Residency Obligation Appeal – Jin Immigration

The appellant got her Canadian permanent residency in 2011, Russian citizen, around sixty years old lady. While applying for the travel document at the Canadian Embassy in Russia in 2017, she was found by the visa officer that she had lived in Canada for only around 300 days in the 5-year period from 2012-2017, and was deprived of her permanent resident status. The appellant argued that she had to take care of her elderly parents in Russia, but the visa officer didn’t accept it. She filed her notice of appeal afterwards.

The appellant did not hire anyone to go through the appealing. The case went messy in the hearing. For instance, the Member should review the evidence on the records at the beginning. However, the lady didn’t know how to number her packages, which made the Member’s records inconsistent with hers and the Minister’s Counsel’s. Generally, you need to renumber the packages every time you made submission to the IRB. For example, having submitted a 180-page package at the first time, you will still need to renumber the package from page one rather than 181 in the next submission. It usually takes two minutes to review the records. Yet they had spent 40 minutes but still could not work it out. The Member had no choice but to recopy MC’s package. What’s more, she prepared a timeline of entering and leaving Canada and took it for reference on the witness stand. But in fact no files are allowed being taken as references when one gives testimony on the witness stand.

The questions during the cross examinations are all typical for a residency obligation appeal, including seriousness of breach, establishment in Canada, and hardship going back to home country which I have mentioned many times. I will only focus on two special issues of the case.

First, the lady was diagnosed of cancer in 2014 and went back to Canada for the cancer surgery, getting a quite good recovery. She spoke highly of the Canadian healthcare system and skills of the doctors, saying that half of her stomach would have been removed if she had the surgery in Russia. That is to say her staying in Canada for about 300 days also includes the time for taking the surgery and recovery. Even though the Minister’s Counsel has acknowledged that it was not enough to regard the appellant as an ill-intentioned immigrant for getting free healthcare in Canada, the issue is that the BC provincial medical system, as it required, only covers residents physically present in the province (In Canada, each province set up their own healthcare system). In specific, even a Canadian citizen, if going to university in Ontario after high school, is no longer a resident in the province, and not eligible for the free healthcare in BC anymore. However, no hospitals will raise the question first, nor do they have the obligation to check if their patients are residents in BC, as their only duty is to treat patients. Consequently, the appellant got treated when she actually were not eligible for the free Canadian healthcare service. This put her in a disadvantageous position in the hearing.

The other specialty of the case was that the lady’s husband successfully renewed his PR Card even though he, for taking care of his parent, hadn’t meet his residency obligation either. I suppose it is one of their reasons for not seeking any professional help, as they have underestimated its seriousness. They argued repeatedly why the visa officer had approved her husband’s application but refused hers. This is the logic of most non-professionals. In their logic, once they get a successful case, they assume they can copy the success by copying everything of the case. The pitfall is that they’ve got no idea of the probability of the previous cases being approved. If the application is approved with a 70% probability. The applicant may regard the case a 100% success when it’s passed, not knowing the 30% chance of being refused at all. Take the husband-wife sponsorship application as an example. A first-married young couple of similar ages have a very low chance of being suspected marriage fraud by the visa officer. You will still have a high probability of getting approval even with a terrible application. Let’s get back to this case. When her husband applied to renew his PR card in Russia, he explained that he had to take care of his sick mother in Russia so that he could not meet the residency obligation. The visa officer even called the nursing home in person to inquire his mother’s health condition with the nursing staff. It is a common knowledge to professionals that visa officers will not make phone calls and check reference unless they are highly suspicious. Thus, the visa officer at the time was only reluctantly persuaded by her husband’s application for renewal, and it’s normal that another visa officer was not convinced by the appellant’s reasons this time.

Since they had got no pre-hearing training on what to say in the court, during most of the hearing they did not know the underlying meaning of questions asked by Member or the Minister’s Counsel. They sometimes got themselves into dilemma. For example, the appellant said that it was a crime to abandon your 90-year-old parents at home. When asked whether her husband would go back to Russia with her, she replied, “of course, we are a family and we should definitely be together”. The Member continued to as, “so if I allow your appeal, are you both still going back to Russia to take care of your parents and cannot meet your residence obligation in the future?” She had no choice but followed her original logic to say yes.

For such a case, answers to all the questions in the hearing can be well prepared in advance by our professional team.

