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RO Appeal process
- Thread starter Anniey
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I am not familiar with how the current restrictions on conveyances of residential property (aimed at reducing foreign and non-resident acquisitions) are enforced. While I was fairly recently involved in a transfer of ownership as to a residence, we employed a lawyer to complete the formalities and register title, and the lawyer accepted our statements as to citizenship and residence (I forget whether the required residence/presence was for 153 or 183 days within the preceding year) without asking to see supporting documents (noting, though, the lawyer had plenty of reliable information about us including our very long term relationship with the family of a colleague in the same law firm; so the lawyer was not accepting our word based on blind faith).
The procedure to obtain a one-year PR card is to simply make a PR card application. Upon determining the applicant is a PR, it is IRCC that decides whether to issue a five year card or a one year card. As @armoured referenced, IRCC issues a one-year card rather than a five-year card if the PR is subject to or involved in "enforcement" proceedings. For more detailed information about this, see the statutory note below.
For a PR who has an appeal pending, including cases that are about appealing a Removal Order issued at a PoE as well as those appealing a denied PR Travel Document (for inadmissibility based on a breach of the RO), IRCC will issue the one year PR card rather than a five year PR card. The question is WHEN.
In particular, how long it will take, or WHEN will the one year card be issued, is a key unknown. IRCC is known for taking a long while to process PR card applications that involve even suspicion of an admissibility issue. We have seen timelines exceeding a year. Perhaps IRCC will promptly issue a one-year card in response to an application for a PR card made by a PR with an appeal pending. There has been rather scant anecdotal reporting by individuals in these scenarios and it is not something reflected in published decisions. So, this may be something to discuss with a qualified lawyer.
One year PR cards will be revoked if and when the appeal is denied, which is also the case if the PR has been issued a five year PR card (as I mentioned in the other topic, even if IRCC issues a five year card it is imperative to follow through with appealing a denied PR TD).
One problem, among others, is whether IRCC will get around to issuing the card before the appeal is decided. It warrants emphasizing that as far as we can discern, unless a much stronger H&C case is presented in the appeal (compared to what was submitted with the PR TD application), the odds are not good.
Statutory Note Re Issuance of One-Year PR Cards:
Section 54 in the Regulations (Immigration and Refugee Protection Regulations or IRPR) governs whether a five year or one year card is issued:
54 (1) Subject to subsection (2), a permanent resident card is valid for five years from the date of issue.
(2) A permanent resident card is valid for one year from the date of issue if, at the time of issue, the permanent resident
(a) is subject to the process set out in paragraph 46(1)(b) of the Act;
(b) is the subject of a report prepared under subsection 44(1) of the Act;
(c) is subject to a removal order made by the Minister under subsection 44(2) of the Act and the period for filing an appeal from the decision has not expired or, if an appeal is filed, there has been no final determination of the appeal; or
(d) is the subject of a report referred to the Immigration Division under subsection 44(2) of the Act and the period for filing an appeal from the decision of the Immigration Division has not expired or, if an appeal is filed, there has been no final determination of the appeal.
A PR who has been denied a PR TD but who has an appeal pending (or the time for filing an appeal has not expired) falls under 54(2)(a) IRPR, which refers to Section 46(1)(b) IRPA and the process pursuant to which there will be a final determination as to "a decision made outside of Canada that [the PR has] failed to comply with the residency obligation."
Thanks @armoured and @dpanabill for the detailed responses. I am expecting my job offer letter to come in anytime this week and am in a dilemma whether to go about Option 1 or 2
Option 1: Apply for urgent PRTD w/o RO met under H&C (thinking of attaching job offer letter, NoA in Canada as I worked in Canada with PR between 2018-2020, Medical reports of family members in 2022/2024 which played a role in me to delay re-entry into Canada along with proof of funds that I am intending to bring into Canada to prove settling). I can even go ahead and attach a confirmed flight ticket if that would help.
Option 2: Carry all these necessary documents to land border as I have Passport from one of the visa-waiver countries and so I can get ETA to US. In fact, I just need my passport to enter Canada land border w/o ETA as visitor (of course doesn't matter at this point as they can clearly see I am a PR in their system). At Canada land border, I can show COPR/ expired PR card and passport and try my luck not to get reported.
Based on the info you provided, am I correct that I can go ahead and apply for a PR card even if I have an A44(1) written at land border? Due to the nature of my job, a valid PR card is needed for me to travel to US at least twice a year- I can get a letter from my employer to prove this. Hence, I see applying for a valid PR card once in Canada (regardless of PRTD rejection+appeal at IAD or A44 at land border) seems inevitable for me.
any pros and cons on choosing Option 1 versus 2?
Can a representation by lawyer at the land border guarantee entry w/o reporting?
Any feedback would be highly appreciated.
