Report 44(1) dismissed - does leaving Canada still pose a risk for RO?

[ethelstan]

Hi there,

We were able get the Report 44(1) dismissed on basis of H&C and immediately asked to apply for 5 year PR. Now the dilemma is that if ones still short say certain days to meet the 730 days, will one invite another scrutiny if we leave for a short trip then returning to Canada?

I found an interesting case through a case law that seems to show that risk seems to be continuing if one doesn't have 730 days...

Although the method for calculating 730 days within a five-year period sounds straightforward, it can become complicated if the permanent resident is found to have breached the residency obligation more than once within a limited time. In one such case the appellant, a minor, had not complied with his residency obligation. The officer however determined that humanitarian and compassionate considerations justified the breach and the appellant was allowed to return to Canada as a permanent resident. A few months later, he left Canada for a brief holiday. When he tried to return to Canada, another officer determined once again that the appellant was not in compliance with the residency obligation. His appeal to the IAD was allowed, but it was on humanitarian and compassionate grounds. The residency determination was found to be valid in law as the appellant had not met the 730-day requirement in the five-year period prior to the new determination. The appellant received no special treatment in calculating the period as result of the first officer’s decision.

 

[dpenabill]

Hi there,

We were able get the Report 44(1) dismissed on basis of H&C and immediately asked to apply for 5 year PR. Now the dilemma is that if ones still short say certain days to meet the 730 days, will one invite another scrutiny if we leave for a short trip then returning to Canada?

I found an interesting case through a case law that seems to show that risk seems to be continuing if one doesn't have 730 days...

Although the method for calculating 730 days within a five-year period sounds straightforward, it can become complicated if the permanent resident is found to have breached the residency obligation more than once within a limited time. In one such case the appellant, a minor, had not complied with his residency obligation. The officer however determined that humanitarian and compassionate considerations justified the breach and the appellant was allowed to return to Canada as a permanent resident. A few months later, he left Canada for a brief holiday. When he tried to return to Canada, another officer determined once again that the appellant was not in compliance with the residency obligation. His appeal to the IAD was allowed, but it was on humanitarian and compassionate grounds. The residency determination was found to be valid in law as the appellant had not met the 730-day requirement in the five-year period prior to the new determination. The appellant received no special treatment in calculating the period as result of the first officer’s decision.

The quotation is largely but not entirely consistent with what I have seen in such cases (based on published IAD and Federal Court decisions). The key is that it is correct that an earlier positive H&C decision is not conclusively binding. A PR who is not in compliance with the RO, that is a PR who has fewer than 730 days credit toward meeting the RO as of the day of a RO calculation, based on days in and days outside Canada during the previous five years as of the day of the RO assessment, is in breach of the RO, and thus subject to a decision terminating the PR's status unless, as of that day, there are sufficient H&C reasons to allow them to keep PR status . . . again, as of THAT DAY.

Thus, there is some risk any time a PR who is not in compliance with the Residency Obligation makes an application that can trigger assessment of the PR's RO compliance. This includes an application for permission to physically enter Canada (made by just arriving at a Port-of-Entry).

How much risk will vary widely. It can be very difficult to assess the risk.

Generally a formal H&C determination allowing relief for a breach of the RO will be given a lot of positive weight, the H&C considerations already having been adjudicated in the PR's favour. But since a calculation of RO compliance changes every day, a new five year period to consider, which includes consideration of the number of days in and days outside Canada since the previous H&C decision, the previous H&C decision is NO guarantee.

Safest approach is to STAY in Canada until the RO is met.

Beyond that, the particular details of your situation will influence how much risk there is if you leave Canada.

Some Factors / Examples:

The longer the PR has stayed in Canada since last return, the lower the risk is likely to be.

The more well established the PR is in Canada, the lower the risk is likely to be.

The more the PR is in breach (the fewer days credit the PR has toward RO compliance), the higher the risk. (The less the PR is in breach, the lower the risk.)

The longer the stay outside Canada, the higher the risk.

There is typically significantly more risk if the PR needs to apply for a PR Travel Document (including the fact that a PR outside Canada who does not a valid PR card is presumed to not have valid PR status).

Thus, a PR who has been back in Canada for more than a year, say, has established a home in Canada and has employment in Canada, should have a low risk of running into a problem at the border when they return from a week long trip to the U.S. Question is, however, why even take that low risk.

In contrast, a PR who has been back in Canada just a month or three who leaves Canada and has less than 150 or so days credit toward meeting the RO when they apply for a PR TD in order to fly back to Canada, is taking a very significant risk despite an earlier positive H&C decision.

Again, it is very hard to quantify the risk in these scenarios.

 

[armoured]

We were able get the Report 44(1) dismissed on basis of H&C and immediately asked to apply for 5 year PR. Now the dilemma is that if ones still short say certain days to meet the 730 days, will one invite another scrutiny if we leave for a short trip then returning to Canada?

Do you have a valid PR card now? How do you expect to return (i.e. by plane or at land border)?

Did you get 44(1) dismissed at the point of entry (i.e. on day of entry) or after some lengthier process?

How long since you last returned/how short of residency compliance are you? (How many days in Canada in last five years? esp recently)

 

[ethelstan]

Thanks @dpenabill and @armoured. Its really helpful.

We've been in Canada now over 600 days with current stay over 400 days. Yes, valid PR card. And 44(1) dismissed after lengthy process. Planning to just leave for a week trip..

I think that risk is likely minimal but is still there..

 

[armoured]

Yes, valid PR card.

