Date: 20100222
Docket: IMM-1155-09
Citation: 2010 FC 192
Ottawa, Ontario, February 22,
2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
JIAN MAI
LINFU MAI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants challenge the February 10, 2009 decision of a member of the
Refugee Protection Division (the tribunal) dismissing their refugee claim
because of section 98 of the Immigration and Refugee Protection Act (IRPA)
incorporating in Canadian law Article 1E of the Refugee Convention. The purpose
of Article 1E and section 98 of IRPA is to prevent a refugee claim in Canada if the
claimant’s status in another country enables him/her to make a refugee claim there.
The principal question raised in this judicial review application is whether
the tribunal applied the proper test or proper legal principles to determine
the application of Article 1E of the Convention.
[2]
The
relevant legislation is set out in the Annex to these reasons.
[3]
The
applicants are father and son and citizens of China. It is
conceded the Applicants each had permanent residence status in Peru (the father
since the fall of 2002 and the son since May of 2005), when they both
entered in Canada on February
16, 2007. At that point in time, Jian Mai (the father) had been out of Peru
for one year and one month (having returned to China in January
2006). He made his refugee claim in Canada on March 14, 2007,
signed his Personal Information Form (PIF) on April 10, 2007 and
by the time the tribunal heard his case he had been out of Peru for just
three years.
[4]
Linfu
Mai’s (the son) circumstances were different. He arrived in Peru with his
father in 2002 and returned with him to China in January
2006 but came back to Peru in September 2006. He then left
Peru in February 2007, met his father in Seattle, entering Canada with him on February
16, 2007. The processing of his refugee claim followed the same steps as
his father. By the time the tribunal heard his claim, he had been out of Peru for just
over two years.
[5]
In
their PIFs, another issue emerged. Jian Mai had left Peru in January 2006
because he suffered a back injury at work in Peru and needed
treatment in China. He began to
practice Falun Gong in 2006 which helped him with his back problem. After he had
fully recovered, he obtained a visa to travel to Peru via the United
States.
The PSB found out about the family’s Falun Gong practice, issued summons to
report in three days for questioning after his father-in-law had been arrested
for practicing Falun Gong thus causing his flight from China.
[6]
Linfu,
the son, while in China in 2006 also started practicing Falun Gong
after he saw it helped his father. He continued to practice Falun Gong in Peru. He claims
to have been followed and threatened by Chinese officials from the Embassy in Lima because of
his practice of Falun Gong.
[7]
The
central issues for determination by the tribunal were: (1) whether and when the
Applicants had lost their permanent residence in Peru; (2) whether, how and
from where they could reacquire such status: (a) in Peru; (b) in China; or (c)
in Canada; and (3) if such status could be reacquired from Peru, would that
country provide them protection from persecution on account of their practice
of Falun Gong. Counsel for the Applicants, before the tribunal, argued they had
lost their permanent residents status in Peru but based on
the case of Williams v. Canada (Minister of Citizenship and Immigration), 2005
FCA 126, any right to reacquire it was not automatic but discretionary.
[8]
A
review of the tribunal’s decision indicates, while it doubted the evidence
demonstrated the Applicants had lost their permanent residence status in Peru,
it was satisfied they could easily reacquire such status and was not satisfied
with the Applicants’ evidence in order to do so they would be forced to make
such application from China. The tribunal also rejected their argument
for protection was not available in Peru for their practice of
Falun Gong.
[9]
Counsel
for the applicants did not challenge the tribunal’s finding residents of Peru practicing
Falun Gong are not at risk of persecution to their lives or cruel and unusual
punishment or in danger of torture.
[10]
He
also did not challenge the tribunal’s finding permanent residence status in Peru provides
holders thereof rights and privileges equivalent to citizenship in Peru with few
exceptions such as the right to vote.
[11]
The
evidence before the tribunal on loss of permanent residence status in Peru and its
reacquisition came from two sources:
1. From the
testimony of Linfu Mai, who contacted an official at the Peruvian Consulate
(the consular official) in Vancouver; his testimony was not
corroborated by a confirmatory letter from the consular official. In his
testimony about what he had been advised by the consular official, Linfu Mai
indicated: he was told if he had not paid income tax for one
year, his residency would be automatically cancelled. Even if they paid the
taxes they owed or a fine, their permanent resident card was invalid and they
would have to return to China to reapply. Such taxes
were normally paid at the beginning of each year.
