Permanent Residency and the Humanitarian/Compassionate Exception

Once a foreign national has achieved Permanent Residency (PR) status in Canada for at least five years, to retain this status is not particularly onerous. A person simply has to be within Canada 730 days within the 5-year period after attaining PR status; these days do not have to be consecutive so can be cumulative. If on the other hand a person has been a Permanent Resident for less than five years, they must show they will be able to meet the minimum 730-day physical presence requirement within five years of becoming a Permanent Resident.

Nonetheless, there is a limited exception to the physical presence requirement. Even if a person is in substantial or total breach of the residency requirement, so long as sufficient humanitarian and compassionate grounds can be established as the reason for the breach, an exception may be made. Two decisions of the Immigration and Refugee Board (IRB) in late 2021 provide examples.

Cruz v Canada (Citizenship and Immigration), 2021 CanLII 134307 (CA IRB), < saw a Filipino woman and her two sons argue, without much success as it turned out, that a strict application of the residency requirement was inappropriate based on humanitarian and compassionate grounds. Irine, Julio, and Diego Cruz became Permanent Residents of Canada in late 2008, along with Irine’s husband who was not part of this appeal as he remained in Canada ever since so his status was never an issue. However, Irine and her sons returned to the Philippines on January 1, 2010,never to return to Canada.
Irine and her sons had returned to the Philippines to care for Irine’s mother-in-law, who had been diagnosed with cancer. This was a mutual decision of Irine and her husband, who had decided that she would be the best care-giver while the husband stayed in Canada where he was working so could financially support the family back home in the Philippines. So, Irine and the boys moved in with her mother-in-law and cared for her until her death in 2016. Irine remained in the Philippines to settle her mother-in-law’s estate, having been granted Power of Attorney to do so by her husband. However, after matters were settled, Irine and her sons continued to reside in the Philippines for the next four years, with no connection at all to Canada.

The IRB tribunal, in arriving at its decision, acknowledged that family reunification was one of the fundamental goals of the Immigration and Refugee Protection Act. The tribunal noted that Irine and her two sons had completely failed to meet the residency requirement during their many years outside Canada, but that Irine’s husband could probably succeed with an application to sponsor Irine and Julio to come to Canada. The panel decided that the humanitarian and compassionate discretionary exception could not apply. Diego’s case though was different as he was over the age of 22 so no longer considered a dependent of Irine’s husband. The IRB tribunal found that if Irine and Julio were sponsored to come to Canada, Diego would consequently be left behind in the Philippines, resulting in considerable emotional hardship for him. Thus, the discretionary humanitarian and compassionate relief was granted to him.

The decision to grant an exemption to the physical presence requirement based on humanitarian and compassionate grounds, is fact specific. The case of Gilani v Canada (Citizenship and Immigration), 2021 CanLII 132887 (CA IRB), < illustrates this. Behrad Gilani is an Iranian citizen who became a Permanent Resident of Canada in 2002. There were initial signals that he wished to make a life in Canada. He completed a software engineering programme at the Southern Institute of Applied Technology, and he developed a network of friends and colleagues here. He then married an Iranian woman who unfortunately did not wish to move to Canada. In May of 2003, Gilani left for Iran in hopes of convincing his spouse to emigrate, but to no avail. He has lived in his native country ever since, not returning to Canada even for a visit.

Gilani chose to make his life in Iran rather than Canada. He had hoped his wife would change her mind and emigrate, but she did not. He explained his reluctance to divorce because it would mean his being obliged to honour a dowry requirement in Iran of 500 gold coins or imprisonment for failure to pay. Gilani became financially responsible for his in-laws in 2005 after his father-in-law became bankrupt and was subsequently incarcerated in debtor’s prison. The couple’s daughter was born in 2007 and Gilani’s wife was diagnosed with breast cancer in 2014. The IRB tribunal viewed such developments as life occurrences and Gilani’s remaining in Iran to deal with them as personal choices. However, one factor in his life was deemed to fall outside of the realm of personal choice: over the years, Gilani struggled with, then came to accept, that he was a gay man.

Gilani’s sexual orientation was identified by the IRB tribunal as the single fact that influenced his personal choices and created hardship for him in Iran, with its well-documented record of human rights abuses of gay people. The tribunal noted that Gilani had suffered anxiety and depression and faced an uncertain future in Iran because of his sexual orientation. In arriving at the decision to grant discretionary exemption to the residency requirement on humanitarian and compassionate grounds, the tribunal also noted that Gilani’s sister and brother-in-law in Canada were willing to support him economically until he got himself established. The tribunal also acknowledged that the then 15-year-old daughter had expressed an interest to emigrate to Canada once she turned 18, either through Gilani’s sponsorship or as an independent adult upon her own application.

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By Brian Seaman, LL. B.

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