The PR card was issued after the process above / still has extensive validity (doesn't expire soon)?

I'm inclined to say you're probably correct that not a very big risk, esp if truly a one-week trip. (My impression is cbsa doesn't like to deal with such issues when it's really a short visit abroad).

That said, not zero risk. And as you saw, time involved and consequences/stress of going through a process - even if you get it overturned in the end - are not pleasant.

BTW - do you have a link to the case you cited above?

 

[ethelstan]

The PR card was issued after the process above / still has extensive validity (doesn't expire soon)?

I'm inclined to say you're probably correct that not a very big risk, esp if truly a one-week trip. (My impression is cbsa doesn't like to deal with such issues when it's really a short visit abroad).

That said, not zero risk. And as you saw, time involved and consequences/stress of going through a process - even if you get it overturned in the end - are not pleasant.

BTW - do you have a link to the case you cited above?

Here is the link - pg9-10. https://www.irb-cisr.gc.ca/en/legal-policy/legal-concepts/Documents/RoaAmr03_e.pdf

You guys are truly immigration law afficiniado!!

Keep up the great contribution

 

[armoured]

We should probably say: if you have 600 days or so recent, most you'd have to wait to be in compliance is 4.5 months. That's definitely the safer route.

 

[ethelstan]

We should probably say: if you have 600 days or so recent, most you'd have to wait to be in compliance is 4.5 months. That's definitely the safer route.

Agreed wholeheartedly. Dealing with 44(1) dismissal really took a toll mentally. It took like over 2.5 years without anyone contacting us, then suddenly given a week to put together a response for an interview in 2 weeks.

We called few lawyers who for the most part are not interested to deal with Ministers delegate maybe because nominal fee ($2K?) and was told to "roll the dice". Here we go and we know now to take the 730 super seriously.

 

[aviseqdas]

Agreed wholeheartedly. Dealing with 44(1) dismissal really took a toll mentally. It took like over 2.5 years without anyone contacting us, then suddenly given a week to put together a response for an interview in 2 weeks.

We called few lawyers who for the most part are not interested to deal with Ministers delegate maybe because nominal fee ($2K?) and was told to "roll the dice". Here we go and we know now to take the 730 super seriously.

So if you didn't hear anything on the 44(1) for 2.5 years did the days since it was issued did not count towards tourism RO? Because if those were counted 2.5 would have given you more than you need. Did you get a 44(1) at the port of entry?

 

[scylla]

So if you didn't hear anything on the 44(1) for 2.5 years did the days since it was issued did not count towards tourism RO? Because if those were counted 2.5 would have given you more than you need. Did you get a 44(1) at the port of entry?

The days after the 44(1) is issued do not count towards PR.

 

[ethelstan]

So if you didn't hear anything on the 44(1) for 2.5 years did the days since it was issued did not count towards tourism RO? Because if those were counted 2.5 would have given you more than you need. Did you get a 44(1) at the port of entry?

Like what @scylla said, time is frozen at the writing of 44(1) report which is per their field manual.
Another thing to note is that - the shortfall can literally be 1 day and it could lead to 44(1) report.

In our case, the time spent after is of course reviewed (they specifically asked for it) but this is just for H&C along with other factors.

 

[armoured]

The days after the 44(1) is issued do not count towards PR.

An honest question - I know / have seen the point that days after the 44(1) report 'are not counted' for purposes of the review/decision (i.e. when/if it is appealed).

But I wonder (and by wondering saying I think it is possible) if, once a positive H&C decision is taken on/at the appeal, if those days after the 44(1) report are then considered to count.

Because - after all - a positive decision has been rendered and there is no reason (at that point) to annul or not count those days.

Or put differently, the purpose of not counting the days after a 44(1) is clear - to not give the PR the advantage of days to meet RO requirements simply by dint of being allowed in Canada to appeal after having been determined to be inadmissible. But once that determination is overturned, there is no longer a purpose AND the finding of inadmissibility has been reversed.

So while a rather technical question (surely there is an answer?), it's a substantive one - the PR who has won their appeal might at that point be in compliance already.

 

[ethelstan]

An honest question - I know / have seen the point that days after the 44(1) report 'are not counted' for purposes of the review/decision (i.e. when/if it is appealed).

But I wonder (and by wondering saying I think it is possible) if, once a positive H&C decision is taken on/at the appeal, if those days after the 44(1) report are then considered to count.

Because - after all - a positive decision has been rendered and there is no reason (at that point) to annul or not count those days.

Or put differently, the purpose of not counting the days after a 44(1) is clear - to not give the PR the advantage of days to meet RO requirements simply by dint of being allowed in Canada to appeal after having been determined to be inadmissible. But once that determination is overturned, there is no longer a purpose AND the finding of inadmissibility has been reversed.

So while a rather technical question (surely there is an answer?), it's a substantive one - the PR who has won their appeal might at that point be in compliance already.

You are 100% correct. This is supported by ENF 23 https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf23-eng.pdf#page19


It is to be noted, R62(1), R62(2) - The five-year period does not include any day after:

• a report is prepared under A44(1) on the grounds that the permanent resident has failed to comply with the residency obligation; or
• a decision is made outside of Canada that the permanent resident has failed to comply with the residency obligation,

unless the permanent resident is subsequently determined to have complied.

 

[armoured]

unless the permanent resident is subsequently determined to have complied.

Thank you so much! Gosh I wish I was better at finding answers like that.

Seems relevant to the poster(s) above and potentially to your case (although I admit I now no longer recall who is who). I trust those who need this info will find it.