2. An August 17,
2005 Immigration and Refugee Board (the Board) Response to Information Request
on the rights and obligations of permanent residents in Peru; specifically, how
permanent status is lost and, if possible, reacquired; […]; limitations on the
length of time permanent residents can remain outside the country without
losing their residency status; whether permanent residents would lose their
status if they failed to pay the annual permanent residency fee and, if so, the
procedure for having their status reinstated (the RIR). The RIR is issued by
the Research Directorate of the Board.
[12]
Attached
as Annex B to these reasons are relevant extracts of the RIR.
The tribunal’s decision
[13]
The
tribunal heard the applicants’ refugee claims on February 10, 2009
rendering an oral decision on the same day with a written decision on March 25,
2009.
[14]
I
summarize the principal findings of the tribunal on the issues before me. It
did not accept the son’s evidence, of his conversation with the consular
official, that he and his father “after having been away from Peru for the
length of time they have, have lost their status in Peru irrevocably.”
[Emphasis mine.] The tribunal found this testimony did not correspond with the
RIR referring to its text stating that permanent residence status can be cancelled
in certain circumstances as, for example, committing a crime and committing an
action against state security, public order or national defence, finding there
was no evidence before her of any such breaches.
[15]
The
tribunal then wrote:
[5] This document further
provides that there are residency obligations that must be fulfilled to
maintain permanent residence status, but the exact amount of time that the
individual would have to remain outside of Peru for their status to lapse was
uncertain and further, that anyone who had lost such status while out of the
country, could easily re-acquire it upon returning to Peru by following certain
administrative steps. [Emphasis mine.]
It stated it preferred relying on the RIR
rather than on Linfu’s testimony with the consular official which was
undocumented [adding]: “First of all, it is not clear that the claimants have
lost their permanent resident status in Peru but even if they have, the
information which the Peruvian authorities have given to the Refugee Board’s
Research Directorate is that they could re-acquire it by following certain
administrative steps.”
[16]
The
tribunal then made a finding the circumstances it had just described met the
control test set out in the Federal Court of Appeal’s decision in Williams quoting the following extract from it:
The true test is whether or not it is
within the control of the applicant and it clearly, on a balance of
probabilities, is within the control of the claimants in this case, even if
they have lost their permanent resident status, which is not clear from the
evidence in the REFINFO which
I just referred to. [Emphasis mine.]
[17]
After
discussing and dismissing the applicants’ fear of persecution in Peru because of
their faith in Falun Gong (which decision, as I said, is not challenged before
me), the tribunal set out its conclusion in the following three steps analysis:
At the time that the claimants came into Canada, they had permanent
resident status in Peru. As of today’s date
[the date of the hearing], the evidence is, on a balance of probabilities, that
that status may still exist, and if it does not, it is within the full control
of the claimants to automatically regain it by an administrative procedure. And
third, that there is no reason why they should not be expected to do that
because I do not accept the allegations of threats against them which they say
happened in Peru, nor do I find the evidence which would allow me to find that
people practising Falun Gong in Peru are facing more than a mere
possibility of persecution or risk to their lives or cruel and unusual
treatment of punishment or a danger of torture. [Emphasis mine.]
The Arguments
(a) The Applicants
[18]
The
principal arguments put forward by counsel for the applicants were: (1) the
tribunal applied the wrong test to determine whether Article 1E of the
Convention and section 98 of IRPA dealing with exclusion from making a refugee
claim in Canada on account of permanent residence availability elsewhere; (2) the
control test spelled out by the Federal Court of Appeal in Williams was
appropriate to deal with the issue of a person’s dual citizenship but was not
sufficiently nuanced to address the complexities which may arise in assessing
issues surrounding the loss, reacquisition and scope of permanent residency
status which require different considerations and factors than do dual
citizenship; and (3) Article 1E of the Convention requires its own test as
established by the jurisprudence and recently stated by Justice Gibson in Zeng v. Canada (Minister of Citizenship
and Immigration), 2009
FC 466 (Zeng), issued May 8, 2009. This case is on appeal to the Federal
Court of Appeal after Justice Gibson certified a question of general
importance. I note Zeng was issued after the tribunal’s decision in this
case.
