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CHAPTER 33. PERMANENT RESIDENCE3.1 HOW THE ISSUE ARISES3.1.1 Right of AppealPermanent residents and persons "lawfully in possession of a valid returning resident permit" may appeal to the Appeal Division against a (conditional) removal order.1 Thus the issue of whether the appellant is a permanent resident is jurisdictional; that is, the Appeal Division may only hear the appeal if the appellant is a permanent resident.
This issue may arise in appeals against orders made under various provisions of the Immigration Act (the "Act"). 3.1.2 Section 19 of the Immigration ActA removal order may be made against a person who seeks to return to Canada as a permanent resident, where the adjudicator does not accept that the person is a permanent resident. These orders are usually made on the basis that the person is an immigrant without a visa, that is, on the basis that the person is seeking to establish permanent residence in Canada and has failed to comply with the requirement to obtain a visa before appearing at a port of entry.3 In such cases, where the person files an appeal with the Appeal Division, the Appeal Division may decide whether the person is a permanent resident in determining whether it has jurisdiction to hear the appeal. 4 3.1.3 Subsection 27(1) of the Immigration ActSubsection 27(1) of the Act provides the grounds on which a permanent resident may be removed from Canada. Different grounds of removal apply to persons who are not permanent residents. Where a person is reported under subsection 27(1) of the Act, the Minister must establish that the person concerned is a permanent resident in order for a removal order to be made.5 If the adjudicator does not issue a removal order based on a finding that the person concerned is not a permanent resident, the Minister may appeal that decision to the Appeal Division.6 In some cases where a removal order has been made against a person reported under subsection 27(1) as a permanent resident, the Minister has still argued that the appellant is not a permanent resident, and therefore the Appeal Division has no jurisdiction to hear the appeal.7 3.1.4 Subsection 27(2) of the Immigration ActSubsection 27(2) of the Act provides for the removal from Canada of persons other than permanent residents. Where the person concerned is reported under subsection 27(2) of the Act, as a non-permanent resident, the person may successfully argue at the inquiry that he or she is a permanent resident. In that case, the adjudicator will not make a removal order, and the Minister may choose to appeal that decision to the Appeal Division.8 If the person concerned is found by the adjudicator not to be a permanent resident and to be a person described in subsection 27(2) of the Act, a removal order will be made. Where the person concerned appeals to the Appeal Division against the removal order, the issue of permanent resident status may be raised again. The Appeal Division may determine whether the appellant is a permanent resident in deciding whether it has jurisdiction to hear the appeal. 9 In this case, if the appellant is found to be a permanent resident, the appeal will be allowed in law: a permanent resident cannot be found described in subsection 27(2) of the Immigration Act. 3.2 RELEVANT STATUTORY PROVISIONS3.2.1 Subsection 2(1) of the Immigration Act"Permanent resident" is defined as:
In order for a person to be a permanent resident, the person must meet all the requirements in paragraphs (a), (b), and (c) of the definition of a permanent resident. "Landing" is defined as:
"Canadian citizen" is defined as
3.2.2 Immigration ActSection 24 reads as follows:
Section 25 reads as follows:
3.2.3 Citizenship ActSection 10 reads as follows:
3.3 LANDINGIf a person has not been granted landing, that person is not a permanent resident. Normally, an immigrant visa is issued to an immigrant11 by a visa officer outside Canada once it has been determined that the applicant and the applicant's dependants meet the requirements of the Act and Immigration Regulations, 1978 (the "Regulations").12 The purpose of the visa is to identify the holder as an immigrant who in the opinion of the visa officer meets the requirements of the Act and the Regulations.13 The immigrant then presents the visa to an immigration officer at a port of entry, who may then grant landing if the immigration officer is satisfied that the immigrant and the immigrant's dependants are admissible to Canada.14 The officer dates, signs and stamps the immigrant visa, which then becomes the record of landing. The officer will also stamp the immigrant's passport. 3.3.1 Inland Applications for LandingPersons who apply for landing in Canada must obtain a waiver of the requirement to obtain an immigrant visa15 outside Canada before they may be granted landing. Visas are by definition issued by visa officers outside of Canada, and thus can only be obtained outside of Canada.16 Waivers, to allow processing of the application from within Canada, may be granted based on the existence of humanitarian or compassionate considerations.17 Most such cases involve spouses. The issue of when a person becomes a permanent resident has arisen in "inland" cases. Since the decision of the Federal Court of Appeal in Sivacilar, 18 the Federal Court had held that a person has a right to remain in Canada provided that the processing of the person's application has otherwise been completed, once the waiver has been granted. 