antho065 said:
Here are the facts:
1. I do possess a Record of Landing (IMM1000)
2. I do not meet the PR RO
Ok.
3. I have H&C reasons and I am hoping to apply for a PRTD based on H&C grounds. Details to follow.
Makes sense.
4. I can enter Canada as a visitor (i.e. visa-exempt)
No, you can't. You can enter Canada as a Permanent Resident, and should not hold yourself out as a visitor. You are not one. You might tell the airline you are (in order to be able to travel), but you should not tell the border officials that.
5. I tried to enter Canada by presenting myself as a PR by showing my IMM1000, and I was able to enter Canada from the US (the border officer just asked me whether I have renounced it, and I said no, and he said then you are still a PR). But strictly speaking, I am unsure whether I was entered as a PR or as a visitor officially.
You entered as a permanent resident. If you haven't lost it, and haven't renounced it, then you are a Permanent Resident.
Situation:
I wish to return to Canada and reside there. Although I was able to enter Canada as said in #5, I don't want to risk losing my PR status as forum members here advised I would risk losing my PR status each time I cross the border, and due to my job nature, I do travel a lot around North America.
Reasonable. Every time you cross the border, you are at risk - if you do it enough, you will eventually get referred for a hearing.
I worry that if I lose my PR status, I would be banned from applying to the Federal Skilled Worker Program Express Entry program, or worse, entering Canada forever.
If you fail to meet the residency obligation, you risk PR status. It's not an offence, however, which means you aren't barred from re-applying, or from crossing the border. Being barred from Canada comes from lying, misrepresentation, and criminality. If you are honest, you aren't going to get banned, or blacklisted.
Thus, I'm considering applying to return to Canada via the formal/proper means. Please advise if this is advisable or not. Or, should I simply move to Canada based on #5, because from what I got from the border officer, he appeared to be pretty easy going/cared less, and let me in. Or perhaps, the other border officers might not be that nice...?
They may be nice. They may not. You can force the issue by applying for a PR card or travel document - if it's granted, they are unlikely to challenge it, as earlier determinations of H&C factors is given significant weight as a matter of policy. Note, that does not mean ignoring your offence - it means a human being sitting down at a hearing, or looking at an application for PR card or travel document.
You can also just renounce as you cross the border. You would then
be a visitor, and you could re-apply under express entry. It's expensive to do this, though, so I'd personally suggest that if you want to force the issue just apply for a travel document.
1. Can I just move to Canada based on my experience (#5) and cross the border using my IMM1000 in a private car? I do understand that from March 2016 onwards, all PRs have to travel using a PR card. But I'm getting mixed comments saying IMM1000 can still be used to travel via a private car.
PRTD requirement does not apply to private cars. It applies to commercial carriers, where you generally buy a ticket in advance. This is things like buses and aeroplanes. As a heads up, travelling with a CoPR/IMM1000 gets you significantly more scrutiny than a PR card, and there are agents who
will refer you for a hearing if you try crossing regularly. You may get away with a few crossings, but nothing says "out of status" like crossing with a CoPR that's several years old.
2. If I apply for a PRTD based on H&C grounds, what constitutes as H&C grounds? My H&C reasons relate to one of my parents having life-threatening illnesses and I was accompanying them for most of my life, until conditions have been stabilized recently. I was also removed from Canada as a minor, but I also understand that this fact alone doesn't really hold anymore.
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
Here's the main things they look for:
The hardship (of losing permanent resident status) that the permanent resident would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act; and this hardship should be, in most cases, the result of circumstances beyond the permanent resident’s control.
This is where the minor thing comes into play. Under the old rules, you had to intend to abandon (which minors were held not to be able to). The new rules don't require intent.
Examples of factors to weigh and consider:
Extent of non-compliance
* How many “days of physical presence in Canada” within the five-year period
under examination, has the permanent resident spent in Canada?
In other words, are you only a few days short, or very short?
* Was the permanent resident outside of Canada for more than three years in the last five-year period because of a medical condition or the medical condition of a close family member?
