anshul_prusty said:
Hello everyone,
My PR Card expired last year and recently I applied for a PRTD on H&C grounds since I am taking care of my sick dad in my home country and it is accepted. The embassy however sent my PRTD to me as category R-1 (which is weird since I did not meet the RO) instead of RC-1 Lips sealed My PRTD is valid until late september. My questions are:
1) Is getting R-1 a problem? Should I inform the embassy about this?
2) I am planning to move to Canada permanently in Fall 2018 because at that time my aunt will be retired and she will be able to take care of my dad. I will visit Canada for approximately 2 weeks in the next month. Is it ok for me to apply for a PR Card next month when I visit Canada?
3) If they send my PR Card to my adress in Canada, would it be ok to go back to Canada in 2018 with my new PR Card. Would there be any problems with RO?
Many thanks.
Overall: there are reasons to proceed cautiously, but a lot depends on all the other facts and circumstances attendant your situation.
It seems likely you need to take advantage of this PR TD to return to Canada timely and then stay in Canada long enough to be in compliance with the PR Residency Obligation. Any other course of action may entail a serious risk of losing PR status. But, again, the actual extent of the risk depends on all the facts and circumstances in your situation. Even with a lot more details, it would be very difficult to credibly assess whether your risks are low or high or very high.
What is known, however, is that you have an opportunity now to return to Canada, and
almost for sure doing so will save your PR status if you take advantage of this PR TD to return to Canada timely and then stay in Canada long enough to be in compliance with the PR Residency Obligation.
In contrast, without more details it is impossible to discern how fortunate you are that you were issued a PR Travel Document. Even if you shared many more details, it would still be very difficult, if not still impossible, to discern how fortunate you are . . . which is another way of saying, it is impossible to know to what extent this might have gone the other way.
Make no mistake, it could have gone the other way. You acknowledge being short of complying with the PR Residency Obligation. Thus, a negative decision, the denial of a PR TD, would have been, at the least,
valid in law.
A PR is not entitled to a favourable H&C decision. Whether IRCC will waive a valid in law determination that the PR has failed to comply with the PR RO is
discretionary. The decision in the H&C case must be reasonable, meaning that it cannot be capricious, arbitrary, or discriminatory (relative to prohibited discrimination; obviously it can be discriminatory relative to other factors, time in Canada being the most obvious one), also meaning it must be based on fair procedure and an assessment of criteria that is recognized as bearing on such H&C cases or comparable criteria.
Still, again, make no mistake, this could have easily gone the other way: scores of H&C cases fail even though the reason for the PR's lengthy absence was to attend the needs of a severely ill parent. This is not a for-sure reason which will determine the outcome of the H&C assessment in a PR RO compliance case.
In any event, what it is important to recognize is that this PR TD is no guarantee, none at all, that you are free from the risk of losing PR status.
And thus, keeping PR status may depend on returning to Canada, at the least returning while this PR TD is valid, and STAYING in Canada until you are in compliance with the PR RO.
In contrast, it is possible you have a very solid H&C case, and even if you spend nearly another year abroad, you will again be able to obtain a PR TD to return to Canada and keep PR status. I don't know that you do not have a strong enough case to be confident of this outcome.
I do know, however, that would need to be a rather strong case indeed.
In any event . . . you are probably (but not absolutely for sure) safe if you use this PR TD to return to Canada and you then stay in Canada until you are in compliance with the PR RO. The sooner you make the trip to Canada,
and stay, the lower the risk of being further questioned about PR RO compliance at the PoE upon arrival. Reports of PRs challenged about their compliance with the PR RO, when they have been issued a PR TD, are rare. But they can happen and have happened.
Yes, a PR TD with category RC-1 would almost guarantee an entry without a PR RO challenge (since the overt determination of H&C grounds generally constitutes a defining determination on this, albeit not absolutely), but a PR TD otherwise does not.
