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ob1 Posts: 1
Posted On: 9/25/2017
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My Wife (50), son (15) and I (52) are Venezuelans...
I worked for Venezuela's oil company and in 2003 I was fired and blacklisted along tens of thousand other employees
In 2004 we successfully applied for the Skilled Worker Program and in 2005 we did our landing
We got our Permanent Resident cards and even Social Security Numbers
We remained in Venezuela as long as we could, waiting for the political and economical crisis to improve
In 2008, when it was still possible for us to make the Residency Requirements, we were offered a jobs in Sint Maarten (a Dutch Island in the Caribbean)
We took the opportunity, knowing we would not be able to meet the requirement and became legal residents of the Island.
In 2017 Hurricane Irma decimated the island, crippling most of its social and economic Infrastructure
The Ontarian school based here in St Maarten that my son attends had to close and evacuate most of the teachers
Given the lack of water, food, electricity, gas and the widespread violence and looting, my wife and son evacuated to the US, where they currently are on a tourist visa
I am concern that without a job and in an economy based in tourism, we will not be able to sustain ourselves here.
I am also concern that my family could be sent back here or even worse to Venezuela, where the crisis has reached humanitarian proportions.
Is there a way for us to travel to Canada and get our residencies back
My son does not speak Spanish well, and will not be study here,
Quite frankly, I am afraid we are not fit to survive the current conditions prevailing in Venezuela
Is there a way we could be accepted in Canada?
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Moderator Moderator Posts: 4145
Posted On: 9/29/2017
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Hello,
Thank you for your family's situation and question with us.
We can appreciate that you have been through a lot and that you would be concerned about this.
As you may already know, a person does not lose their permanent resident status until a final determination has been made.
This means that your PR status needs to be formally removed. You can find some information on the Immigration, Refugees and Citizenship Canada (IRCC) website, Here is an excerpt,
Losing your permanent resident status does not happen automatically. You cannot lose your permanent resident status simply by living outside of Canada long enough that you don’t meet the residency requirement. Unless you have gone through an official process, you have not lost or given up your permanent resident status, even though you may not be eligible to return to Canada as a permanent resident.
You may lose your permanent resident status if:
You may lose your permanent resident status in one of the ways described above if:
- you do not live in Canada for two out of five years;
- you are convicted of a serious crime and told to leave Canada; or
- you become a Canadian citizen.
You do not lose your permanent resident status if your PR card expires.
Additionally, according to the Citizenship and Immigration Canada (CIC) ENF 23 - Loss of Permanent Resident Status manual,
It is important to note that a permanent resident does not lose their status under A46(1)(b) until there is a final determination of the decision made outside Canada that they have failed to comply with the residency obligation under A28.
Permanent residents are not finally determined to have lost their permanent resident status until the right of appeal has been exhausted.
It also states in relation to the process of loss of permanent residency,
5. Departmental Policy
When an officer believes a permanent resident has failed to comply with their A28 residency obligation, then that officer should report the permanent resident under the provisions of A44(1) and recommend the issuing of a departure order.
The form Questionnaire: Determination of Permanent Resident Status (IMM 5511B) has been developed specifically to assist officers in making decisions regarding the permanent residency obligation, keeping in mind that the questionnaire alone is not sufficient to determine compliance with the residency obligation, and a detailed interview including examining humanitarian and compassionate criteria under A28(2)(c) is needed.
Furthermore, the officer cannot seize the person’s documents (such as the IMM 1000, Immigrant Visa and Record of Landing and the IMM 5292B, for example) despite writing an A44(1) report and issuing a removal order unless the officer believes there are reasonable grounds to do so in accordance with A140. The rationale behind this is that the person has a right to appeal the removal order and, until final determination of status, they remain a permanent resident and are the lawful owner of said documents.
Additionally, we have previously received some information from one of our legal researchers related to being in Canada after not meeting the residency requirements.
According to their research, the five-year time frame set out in the Refugee and Immigrant Protection Act is not static. Rather it is a moveable window that is dependent on the time at which a visa officer examines your situation. Therefore, if you cannot fulfill the two-year (730 day) requirement for the five-year time frame starting from when you became a permanent resident, you should remain in Canada until you can satisfy the requirement for another five-year time frame.
The IRCC’s Permanent Residency Status Determination Manual states:
For persons who have been permanent residents of Canada for more than five years, the only five-year period that can be considered in calculating whether an applicant has met the residency obligation is the one immediately before the application is received in the visa office. A28(2)(b)(ii) precludes a visa officer from examining any period other than the most recent five-year period immediately before the date of receipt of the application.
Since the officer cannot choose any five-year time period for consideration, but must always assess the most recent five-year time period (the one immediately preceding examination), you may still have the opportunity to satisfy the two-year “in Canada” requirement.
It is most likely the case that your family does not have valid PR cards at this time. In this case, you can find some information you can find some detailed information on the IRCC website in the I am outside of Canada and do not have a PR card. How can I return to Canada? section.
Here is an excerpt,
I am outside of Canada and do not have a PR card. How can I return to Canada?
Canada’s entry requirements are changing
Permanent residents (PR) of Canada must carry and present their valid PR card or permanent resident travel document (PRTD) when boarding a flight to Canada, or travelling to Canada on any other commercial carrier. If you do not carry your PR card or PRTD, you may not be able to board your flight, train, bus or boat to Canada.
It is your responsibility to ensure that your PR card is still valid when you return from travel outside Canada, and to apply for a new PR card when your current card expires.
Returning by private vehicle
There are other documents you can use to enter the country.
When you return to Canada, apply for a PR card if you plan to travel outside Canada again.
Some examples of private vehicles include, but are not limited to: a car, truck, motorcycle, or recreational vehicle that you own, borrow, or rent, and that is not available for public use.
Returning by commercial vehicle: airplane, bus, train, or boat
You must apply for a permanent resident travel document (PRTD), valid for one entry. Otherwise you may not be able to travel to Canada.
You can apply to replace your PR card when you return to Canada.
We suggest that you speak to a Lawyer who is familiar with Canadian immigration issues for information regarding your situation.
I hope this information is helpful. Please let us know if you have further questions and if there is any follow up to your question/situation.
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Anna
Settlement.Org Content and Information/Referral Specialist, CIRS
Settlement.Org
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