* Could alternative arrangements for the care of the family member have been made or was it the permanent resident’s choice to remain outside Canada?
In other words, with medical H&C, they give more weight to someone who had to go because it was important (dying or severely hurt), and where there was no other person to do so.
* Circumstances beyond the permanent resident’s control: Are the circumstances that led to the permanent resident remaining outside of Canada compelling and beyond their control?
* Was the permanent resident prevented from returning to Canada; and if so, by whom and by what event?
* Is the permanent resident now returning to Canada at the earliest possible opportunity?
They are far more sympathetic if something happened you had no control over, and if you come back as soon as possible. Someone who is kidnapped (for example) would get tremendous consideration, as would a muslim woman who visited family and had her passport taken to trap her there.
* Did the permanent resident leave Canada as a child accompanying a parent?
* Is the permanent resident who left as a dependent child or family member returning at the earliest opportunity?
* Is the permanent resident dependent on the parent they are accompanying because of a mental or physical disability?
This goes back to parental travels. As a child, you may not have a choice in the matter, particularly if you are physically dependent on someone else. The question, then, is whether or not you return at the earliest opportunity.
Establishment in and outside Canada:
* Is the permanent resident a citizen or permanent resident of a country other than Canada?
* Has the permanent resident taken steps to establish any permanence in a country other than Canada; or the country they resided in immediately before becoming a permanent resident of Canada (that is, any third country status)?
* To what degree has the permanent resident established in Canada?
* What linkages and ties has the permanent resident maintained in Canada?
They are more sympathetic to someone who does not have other options. If Canada is your nexus - where your work, your home, etc. is, they are less likely to take your permanent residency.
Presence and degree of consequential hardship:
* A loss of permanent resident status will have the consequence of either having to voluntarily leave or be removed from Canada. The removal of a status-less person may have an impact on family members who do have the legal right to remain in Canada (for example, Canadian citizens and/or permanent residents).
Officers should consider the person’s degree of hardship in relation to personal circumstances (that is, impact on family members, especially children).
This particularly comes into play with your spouse and children - someone who leaves temporarily for work while their spouse and children stay will be given significantly more leeway, particularly if the person returns as soon as they find work in Canada, and do not maintain a life outside Canada.
My whole family is Canadian (i.e. Canadian citizens), and I wish to be with family. Are these strong enough H&C reasons?
Wanting to be with family (on it's own) is not a compelling reason. That is largely handled by the familial sponsorship route. If you don't qualify for that, it's because the government doesn't consider your family reunification case compelling enough (if that makes sense).
Your family status is not something outside your control, nor particularly harsh upon you. If you were capable of staying, but chose not to, than it means you didn't value it enough to stay. H&C is for emergencies, and necessity. They don't expect you to (for example) leave a parent to die alone, but those are truly exceptional events that merit H&C.
How likely can I get a PRTD?
That depends on how well you present your case. You have to demonstrate that you had no other choice, that you came back as soon as you can, and that you losing Permanent Residency would ultimately be uniquely inappropriate. The fact that you would lose PR is not itself a reason for H&C grounds, or nobody would ever lose their status.
Should I hire a lawyer to help me with this?
A lawyer can help when you have a good case, but can't present it well. A lawyer can't take a bad case and make it good. Either you have the H&C case, or you don't.
3. Or, should I just apply to the Federal Skilled Worker Program directly? (I do have the minimum requirements)
You can't apply, as you are ineligible (since you are already a Permanent Resident). Should you wish to re-apply, you must first lose your status. If you want that, go ahead and apply for a PRTD. Make the best H&C case you can, and if you lose, renounce and drop the appeal.
If you are able to stay in Canada for two years, you can try crossing the border with just your IMM1000. If you get lucky, they don't report you, and you can stay two years and replace your PR card. If you're going to cross once or twice a year, you can gamble when you cross doing the same thing.
If you are going to cross frequently, the PRTD route is probably the way to go, as if you cross regularly with that paper, you will end up with someone who writes you up for examination.