January 17,2017 Source
A Guyanese man who gained residency in Canada in 2009, lost it after immigration officials found that he was no longer eligible as he spent most of his time in Guyana and his appeal of that decision was subsequently thrown out.
Ramdeo Kumar had attempted to retain his resident status but by Justice Rose Andrachuk found in September last year that there was no evidence that supported him being given another chance when he has established businesses in Guyana and only visits his wife and two children from time to time. The judge suggested that he apply for a visitor’s visa or that his wife apply for him in the future.
“I find that, after considering all the evidence, the immigration officer’s decision is valid in law and in fact. I further find that there are insufficient humanitarian and compassionate factors to warrant special relief to the appellant,” the judge said in the decision.
The judge said that she weighed Kumar’s establishment in Canada and any hardship that he and his family might suffer should the appeal be dismissed, as well as the best interests of his minor child. “However, the appellant has not convinced me that the arrangement the appellant has established so far of remaining outside of Canada for the majority of the time would likely be altered,” she said in the ruling seen by this newspaper.
According to the background of the case, an immigration officer determined that Kumar had only spent 537 days in Canada during the five-year period preceding his application for a travel document on September 4, 2014 instead of the required 730, and there were not sufficient humanitarian and compassionate grounds to grant special relief.
Kumar did not challenge the legal validity of the immigration officer’s decision and the only issue was whether there were sufficient humanitarian and compassionate factors to warrant granting special relief.
The 43-year-old Kumar is a citizen of Guyana but immigrated to Canada under the skilled workers programme. He landed in Canada on May 5, 2009 with his wife and two sons. But he returned to Guyana three months later, resumed his former job and travelled periodically to visit his family in Canada; they travelled twice a year to visit him. The judge found that breach of the residency requirement was significant since Kumar was in Canada for only 537 days during the relevant five-year period, and even when he knew that his permanent residency was in jeopardy he still did not reside in Canada for the 730 days immediately preceding the hearing.
“Expecting a permanent resident to be physically in Canada for two years out of every five years is a generous provision, which allows the permanent resident to wind up their affairs in the country of origin; 730 days of physical residency should be treated as the minimum expectation. The appellant has had seven years since being granted his permanent residency to wind up his affairs in Guyana but he has not done so as yet. This is a negative factor,” the judge said.
In his testimony Kumar testified that he left Canada to work in Guyana as he could not support his family on the money he was making in Canada. But the judge said his testimony that he did not know the cost of living in Canada was surprising since he was an accountant.
Kumar said after he returned to Guyana he resumed his former employment for a few years and then purchased a couple of restaurants and worked in real estate. He did not explain why he did not try to get another job in Canada or why he did not try to start businesses in Canada rather than in Guyana.
“I find that the appellant, after parking his family in Canada, returned to Guyana and continued to establish his business in Guyana for economic reasons as he could make more money in Guyana,” the judge stated.
The judge also noted some discrepancies between Kumar’s testimony and that of his wife and adult son as while he claimed he had worked for three months before returning to Guyana, his wife testified that he had only worked for two weeks. His son also contradicted him in his testimony of attempting to divest himself from his businesses, as he claimed they were being operated by a manager.
The judge found that Kumar’s wife and children were well established in Canada but he was not and he made very little effort to do so. The judge also found that Kumar did not give convincing evidence that he was seriously trying to establish himself economically in Canada.
“I do not find that the appellant has presented clear, cogent and convincing evidence that either he or his family would suffer any hardship if the appellant is not allowed to retain his permanent resident status,” the judge stated.
It was noted that Kumar was well established in Guyana where he was a citizen, has lived most of his life and where he has extended family and businesses. His mother is a US citizen and he has a 10-year US visa and the judge suggested that he can travel to Canada as a visitor and continue to visit his family and they can continue to visit him in Guyana. “He can also be sponsored to Canada by his wife if he decides he wants to reside in Canada,” the judge added.
“I find that the appellant’s family would also not suffer any significant hardship if the appeal is not granted. His family is used to the pattern of his absences and visits. They have thrived despite the appellant’s frequent absences. The older son is in university and his younger son is in high school. His wife is employed in a daycare. The family owns a house and appear well-established in Canada. The family can also visit the appellant in Guyana as they have in the past. His older son testified that even when his father was not in Canada they were always in contact, by video chats, or other media.”
Given the above facts the judge found that the immigration official was correct to withdraw his residency status and dismissed the appeal.
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