Looking for guidance for success with IAD appeal

[Yogi2018]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

My wife and children (aged 18+) got their Canadian citizenship 4 years back. My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020). As per the visa officer, H&C does not apply to me since my children are not minors anymore.

In 2021 non-essential travel to Canada was not permitted due to the pandemic. I was infected with COVID myself. Also, I had to go to India often because of my 85-year-old mother’s frequent hospitalization until she eventually passed away at the end of 2021. This was not considered on compassionate grounds as the visa officer said that my siblings (2 sisters aged 65+ and a brother) could have cared for my mother. However, my brother was working as an unskilled worker in the middle east and my sisters themselves have significant health issues.

I have social and financial ties in Canada, and I intended to return to Canada after my retirement next year. However, the PRTD denial has been a disappointment to our family.

I would welcome any feedback or suggestions if anyone had a similar experience and was successful with their IAD appeal. Thank you.

 

[Ponga]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

My wife and children (aged 18+) got their Canadian citizenship 4 years back. My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020). As per the visa officer, H&C does not apply to me since my children are not minors anymore.

In 2021 non-essential travel to Canada was not permitted due to the pandemic. I was infected with COVID myself. Also, I had to go to India often because of my 85-year-old mother’s frequent hospitalization until she eventually passed away at the end of 2021. This was not considered on compassionate grounds as the visa officer said that my siblings (2 sisters aged 65+ and a brother) could have cared for my mother. However, my brother was working as an unskilled worker in the middle east and my sisters themselves have significant health issues.

I have social and financial ties in Canada, and I intended to return to Canada after my retirement next year. However, the PRTD denial has been a disappointment to our family.

I would welcome any feedback or suggestions if anyone had a similar experience and was successful with their IAD appeal. Thank you.

Would suggest that you reach out to the law firm that generously provides these free forums. You can find their contact numbers at the top of the main page. Perhaps they can help you.

Good luck!

 

[scylla]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

My wife and children (aged 18+) got their Canadian citizenship 4 years back. My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020). As per the visa officer, H&C does not apply to me since my children are not minors anymore.

In 2021 non-essential travel to Canada was not permitted due to the pandemic. I was infected with COVID myself. Also, I had to go to India often because of my 85-year-old mother’s frequent hospitalization until she eventually passed away at the end of 2021. This was not considered on compassionate grounds as the visa officer said that my siblings (2 sisters aged 65+ and a brother) could have cared for my mother. However, my brother was working as an unskilled worker in the middle east and my sisters themselves have significant health issues.

I have social and financial ties in Canada, and I intended to return to Canada after my retirement next year. However, the PRTD denial has been a disappointment to our family.

I would welcome any feedback or suggestions if anyone had a similar experience and was successful with their IAD appeal. Thank you.

Travel to Canada was possible throughout 2021 for Canadian citizens and PRs (also for a good part of 2020). So I'm not sure I would use that as a reason for failing to meet RO. I would focus on your mother's health situation. Agreed that you need legal advice given you're looking to appeal. Finding a lawyer should be your next step. Good luck.

 

[steaky]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

My wife and children (aged 18+) got their Canadian citizenship 4 years back. My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020). As per the visa officer, H&C does not apply to me since my children are not minors anymore.

In 2021 non-essential travel to Canada was not permitted due to the pandemic. I was infected with COVID myself. Also, I had to go to India often because of my 85-year-old mother’s frequent hospitalization until she eventually passed away at the end of 2021. This was not considered on compassionate grounds as the visa officer said that my siblings (2 sisters aged 65+ and a brother) could have cared for my mother. However, my brother was working as an unskilled worker in the middle east and my sisters themselves have significant health issues.

I have social and financial ties in Canada, and I intended to return to Canada after my retirement next year. However, the PRTD denial has been a disappointment to our family.

I would welcome any feedback or suggestions if anyone had a similar experience and was successful with their IAD appeal. Thank you.

Would suggest you forget the appeal, renounce your PR status, then tell your wife to sponsor you for immigration and finally landed as a new PR.

 

[Buletruck]

Would suggest you forget the appeal, renounce your PR status, then tell your wife to sponsor you for immigration and finally landed as a new PR.

Seconded....probably cheaper and faster too.

 

[armoured]

Would suggest you forget the appeal, renounce your PR status, then tell your wife to sponsor you for immigration and finally landed as a new PR.

I'm going to say that I don't know what is the 'right' answer here - in terms of speed and relative cost and a bunch of other aspects - but in terms of certainty of how long it will take and cost, renouncing/re-applying could easily be superior.

Depending on criteria of the OP, especially.