19 In such cases it was held that the Appeal Division had jurisdiction to hear the appeal. However, there was uncertainty as to whether events subsequent to the grant of landing would affect the right to remain in Canada, and whether the right to remain was in fact a right to be landed.20 The Trial Division has held that the granting of an order-in-council waiver could result in the right to be landed,21 and it was in some cases treated as though it granted landing.22 As it was decided in 1996, in the case of Dass 23, the Federal Court of Appeal has clarified that the only effect of the Order-in-Council is to waive the requirement to apply for a visa outside Canada. The application for permanent residence cannot be legally considered and approved until the waiver is granted. Hence, an applicant cannot acquire a right to be landed upon the granting of the waiver. Nor can the waiver be considered to grant permanent residence, as the Governor in Council has no authority to do so. The request for a waiver does not constitute a decision of an immigration officer. Further, an immigration officer may only grant landing if the immigration officer is satisfied that to do so would not be contrary to the Act and the Regulations. Any new circumstances affecting admissibility may be considered up to the time the decision is made and given to the applicant. It is not up to the Court to go through the immigration officer's file to determine when a decision was made. The decision is made when formal notice of that decision has been delivered to the parties. Normally, a decision to grant landing is communicated to the applicant by delivering to the applicant a written Record of Landing, signed by an immigration officer. Prior to the Court of Appeal's decision in Dass, the decisions of the Immigration and Refugee Board and the courts focussed on the wording of the request for a waiver from the Governor in Council from the requirements of subsection 9(1) of the Act. Now, the wording of that request is no longer relevant. Normally, unless a Record of Landing has been issued to the applicant, the applicant is not a permanent resident, and the application for permanent residence may be refused on the basis of a failure to comply with the requirements of the Act and the Regulations. 3.3.1.1 Ministerial Power of ExemptionSince the original decision in Dass, the wording of subsection 114(2) of the Act has been amended.24 The Governor in Council has given the Minister the power to exempt any person from the requirements of the Regulations or otherwise facilitate that person's admission to Canada on the basis of humanitarian or compassionate considerations.25 Since the same power that was originally given to the Governor in Council has now been given to the Minister, it would appear that the same reasoning, above, would apply to the granting of a waiver by the Minister. Certainly, the Federal Court of Appeal's reasoning concerning the communication of the decision to land through the delivery of a Record of Landing would also apply to a case involving a Minister's exemption. To date, there have been two decisions in which the Minister's exemptions from the requirement to comply with subsection 9(1) of the Act have been considered.26 Both of these decisions predate the Court of Appeal's decision in Dass and focus on the wording of the request for the waiver. In one case, the Federal Court¾Trial Division held that Sivacilar continued to apply to such applications,27 and that the Minister could not refuse to grant landing if circumstances changed after the waiver was granted. This decision should be interpreted in light of the Court of Appeal's decision in Dass, including the Court's interpretation of the Sivacilar decision. 3.3.2 Effect of Misrepresentations on Landing3.3.2.1 Landing Granted by Reason of a Misrepresentation28The Minister has argued that a person who has misrepresented a material fact which would have precluded his or her admission to Canada is not a "permanent resident" as that term is defined in section 2(1) of the Act and consequently, the person does not have a right of appeal to the Appeal Division. In particular, the argument focusses on the interpretation of the phrase "has been granted landing" in the definition of "permanent resident". The argument is made that such a person has not been granted landing as the person was not granted "lawful permission to establish permanent residence in Canada" by reason of the misrepresentation. In two recent judgments, Seneca 29 and Jaber, 30 the Federal Court of Appeal has rejected the argument of the Minister and has concluded that such persons, who had misrepresented a material fact, were permanent residents with a right of appeal to the Appeal Division. In Pownall, 31 the Federal Court¾Trial Division has also recently considered the situation where a person was granted landing by misrepresenting his identity. Mr. Justice Evans, citing Seneca and Jaber, confirmed that Mr. Pownall, although he had misrepresented a material fact as to his identity, was a permanent resident with a right of appeal to the Appeal Division. The Federal Court of Appeal found no error and dismissed the Minister's appeal.32 3.4 CANADIAN CITIZENSHIP3.4.1 Becoming a Citizen/Proof of CitizenshipA permanent resident may become a citizen33
