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PR card renewal not meeting 5 year RO

canuck78

VIP Member
Jun 18, 2017
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Yes, this 'best interests of child' is relevant if the parents have been in Canada and spending significant time with the children for, say, the last year. I had thought the OP referred to entering more than a year ago but now see it's not at all clear when (if?) they returned to Canada. If it's been more than a few years, validity of this point falls quickly.
My argument was exactly this it appears as though they have been outside Canada for many years at this point and just recently returned so there would be no change to their relationship if grandparents were not able to remain in Canada.
 
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canuck78

VIP Member
Jun 18, 2017
55,594
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Thanks for pointing me to canlii I was able to find a very similar case https://www.canlii.org/en/ca/irb/doc/2023/2023canlii66394/2023canlii66394.html?resultIndex=4&resultId=95146f4dc89c4a8893b014d1dfbec713&searchId=b05f166bb9384096b95dca8fa5dd1e0a&searchUrlHash=AAAAAQA8aHVtYW5pdGFyaWFuIGZvciBwZXJtYW5lbnQgcmVzaWRlbmNlIGNoaW5hIGNvdmlkIGFuZCBzdXJnZXJ5AAAAAAE

My parents are here for about three months now, and the kids are very attached to them because my parents helped raising the kids since they were born. I will emphasize this point.


thanks so much again for everyone’s insights!
There are also examples where time spent with grandchildren is not viewed as a deciding factor to be able to receive PR especially if grandchildren are older and become more independent. In this example child is still very young and impacts on grandchild and help to parents is not the reason H&C was granted. The fact that they were much closer to meeting RO and returned at a time where travel in China was still very limited showed an effort to return as soon as possible. In this case your parents have already received PR and losing PR is harder than gaining typically but many are under the impression that time living with grandparents guarantees PR. It is fairly common even if grandparents live in Canada for grandparents to visit yearly for example. If your children were able to manage when their grandparents were abroad the argument can be made that they will also adjust if they could only visit Canada. The only safe bet is to meet RO. H&C is always risky because approvals vary wildly depending on who is adjudicating the case. PR renewal based on H&C also can take so much time that you become compliant with RO during that time period so it doesn’t actually get you PR card renewal faster. Many apply for PR card renewal based on H&C thinking they will get their PR card quickly when it is often the opposite some cases drag on for well over a year. If they did apply for PR card renewal based on H&C remaining in Canada during the process is typically a huge factor in approval/refusal. Would suggest your parents look into caregiving options for their parents so if there Is an issue they have resources lined up to provide care in China in the hopes that they may be able to stay in Canada for as long as possible.

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/421303/index.do
 
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armoured

VIP Member
Feb 1, 2015
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My argument was exactly this it appears as though they have been outside Canada for many years at this point and just recently returned so there would be no change to their relationship if grandparents were not able to remain in Canada.
I repeat the point so that it can be clear to you: my point was, and remains, that referring to the benefit to the adult child of receiving child-care services/convenience (which @YVR123 had phrased as 'Taking care of your children adn driving them around is NOT a reason for them to return. Child care is considered work.') is not the correct way to look at it (nor, indeed, to present it).

I said "the 'best interests of the child' are things that IRCC must take into account." That remains true. That is the basic principle.

What you are going on at great length about is that the FACTS of the specific situation may not make for a very strong factual argument based on the actual principle. That's true. It may get very little weight.

But I already addressed that: "but it will get some consideration and likely will carry some weight (perhaps not much, but still)."

Yes, to make it clear: it will get more or less weight depending on the specifcs of the facts and circumstances.
 

dpenabill

VIP Member
Apr 2, 2010
6,435
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For clarity: That is a completely different kind of H&C case, involving an application by a Foreign National (FN) seeking a grant of PR status, in contrast to how H&C factors are considered in cases involving Canadians seeking discretionary relief from Residency Obligation enforcement. That case offers very little insight into how H&C relief for a breach of the RO is determined.

This case, Shah v. Canada, 2019 FC 1153, is also found here: https://canlii.ca/t/j2bqn

There are many similar factors that can be involved in both types of H&C cases (best interests of minor children looming large), but there are some major differences that make the way such cases are decided very different, including the weight the H&C factors carry respectively, and the fact that the threshold for making a successful H&C case resulting in relief for a breach of the RO is considerably lower than what is needed to make the H&C case for a FN to be granted PR status.


The Long Read Re Situation For OP's Queries; Tricky H&C Illustrated:

I'm looking at H&C option to see if it's a possibility in prep for any unexpected situation that may occur and they have to leave before they fulfill the RO, which is likely to happen since my grandma is already not feeling well, and my dad is overdue for his cancer checkup.
I fully concur in the cautionary observations posted by others. If they are here, in Canada, and they want to keep their PR status, the safe approach is to STAY, and they do not need new PR cards for that.

And, to be clear, even if they were to be issued NEW PR cards based on H&C relief, that would NOT necessarily protect their PR status if they leave for a significant period of time without complying with the RO. (Reminder: the RO clock does NOT restart with new PR cards.)

I understand how compelling the reasons are for returning to their home country. Such situations can be tough, really tough, really hard, forcing difficult decisions.

If and when they feel compelled to leave, however, they should be aware of what is at stake, and aware that even the best H&C case is a GAMBLE, and that the numbers can make a big difference. Leading to the case you cited . . .
. . . I was able to find a very similar case https://www.canlii.org/en/ca/irb/doc/2023/2023canlii66394/2023canlii66394.html?resultIndex=4&resultId=95146f4dc89c4a8893b014d1dfbec713&searchId=b05f166bb9384096b95dca8fa5dd1e0a&searchUrlHash=AAAAAQA8aHVtYW5pdGFyaWFuIGZvciBwZXJtYW5lbnQgcmVzaWRlbmNlIGNoaW5hIGNvdmlkIGFuZCBzdXJnZXJ5AAAAAAE

My parents are here for about three months now, and the kids are very attached to them because my parents helped raising the kids since they were born. I will emphasize this point.
I do not purport to know, not even a good guess, whether a PR card application relying on H&C will trigger a 44(1) Report potentially resulting in a Removal Order and loss of PR status. The risk of that, to be clear, is real and substantial. However, it is nearly impossible to quantify the probabilities, the odds, beyond broad generalities.

