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Positive for skilled workers

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By Guidy Mamann: This is a case where the rules can cause real problems, even if you have an unexpected occurence, such as an illness.

Q.: I successfully applied as a skilled worker without a lawyer.

I booked my flight to Canada for two days prior to the expiry of my permanent immigration visa.
Unfortunately, I got sick just before my departure and was unable to travel.

I took the flight a week after the expiry of my permanent residence visa and after I had begun to feel better. However, when I arrived in Canada my immigration was canceled in spite of all the documentation I had concerning my health problem. I was told to contact the visa post. When I called, they told me there is not much that can be done and that I would have to apply for permanent residency again. What can I do now? Is there any possible way to get the visa extended? I have documentation of my tickets and the hospital.

A: You applied legally, waited patiently for about three years, and met all of our criteria for permanent residence.

Although you have done nothing wrong, except perhaps to have gotten sick near the time you planned to immigrate to Canada, our immigration laws are nonetheless quite rigid in these circumstances.
Why? I'm not sure.

The immigration department's manual is pretty clear. “A person who presents an expired or cancelled permanent resident visa cannot be authorized to enter Canada as a permanent resident.” Period!

Not only that, it is likely that you will end up with a removal order because you appeared at a Canadian port-of-entry seeking to establish yourself here as a permanent resident without having a valid permanent resident visa in hand.

As for the possibility of extending your visa, this is what the manual has to say. “The validity of a permanent resident visa may not be extended. Nor can replacement visas be issued with a new validity date. If foreign nationals do not use their visas, they must make a new application for a permanent residence visa. They must also pay a new application processing fee. If they have paid a right of permanent resident fee, they do not need to pay it again.”

An exception is made for those who, for reasons beyond their control, receive visas that are valid for less than two months. If they cannot travel before their visas expire, officers can re-issue medical instructions etc. and a new visa will be issued when the requirement has been met again.
This however, doesn’t seem to apply to you.

Normally, a foreign national who holds a permanent resident visa and against whom a removal order has been made can appeal to the Immigration and Refugee Board. However, there is case law which strongly suggests that the Board would not have jurisdiction to hear your appeal since you are not a holder of a permanent resident visa since yours had expired.

Had you sought the advice of a lawyer earlier you might have been advised not to cut your departure so close to your visa expiry date. Having done so, you would have been strongly urged to get on the plane if at all possible.

Now, your most likely chance for success would be to simply start again and wait another three years or so.

Sad, isn’t it?

Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at .

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