[19]
Counsel
for the applicants submits the test in Zeng is the following:
1. Did the
applicant or applicants, as of the date of his, her or their application for
protection in Canada, have status in a third country, on the facts of this
matter Peru, to which are attached rights and obligations recognized by the
competent authorities of that country to be equivalent to those attached to the
possession of the nationality of that country?
If the answer to that
question is "no", then the applicant or applicants are not excluded
under Article 1E. If the answer to the question is "yes", then the
decision-maker should go on to the following question:
2. Would the
applicant or applicants, if he, she or they had attempted to enter the country
in question, in this case Peru, on the date their refugee claim was determined,
on a balance of probabilities, have been admitted to the country in question
with status equivalent to that which they had on the date they applied for
protection in Canada?
If the answer to the
foregoing question is "yes" then the applicant or applicants should
be excluded under Article 1E. If the answer is "no", the
decision-maker should proceed to the following question:
3. If the
applicant or applicants would not be admitted to the country in question, in
this case Peru, could the applicant or
applicants have prevented that result and, if so, did he, she or they have good
and sufficient reason for failing to do so?
If the applicant or
applicants could have preserved his, her or their right to be permitted entry
and failed to do so without good and sufficient reason for failing to do so,
the applicant or applicants should be excluded under Article 1E. If the
applicant or applicants could not have preserved his, her or their right of
entry or could have but provided good and sufficient reason for failing to do
so, then he, she or they should not be excluded under Article 1E.
[20]
The
Applicants’ second argument is that the tribunal erred in the application of
the Williams test to the facts of this case by: (1) misreading the RIR
which is quite vague, does not speak of the time limits, precise procedures or other
details which would have been useful to the tribunal but what it does make
clear is that while readmission is possible, it is not automatic and did not
provide any details on the procedure for re-application; and, (2) the tribunal
erred in preferring the RIR over Linfu Mai’s testimony as there was no
contradiction between it and the RIR. In these circumstances, the tribunal
should have given equal weight to both.
[21]
Applying
the Zeng test, counsel for the applicants conceded
the first step was met but not the second. He submits, that at the time of the
decision, the applicants had been out of Peru for at least two years. Linfu Mai
testified absence for more than one year and no payment of taxes [or visa fee]
would lead to cancellation. Accordingly, the tribunal, on this un-contradicted
evidence, should have ruled the applicants had lost their status in Peru.
Furthermore, he argues it is clear from the tribunal’s reasons it did not make
a clear finding that the applicants had permanent resident status at the time
of the hearing.
[22]
In
his submission, the tribunal ruled such status may exist or they could
reacquire it. The tribunal committed an error by not making a clear finding on
their current status in order to determine whether Article 1E applied. Finally,
he submitted the tribunal’s finding the applicants could automatically
reacquire status is not supported at all by the evidence and argues the
evidence in order to reacquire status would be from China.
[23]
On
the third step, he admitted the applicants could have prevented the loss of
their status but had good reasons for failing to do so – their obligation to
return to China to maintain
or reacquire it. The applicants’ further memorandum deals with this point as
follows:
It is also suggested, by the RIR, that
the Applicants might have been able to maintain or reacquire status upon
returning to Peru, although this was
contradicted within the RIR itself. However, the Member made no finding, and
indeed did no analysis whatsoever, of whether the Applicants had a good and
sufficient reason for not doing so. It is submitted that not making this
analysis, an essential element of the Zeng test is also an error of law.
(b) The Respondent
[24]
Counsel
for the Respondent stresses the purpose of paragraph 98 of IRPA is to exclude
the making of refugee claims in Canada by persons who legitimately do not
require protection by Canada because they can obtain it from the State where
they have permanent residence which normally includes the right to state
protection as citizens would enjoy and is not disputed in this case.
