon as possible, sin ce there are time limits 
for this appli cation.  
2016 CanLII 99903 (CA IRB)

