All Permanent Residents of Canada must comply with a residency requirement. That requirement, as of now, is 730 days in every 5 year period.
Many individuals want to have their cake and eat it too. Others are constrained by circumstances beyond their control. I have been consulted by both the former and latter regarding the residency requirements.
In this blog post, I’ll discuss one of the exemptions from the residency requirement. Section 28(2)(iii) allows a permanent resident to comply with the residency requirement even if they’re outside Canada as long as they are employed on a full-time basis by a Canadian business or in the federal or public service (of a province).
Regulation 61(1) provides additional guidance as to what constitutes a Canadian business (lest anyone start incorporating shelf/shell companies to allow them to skirt s.28). The business must be incorporated under the laws of Canada or of a province and have an ongoing operation in Canada or it can be an enterprise that has an ongoing operation in this country and is capable of generating revenue and is carried on in anticipation of profit and in which a majority of voting or ownership interests is held by Canadians, permanent residents or Canadian businesses. It goes without saying, but s.61(2) makes it explicitly clear that a “Canadian business” does not include a business that serves primarily to allow a permanent resident to comply with their residency obligation.
Case law gives us some additional details. There should be a position for the permanent resident in Canada should the work abroad cease; in other words the work abroad must be an “assignment”. There should be connecting factors to Canada including work duties, payment of taxes and other deductions and control of his assignment from Canada (Wei v. MCI (2012), 12 Imm. L.R. (4th) 256). The Federal Court in Jiang 2011 FC 349 seems to concentrate on the temporary nature of the assignment abroad. In terms of whether the business has an “ongoing operation” in Canada, no one indicia is determinative (Durve v. MCI 2011 FC 995).
In my experience, visa officers on applications for a travel document tend to be skeptical of smaller operations, but there is no requirement as to the size of the business or numbers of employees. If there is a negative residency requirement, officers are obliged to provide a travel document to a Permanent Resident as long as an appeal is filed with the IAD, or if the permanent resident had spent at least one day in Canada in the previous 365. The IAD is the ultimate arbiter, and it is imperative that sufficient documentation and evidence is provided to enable the tribunal to assess the facts and the applicability of legislation, regulation and jurisprudence.