The Minister may waive certain requirements on compassionate grounds.34 Where an application for citizenship is granted, a certificate of citizenship is issued to the applicant.35 3.4.2 Ceasing to be a Canadian Citizen36Prior to February 1, 1993, the definition of a permanent resident in subsection 2(1) of the Immigration Act made no reference to the loss of citizenship; thus the status of such persons was open to interpretation. In 1992, the Federal Court of Appeal upheld an adjudicator's decision that former permanent residents did not revert to permanent resident status when their citizenship was revoked.37 The Appeal Division followed this decision in the case of Luitjens 38 once it had determined that the definition of permanent resident in force prior to February 1, 1993, applied in that case. When the Immigration Act was amended on February 1, 1993, the definition of "permanent resident" was amended to include reference to persons who had ceased to be Canadian citizens.39 Under the current definition, a person who ceases to be a Canadian citizen under subsection 10(1) of the Citizenship Act is a permanent resident, unless subsection 10(2) of the Citizenship Act was relied on in revoking citizenship. Under subsection 10(1) of the Citizenship Act, a person ceases to be a Canadian citizen where his status was obtained or retained " by false representation or fraud or by knowingly concealing material circumstances ." Subsection 10(2) of that Act deems a person to have obtained his citizenship in the manner set out in subsection 10(1) where the person was lawfully admitted to Canada as a permanent resident " by false representation or fraud or by knowingly concealing material circumstances ." Thus, where citizenship is revoked under this provision, the person reverts to the status of permanent resident, unless the false representation, fraud or concealment of material circumstances related to the person's admission to Canada as a permanent resident. In the latter case, once citizenship is revoked, the person would be reportable under subsection 27(2) of the Immigration Act as being neither a Canadian citizen nor a permanent resident. Such a person would not have a right of appeal to the Appeal Division as a permanent resident.40 Where the person reverts to the status of permanent resident, he may be reported and called to inquiry under any of the provisions of subsection 27(1) of the Immigration Act. He will then have the same appeal rights as a permanent resident. 3>3.5 CEASING TO BE A PERMANENT RESIDENT (LOSS OF STATUS)Section 24 of the Immigration Act sets out the circumstances in which a person ceases to be a permanent resident. Basically, a person loses this status if the person leaves or remains outside Canada with the intention of abandoning Canada as his or her place of permanent residence, or where the person is ordered removed and the removal order is not quashed or stayed by the Appeal Division. 3.5.1 Intention to Abandon Canada3.5.1.1 Presumption: subsection 24(2) of the Immigration ActWhere a permanent resident is outside Canada for more than 183 days in any 12-month period, that person is deemed to have abandoned Canada as his or her place of permanent residence.41 However, this deeming provision acts as a presumption which may be overcome if the appellant establishes that he or she did not intend to abandon Canada. Subsection 24(2) of the Act places the onus on the appellant to satisfy the adjudicator or immigration officer that the appellant did not intend to abandon Canada as his or her place of permanent residence.42 The Appeal Division can review an adjudicator's decision under subsection 24(2).43 3.5.1.2 Intention: paragraph 24(1) of the Immigration ActThe case law in this area originates with decisions regarding the loss of Canadian domicile based on the Immigration Act as it read prior to April 10, 1978.44 In the domicile cases the test applied to determine whether domicile had been acquired or lost was essentially whether the person intended to abandon Canada as his or her place of permanent residence. 45 This test was incorporated into the statute when the Immigration Act, 1976 was proclaimed into force on April 10, 1978, and it has remained the test ever since. While an amendment to the Immigration Act which would change the test to "ceases to ordinarily reside" has been passed by Parliament and forms section 14 of S.C. 1992, c. 49, that provision has not yet been proclaimed into force. The length of time a person has been outside Canada is not alone determinative. The summaries that follow show that the Immigration Appeal Board (the former Board) and the Appeal Division have held that permanent resident status has not been lost where persons have been outside Canada for lengthy periods of time-in one case as long as 24 years. What is key is the ongoing intention of the person to return to Canada. Status may be lost immediately upon leaving Canada if the person intends to abandon Canada as his or her place of permanent residence. 46 On the other hand, a person may maintain permanent resident status even though the person has been away from Canada for many years, as long as the person never intended to abandon Canada. 