上诉人俄籍，60岁上下，2011年获得加拿大移民身份，2017年爱俄罗斯境内申请travel document时被俄罗斯使馆的移民官判定因为2012-2017年5年间上诉人在加拿大只住了300来天，剥夺移民身份。上诉人给移民官的理由是需要在俄罗斯照顾年长的父母，但是visa officer没有采纳，于是提出上诉。

这个案子上诉人没有请人代理，开庭现场搞得很messy。比如一开庭Member首先要跟大家过一遍evidence on the records，但是上诉人不知道应该怎么给文件编号，所以导致member的records跟她的和Minister‘s Counsel的不一致。按理说每次提交给法庭的文件都需要重新编号，比如第一次交了一个180页的package上去，那下一次再交文件，还得重新从第一页开始编号，而不是从181页开始。正常对records用两分钟就够了，他们花了40分钟，最后实在是对不上，Member只好拿MC的资料去重新复印了一份。再比如上witness stand的时候，上诉人把自己进出入加拿大的时间线写下来了为了提醒自己。但其实在witness stand上作证时面前是不可以放任何文件作为reference的。

Residency Obligation Appeal的问题都是教科书上写的清清楚楚的一定会问的问题，我以前写了很多回，无非就是seriousness of breach，establishment in Canada，hardship going back to home country这些，就挑两个本案子比较特殊的地方说。

第一，这位女士2014年被查出来有癌症，然后就回到加拿大来做了癌症手术，康复得非常好。她说如果要在俄罗斯做手术，半个胃都要切掉。然后大加赞美加拿大的医疗和医生的技术。换言之，她这5年一共在加拿大300多天，还包扩为了做手术才回来的时间。虽然Minister’s Counsel也说，没法因此就判定上诉人ill-intentioned，就为了利用加拿大的免费医疗，但问题是BC省的MSP有规定，只能实际居住在本省的居民享受（加拿大的医疗系统是各省管各省的）。哪怕你是加拿大公民，如果你去安省上大学了，那么你就不再是BC省的居民了，是没办法在BC省享受免费医疗的。但是所有医院在给人治病的时候都不会主动问这个问题，他们的职责就只有给人治病，并没有调查的义务。病人不主动说，医院就不会知道。上诉人其实是在无权接受加拿大免费医疗的情况下治了病，很容易陷入被动。

第二，本案的另一个特殊之处是，这位女士跟她先生其实都没有满足居住要求，但他先生却成功的用照顾父母的原因续成了枫叶卡，我猜这是他们坚持自己DIY的原因之一，就是他们没觉得这件事很严重。他们不断强调：凭什么都是用同样的理由，移民官采纳了我先生DIY的申请，而我用同样的理由移民官不采纳了。这是大部分非专业人士都采纳的逻辑，就是一旦有一个成功案例，就以为把那个案子里的所有东西再复制一遍，就能复制成功。这种逻辑的错误在于：非专业人士是根本不知道自己的案子是以几成概率获批的，比如有的人DIY的移民案子批了，也许只是以70%的概率过的，但因为结果是批了，所以在自身看来是100%都做对了，而根本不知道当时还有30%被拒的概率。就拿夫妻团来说，如果年龄相仿的两个年轻人都是第一次结婚，那被怀疑假结婚的概率极低，案子做的烂烂的还是很高的成功概率。说回本案，她先生当时说自己母亲生病必须在俄罗斯照顾她，移民官是亲自打了电话给那家养老院向医护人员询问那位老人的身体状况的。业内都知道，打电话check reference这种事，只有移民官高度怀疑的时候才会出现，所以她老公的续卡申请也就是勉强说服了当时的移民官，这次换个移民官，没被说服是很正常的。

由于没有人给他们做上庭培训，所以经常出现不知道Member或者Minister’s Counsel的问题到底想要知道什么，乱答一通的情况，有时候会自己把自己给绕进去。比如上诉人说，家有90岁的老人你不管，这简直跟crime一样。然后又被问及先生是否会跟她一起回俄罗斯，她说，那当然了，我们是family，我们一定是要在一起的。所以Member就问，那如果我今天同意了你们的上诉案件，你们是不是还是要继续回俄罗斯照顾父母，今后还是没办法满足加拿大的residence obligation。她就只好顺着自己原来的逻辑说，对。