Articles

The new Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA) received Royal Assent on November 1, 2001 . Immigration Regulations were prepublished on December 15, 2001 and March 9, 2002 . The New IRPA and Regulations will come into force on June 28, 2002 .

One of the most fundamental changes under the IRPA will be the implementation of a new document to establish permanent residence status in Canada . The question about how permanent residence status is maintained or lost is significant for many permanent residents who spend considerable periods of time outside of Canada . It will therefore be very important for them to be familiar with this aspect of the new legislation.

Under the IRPA, no longer will a permanent resident be able to apply for a returning resident permit to protect his or her permanent resident status. Rather, a permanent resident will have to obtain a permanent resident card called the “Maple Leaf Card”. Without this document, he or she will have trouble boarding an aircraft to return home to Canada .

To obtain a permanent resident card, a new immigrant will have to provide the immigration officer at the port of entry with a confirmed residential address in Canada on their first landing here. Permanent residents who are already residing in Canada will have 180 days to apply for the permanent resident card. There will be no fee charged for the first card. New prospective immigrants will be an extra $50 with their application fees to cover the cost of the issuance of the permanent resident card

A problem that may occur is that it may take awhile to issue a permanent resident card. Applicants who need to travel within a short time of landing will not be able to do so until they obtain their permanent resident card. Remember, if the permanent resident does not wait for the card, they will have no proof of their landed immigrant status and not be able to return to Canada .

If the permanent resident is outside of Canada after December 31, 2003 , he or she will have to apply for a travel document to be able to return to Canada . Without the travel document, it will not be possible to board an aircraft traveling to Canada .

Upon receipt of the permanent resident card, the permanent resident will be subject to the requirements of the IRPA.

Under the IRPA, the permanent resident card will expire after 5 years or less, requiring an application for a new card pursuant to section 54 of the Regulations. This provision sets out the requirements that have to be met when an application is submitted for a new one.

It will not be certain that renewal of the card will be granted without significant evidence to establish with the residency requirements under section 28 of the IRPA. The principal rule for the preservation of permanent residence status will be the necessity of being physically present in Canada for a cumulative period of 2 years out of five immediately preceding the application.

Exemptions to the normal rule are provided in section 28. One of the key exemptions is where a permanent resident is outside Canada and is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province. In such a circumstance the time spent abroad will be deemed to be time spent in Canada . It is hoped that the new regulations will permit full-time employment abroad in situations where there is an intra-company transfer, an assignment abroad to other than a direct affiliate by Canadian organizations or businesses such as foreign colleges, universities, banks, hospitals, or other businesses. If there is non-compliance, enforcement proceedings will commence and thus the issuance of a new card will be limited.

Another exemption will be for a permanent resident spouse or common-law partner who is accompanying the permanent resident employed on a full-time basis by the Canadian company.

An applicant for a new card will be subject to an examination by an immigration officer. The permanent resident will be required to answer questions truthfully and submit documents to support their claim to permanent residence status. Consequences for misrepresentation will be severe including suspension of application for renewal and possible enforcement proceedings that may lead to the permanent resident's possible removal from Canada . There could also be criminal sanctions.

The problem of renewal of a permanent resident card will be particularly problematic for permanent residents who are outside of Canada . These persons may have significant difficulties to return to Canada to address the problem with their status as permanent residents. If the Permanent Resident card has expired, it will be necessary for the permanent resident to apply for a travel document from a Canadian mission abroad so that they can return to Canada .

Where there is an issue of renewal, the permanent resident will not be able to obtain a travel document unless he or she has been in Canada at least once within the 365 days before the examination that led to the finding of non-compliance and an appeal has been filed under subsection 63(4) of the IRPA or the period to file the appeal has not expired .

The Canadian Government plans to put into place a very comprehensive regime to monitor permanent residence compliance with the residency requirement and for allowing for enforcement proceedings where required.

For a permanent resident outside of Canada or in Canada , a determination by an immigration officer that there has been non-compliance with the residency requirements triggers proceedings for loss of status and appeal proceedings.

In the case of a permanent resident in Canada , a determination of non-residency by an immigration officer results in the issuance of a removal order by the Minister's delegate under section 44 of the IRPA. To challenge the decision to issue a removal order against him or her, the permanent resident must file an appeal to the Immigration Appeal Division of the Immigration and Refugee Board under subsection 63(3) of the IRPA.

The permanent resident abroad that faces a determination of non-compliance with the residency requirement loses his or her status in Canada under subsection 46(1) of the IRPA unless the permanent resident files an appeal with the Immigration Appeal Division under subsection 63(4) of the IRPA and wins the appeal. If they lose their status, they will not be able to return to Canada as permanent residents.

There is no absolute right for the permanent resident to return to Canada to participate in his or her appeal. Unless the permanent resident qualifies for a travel document under subsection 31(3) of the IRPA, he or she will have to apply under subsection 175(2) of the IRPA to the Immigration Appeal Division to be allowed to return to Canada to participate in the appeal hearing.

If the Immigration Appeal Division considers that his or her physical presence is necessary it can order that the permanent resident physically appear and the visa officer is obligated to issue that person a travel document . The Immigration Appeal Division can also consider whether the hearing can be conducted by means of live telecommunications .

In loss of permanent resident status appeals under the current Act, the person would have to be found by an adjudicator to have ceased to be a permanent resident because he or she abandoned Canada as that person's place of permanent residence . An appeal to the Immigration Appeal Division against the removal order issued by the adjudicator could only be based in law. There is no jurisdiction for the Immigration Appeal Division to consider equitable grounds under paragraph 70(1)(b) of the Immigration Act.

In addition to any legal or natural justice ground 6 , under the IRPA, the Immigration Appeal Division is permitted to consider humanitarian and compassionate considerations in such an appeal . This right to have the appeal considered on equitable grounds will be of considerable benefits to those persons who have been outside of Canada for a significant period of time but who have a good claim for business, family or other personal reasons that they should be allowed to retain permanent resident status in Canada .

It is noted that if the matter proceeds to an appeal, an oral hearing is required in an appeal under subsection 63(4) of the IRPA . In conclusion, it is noted that persons from visa exempt countries will have an easier time to return to Canada for their appeal hearing. They will be able to board an aircraft to come to Canada . IF they can prove that there is an appeal hearing pending, the immigration officer can permit them to enter Canada for that purpose. Therefore, some nationalities will have better appeal rights than others.

Andrew Z. Wlodyka obtained his law degree from the University of British Columbia . He was called to the Bar of British Columbia in 1978, Mr. Wlodyka is associate counsel with the Vancouver Law firm of Lowe & Company in the practice of Immigration Law. He was a member of the Immigration Appeal Board from 1986 to 1988. Mr. Wlodyka was Assistant Deputy Chair of the Immigration Appeal Division, Immigration and Refugee Board from 1989 to 1993. He is the Past Chair of the Immigration Section, Canadian Bar Association, B.C. Branch. He presently serves as Member at Large representing British Columbia in the National Immigration Section of the Canadian Bar Association. He has written articles and papers in the area of Immigration Law and his most recent publication "Appeals before the Immigration Appeal Division" was published by Carswell in 1996.

See Sections 28, 31 and 32 of the IRPA.

See subsection 59(1) of the proposed regulations published on December 15, 2001 to obtain the definition of “Canadian business”.

See subsection 31(3) of the IRPA.

Subsection 175(2) of the IRP Act.

Section 164 of the IRP Act.

Subsection 24(1) of the Immigration Act.

6 Paragraph 67(1)(a) or (b)

Subsection 67(1) of the IRP Act.

Paragraph 175(1)(a) of the IRP Act.