47 The intention of the person is determined by examining objective factors which indicate ongoing ties to Canada and an intention to return. Such factors may include assets in Canada, family and other ties to Canada, visits to Canada, etc.. The purpose for which the person left Canada, and whether it was temporary, is an additional factor for consideration. The former Board and the Appeal Division have also considered whether the person was forced to leave and remain outside Canada and how soon to return to Canada. The appellant in Selby 48 was landed on September 25, 1966. He left Canada in 1971 to go to Germany with his wife to allow her to complete her education. He intended to return to Canada in two years; however, his wife did not want to leave when she finished her courses. He remained in Germany to be with his wife and children. In Germany he had a status similar to that of a landed immigrant. He did not work most of the time he was there. In 1977 he was divorced from his wife. He eventually returned to Canada in 1979 when his wife and children returned. The panel found that he had not abandoned Canada as his place of permanent residence. He had always intended to remain a resident of Canada. In Hass, 49 the appellant was landed in Canada in March 1967, but he returned to Germany in 1967 because his mother had been seriously injured in a fall. His mother improved, but she was partially paralyzed and required constant attention. Two months after she passed away in March of 1978, Hass started to prepare to return to Canada. In March 1979, he returned to Canada. His wife and daughter arrived one month later. In May 1979, after an interview with immigration, he and his family returned to Germany because he believed he had to do so pending the outcome of the appeal. He was in Germany at the time of the appeal. The panel found that he was still a permanent resident as he did not leave and remain outside of Canada voluntarily and he intended to return to Canada. The panel found that subsection 24(1) of the Immigration Act was made up of two elements: 1) the fact of departure from, and remaining outside, Canada; and 2) the intent to abandon Canada as a place of permanent residence. The panel relied on the earlier decision in Adams, 50 a case in which the issue was whether the appellant was "residing in Canada" and thus eligible to be a sponsor. The panel quoted in full the following passage from Adams which the Appeal Division has also relied in similar cases:51
In Baker, 52 the appellant was granted landing in March of 1975. He had a series of convictions as well as difficulties in relationships, therefore, he decided to return to England to "start over and straighten himself out." His girlfriend moved to England and they were married there. While she borrowed money to return to Canada several times, they claimed never to have had the money to allow the appellant, Mr. Barker to return. When his wife left him in July 1988 and returned to Canada with their children, Mr. Barker sold his furniture, bought a ticket and returned to Canada. On arrival, he voluntarily surrendered his landing record and declared that he had abandoned his status. Further, at his inquiry, he said that he was a permanent resident of England and planned to stay in Canada for two months. The majority of the Appeal Division found that the intention to return must be more than a future wish. In this case the appellant took no serious steps to put this wish into effect In Daniels, 53 the appellant was landed in March 1966 and returned to Scotland in December of 1968 to try to convince his wife to return to Canada. He sold his assets and took all his money with him. His wife refused to return to Canada. The couple separated in November 1976 and he returned to Canada on July 2, 1977, as a visitor. He was reported and ordered deported in 1980; therefore, the panel applied the Immigration Act, 1976. The panel accepted that when he left Canada he did not intend to abandon Canada as his place of permanent residence. However, while he would have preferred to return to Canada, his wife did not wish to do so. Consequently, Mr. Daniels made a difficult choice and chose to remain in Scotland; he would likely not have returned to Canada but for the separation. The residence test in Adams 54 was applied, and it was found that, with regard to Mr. Daniel's position in Scotland, both bodily residence and intent to remain were present. Further, unlike Allen, 55 he was not forced to leave or remain outside of Canada: his decision was voluntary. The appellant was found not to be a permanent resident. When the appellant in Labasova 56 was landed in Canada, she was engaged to be married to Josef Labas. However, Mr. Labas had to remain in Czechoslovakia to complete his military service. In 1971, the appellant returned to Czechoslovakia to marry Mr. Labas. On her return, her papers were confiscated and she was not able to leave again until 1989. The majority of the Appeal Division did not believe that the appellant sincerely believed that she would be able to return to Canada with her husband given the circumstances in Czechoslovakia at the time of her return. They found that she returned freely and voluntarily to establish herself there, and that she did not leave for a temporary or special purpose. Since she did not have a reasonable hope of returning, she had abandoned Canada as her place of permanent residence. In Scarcella, 57 the appellant was landed in 1966, and was successfully established in Canada when he went to Italy in 1977 for his brother's wedding. His brother did not get married, but instead was incarcerated for a criminal offence. The appellant took over the family olive-oil-press factory and cared for his ill parents in his brother's stead. He remained in Italy, married and had a family. His