Option 1: Apply for urgent PRTD w/o RO met under H&C (thinking of attaching job offer letter, NoA in Canada as I worked in Canada with PR between 2018-2020, Medical reports of family members in 2022/2024 which played a role in me to delay re-entry into Canada along with proof of funds that I am intending to bring into Canada to prove settling). I can even go ahead and attach a confirmed flight ticket if that would help.
Option 2: Carry all these necessary documents to land border as I have Passport from one of the visa-waiver countries and so I can get ETA to US. In fact, I just need my passport to enter Canada land border w/o ETA as visitor (of course doesn't matter at this point as they can clearly see I am a PR in their system). At Canada land border, I can show COPR/ expired PR card and passport and try my luck not to get reported.
Based on the info you provided, am I correct that I can go ahead and apply for a PR card even if I have an A44(1) written at land border? Due to the nature of my job, a valid PR card is needed for me to travel to US at least twice a year- I can get a letter from my employer to prove this. Hence, I see applying for a valid PR card once in Canada (regardless of PRTD rejection+appeal at IAD or A44 at land border) seems inevitable for me.
any pros and cons on choosing Option 1 versus 2?
Can a representation by lawyer at the land border guarantee entry w/o reporting?
Any feedback would be highly appreciated.
An urgent PRTD really only works if you meet RO. You won't get urgent processing if you are applying under H&C. It's not unusual for processing to take a number of months if applying under H&C.
Lawyer cannot represent you at the land border and cannot guarantee entry without being reported.
May take a while to get the 1 year PR card. Would probably suggest you try to enter Canada via US border on your own. Depending on what happens in your case your family can then follow. They are likely at higher risk of being reported than you are although your risk is still high with 5 years out of Canada.
The main question is probably whether or not FOR YOU it is worth packing up and making the move to Canada without knowing whether you will be able to keep your PR status. Lots of factors to consider, many of which are personal. In other threads I have also oft noted that even strong H&C cases are tricky. Which leads to the observation by @canuck78 that (in effect) your risk of a decision terminating your PR status is "high with 5 years out of Canada." Yep! If you have not been here, in Canada, within the previous five years, you will likely need a remarkably strong, especially compelling H&C case, just to have a decent shot.
And as I have previously noted, remember that if an appeal becomes necessary (whether due to a PR TD application being denied, or a Removal Order being issued attendant the Port-of-Entry examination), the odds of a successful appeal are NOT good.
If you are all in for the gamble, then traveling to Canada via the U.S., as @canuck78 similarly noted, probably has the best odds of success . . . BUT that is not to say the odds are good. Impossible to quantify the odds any better than that.
Applying for a PR TD may be an advantage if you want to make your best H&C case in the application; this approach could let you know if your H&C case will suffice. If the visa office issues a PR TD you can then travel to Canada knowing you can keep your PR status and safely apply (at least probably; a potentially complicated discussion for another time) for a PR card once settled and working here.
If the PR TD is denied, perhaps reconsider your options.
Note, however, if you appeal a denied PR TD application, again the odds of winning the appeal are NOT good. There is no sign that the individuals who sit for the IAD are more lenient in RO enforcement than overseas visa officers (or CBSA officers acting as the Minister's Delegate), and my sense is the IAD is typically more conservative and strict . . . most of the successful appeals are made by PRs who failed to put forth their H&C case well. This can happen because the IAD conducts a de novo hearing and the PR gets an opportunity to submit more evidence than was presented in the PR TD application, or attendant the hearing with the Minister's Delegate if a 44(1) Report is prepared during the PoE examination.
That is, most successful appeals are for cases which probably had good odds of getting a PR TD based on H&C reasons or not being issued a Removal Order if only the PR had better made their case at that stage. It is not for sure, but it very much appears that for the same facts, the odds are better at the PoE than for a PR TD application, while the odds at the IAD are the lowest.
Meanwhile, even though actually being here in Canada pending an appeal will help a little, it will not make the H&C case very much stronger. It is NOT being here pending the appeal that appears to hurt, handicap the case.
So, if you are prepared to follow through with an appeal, and prepared to come to Canada to stay pending the outcome of the appeal (knowing the odds are not good), as noted above and by @canuck78, skipping the PR TD application process and traveling to Canada via the U.S. probably improves your odds . . . how much this will improve your odds is impossible to quantify, but generally it appears that PoE officials (CBSA officers) tend to be more lenient in RO enforcement than overseas IRCC officers handling PR TD applications.
. . . "am I correct that I can go ahead and apply for a PR card even if I have an A44(1) written at land border?"
Short answer: yes. Still make the H&C case in that application even though repetitive of what was submitted to PoE officials and what will be submitted in the appeal.