That said even from the brief description: this to me sounds like an easy case for a lawyer to win. Just that an easy case for a lawyer can still cost several times more, and take longer, than renouncing/reapplying would.

 

[canuck78]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

My wife and children (aged 18+) got their Canadian citizenship 4 years back. My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020). As per the visa officer, H&C does not apply to me since my children are not minors anymore.

In 2021 non-essential travel to Canada was not permitted due to the pandemic. I was infected with COVID myself. Also, I had to go to India often because of my 85-year-old mother’s frequent hospitalization until she eventually passed away at the end of 2021. This was not considered on compassionate grounds as the visa officer said that my siblings (2 sisters aged 65+ and a brother) could have cared for my mother. However, my brother was working as an unskilled worker in the middle east and my sisters themselves have significant health issues.

I have social and financial ties in Canada, and I intended to return to Canada after my retirement next year. However, the PRTD denial has been a disappointment to our family.

I would welcome any feedback or suggestions if anyone had a similar experience and was successful with their IAD appeal. Thank you.

Can you show that you’ve been filing your Canadian taxes all those time declaring your international income as required? If so that would help your case even though it is also legally required. How many days have you spent in Canada since 2015 and in the past 5 years? Where is your wife currently living?

 

[dpenabill]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

As others have said, if you want to pursue the appeal, LAWYER-UP. Yep, that's how to get guidance in your case. LAWYER-UP.

Otherwise, as also suggested, rely on being sponsored for PR by your Canadian spouse. BUT no rush to do this. On the contrary, plenty of time to drop the appeal, and when you are ready to make the move to Canada to stay, ONLY when you are ready to make the move to Canada to settle and live in Canada permanently, then apply for spousal sponsored PR.

My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020).

Maybe. I will not dispute what the grounds were in your actual case. But, frankly, not likely. A PR will not be denied a PR TD unless the PR is inadmissible. Not traveling to Canada within a year of the date the PR's status card expires does not result in inadmissibility.

Far more likely the PR TD was denied because you did not spend at least 730 days IN Canada within the five year period defined by the date of the PR TD application. Which brings up the multiple reasons why you did not travel to Canada in 2021. So what? Within the preceding five years a PR can spend up to THREE years abroad, three times the period of time you did not travel to Canada in 2021, and still meet the Residency Obligation, and qualify for a PR TD.

Reasons for not traveling to Canada in 2021 do not come close to explaining why you were outside Canada TWO years in addition to that. Your situation is far more about the whole five year period, prior to the date you made the PR TD application, than it is about 2021. Disregard 2021 altogether, if you were in Canada just HALF of the time otherwise, during the relevant five years, you would have met the PR RO and, barring some anomaly, been issued a PR TD.

It was undoubtedly readily apparent, probably obvious, that whatever other reasons for you to spend time abroad (and, again, not just in 2021), you were primarily abroad because of your employment. Spoiler alert: even though there are occasions, circumstances, when this is not as negative as many here will characterize it, and can even be somewhat a positive in some H&C case scenarios, generally this is indeed a big negative, and if in conjunction with spending very little time in Canada, not quite but approaching a shut-the-door impact.

Note: I'm sensing you were also denied a special PR TD, which would have allowed you to come to Canada pending the appeal. That would have been denied if you were not IN Canada sometime within the previous year. Unless you were prepared to stay in Canada while the appeal was pending, which due to employment does not appear to have been the case, getting such a special PR TD would not have helped your case much, if at all.

I have no clue why @canuck78 suggests your Canadian tax filing history will make much of a difference; have not seen any indication in scores and scores of actual cases where this has been a factor.

But at least @canuck78 referenced what really matters (if you proceed to with trying to keep your current PR status): "How many days have you spent in Canada . . . in the past 5 years."

Without that information, the numbers, it is hard for me to figure why @armoured says "That said even from the brief description: this to me sounds like an easy case for a lawyer to win," otherwise acknowledging that @armoured is among the most reliable contributors here. That said, I very much concur with @armoured here:

I'm going to say that I don't know what is the 'right' answer here - in terms of speed and relative cost and a bunch of other aspects - but in terms of certainty of how long it will take and cost, renouncing/re-applying could easily be superior.

I would have said "totally concur" EXCEPT to emphasize that it would be prudent to wait to make a sponsored PR application, to not make that unless and until you are actually ready to make the move to Canada.

 

[armoured]

Without that information, the numbers, it is hard for me to figure why @armoured says "That said even from the brief description: this to me sounds like an easy case for a lawyer to win," otherwise acknowledging that @armoured is among the most reliable contributors here.