Regardless why you were not issued a PR TD category RC-1, if your PR TD is not designated a category RC-1, there is a big risk it offers little or no protection from any future (even just next month for example) examination into your compliance with the PR RO.
This may be tempered considerably by the strength of your H&C case. If you have a very strong H&C case, a compelling H&C case, there is less risk, at the least less risk there will be a negative decision in the
near future, perhaps even a bit longer depending on the particular basis for the H&C case and the extent to which they are continuing.
But as I already noted, with some emphasis, the issuance of the PR TD itself (since it is not a category RC-1) appears to provide relatively little assurance about the prospect of a favourable outcome in the future.
Some particular and in-depth observations:
My PR Card expired last year and recently I applied for a PRTD on H&C grounds since I am taking care of my sick dad in my home country and it is accepted. The embassy however sent my PRTD to me as category R-1 (which is weird since I did not meet the RO) instead of RC-1 :-X My PRTD is valid until late september.
It is impossible to discern whether a PR TD issued as a category R-1 really is "weird" or not because there is no more than a very few, sporadic reports about PR TD applications in general, let alone those relying on H&C reasons, and in such reports the all-important factual details are almost always sketchy, at the least prone to the absence of some influential factors.
We can be confident that at least some visa offices issue RC-1 based on reports in this forum in conjunction with references to the respective R-1 and RC-1 categories in the applicable operational manuals (linked above by
thecoolguysam), but this offers only a tiny glimpse into current policies let alone actual practices, recognizing that in addition to how few reports there are, the operational manuals tend to not be completely up-to-date (IRCC continues to migrate toward providing this kind of information in the Program Delivery Instructions format, and in the meantime tends to not fully maintain information in the old operational manual format).
Since the overall trend at IRCC (continuing, albeit perhaps not so extensively, what was a profound acceleration of this trend at CIC when Harper was PM) is toward way less transparency, it is very difficult to know actual policy let alone practices in these sorts of internal procedures.
Regarding:
"I applied for a PRTD on H&C grounds since I am taking care of my sick dad in my home country and it is accepted," my impression is you do not really know what basis the decision to issue a PR TD was based upon. My sense is that you are
inferring it was based on H&C grounds, since you were not in compliance with the PR Residency Obligation, and
inferring this was, in turn, relying on the fact that you have been taking care of a sick parent.
Note: It would be
improper for the visa office to rely on that alone. The H&C decision must be based on all the facts and circumstances, and even favourable H&C decisions have been overruled by the Federal Court where the decision-maker failed to take all factors into account, even if the primary factor was itself compelling.
One of the persistent and to my view profound disagreements I have with more than a few posts in this forum, has to do with declarative statements about H&C reasons, and in particular that this or that "is not a valid reason." More in particular, this forum is repeatedly populated by declarations in the form: "Education (or business or employment) is not a valid H&C reason." Or these factors do not apply to H&C decisions.
Those declarations are
wrong and misleading.
In contrast, the operational manuals
and numerous IAD and Federal Court decisions, which published decisions are
official and which are about
confirmed actual cases (hence far more reliable sources of information about particular facts and related outcomes), make it clear that
any and all reasons for remaining abroad do APPLY in H&C cases, and MUST be considered, in ADDITION to all the other relevant facts and circumstances.
In other words,
ALL the facts and circumstances MUST be assessed and considered in deciding whether H&C reasons warrant allowing the PR to retain PR status despite the failure to comply with the PR Residency Obligation.
I understand and recognize that what amounts to the conventional wisdom (so-called, despite how wrong it is), that certain factors are not considered or do not apply, is more or less an abbreviated manner of stating the probable outome, which is a recognition that H&C relief is rarely provided when the PR's reasons are primarily about business, employment, education, or even family commitments.
People prefer that sort of brief, declarative answer, and their clarity. Unfortunately this remains so even when the brief, declarative answer is misleading or even outright wrong, as it is here.
And, again, it is not only misleading but outright wrong to say that reasons for remaining abroad based on education, business, or employment do not apply to an H&C analysis in PR RO compliance determinations.