Additional observations: Typically, when a 44(1) Report is written at the border the PR will proceed to immediately be interviewed by an officer acting as the Minister's Delegate (MD), who will review the Report and decide whether to issue a Removal Order, or decide that there are sufficient H&C reasons to allow the PR to keep their PR status despite the RO breach. There are occasions, however, when the MD's review of the Report is delayed, in which event the Report remains outstanding until the MD reviews it (and again, upon reviewing the Report, typically during a telephone or in-person conference with the PR, the MD then decides whether to issue a Removal Order, which the PR can then appeal, OR decides to set aside the Report and allow the PR to keep status for H&C reasons).
If you want to present documents to support your case attendant the PoE examination, including during the interview with the MD (assuming a Report is prepared), be sure to have those IN YOUR HANDS, not in baggage, and carry them in your hands when you go into Secondary at the PoE.
While a person will not be given access or allowed contact with their attorney during a PoE examination, and again this includes the review-interview with the MD, if you have the resources and the means to obtain the assistance of a Canadian lawyer, your lawyer can help you better prepare for the PoE examination, including preparation and organization of supporting documents (note that too many can almost be as much a problem as not enough).
"Due to the nature of my job, a valid PR card is needed for me to travel to US at least twice a year- . . . "
Not sure why you need a valid PR card to travel to the U.S. if you have a passport that will enable you to travel to the U.S.
If you need to fly back to Canada, yes you will need a PR card. But you can otherwise fly to a border destination in the U.S. closest to your destination in Canada and again cross the border by land. If you need to appeal a Removal Order, even if border officials require Secondary screening that should be brief and not problematic for as long as the appeal is pending.
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Thanks a lot for your insightful response. To me right now, Canada is my ultimate destination and I have reached a point of no return in my decision. So, unless things turn south, I am prepared for the battle.. Your feedback has given significantly more clarity. I think crossing the land border seems to be the better move for me (even w/o lawyer's help) rather than apply for PRTD from overseas. I am preparing all documents to be handy and accessible. You had mentioned CBSA officers can be slightly more lenient than the overseas IRCC folks. Might be a weird question but I shall go ahead and ask- Between the different border crossings (Ambassador Bridge versus Peace Bridge versus Lewiston Bridge), is there a major difference that you are aware of? Is there a chance to be reported in certain land crossings more likely than in others?
You are right about my PR card request. I am more concerned about using it for air travel to/from US. However, I can plan to drive across to Buffalo, NY, park my car there and travel within US and return the same way. As I am going to be working in Canada during the appeal process, I hope there is little fuss in letting me in.
You ask a common question. It is possible there is a discernible difference, but I do not know what it is (if there is a discernible difference) and I do not know anyone who would, and I would not trust anyone who claims they could say what the difference is. That is something that can suddenly change. Moreover, after all, many day-to-day circumstances at the respective locations, including which officer(s) are involved in examining the traveler, likely have more influence in how it goes than which PoE it is.
If there is much of a difference in the level of RO enforcement at this versus that PoE, that probably shows up more in PIL screening (Primary Inspection Line; the booth for those driving across the border) and affects a PR's odds of being waived through (no referral to Secondary, no direct RO enforcement questioning).
Yes, there is some chance that you get waived through. However, given how long it has been since you were last in Canada, probably not much of a chance.
Getting waived through could later present you with difficult to make decisions. If by chance you are waived through (no Report, no MD review of a Report), you would be good to stay, and if you stayed two years that would get you into RO compliance, no problem after that. Problem is in that scenario any application to IRCC will risk RO enforcement action; so making a PR card application will be risky. And even a brief trip into the U.S. before you have stayed here two years would be risky (getting a pass, that is being waived through one time, is no indication that's how it will go the next time).
So, yeah, being prepared for the "battle" is probably an apt way to describe the road ahead.
When are you planning to cross the border? Do keep us updated how it goes. Good luck!
Sure! Will share my experience once I take this journey in the next few weeks. Should happen sometime before mid-Mar 2025.
Hello All. On the same note, I would like your input on crossing into Canada by foot via Rainbow Bridge carrying 2 Check-in size baggages and a carry-on. Are there any logistical issues in entering Canada with such an amt of baggage via Rainbow bridge- any size restriction at the entry/exit points? While trying to book Rental car from US Buffalo to Canada, apparently search results come out 0 for one-way car rentals. Not sure why. Hence exploring this option of maybe taking a cab from buffalo to rainbow bridge to cross-over. Thank you in advance for your valuable insights.
You can take a cab or uber from buffalo airport to Toronto. I did this during covid. Costs $100-$150 I think.
Issue here is my PR card is expired and I do not meet RO..Hence, I thought cross-border cab might be an issue for me. Not sure if any of these cab companies might accept expired PR card/ just COPR+passport for Canada entry from US.
As far as I remember, cab companies don't check your PR card or any other document. Since they typically charge you a two-way fare, it doesn't matter to them whether you'll be allowed entry into the border or not. If you're refused, they will just drop you back to buffalo but charge full trip amount.
But since you're a PR, you should be allowed into Canada by CBSA even with expired PR card, so this should not be a problem for you.