[25]
The
tribunal’s reliance on Williams must be placed in context since the
record shows the applicants admitted they were permanent residents of Peru on
February 16, 2007 when they first entered Canada. Counsel for
the Respondent relies on Justice Rouleau’s decision in Canada (Minister of
Citizenship and Immigration) v. Choovak, 2002 FCT 573 (Choovak)
at paragraph 4 for the proposition the onus had shifted to the applicants:
41 I am satisfied that the Minister put
forward prima facie evidence that Article 1E applies to the present case, and
the onus shifted to the respondent to demonstrate why, having caused her
permanent resident status to expire, she could not have reapplied and obtained
a new visa.
[26]
Counsel
for the respondent submitted it is in this context – the likely loss of status –
the tribunal adopted the Williams test. He then referred to the Williams
case at paragraph 22 where Justice Décary wrote:
22
I fully endorse the
reasons for judgment of Rothstein J., and in particular the following passage
at page 77:
The
condition of not having a country of nationality must be one that is beyond the
power of the applicant to control.
The
true test, in my view, is the following: if it is within the control of the
applicant to acquire the citizenship of a country with respect to which he has
no well-founded fear of persecution, the claim for refugee status will be
denied. While words such as "acquisition of citizenship in a
non-discretionary manner" or "by mere formalities" have been
used, the test is better phrased in terms of "power within the control of
the applicant" for it encompasses all sorts of situations, it prevents the
introduction of a practice of "country shopping" which is
incompatible with the "surrogate" dimension of international refugee
protection recognized in Ward and it is not restricted, contrary to what
counsel for the respondent has suggested, to mere technicalities such as filing
appropriate documents. This "control" test also reflects the notion
which is transparent in the definition of a refugee that the
"unwillingness" of an applicant to take steps required from him to
gain state protection is fatal to his refugee claim unless that unwillingness
results from the very fear of persecution itself. Paragraph 106 of the Handbook
on Procedures and Criteria for Determining Refugee Status emphasizes the point
that whenever "available, national protection takes precedence over
international protection," and the Supreme Court of Canada, in Ward, observed, at p. 752, that "[w]hen
available, home state protection is a claimant's sole option."
[27]
In
his submission, the above quoted paragraph from Williams indicates the
“control test” was not intended or expected to apply just to matters involving
the acquisition of citizenship and the tribunal did not err in its use of this
concept for the purpose of its Article 1E analysis.
[28]
He
further submitted even on the basis of Zeng, the tribunal’s analysis was reasonable.
[29]
In his
further memorandum, counsel for the respondent points out it was the applicants’
counsel before the tribunal who argued the control test in Williams was
appropriate but not met in the circumstances of this case because the
reacquisition of lost permanent resident status was not automatic but
discretionary. He further stressed the applicants failed to make minimal
efforts to regain any purported loss in status referring to the Federal Court
of Appeal’s recent decision in Parshottam v. the Minister of Citizenship and
Immigration, 2008 FCA 355 (Parshottam) where Justice Sharlow stated
at paragraph 42 answering the certified question:
[…] Answer: If the claimant
presents new evidence (as contemplated by paragraph 113(a) of IRPA) that
Article 1E does not apply as of the date of the pre-removal risk assessment,
the PRRA officer may determine on the basis of the new evidence that Article 1E
currently applies, in which case the claim for protection is barred.
Alternatively, the PRRA officer may determine on the basis of the new evidence
that Article 1E does not currently apply although it did apply at the time
of the claimant’s admission to Canada (or at the date of the RPD decision). If
such a change of status has occurred, the PRRA officer should consider why the
change of status occurred and what steps, if any, the claimant took or might
have taken to cause or fail to prevent the change of status. If the acts or
omissions of the claimant indicate asylum shopping, Article 1E may be held to
apply despite the change in status.
[Emphasis mine.]
[30]
Finally, counsel for the respondent stated there was no independent
evidence to support the Applicants’ assertion they would be obliged to return
to China to reapply
for their lost permanent residence status [or card]. The respondent submits in
fact the tribunal rejected that assertion quoting from the Certified Tribunal
Record at page 20 when the President Member made the following comment to
counsel for the applicants:
Presiding Member: Well- but I mean I
don’t, I have noted that that’s what the claimant said but we have no
evidence that that’s – I mean there is no reason why that would be true and
I don’t see anything which tells me that there is a requirement that you
apply from your country of citizenship if you have been travelling abroad. Why
would Peru care whether you apply from
Canada or Italy or the United States? … [Emphasis mine.]
