So I don't see how this can be a positive decision, can you?
As noted above, it appears that a year ago, January 2022, @
Macius benefitted from a positive H&C decision setting aside a 44(1) Report. And thus,
Macius is probably right to conclude the "
decision made" on the PR card application is a positive decision to issue a new PR card. In this regard, it warrants noting that PR card applications are not denied (with some exceptions), not if the applicant is actually a PR. Rather, IRCC follows its version of the 44(1) Report process when a PR applying for a PR card is seen as in breach of the RO.
And as noted, this outcome was to be expected, frankly, given the PoE experience (well, assuming there was a positive decision when the 44(1) Report was reviewed).
HOWEVER, it is clear that in some cases like this (not all) it is common for IRCC to conduct further inquiry or some other non-routing processing, and sometimes withhold delivering new PR cards pending an in-person appearance to pick-up the card, which also involves, at minimum, a counter-interview, to verify (1) the PR is IN Canada, and (2) to screen the PR in regards to RO compliance, more or less checking whether subsequent events (mostly about subsequent absences) indicate reason to decide the PR is inadmissible despite the earlier positive H&C decision.
This is one of those junctures in the process that can get quite complicated. BUT if the PR has remained IN Canada after making the PR card application, it will generally be simple: appear in person, answer some questions, and receive delivery of the new PR card. And again, this would be the usual course of events for a PR who has had a favourable decision by CBSA in reviewing a 44(1) RO breach Report.
Except, Macius exited Canada.
We do not know what sort of H&C case
Macius put forward a year ago. Which makes it very difficult to so much as guess how much risk
Macius has, now. In particular, it is difficult to forecast whether an application for a PR TD will be denied, or that another 44(1) Report might be issued (by CBSA) upon next arrival in Canada, or that upon being interviewed during an in-person PR card pick-up a 44(1) Report might be issued (by IRCC). What we do know is that Macius exited Canada and has been abroad for a period of months, long enough to potentially mean there is some risk this will be seen as a change in circumstances.
REMINDER: if during processing a PR card application IRCC determines the PR is in breach of the RO and the PR has not provided sufficient evidence to warrant H&C relief, IRCC does not (not ordinarily) deny the PR card application but, rather, prepares and proceeds with a 44(1) Report. This can happen based on the information submitted with the application itself, if it shows a clear breach of the RO, in which case the Report could be dated the date the application was made. OR, it could happen following either an interview or upon receiving the PR's submission in response to a request by IRCC for additional information.
An Additional Clarification:
Macius said:
at this point CBSA officer issued me 44(1) report because I wouldn't meet RO even if I would stay in Canada until my PR card would expire (May 2022). But CBSA officer made a possitive decision to keep my PR status.
I would not characterize it this way, although it's somewhat subjective. Instead, they made a decision to not issue an inadmissibility judgment that day. Or, alternatively, decided to give you a chance to demonstrate you wished to reside in Canada, and the way for you to do so was to ... reside in Canada.
We have discussed the context in these scenarios before and I think I did rather poorly explaining things. Please bear with me as I take another shot.
If a 44(1) Report was prepared, and reviewed by the Minister's Delegate (the usual procedure), that constitutes a Residency Determination, and is a formal/official
adjudication of status. A positive decision based on H&C reasons establishes a very strong even though not absolutely binding precedent. I discuss this some above.
But the anecdotal reporting tends to suggest that more often, perhaps more often by a lot, PRs in breach, even many who are more or less quite obviously in breach, are benefitting from a casual exercise of leniency, and thus given the authority to enter Canada without a 44(1) Report being prepared. This can be a totally casual waive through at the PIL, or it can follow some RO compliance questioning in Secondary, nonetheless still resulting in a waive through, sometimes with admonitions.
Where we got hung up before was in regards to distinguishing what constitutes a formal/official decision in these situations. Yes,
the decision to allow entry is formal/official. But that is the extent of that decision: an official decision to allow entry.
Once a 44(1) Report is prepared, the decision made in reviewing that Report (usually but not necessarily while the PR is still in the PoE, before the decision to allow entry) rests on making a Residency Determination, an adjudication of status not just determining authorization to enter Canada.
Whether a 44(1) Report is prepared, or not, is the big difference, the difference that really makes a difference . . . and then, once the Report is prepared, whether it is set aside (which is usually about H&C relief) or it results in a decision terminating PR status; the latter, if that happens, is documented and effected by the issuance of a Removal/Departure Order. To be clear: if the Report is not set aside, but results in issuing a Removal Order, that terminates PR status unless there is a successful appeal or the Minister otherwise effectively sets the decision aside.
The number of those PRs in breach questioned about RO compliance in some depth but waived through, so far as anecdotal reporting has reflected, seems to have increased a lot during Covid, and during this time (nearly three years now) the number of reports similar to
Macius, indicating a Report was prepared but set aside, has been quite small.
Note: we have seen something similar in regards to PR TD applications, quite a few PRs issued a PR TD despite being in breach, but NOT the RC-1 coded version. It is as if IRCC (in the PR TD application context), and CBSA (in PoE examinations) is more or less giving some PRs considerable leeway, a chance to come, stay, settle in Canada, without giving them a definitive pass on their breach.
Meanwhile, much of the anecdotal reporting about this has been notoriously imprecise. In many of the scenarios discussed in the forum, it is not clear just what happened, what the extent of questioning was, or what level of decision-making there was. And yeah, that is also somewhat true here, in regards to
Macius. The difference, and a lot depends on it, is that Macius' report more specifically indicates that the 44(1) Report was in fact prepared. That distinguishes this scenario from those where a PR is waived through without a formal/official Residency Determination.
In short: the decision to allow entry is just that, an official decision to allow entry. If a 44(1) Report is prepared, the decision to set it aside is different, it depends on a formal/official Residency Determination, an adjudication of status (amply illustrated by the fact that a decision otherwise is the decision terminating PR status, unless there is a successful appeal).
Again, this is important because that decision is mostly binding. If the Report is set aside for H&C reasons, by the reviewing officer, the PR can then relatively safely proceed to make a PR card application without waiting to first spend 730 days in Canada. Most PRs in this situation would be wise to still wait some before proceeding to make the PR card application, waiting long enough to show they are actually settling and staying in Canada.
Bringing this back round to
Macius. Who appears to have not waited much at all to make the PR card application (arrived Jan 2022 and made PR card application "
01.Feb.2022"). We do not have nearly enough information to fully digest what has been happening, but it appears IRCC still had enough concerns that the PR card application encountered some kind of non-routine processing, so instead of a decision within three to five months it was at least NINE months.
My sense is a real lot could depend on the strength of the H&C case, including an explanation for the more recent absence.
