Leaving Canada by the end of Authorized Stay

People applying to visit, study, or work in Canada have to show that they are bona fide visitors that will leave the country once their visa / study permit / work permit has expired. This is pursuant to s. 179(b) of the Immigration and Refugee Protection Regulations, which states that:

Issuance

179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national

(b) will leave Canada by the end of the period authorized for their stay under Division 2;

In determining whether an applicant has met the s. 179 requirement, a visa officer must consider numerous factors, including financial and personal ties to the applicant’s country of origin, past immigration attempts, overstaying in other countries, and any criminal past.

Indeed, anyone who has ever seen a temporary resident visa refusal is probably familiar with the following “check-list.”

In the remainder of this post, which I hope to update frequently, I want to include case-law that applicants can use to address each point before their application is refused.

Your Travel History

From Momi v. Canada, 2013 FC 162:

While the applicant’s compliance with Australian immigration rules is not evidence directly related to the matter of complying with periods of authorization in Canada, it does indicate in my estimation that the applicant has respected immigration policy in the past, and there is no further evidence to the contrary.

Length of Proposed Stay

From Momi v. Canada, 2013 FC 162:

 having a “permanent job” in Canada does not allow for an inference that the applicant will break the law and remain in this country past the expiry of the work permit. There is no evidence on the record that the applicant would have ties in Canada such that he would be tempted to stay for that reason alone. We should guard against connecting temporary residence and becoming a permanent resident (section 22 of the Act).

Your Immigration Status

From Momi v. Canada, 2013 FC 162:

The fact that the applicant seeks to obtain the appropriate visa from Canada because his immigration situation in Australia will become precarious would in my view militate in favour of considering the applicant as law abiding. As this Court has held in the past, previous immigration encounters are good indicators of an applicant’s likelihood of future compliance (see Calaunan v Canada (Minister of Citizenship and Immigration), 2011 FC 1494 at para 28 and Murai v Canada (Minister of Citizenship and Immigration), 2006 FC 186).

I find it difficult to understand how the fact that the applicant appears to have stayed in Australia since 2009 is sufficient to conclude that if he were awarded a temporary work permit, he would not return to India at its expiration. At best, not wishing to return to India following a stint in Australia by seeking to obtain a temporary work visa in Canada should be considered as neutral as to whether or not the applicant “will leave Canada by the end of the period authorized for their stay

I am struck by the following passage taken from the decision of Justice Mainville, then of this Court, inGu v Canada (Minister of Citizenship and Immigration), 2010 FC 522:

[21]     Second, the other fact which the officer draws upon to conclude that the applicant will not leave Canada at the end of the study period is her continued presence in Canada since March 2002 with either work or study permits. This is unreasonable. A foreign national who has remained in Canada under validly issued work or study permits should not be penalized for having followed the immigration legislation of this country. The simple fact the applicant has legally remained in Canada cannot reasonably support a conclusion that she would choose to go “underground” or try to stay in Canada without authorization once her study permit expires.

 

Your Family Ties in Canada and in Your Country of Residence

From Tharsini v. Canada, 2012 FC 1518:

The officer concluded the applicant had only weak family ties to Sri Lanka. As there is no elaboration on this finding, one can only assume the officer concluded the ties are weak due to only a single family member being in that country. However, to judge family ties solely based on the quantity of family members is to ignore the relevant factor of the strength of the child-parent bond (see Guo v Canada (Minister of Citizenship and Immigration), 2001 FCT 1353 at paragraph 15, [2001] FCJ No 1851). The officer may have had legitimate reasons for doubting the strength of that bond in this case. The record is silent, making it very difficult for this Court to see this finding as reasonable.

While the family tie was only one part of the evidence considered by the officer on the issue of intention to leave Canada, it clearly was central to that determination and I cannot discern how the officer would have decided absent that finding.

Your Current Employment Situation

In Dhanoa v. Canada, for example, the Federal Court noted that:

The thought that [the applicant] would abandon his wife and children in order to take advantage of better socioeconomic opportunities here is distasteful. It is rather sanctimonious to suggest that our society is more of a draw for him than India, where he would be in the bosom of his family, simply because he would have 30 pieces of silver in his pocket. As per Timothy 6:10 “for the love of money is the root of all evil.”

In Cao v. Canada, a 27-year old citizen of the People’s Republic of China who was offered a job as a cook at a Chinese restaurant in Quebec. The visa officer refused his application as he was not satisfied that the applicant was a genuine visitor who would leave Canada upon the expiry of his work permit.  The officer based this decision the applicant’s insufficient financial ties to China, his modest salary, and limited advancement opportunities in China.  Justice Martineau found the Officer’s rejection on the basis of s. 179 of the IRPR to be completely unreasonable. He noted that the rejection of the work permit application because the applicant would make more money in Canada than in China relied on the very factor which would induce someone to come here temporarily in the first place as the main reason for keeping that person out.