Tanscript p. 20
Analysis
(a) Standard of Review
[31]
It
is common ground between the parties the question of whether the tribunal
applied the correct test to assess the scope of Article 1E or its
interpretation are questions of law where the tribunal had to be correct. In
terms of the application of that test to the facts, the standard of review in
reasonableness.
(b) Discussion and conclusions
[32]
I
can quickly deal with two points raised by counsel for the applicants. First,
it is reasonably clear from the evidence and the tribunal’s decision there were
contradictions between Linfu Mai’s evidence and the RIR: (1) on whether
permanent residence status would automatically be cancelled on non payment of
tax; and, (2) whether the applicants had the right of return to Peru to
reacquire their status, if lost, or whether they would be obliged to return to
China. Although not mentioned by the tribunal, the record is clear the applicants
were in possession of permanent residents identity cards which stated were of
indefinite duration, i.e. had no expiry date (see C.T.R., pages 557 to 559), a
fact confirmed by the RIR which states: “the immigrant category allows
residence indefinitely”. In these circumstances I conclude it was proper
for the tribunal to prefer the RIR over the applicants’ testimony.
[33]
I
agree with counsel for the applicants, there is a body of jurisprudence that is
specific to problems which arise in the context of the application to Article 1E
but I do not agree with him, in the circumstances of this case, the control
test in Williams is necessarily foreign to this Article or finds no
application to a case where the issue is the ability to reacquire or prevent lost
status. From that jurisprudence, I draw the following elements.
[34]
First
and foremost is the question of onus of proof. As Justice Rouleau explained it
in Choovak, the Minister has the burden of initially establishing
permanent residence status. That was not necessary in this case because the
applicants admitted they had such status when they came here. As the tribunal
pointed out in the case before her, the question then became whether or not
they lost that status in the course of their tenure in Canada while waiting for
their refugee claim to be processed and, if so, whether it could be reacquired
and under what conditions. In this case, the shifting of the onus to the
applicants is important to understand the tribunal’s finding.
[35]
The
concept of an initial onus on the Minister to establish permanent residence
status and its subsequent shifting to the claimant when so established was
endorsed by Justice Rothstein, then of this Court, in Shahpari v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 429 at paragraphs 6 and
12, in Choovak above and in Nepete
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1640 of paragraph 21
(Nepete), a decision of my colleague Justice Heneghan. The jurisprudence in Article 1E acknowledges it is a common
feature in the member state of the international community to attach residency
requirements to the maintenance of permanent residency status (as is the case
of Peru and is also the case of Canada) and if that status is lost because of
the breach of such requirements, the onus is on the refugee claimant to show
why he/she lets such status lapse. See for example, Wassiq v. Canada (Minister of Citizenship and
Immigration), [1996]
F.C.J. No. 468 (Wassiq), another decision of Justice Rothstein where he
wrote at paragraph 10:
10
In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, La Forest, J.
notes at page 726:
Refugee claims were never meant to allow a claimant to seek out better
protection than that from which he or she benefits already.
I
would observe that if, by reason of their absence from Germany and sojourn
in Canada, the applicants are, in effect, entitled
to renounce the protection they received from Germany and claim protection from
Canada, such a result is anomalous. In substance,
it gives persons who have Convention refugee status in one country the right to
emigrate to another country without complying with the usual requirements,
solely by reason of their unilateral renunciation of the protection initially
given to them by the first country. In effect, this means that they can
"asylum shop" amongst countries who are signatories to the Geneva
Convention and "queue jump" normal immigration waiting lists to the
country of their choice. If this is the case, the applicants, who resided in Germany for ten years, may simply abandon
Germany for Canada. They would have greater rights to
emigrate to Canada than persons of German nationality. That
is neither fair nor logical.
[Emphasis mine.]