We can say, for example, that the longer they are present in Canada before making a PR card application, the better the odds of keeping PR status, and the better the odds they might not even be subject to inadmissibility proceedings. But a fool's guess to try quantifying the odds beyond that broad generalization.

Similarly, as to how things will turn out if they leave without meeting the PR RO (even if they apply for and are issued new PR cards). Forecasting odds in H&C cases is a fools errand. (While the odds are better at the Port-of-Entry, when returning to Canada, if the PR has a recently issued PR card, but again if there is an extended absence a new PR card will NOT necessarily protect the PR from inadmissibility proceedings if upon their arrival at the PoE they are not complying with the RO, as of that day.)

But there is no doubt, H&C cases are tricky and most often very tricky, and almost always a big gamble, even with strong H&C reasons in regards to why the PR did not return to Canada sooner.

Situation Described NOT All That Similar to Chen v Canada, 2023 CanLII 66394 Case:

The numbers played a very big role in the IAD decision you reference, the decision in Chen v Canada, 2023 CanLII 66394, which is also here: https://canlii.ca/t/jzb2f

Mr. Chen and Ms. Liu were IN Canada around two hundred more days than you say your parents have been. Given how much weight the numbers carry, the cases are not actually all that similar. Note, in particular, in Chen the IAD stated that only "some" H&C reasons were needed "to overcome the smaller shortfall."

There are other significant differences that increase the risk of a negative outcome and warrant giving emphasis to the cautions expressed here by seasoned participants in these sorts of discussions, @scylla, @YVR123, @armoured, and @canuck78 . . . and overall, enough to emphasize, again, that if and when your parents feel compelled to leave they should be aware of what is at stake, that even the best H&C case is a gamble, and yes that could force them to make very difficult choices depending on their priorities.

While the numbers alone loom especially large, it is worth considering in detail some of the additional ways in which your parents' case is not as similar to the Chen case as you might hope.

Covid:

The positive influence of Covid as a reason for failing to return to Canada sooner, for example, has diminished considerably, undoubtedly carrying not just less positive weight now than it did two years ago (when Chens made PR TD application), but probably a lot less now. While the Chen decision does not clearly articulate the weight given the Covid factor, they almost certainly benefitted more than what any PRs might expect going forward. There still may be some variation in assessing the impact of Covid depending on the individual situation involved, but generally it is likely that Covid now has only a minimal positive influence AT BEST. This would be especially true if your parents were to leave Canada again before getting into RO compliance (again, even if they have new PR cards).


Settlement In Canada:

This is one of those factors which it is safe to say it is very likely it can have a big influence, but to what extent it is nearly impossible to say. This factor is of course closely related to the numbers. More time in Canada generally implies the PR is more settled in Canada.

Moreover, it is not a static or linear factor. For the Chen case, the fact they had been complying with the RO prior to the lengthy absence appears to have been given significant positive weight. In contrast, the longer your parents stay here, in Canada, before doing something triggering a RO compliance determination (either a PR card application or leaving and being examined at the PoE upon their return here), the stronger that makes their case.

For now, this factor distinguishes your parents case from the Chen case, the Chens having that history of RO compliance weighing in their favour. If your parents stay here, then a year from now, or perhaps even sometime sooner, they will have a stronger case taking this factor into consideration. I am not suggesting this could be enough to safely proceed to make the PR card application before meeting the RO. But if forced to make a difficult decision, it might tip the scales in terms of whether to take the risk.

Familial Ties In Canada; Grandchildren:

In the Chen case, the IAD approached unification of the family in Canada as a neutral factor, including the grandparents' role in providing child care, but then referenced the relationship with the grandchild in a manner indicating that was considered a positive factor. This illustrates how variable assessment of factors can be. Another decision-maker could easily give this more positive weight. But probably not a lot. What is inconvenient does not rise to the level of being a hardship. Another way of saying what I think @YVR123 said.

While the point made by @armoured, as to the impact on the minor child, is valid, emphasizing that what weight will be given such circumstances (such as grandparent providing child care for a grandchild) can depend on the particular factual situation, absent special circumstances, it is difficult to see that a grandparent/grandchild relationship is likely to carry anywhere near enough weight to tip the scales one direction or the other. That is, if the decision-maker has concluded the H&C case falls short of giving relief, this factor is not likely to change that outcome.

Otherwise:

H&C is certainly my last resort.
This goes back to the initial observations by @scylla, (1) best to stay and wait to make PR card application, and (2) if, however, compelled to leave, better to wait to make H&C case when "they return [to Canada] or once they are ready to return." I concur.
 
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Ronnie1970

Star Member
May 1, 2021
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I applied for PR renewal in Sept 23 under H&C as my days were short to met RO. Got my Par card today in the mail with a 5 year expiry. So to all those who have not met RO if you have a genuine reason with documents to proove, they look at it compassionately. Don't loose hope.
 
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edsworld

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Feb 6, 2024
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I applied for PR renewal in Sept 23 under H&C as my days were short to met RO. Got my Par card today in the mail with a 5 year expiry. So to all those who have not met RO if you have a genuine reason with documents to proove, they look at it compassionately. Don't loose hope.
congratulations! thanks for letting us know! how much time were you short on the RO?