This was taking the long way around (the opposite of being brief and declarative) to get to a simple observation: assuming the decision to issue you a PR TD was based on H&C reasons, the visa office had to consider many additional aspects of your situation, and in particular the reasons considered, and positive factors, must have gone well beyond just the fact of caring for a sick parent.
1) Is getting R-1 a problem? Should I inform the embassy about this?
You have been issued a PR TD. That is what you applied for. I highly doubt this would be considered an adverse decision, so I doubt there is any ground to appeal (the Minister may have grounds to appeal but won't). Given the issuance of the PR TD and the scope of discretion exercised, I am quite certain there are no grounds for obtaining a Writ of Mandamus.
In effect, the issuance of the PR TD renders moot whether a PR TD should be issued based on H&C grounds. There is nothing to contest. There is no real avenue to challenge this.
Might the embassy acknowledge an error in failing to issue the PR TD bearing a RC-1 category? And if so, issue a replacement? I cannot guess but I highly doubt it, if it is even possible to engage with the embassy in this regard. But if it is, what is the possibility that the visa office reconsiders the application and in re-considering the PR TD the visa office discerns there was an error, but the error was issuing a PR TD at all?
That said, yes it appears to be a problem in the sense that it does not bear a RC-1 category, whereas if it was RC-1 you would have a lot more assurance your PR status was not at risk, that you could indeed be eligible for a new PR card (if you make the PRC application while in Canada), and it might even suggest continued leeway, if you nonetheless go abroad again, relative to assessing compliance with the PR RO. That would clearly indicate a positive assessment of H&C reasons . . . at least as of the date the application was made.
Whether or not to "inform the embassy about this," I do not know. As referenced before, a lot depends on all the other facts and circumstances in your situation. Nor am I familiar with whether there is even a procedure for engaging with the embassy further about this. It was done in one instance last year, when a PR visiting Russia was improperly denied a PR TD, but there were not only extenuating and compelling circumstances in that case, in addition to an overtly not valid in law determination (the PR was in compliance with the PR RO and had been for many years), the case ignited a public outcry and some outside assistance got involved.
The usual recourse for a wrong decision is to appeal that decision. Since you were issued a PR TD, there is not really a negative or adverse decision for you to appeal.
Moreover, my sense is that you probably should consider yourself fortunate, and take advantage of this opportunity to return to Canada and stay, if keeping PR status is a big priority for you.
2) I am planning to move to Canada permanently in Fall 2018 because at that time my aunt will be retired and she will be able to take care of my dad. I will visit Canada for approximately 2 weeks in the next month. Is it ok for me to apply for a PR Card next month when I visit Canada?
Since I hardly know any of the many relevant facts or circumstances, it is impossible to guess what your chances are that IRCC will issue you a new PRC, particularly given that it appears there has not been any formal H&C determination. Even if I knew many more of the relevant factors, it would still be near impossible to guess how this will go.
In the meantime, sure, it is OK for you to make a PRC application when you are in Canada. And how that will go will probably depend in large part on many additional facts and circumstances.
Be aware that without a formal H&C decision by the embassy, there is a risk that IRCC will conduct a Residency Determination and unless you can successfully make the H&C case to IRCC, decide to issue a Removal Order for failing to comply with the PR RO.
Otherwise, if you leave and are not in Canada during processing, the risk is high that the PRC application will end up in non-routine processing and not result in a new PR card being issued, even without a negative determination, unless and until you are back in Canada. That will necessitate applying for and being issued a new PR TD. That could be very risky.
3) If they send my PR Card to my adress in Canada, would it be ok to go back to Canada in 2018 with my new PR Card. Would there be any problems with RO?
If you are not living in Canada you will have no address in Canada which IRCC will mail the PR card. You are obligated to report any change of address while the application is in process (failing to do this could be misrepresentation by omission and an independent ground for terminating PR status). IRCC will not mail the card to any address other than the PR's residence.