[36]
I note in Wassiq,
the issue of the applicants’ right to return to Germany focused on whether they had valid travel
documents from Germany and whether such
had expired and if so why. See Nepete, above and Shamlou v. Canada (Minister
of Citizenship and Immigration), [1995] F.C.J.
No. 1537.
[37]
This jurisprudence also discusses when the
existence of permanent status is measured: date of entry into Canada, date of refugee claim or date of decision. In
this case, it appears the tribunal adopted the appropriate time measure –
status at the date of decision. See Parshottam at
paragraphs 11 and 41.
[38]
The
existing jurisprudence always contained a justification clause if status was
lost. Did he/she have “good reasons” for having that status lapse which is
equivalent to the third step in Zeng? The record does not show the applicants
discharged their onus on this issue of letting their permanent residence status
lapse in Peru. This issue is different than taking
steps to reacquire status after losing it.
[39]
To round out the review of the jurisprudence
although of no application in this case, I mention the Federal Court of
Appeal’s judgments in Mahdi v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1623 and Hurt v.
Canada (Minister of Manpower & Immigration), [1978] 2 F.C. 340.
[40]
In
my view, this application for judicial review must be dismissed. In short, the
tribunal was not satisfied the applicants had discharged their onus of showing (on
the assumption they had lost their status which the tribunal doubted and was
supported by the RIR indicating that status was indefinite unless cancelled for
reasons not relevant in this case), such loss could not be repaired by
administrative reacquisition albeit perhaps not automatic, but easily obtained
without return to China. On the evidence, before the tribunal, such conclusion
was open to it. In fact, by using the Williams control
test, it imposed a more stringent test than the jurisprudence requires – the
jurisprudence only requires an applicant who has let his/her status expire to
show good reasons failing to prevent such happening.
[41]
For
these reasons, this judicial review application is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES this judicial review
application is dismissed. No question of general importance was proposed.
“François
Lemieux”
____________________________
Judge
ANNEX A
|
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
Definitions
2. (1) The
definitions in this subsection apply in this Act.
[…]
“Refugee
Convention”
“Refugee
Convention” means the United Nations Convention Relating to the Status of
Refugees, signed at Geneva on July 28, 1951, and the Protocol to that
Convention, signed at New
York on January 31, 1967.
Sections E and F of Article 1 of the Refugee Convention are set out in the
schedule.
[…]
Exclusion
— Refugee Convention
98. A person referred to in
section E or F of Article 1 of the Refugee Convention is not a Convention
refugee or a person in need of protection.
…
SECTION
E OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF
REFUGEES
E.
This Convention shall not apply to a person who is recognized by the
competent authorities of the country in which he has taken residence as
having the rights and obligations which are attached to the possession of the
nationality of that country.
|
|
Loi
sur l’immigration et la protection des réfugiés, L.C. 2001, c. 27
Définitions
2.
(1) Les définitions qui suivent s’appliquent à la présente loi.
[…]
«
Convention sur les réfugiés »
«
Convention sur les réfugiés » La Convention des Nations Unies relative au
statut des réfugiés, signée à Genève le 28 juillet 1951, dont les sections E
et F de l’article premier sont reproduites en annexe et le protocole afférent
signé à New York le 31 janvier 1967.
[…]
Exclusion
par application de la Convention sur les réfugiés
98. La personne visée aux sections
E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir
la qualité de réfugié ni de personne à protéger.
…
SECTION
E DE L’ARTICLE PREMIER DE LA CONVENTION DES NATIONS UNIES RELATIVE AU STATUT
DES RÉFUGIÉS
E.
Cette Convention ne sera pas applicable à une personne considérée par les
autorités compétentes du pays dans lequel cette personne a établi sa résidence
comme ayant les droits et les obligations attachés à la possession de la
nationalité de ce pays.
|
ANNEX B
Extracts from Responses to Information Requests
(RIPs) – PER100156E
August 17, 2005 – Permanent Residences
…
[…]
The information provided below does not preclude the existence of other
legislation, norms, court rulings or legal instruments that could be in effect
and relate to the subject in question.
...
