A refusal of your Permanent Resident Card (PR Card) or Permanent Resident Travel Document (PRTD) application due to a residency obligation breach can be overwhelming. However, it is not the end of the road. You have the right to appeal the decision to the Immigration Appeal Division (IAD), a body within the Immigration and Refugee Board (IRB) that reviews residency obligation decisions.
Understanding the Residency Obligation
Section 28 of the Immigration and Refugee Protection Act (IRPA) requires permanent residents to be physically present in Canada for at least 730 days within any five-year period. Exceptions to this rule are narrow and often technical.
IRCC typically assesses compliance with the residency obligation during events such as:
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A PR Card renewal or replacement application
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A PRTD application
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Re-entry to Canada
If IRCC determines you do not meet the residency obligation, it may refuse your application and revoke your permanent resident status. For those re-entering Canada, entry is allowed, but a removal order is issued. Once enforced, the removal order results in the loss of permanent resident status.
The IAD Appeal Process
If IRCC determines that you have not met your residency obligation, you can appeal to the IAD. The IAD conducts a de novo hearing, reconsidering the case from the beginning. This includes the opportunity to present new evidence, testimony, and humanitarian and compassionate (H&C) submissions.
The IAD evaluates:
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Whether the original decision was legally correct.
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If any procedural errors occurred.
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Any compelling personal circumstances that warrant an H&C exemption.
Key Steps in the IAD Appeal Process
File a Notice of Appeal with the IAD within 60 days of receiving the refusal decision.
After filing, the Minister’s counsel provides an Appeal Record within 60 days. This record includes key documents, such as the refusal letter, GCMS notes, and materials from your original application.
We review the Appeal Record, collect additional evidence, and craft a robust case strategy. Our submission addresses procedural errors, strengthens H&C exemption requests, and highlights the merits of your case. Disclosure is due within 60 days.
Some cases may involve an Early Resolution Officer or an Alternative Dispute Resolution meeting to resolve the appeal without a formal hearing.
If informal resolution is unsuccessful, the IAD schedules the hearing and issues a Notice to Appear.
The hearing includes the Appellant, their lawyer, any witnesses, the Minister’s counsel, and the IAD Board Member, who acts as the decision-maker. The hearing typically unfolds as follows:
- Appellant’s Testimony: The Appellant testifies first, answering open-ended questions from their lawyer, followed by cross-examination by the Minister’s counsel. The Appellant’s lawyer may then ask further questions to clarify or address any points raised by the Minister.
- Witness Testimony (if applicable): Witnesses testify under the same process.
- Closing Arguments: Both sides summarize their evidence and legal arguments.
The IAD Board Member delivers a decision, either immediately or within 60 days:
- Appeal Allowed: The refusal is overturned, and you retain your permanent resident status. If outside Canada, IRCC will issue a PRTD for re-entry.
- Appeal Dismissed: The refusal is upheld, resulting in the loss of permanent resident status. If inside Canada, a removal order comes into force. The Appellant can seek Leave and Judicial Review at the Federal Court, which will assess the reasonableness and fairness of the IAD’s decision.
