Canadian Residency Obligation based on Ambat v. Canada

Mathew Jose Ambat, a Philippine citizen, moved to Canada in 2003. He settled in Mississauga with his family but worked in the UAE. In 2008, he applied to renew his expiring Permanent Residence Card. However, a visa officer later denied his travel document, citing insufficient residency days in Canada. Ambat had only 312 days against the required 730. He appealed the decision, but the Immigration Appeal Division (IAD) sided with the officer. Therefore, he sought a Judicial Review of this decision. Yet, the Federal Court sided with the IAD. They found his employment did not tie him to a Canadian business. Moreover, they saw insufficient humanitarian or compassionate grounds to overlook his residency shortfall.

Understanding Residency Obligation

According to section 28 of the Immigration Act, every permanent resident in Canada must meet a residency obligation every five years. Here’s how it works:

Firstly, a permanent resident must be physically present in Canada for at least 730 days within five years to fulfill this obligation. Additionally, they can meet this requirement in several other ways:

• By being outside Canada but accompanying a Canadian citizen spouse, common-law partner, or parent. The latter is only for dependent children.
• By working full-time outside Canada for a Canadian business, the federal public administration, or a provincial public service.
• If accompanying a permanent resident spouse, common-law partner, or parent working full-time outside Canada under the same conditions.
• Through other means specified in regulations (practitioners see R61 and R62).

Moreover, at the time of examination:

• Permanent residents who have not yet reached five years must demonstrate they can meet this obligation in the next five years. Examination means every time they enter Canada or apply to the immigration authorities.
• Those who have been permanent residents for five years or more must show they have met the obligation in the past five years.

Finally, an officer can override a breach of the residency obligation. This happens if humanitarian and compassionate considerations warrant it. These considerations must consider the best interests of any directly affected child.

Employment Outside Canada for Residency Obligation

Mathew Jose Ambat worked in the UAE, impacting his Canadian residency obligation. The court critically examined his employment’s nature and location. Ambat claimed he worked in Dubai for a Canadian business, Conares Canada Ltd. This claim aimed to satisfy his residency obligation outside Canada.

Paragraphs 3 and 4 of the decision outline Ambat’s work background. They detail his employment in Dubai since 1999 and his move to Canada in 2003. Despite relocating, he continued working in the UAE. This ongoing overseas employment formed the case’s crux.

The court scrutinized the link between Ambat’s UAE employment and Conares Canada Ltd. Paragraphs 4 and 11 delve into this association based on the IAD assessment. They assess whether his role contributed to a Canadian operation. The court found this connection insufficient. It deemed Conares Canada Ltd. not a “Canadian business” for residency purposes.

[11] The IAD concluded that the Applicant did not establish that he complied with the residency obligation set out in section 28 of the IRPA. The IAD was not satisfied that Conares Canada was a Canadian business for the purposes of IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). Since Conares Canada had no employees in Canada and no financial information was provided for the company after 2006 the IAD was unable to find that it had ongoing operations in Canada. Moreover, the IAD found that the timing of Conares Canada’s creation and incorporation, which coincided with the Applicant’s landing in Canada, strongly indicated that it was a business of convenience, serving primarily to allow the Applicant to meet his residency obligation while living outside of Canada.

Source: Ambat v. Canada (Citizenship and Immigration), 2011 FC 292 (CanLII), https://canlii.ca/t/fkmpl

Moreover, paragraphs 7 and 20 highlight the critical examination of Ambat’s employment details. The court questioned the company’s operations in Canada and Ambat’s role. It concluded his employment did not support his residency claim. This decision rested on the lack of substantial Canadian business activities.

[20] In the present matter the IAD found, based on the evidence, that Conares Canada was a business described in subsection 61(2) of the Regulations – a business serving primarily to allow the Applicant to comply with his residency obligation while residing in the UAE…

In conclusion, Ambat’s work in the UAE did not count towards his Canadian residency obligation.

Humanitarian and Compassionate (H&C) Considerations in Residency Obligation

The Ambat v. Canada decision delves into the Humanitarian and Compassionate (H&C) factors critical in immigration law. This section highlights the case’s H&C aspects.

H&C Factors to Consider

The court identifies H&C factors under IRPA, which offer a pathway for overcoming breaches of the residency obligation. These factors include the following:

(i) the extent of the non-compliance with the residency obligation;

(ii) the reasons for the departure and stay abroad;

(iii) the degree of establishment in Canada, initially and at the time of hearing;

(iv) family ties to Canada;

(v) whether attempts to return to Canada were made at the first opportunity;

(vi) hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada;

(vii) hardship to the appellant if removed from or refused admissions to Canada; and.

(viii) whether there are other unique or special circumstances that merit special relief.

See paragraph 27 of Ambat v. Canada

Specifically, paragraphs 12 and 27-32 outline the H&C considerations the court examined in Ambat’s case. It emphasizes the importance of evaluating these elements comprehensively.

Relationship Between the Intensity of the Factors and the Duration of the Absence

The court’s analysis suggests a nuanced approach to H&C considerations. This implies that the more compelling the H&C factors are, the more likely they are to offset longer periods of absence from Canada. Consequently, if someone misses 60 days, they must present fewer H&C factors than someone short 300 days. However, in Ambat’s situation, paragraphs 28-32 indicate that the court found the H&C factors not sufficiently compelling. This was particularly in light of his extended absence and the nature of his ties to Canada.

This section of the decision underscores the complexity and discretion involved in assessing H&C factors. It highlights that while H&C considerations offer a potential relief route, their successful invocation requires demonstrating intense and compelling factors, especially when weighed against significant non-compliance with residency obligations.

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