parents passed away in 1984, and his brother was released in 1988. He tried to return to Canada in 1987, but was admitted only as a visitor. He returned to Italy and tried to regularize his status, but was unable to do so. Finally, he returned to Canada in August of 1990 and remained there continuously. The Appeal Division held that Mr. Scarcella had not intended to abandon Canada as his place of permanent residence, but had always intended to return to Canada. He was found to be a permanent resident. The appellant in Oliver 58 was landed in 1964 and returned to England in 1979-80. He sold his home, two taxis and his interest in a pizza franchise before he left. In 1981 he moved to West Germany to look for work because there were few employment opportunities in Canada. In 1984 he had marital difficulties. His wife was homesick; consequently, she returned to Canada for a year. He travelled to the U.S. and visited his family in Canada. They returned to Germany with him in 1985. In 1991 he returned to Canada because there was an economic downturn in Germany. The Appeal Division held that section 24 of the Immigration Act, 1976 applied in this case because the appellant had acquired domicile before he left Canada, and the events relating to his loss of status occurred after the Immigration Act, 1976 had come into force. The Appeal Division held that Mr. Oliver had lost his permanent resident status. While he may have left for a temporary purpose, he did not take any concrete steps to return and establish himself in Canada. He merely had a vague notion that he would return one day. In Sarhadi, 59 the appellant's two sisters and their mother were granted landing in Canada in 1979. When their mother returned to India in 1981 because of poor health, the sisters went with her. They approached the High Commission in New Delhi when they realized their status might be in jeopardy. They were interviewed by different officers on the same day. One sister was given permission to return to Canada; the other was not. The appellant sponsored his mother and sister to Canada again. The application was refused because the sister was then married. On appeal, the appellant argued that his sister was a permanent resident. The Appeal Division found that the sister had not abandoned Canada as her place of permanent residence. Since she was a permanent resident, the refusal was found to be invalid. The appellant in Normington 60 was landed in 1957 and returned to England in 1968. He married in England and returned to Canada for a year with his wife. However, his wife did not want to live in Canada; consequently, he returned to England to be with his family. The marriage failed in 1985, but he did not return to Canada until 1990 because of a lack of money and his emotional state. The Appeal Division found that he had abandoned Canada as his place of permanent residence. He made the difficult choice between his family and Canada and was not driven by external necessity. The person concerned in Malik 61was landed in 1972. She left Canada in 1976 to follow her husband to Mexico where he wished to settle. They sold all their belongings before they left. In 1984 when she separated from her husband, she left Mexico and went to Germany. In 1996 she returned to Canada. The adjudicator found that when she left Canada in October 1976, she abandoned Canada as her place of permanent residence. She ceased to be a permanent resident at that time. The appellant in Lake 62 was granted landing in 1968. She left Canada in 1970, to work for the International Monetary Fund in Washington, D.C., and she remained there for 24 years on a non-immigrant visa. She maintained assets in, and visited Canada. The Appeal Division held that she had not abandoned Canada as her place of permanent residence. The appellant had gone to a country other than her country of origin for the specific purpose of employment and had not shown any intention of taking up permanent residence there. 3.5.1.3 MinorsIn the case of minors who leave Canada with their parents, the former Board has held that they have not abandoned Canada if they return to Canada, or demonstrate their intention to return at the first opportunity after they reach the age at which they may form such an intention. 63 The Appeal Division has held that the notion of "first opportunity to return" should be read as the first "reasonable opportunity to return" based on all the circumstances of the case. 64 A minor is not legally capable of deciding to leave Canada voluntarily; nor can a minor intend to make his or her permanent home outside Canada.65 A minor over the age of 14 years is capable of forming an intent.66 Thus, once over the age of 14 the minor can form an intention not to abandon Canada and having left involuntarily, can form the intention to return.67 Where in once case, the minor was not aware that he was a permanent resident when he left Canada, the panel concluded that he could not have formed an intention and thus could not overcome the presumption that he intended to abandon Canada as his place of permanent residence. 