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PERMANENT RESIDENT CAN APPEAL LONG TERM ABSENCE FROM CANADA

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By Atty. Henry Moyal

" ATTORNEY HENRY MOYAL MEETS THE PALISOC FAMILY UPON ISSUANCE OF THEIR PERMANENT RESIDENT VISAS"

” ATTORNEY HENRY MOYAL MEETS THE PALISOC FAMILY UPON ISSUANCE OF THEIR PERMANENT RESIDENT VISAS”

Q. I became a permanent resident of Canada about six years ago. After I entered for the first time I only stayed in Canada for two years. I have not been back since. My permanent card expired and I applied for a visa to return. It was denied. How do I get back? My wife and children still live in Canada. I was required to leave because my parents were ill. They are now deceased. How do I get myself back to be with my family?

A. The law states that a permanent resident remains a permanent resident at all times until a final determination has been made. If you applied for a travel document then you must have received a letter of refusal. That refusal can be appealed and should be appealed immediately. By appealing you keep your PR status alive and at appeal you can explain to the judge the reasons for your lengthy absence.

Q. I arrived in Canada approximately six years ago as a tourist with my wife. We now have a Canadian born child. It was never our intention to overstay but I was offered a job as an electrician and I was promised that the employer would petition me for permanent resident status. Unfortunately, the employer went out of business and I have been working at odd jobs ever since.  I want to apply to for permanent residence but my biggest problem has been the fact that I was using someone else’s name. As such, I am not sure in what direction I should proceed with my application. I have no relatives in Canada but I have several friends in Vancouver who have assured me there are jobs available in my field. What do I do?

A. I think you have some strong points but obviously there are concerns regarding a few matters. You have a window of opportunity but you must implement a good strategy to be successful. Firstly, using someone else’s name can be rectified depending on the extent thereof. Did you enter using someone else’s name but worked under your real name? The bottom line is that every applicant has the onus of providing proof of genuine work experience in an occupation in demand. The occupation of electrician is in demand and therefore you are on the right track. If you have an offer of employment in Canada, that is a plus too.  You also need to decide where to file the application. If you file in Manila, it is possible that no interview will be necessary.

Q. I am married to a Canadian Citizen. We have a child together. The problem is that when we married I was under the impression that my previous marriage in the Philippines was annulled. I just found out from my attorney in Manila that the annulment was only in process but never finalized. My ex-spouse just died. How do I reveal all this to immigration without facing a charge of bigamy?

A. That is a very good question. It seems you are aware that you married your current spouse while you were still married to someone else. It is irrelevant that the first spouse has now died because the act of bigamy was committed when she was alive. As a side note to readers: always have a copy of the divorce / annulment in your hand before remarrying. In my opinion, you were under the mistaken belief that you were free to re-marry and therefore no deliberate action was done to commit the criminal act (of bigamy). The best approach would be to have your Canadian sponsor you as a common law partner as you are not legal spouses of one another.

Q. I came to Canada five years ago as a permanent resident. My permanent residence was conditional. I was required to fulfil some conditions – to which I did not. I did not comply with the conditions and basically I have not notified the immigration department. It is now time to renew my permanent resident card. Can I ? Should I just apply for Canadian Citizenship instead?

A. You can certainly apply for Canadian Citizenship but I doubt it will be granted. In my experience they will hold your application and/or refuse it because they will see that the terms and conditions of your landing have not been removed. You are therefore in violation of the immigration act. You have stated that you never contacted immigration. As such, it is safe to assume that no one has contacted you nor have you been issued a report for the violation. This will certainly be discovered upon applying for a permanent resident card. Therefore, you can do nothing or face the music and apply for the card and try to explain why the conditions were not met once you are issued a report for violation. That will certainly mean one or more court appearances.

Attorney Henry Moyal is a certified and licensed Canadian Immigration Lawyer in Toronto, Ontario.
The above article is general advice only and is not intended to act as a legal document.
Send questions to Attorney Henry Moyal by or email canada@moyal.com<mailto:canada@moyal.com> or call toll free at 1 888 8472 078.

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