Sure, scores of PRs have fudged or outright committed fraud relative to what they report to IRCC as the address where they reside. Many appear to get away with this. Many more do not.
Some even get away with it when they get the PRC (forwarded abroad by a family member or friend) and use it to return to Canada.
That course has it own risks.
In any event, all things considered, my sense is that you cannot rely on IRCC issuing a new PR card. They might. Odds appear much higher that is not going to happen . . . although, again, perhaps you have a much stronger H&C case that could push this more favourably for you.
This is also weird, but my case is confusing me because I got R-1 although I did not meet the RO. Is it a good idea to let the CIC officers know about this when I arrive in Canada?
Probably not unless asked.
If they ask questions which invite an answer about how or why you obtained the PR TD, sure, you need to answer questions not just truthfully but responsively, you need to be forthcoming and forthright, not at all evasive.
But with a PR TD it is not likely the CBSA will conduct an examination second-guessing or revisiting the determination to issue you a PR TD. That said: It can happen. And as already noted, without the RC-1 category, there is no protection based on a formal determination as to H&C reasons. Thus, sure, it would be prudent for you to be prepared to fully explain your H&C reasons, and to have some documentation in hand which will support yours reasons (at least some medical provider documentation as to need for care, and some collateral evidence that no one has been available to provide that care).
Possible explanation for what you think is weird:
There are more than a few reports about PRs who have been allowed to enter Canada despite an apparent breach of the PR Residency Obligation without having a formal determination made as to their H&C reasons. There have not been many reports of similar leniency exercised by visa offices abroad.
In particular, we are relatively acquainted with the practice of CBSA immigration officers at a PoE, pursuant to which a PR in breach of the PR RO, but who has fairly persuasive H&C reasons for keeping PR, is
NOT Reported for the breach. If the PR was Reported, that would require another officer (a Minister's delegate, typically just another officer, albeit often the first officer's superior) to determine if the Report is valid in law, and if it is, to then consider whether H&C reasons are sufficient to allow the PR to keep PR status despite the breach.
That would be a formal determination that the breach is in effect waived for H&C reasons. And this would generally be binding, at least to a significant extent. This in a sense cures the breach. It almost, in a sense, starts the clock over.
I have tended to interpret these informal waivers as overt leniency without agenda. A couple recent reports, and now yours (albeit via a visa office), has me wondering if such leniency might be deliberate, with a deliberate catch. It occurs to me that there may be a deliberate practice of
informally waiving a breach, in effect giving the PR an opportunity to enter Canada and stay. If the PR stays, eventually (two years at the longest) the breach is totally cured. If the PR leaves before the breach is fully cured, there is no binding H&C determination, so the PR's situation can be subject to examination and an independent determination of the H&C reasons, which of course would also take into account this further time abroad.
That is, might some PoE leniency be about giving the PR a chance without totally curing the former breach? I'm sensing there may be at least some element of this going on in some of these cases.
And, could visa offices have a similar practice? Could that be why you were given the R-1 category PR TD? So that it gives you an opportunity to return to and stay in Canada, but leaves open the possibility of a contrary outcome in the future if you do not actually stay in Canada?
I do not know. There is plenty of indication this is a scenario sometimes played out at a PoE, the willingness of border officers to give the PR a chance to enter and settle in Canada but not totally wipe clean the breach if the PR does not settle in Canada . . . so that, again, if the PR does not settle in Canada, the next time the PR can be Reported and issued a Removal Order . . . or if the PR goes abroad without a valid PR card, an application for a PR TD can be denied.
The last portion of the above is a fair bit speculative (but residency and presence issues is the main focus of what I follow these days, and have been following for many years, so this is not merely off-the-cuff speculation).
What is not speculative is that while caring for ill parents is often a positive factor tending to support H&C relief, by itself it is often not enough, and generally the availability of H&C relief will depend on other, additional factors carrying weight tending to warrant keeping PR status. Which is to say, your plan to go back abroad for another year or so is likely to be risky, if not extremely risky.