68 In another case, the Appeal Division held that the appellant had not abandoned Canada even though she was old enough to form an intent when she left Canada. While the appellant was 15 years of age when she left Canada, she was a minor and thus obliged to follow her widowed father. She was financially dependent on her father, and she was "socially and culturally bound to remain with him". She never wanted to stay in Jamaica, although she remained in Jamaica for nine years until her father passed away. Shortly thereafter, she returned to Canada. She returned to Canada at the first reasonable opportunity, and thus had not abandoned Canada as her place of permanent residence.69 The appellant in D'Souza 70 months later was granted landing in May 1975 and left Canada with his family four months later when he was 11 years old. He returned to Canada with his family in July of 1978 and they were admitted as visitors. The appellant stayed in Canada under his uncle's care when his parents left one month later. The panel held that the appellant never wanted to leave Canada and at the first opportunity after he was old enough to make such a decision, he remained in Canada and let immigration authorities know of his intentions. The appellant had not abandoned Canada as his place of permanent residence. In Virgo 71 the appellant was granted landing in Canada in June of 1968. Two years later, at the age of 13 years he returned to Jamaica with his parents. He did not voluntarily abandon Canada as his place of permanent residence. In Jamaica, he attended school and was dependent on his father until October 1976. At that time he was not capable of exercising a separate intent to return to Canada. From then until he returned to Canada in 1978, he worked full-time and lived with his parents. The appellant claimed he always intended to return to Canada, but needed first to earn money to enable him to return. While in Jamaica, he applied to attend teacher's college there. The panel held that the appellant's actions did not confirm his intention to return. While he did not abandon Canada when he left, he did not return at the first opportunity. He was not a permanent resident. In White 72 the appellant was landed on July 25, 1965. Her parents later divorced. In 1970 when she was 12 years old, her father took her back to Jamaica. She came back to Canada to visit her mother in 1975 and 1977 and was admitted as a visitor each time. She remained a student in Jamaica until 1979, at which time she returned to Canada and discovered that she might still be a permanent resident. The Immigration Act, 1976 was applied in this case, and the Adams 73 case was relied on by the majority of the panel. It was accepted that the appellant had been forced to follow her father when she left Canada. The majority found that the appellant's absences from Canada had been fully explained, and that any delay in her returning was not motivated by an intention to abandon Canada as her place of permanent residence. The dissenting member found that the appellant had not rebutted the presumption raised by her absence from Canada for more than 183 days. The member relied on the common law relating to domicile and found that when the appellant returned to Jamaica in 1970, she regained her domicile of origin. Further, she returned to Canada as a visitor and later changed her mind and decided to stay when she realized that she might be able to do so. At no time did she try to return to live with her mother in Canada. In Papadopoulos, the appellant had become a landed immigrant on April 7, 1967. In the summer of 1967 at the age of five years he returned to Greece with his parents. When he returned to Canada in 1981, he came as a visitor and was reported for overstaying his status. At that time, he was not aware that he had been previously landed. The panel distinguished D'Souza 74 and determined that that the appellant was not a permanent resident. In the words of the panel: "The appellant could not form an intention not to abandon Canada as his place of permanent residence as he did not know that he was a permanent resident until 1982."75 In another case, the appellant Ms. Neves was landed in Canada as a young child. When she was nine years old, she returned to Portugal with her family. She quit school at age 14, worked for two years and then married. The marriage was not happy. When the couple ran into financial difficulties and sold their house, the appellant convinced her husband to come to Canada to visit in 1984. They entered as visitors on the advice of a travel agent. Her husband returned to Portugal, but she remained in Canada. Based on D'Souza, 76 the panel found that she had not lost her status when she left Canada. However, from the time Ms. Neves reached age 14, she did not form an intent to establish her residence in Canada; nor did she exercise that intent at the first opportunity. Thus the appellant had abandoned Canada as her place of permanent residence.77 In Medawi, 78 the appellant was landed in Canada on March 24, 1965 at the age of 11 years. Fourteen months later, she returned to Brazil with her parents. She returned to Canada with her father as a visitor in 1986 and remained in Canada. The former Board found that she had not intended to abandon Canada as her place of permanent residence. Relying on Allen, 79 the Federal Court of Appeal held that the Board erred in law in applying the current law rather than the law in effect when she was landed. The Court held that the issue in this case was whether the appellant, Ms. Medawi had ever acquired domicile under the previous Immigration Act. She had been legally landed in Canada; however, she never acquired Canadian domicile and the right to come into Canada as a permanent resident. Hence, the Board did not have jurisdiction to hear her appeal. In