My reaction was a brief and snap - hence possibly wrong and insufficiently informed - judgment based on what was presented as the 'reason' for the PRTD being refused, as well as the long list of H&C reasons - including, yes, practical difficulties / govt (*multigovt) policies on covid and travel during covid. The stated (written) comment that "H&C does not apply to OP because the children are no longer minors" is (in my opinion) poorly written by the examining officer and ripe for challenge, for example.

But the big gap in knowledge and my comment was how much out of compliance the OP is and residence history in Canada.

Your reasons for digging deeper are solid - that the stated 'reason' for refusal is, ahem, underspecified.

I should have been more circumspect about the chances of success, or more skeptical, or dug deeper.

A better-formulated statement would have been that there are potentially quite strong grounds for H&C consideration on appeal, IF the circumstances of the absence / non-compliance with the residency obligation are reasonably supportive. (And if the OP has basically not resided in Canada for the last 5+ years and rarely visited, that's what I'd call not supportive at all).

I still think there's a fair bit in there for a lawyer to get their teeth into, but yes, with success (probably) less likely than my characterization.

I would have said "totally concur" EXCEPT to emphasize that it would be prudent to wait to make a sponsored PR application, to not make that unless and until you are actually ready to make the move to Canada.

I fully support this point. Especially as OP doesn't seem to have visited Canada at all in two-plus years.

 

[Yogi2018]

Thank you everyone for sharing your thoughts. In the last 5 years, I have stayed for a total of 350 days in Canada.
I contacted a couple of lawyers, they said my case is strong, but their legal fees were very high - around CAD 15,000. So I decided to pursue my case on my own and if I do not succeed then I will reapply for PR when I am ready to settle in Canada.

 

[armoured]

Thank you everyone for sharing your thoughts. In the last 5 years, I have stayed for a total of 350 days in Canada.
I contacted a couple of lawyers, they said my case is strong, but their legal fees were very high - around CAD 15,000. So I decided to pursue my case on my own and if I do not succeed then I will reapply for PR when I am ready to settle in Canada.

I think if you are not actually ready to return to Canada, you should keep in mind that getting the PRTD (even with H&C coding), it does not magically resolve your issues with residency obligation (non-) compliance IF you're not actually attempting to reside in Canada after getting it.

This is a bit complicated a topic so I'll just flag that it doesn't just reset the clock for five years - it doesn't work like that.

But of course, carry on as you wish.

 

[Eusufzai]

I am writing to seek guidance in preparing for the IAD appeal hearing for not fulfilling my PR residency obligation.

My wife and children (aged 18+) got their Canadian citizenship 4 years back. My PRTD application from UAE was denied in 2022 because I did not travel back to Canada in 2021 (within a year of the expiry of my PR card in Dec 2020). As per the visa officer, H&C does not apply to me since my children are not minors anymore.

In 2021 non-essential travel to Canada was not permitted due to the pandemic. I was infected with COVID myself. Also, I had to go to India often because of my 85-year-old mother’s frequent hospitalization until she eventually passed away at the end of 2021. This was not considered on compassionate grounds as the visa officer said that my siblings (2 sisters aged 65+ and a brother) could have cared for my mother. However, my brother was working as an unskilled worker in the middle east and my sisters themselves have significant health issues.

I have social and financial ties in Canada, and I intended to return to Canada after my retirement next year. However, the PRTD denial has been a disappointment to our family.

I would welcome any feedback or suggestions if anyone had a similar experience and was successful with their IAD appeal. Thank you.

Hi Yogi2018,

I would like to know, whether you consecutively lived in Canada for 350 days or that was intermittent. I guess you can try again by yourself and put your argument in logical way and sequence supported by appropriate documents. I have seen in this forum many people from India are getting PRTD under H&C.

Best regards,

Eusufzai

 

[canuck78]

Thank you everyone for sharing your thoughts. In the last 5 years, I have stayed for a total of 350 days in Canada.
I contacted a couple of lawyers, they said my case is strong, but their legal fees were very high - around CAD 15,000. So I decided to pursue my case on my own and if I do not succeed then I will reapply for PR when I am ready to settle in Canada.

Where is your wife currently living?

 

[Yogi2018]

The 350 days is intermittent over the last 5 years, except in 2021 when I could not travel. My wife lives in Canada.

 

[canuck78]

The 350 days is intermittent over the last 5 years, except in 2021 when I could not travel. My wife lives in Canada.

Just confirming that you are not living with your wife and she lives full-time in Canada and does not go to stay with you abroad? People define living in Canada many in many ways, like simply owning a home in Canada, so it is important to clarify these things. If she does go to stay with you how much time is she outside Canada every year especially in 2021 and 2022. What is the plan for 2023?