Article
3 of Legislative Decree No. 703, Approving the Law on the Status of Foreigners
(Aprueba la Ley de Extranjeria), of 5 November 1991 defines a foreigner
(extranjero) as any person who does not possess Peruvian nationality (Peru 5 Nov. 1991b). Article 11 defines foreigners as falling
into the categories of diplomats, political asylees and refugees, tourists,
students, workers, and immigrants, among others (ibid.). An immigrant
is one who has entered the country with the intention to reside permanently in Peru (ibid.). [Emphasis mine.]
…
Chapters
5 and 6, Articles 22-31, of Legislative Decree No. 703 set out the requirements
and impediments for the entry of a foreigner; these range from identity
documentation requirements to exclusion based on criminal activity (ibid.).
Article 33 sets out the residence or stay period allowed for each migratory
category; most are renewable, except for the immigrant category which allows
residence indefinitely (plazo de residencia indefinido) (ibid.). [Emphasis
mine.]
…
According
to Legislative Decree No. 703, foreign residents may exit and re-enter Peru and
retain their migratory status and visa as long as they comply with the
requirements and deadlines set out by the legislative decree and its
regulations (5 Nov. 1991b, Article 42). If a foreign resident requests permanent
exit, they lose their residency status; for readmission, they have to comply
with the requirements for foreigners defined by the Legislative Decree No.
703 and its regulations (ibid., Article 41). [Emphasis mine.]
…
If
a foreigner violates the terms of the decree, Article 60 provides for the
application of fines, forced exit, the cancellation of status as a resident
and/or expulsion (ibid.).
Article 63 states that residency can be cancelled if the foreigner: (1)
commits actions contrary to state security, public order or national defense;
(2) does not have the economic means to support his or her residency and (3)
has been sentenced by a Peruvian court for a crime (ibid.). Article 66 states
that the cancellation of residence status and expulsion of a foreigner requires
a ministerial resolution (resolucion ministerial) following a recommendation of
the Commission on the Status of Foreigners (Comision de Extranjeria) based on a
police report issued by the Foreigner's Division (Division de Extranjeria) of
the National Police (ibid.). [Emphasis mine.]
…
The
First Secretary stated that there are residency obligations that must be
fulfilled to maintain permanent residence status; however he was unsure of
the exact amount of time an individual would have to remain outside of Peru for their status as a permanent resident
to lapse (ibid.). The First Secretary stated that, once his or her status was
lapsed, the individual could reapply to the competent authorities to reinstate
his or her status as a permanent resident (ibid). [Emphasis mine.]
In
a 29 May 2002 interview, the First Secretary, Consular Affairs, of the Embassy
of the Republic of Peru in Ottawa stated that an "immigrant identity card" can be
roughly translated as a "carnet de extranjeria." The bearer of such a
card is a permanent resident and has all the rights and obligations that that
status confers (Peru 29 May 2002).
…
Under
the terms of the Legislative Decree No. 703, immigrant-class residence visa
holders may remain in the country indefinitely, although they must renew
their visa every 12 months (Peru 5 Nov. 1991a, Art. 13). The law also
stipulates that such individuals may enter and leave the country freely during
the visa's period of validity (ibid., Art. 18). This information was corroborated
by a counsellor at the Embassy of Peru in Ottawa, who added that the annual
renewal of such visas is merely an administrative formality (Peru 22 Oct. 2004). However, he noted that
individuals must be physically present in Peru in order to renew their visa (ibid.). [Emphasis mine.]
…
While
the counsellor did not know whether or not non-payment of the visa
renewal fee would lead automatically to an individual's loss of
permanent residency status, he claimed that anyone who had lost such status
while out of the country could easily reacquire it upon returning to Peru, by following certain administrative steps (ibid.).
However, he was unable to provide information on the precise nature of
these steps. [Emphasis mine.]
…
Information
from 2005 about the rights and obligations of permanent residents,
specifically, about how permanent status is lost and, if possible,
reacquired, limitations of the length of time permanent residents can remain
outside the country without losing their residency status, whether permanent
residents would lose their status if they failed to pay the annual permanent
residency fee, and if so, the procedure for having their status reinstated
could not be found among the sources consulted by the Research Directorate.
…
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