one case, the appellant Ms. Kawal-Henderson was granted landing on March 25, 1969, with her parents. She was seven years old. When her parents divorced, she left Canada with her mother. At that time she was 11 years old. She worked, studied and was married twice in Trinidad. Between 1979 and 1989 she was admitted to Canada several times as a visitor. In 1989 she applied for permanent residence and then converted the application to one for a student visa. She went to university in Winnipeg from 1990 to 1993. She married twice in Canada and was sponsored twice; however, each sponsorship was terminated when her relationships ended. In 1994 she was called to an inquiry for overstaying her status as a visitor. The appellant said she did not know that she was a former permanent resident until her mother gave her a passport with her landing record in it in 1991. The Appeal Division held that by the age of majority, the appellant had "taken up permanent residency in Trinidad". She had both bodily residence and the intention to remain in Trinidad, as required by Adams. 80 She did not intend to be a resident of Canada until 1989. She was required to demonstrate a continuing intention to reside in Canada which was exercised at the first opportunity. In order to do so, she would have to have made efforts to return in a timely fashion. She did not require specific knowledge of her status in order to formulate an intention. She ought to have made some inquiries about her status and indicated an interest in residing in Canada. There was no reasonable explanation for the delay in pursuing residency in Canada. The appellant was found not to be a permanent resident.81 The person concerned in another case was landed in 1983 at the age of 10 years. In 1986 her mother took her with her to live in the U.S.. At 16, the person concerned was forced to leave home by her mother. She moved in with her boyfriend, who was violent and kept tight control over her. The adjudicator held that she had not abandoned Canada when she left since she was too young to form an intent. Further, she had not lost her status because her lack of financial resources and the constraints imposed by her personal circumstances precluded her return to Canada. She was found to be a permanent resident.82 3.5.1.4 Returning Resident PermitA permanent resident may apply for a returning resident permit before leaving Canada or while overseas.83 The immigration officer will issue a permit if satisfied that the permanent resident does not or did not intend to abandon Canada as his or her place of permanent residence. The returning resident permit then becomes proof that the permanent resident did not intend to abandon Canada as his or her place of permanent residence.84 However, this evidence may be overcome by evidence showing that the appellant did intend to abandon Canada. 3.5.2 Removal OrdersA permanent resident also loses his or her status when a removal order has been made against him or her and that order has not been quashed, or its execution stayed, by the Appeal Division.85 Until July 10, 1995, paragraph 24(1)(b) of the Act used only the narrow term "a deportation order" and not "a removal order."86 Thus permanent residence was only lost on the making of a deportation order, even though it had been possible to make a departure order against a permanent resident since February 1, 1993. Prior to February 1, 1993, the only type of order that could be made against a permanent resident was a deportation order. On February 1, 1993, the Act was amended to allow for the making of a departure order against permanent residents described in paragraph 27(1)(b) of the Immigration Act. 87 However, due to an oversight, paragraph 24(1)(b) of the Act was not amended at that time. While the definition of "removal order" was amended to include "departure order," paragraph 24(1)(b) of the Act continued to refer only to "deportation orders". This oversight was corrected on July 10, 199588 when paragraph 24(1)(b) of the Act was amended to refer to "removal orders" and not just "deportation orders". Thus, until July 10, 1995, permanent residents did not lose their status when a departure order was made against them.89 3.5.2.1 TimingIn practice, the Department of Citizenship and Immigration often treats a permanent resident under a removal order as a permanent resident until the disposition of his or her appeal; (that is the permanent resident may work and attend school without permission and may continue to reside in Canada). However, a permanent resident loses his or her right to enter Canada once the permanent resident has been found by an adjudicator to be a person described in subsection 27(1) of the Act.90 In recent cases dealing with applications to reopen, the issue of the time at which permanent resident status is lost has been raised. The Adjudication Division has held that a permanent resident subject to a deportation order who leaves Canada pending the hearing of his appeal before the Appeal Division does not lose his status as a permanent resident.91 In Harrison, 92 a case in which an appeal had been filed from a removal order, the Appeal Division held that permanent resident status is lost once the Appeal Division93 disposes of the appeal. Similarly, in Howard, the Appeal Division held that the loss of permanent residence results from the disposition of the appeal, not from removal from Canada.94
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