This is another LONG post.
In many respects I try to focus my long posts on issues which, I hope, can help illuminate more about the process in a way that will be of use generally, even if I am addressing an individual situation. One of the more persistent issues here is the extent to which the complexity and variability of H&C cases are, it seems to me, underestimated.
It is, however, also important to distinguish the procedural context. Observations about the odds and risks in a PR RO H&C case can vary in relevance or importance in different contexts, ranging from assessing priorities and making decisions before there is a breach of the PR RO (
what if I stay abroad to care for my terminally ill brother?) to the case here, the breach is done and the PR is settled in Canada and headed toward an IAD hearing, or ranging from how to approach making the H&C case to a PoE officer (if in breach and examined re PR RO) or in a PR TD application, to questions about priorities and decision-making while an appeal is pending.
The latter involves a key element in this particular situation. Staying in Canada, settling and working in Canada while the appeal is pending, can be a positive factor, positive enough so that for the PR who is reported at the PoE, and if keeping PR status is a priority, it is best to stay in Canada pending the appeal. BUT by itself this tends to not be enough. In contrast, for the PR with strong ties in Canada, apart from and in addition to settling in Canada pending the appeal, and particularly with some other positive factors, THIS CAN BE THE FACTOR WHICH MAKES THE DIFFERENCE resulting in a positive outcome. It depends. It varies.
H&C cases are almost always DIFFICULT and TRICKY. Even strong cases are often tricky. Context matters.
Does she have a chance to get the appeal granted?
Foremost: PR going to IAD hearing should be represented by a qualified, competent IMMIGRATION lawyer. Generally (with some unfortunate exceptions), the lawyer's advice and opinion is far more reliable than anything posted in a forum like this.
Beyond that: Odds are very high the IAD panel determines the 44(1) Report to be "
Valid In Law" (that the PR was in breach of the PR Residency Obligation when the Report was issued).
Outcome of H&C determination is far more difficult to forecast. Especially difficult to forecast. Even if quite a lot more information was known, it would still be so difficult to forecast the outcome that no forum prediction is reliable (including any I make, obviously). But this is especially so in light of the scant information posted about the case.
Observations here (including those above) about sponsoring, IN THE EVENT the appeal is denied, are generally reliable. And that is, of course, the alternative available if PR is lost: a spousal sponsorship.
This Case Appears to Have Positive Factors:
While there is NO reliable way to forecast what the outcome of the IAD hearing will be, the influence of some factors is somewhat predictable. For example, living and working in Canada for a year and a half while the appeal has been pending is a positive factor. Having a spouse and children permanently settled in Canada is a positive factor. The conjunction of these, together, makes them both rather BIG positive factors.
The fact of an alternative, if the PR loses PR status, the alternative of being sponsored, that itself can be a negative factor since it tends to show less hardship will result from the loss of PR status. BUT where the PR has in the meantime actually settled in Canada, that should more or less offset this because compelling the PR to be sponsored again would largely impose procedural hurdles only to have the same result, the individual getting to live in Canada as a PR. Most discussions about this factor tend to distinguish situations in which the PR has not actually settled in Canada and still has ongoing, strong ties abroad, such as continued employment abroad.
As described here, these factors tend to indicate
a fairly GOOD case. BUT it warrants emphasizing that having a *
good* case does not illuminate much about what the odds of success are.
H&C cases are both difficult AND tricky. Many, many other factors can (and likely will) push the outcome in one direction or the opposite.
Leading to another always huge factor: CREDIBILITY. The IAD panel's assessment of the PR's credibility will often be what makes or breaks the case.
The latter is a particularly salient factor in a case like this, and the PR's credibility may be tied to the credibility of the remaining family living in Canada. Leading to this:
My mother appealed for departure order due not meeting residency obligation and then she stays here and works here with a good job. She has lived here for about one year and now just received a request to appear for ADR conference.
Anyone has had experience to be in ADR conference. What to expect? Is it better chance to get a pardon in ADR vs hearing.
versus
A friend of my entered Canada after his PR card expired with his father . . .
. . . His mother entered at a different time, and she got reported. She has now lived in Canada for 1.5 years and will have to a court hearing.
There are other topics and posts which further describe a very, very similar scenario, but in first-person (not involving "a friend").
Whether the query now is about a friend or otherwise, what looms as significant here is whether there was an ADR conference and, assuming there was, the outcome of that. Frankly, if these are one and the same cases, the outcome of the ADR conference is as big an indicator about how this is likely to go as any other. BUT NOT definitively. If the outcome of the ADR was negative, that indicates IRCC's position and that IRCC is probably pushing a negative outcome. BUT the IAD panel will make an independent assessment of the facts and, importantly, the PR's credibility.
If the PR has a lawyer and declined ADR, I do not know much about the dynamics underlying how that goes down. The lawyer would be the primary source of information, advice, and opinion about this.
Otherwise . . . the thing is . . . the positive factors I reference above seem, to me, to give IRCC plenty reason to withdraw or rescind the 44(1) Report and Departure Order, to agree the PR should be allowed to keep PR status. In particular, these seem, to me, to make a good case for allowing the PR to keep status based on H&C reasons . . . SO that raises the question: why not a positive ADR outcome?
Contrary to some complaining in this forum, generally Canada tends to lean a good ways, often so leniently as to be generously, toward allowing PRs to keep their status
so long as the PR has strong ties in Canada and is actually settling permanently in Canada, and particularly so when that facilitates keeping a Canadian family united in Canada. IRCC generally does not pursue taking away a PR's status based on technicalities (with some exceptions).
That is UNLESS there are concerns . . .
CONCERNS about fraud, misrepresentation, abuse of the system, or potential criminality or security issues.
So, again,
credibility looms large.
There are of course many other factors, some of which are also relevant to IRCC's perception of the PR's credibility, but otherwise relevant H&C factors as well. For example, the total extent of the breach. Short of meeting PR RO by less than a year, that's is one thing. Absent from Canada for nearly all of more than five or more years before coming to settle, that is very much a different thing.
And why the PR was abroad is important.
Again, these are among many factors. And, to be clear,
credibility looms through almost all the factors. How credible is the PR's explanation of reasons to be abroad, for example. How credible is the PR's claims about being fully settled and living permanently in Canada during the last one and a half years? And so on.
Overall, some facts matter more than others:
Represented by a lawyer. Extent of existing family ties in Canada. Extent of settlement in Canada pending the appeal. Extent of continuing ties abroad. Facts contrary to PR's account of facts, tending to compromise the PR's credibility? Pattern of behavior inconsistent with PR's account of facts? . . . inconsistent with PR's purported settling in Canada permanently? Credibility. Credibility. Credibility. Including appearance of gaming the system . . . and thus including whether overall it appears the PR is actually settled permanently in Canada (and, for example, not just settled enough to make the case for keeping PR status).
Regarding representation by a lawyer: Is the PR represented by a competent, reputable immigration lawyer? If "YES" that tends to tip the forecasting scales in a positive direction. If "NO" that tends to push the scales in a negative direction. To be clear, a lawyer cannot change the facts. A lawyer cannot magically transform a particularly weak case into a strong one. If, however, one was to compare cases of very comparable merit, the PR with a good lawyer has the best chance of success and the PR with a mediocre lawyer has a better chance of success than the PR with no lawyer. Unfortunately, there are times PRs have bad lawyers, which tends to make things worse, sometimes worse than having no lawyer at all. (Thus:
Choose a lawyer carefully.)
