I did not meet RO and successfully appealed for it with H&C ground. I received the decision that appealed allowed. I have a temporary 1 year PR card right now that will be expired early 2019. My question, in this case, by early 2019, I still have less than 730 days in the past 2 years, will I be granted 5 year PR card as I have positive outcome of my RO appeal.
Permanent Resident Card for H&C Appeal Allowed
- Thread starter melrose37
- Start date
As I understand it, when you apply to renew your card, they can and probably will do another residency assessment. Whether the successful appeal now will still override the non-compliance next year, I cannot say. As you have been given a second chance, why not remain in Canada until you are back in compliance? You won't need a valid PR card if you don't leave... You may need to rethink your employment (foreign travel) if this puts you at risk of being reported again or not meeting the Residency Obligations.
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I need this employment to survive in Canada to support my family. If going out while employed by Canadian company, is it counted as living in Canada?
That is a question that only IRCC can answer, based on the very specific facts of your circumstances. Personally, I would be very cautious about assuming that it will meet the exemption.
Looking at some of your other, older posts, including history arising from being reported at a PoE in 2017, it appears that in the meantime you have obtained employment with a business located in Ontario with employment duties requiring you to spend a lot of time abroad. As @zardoz has observed, the particular details in your situation can have a big impact on how things go from here.
Generally the H&C decision in the IAD appeal will satisfy the PR Residency Obligation as of the date of the original report and to some extent as of the date of the decision. Thus, ordinarily a PR who gets a favourable decision from the IAD will indeed be able to apply for and be issued a full five year PR card, and ordinarily the decision in the appeal resolves any PR RO compliance issues AS OF THEN.
That is, usually a positive H&C decision effectively overcomes any past breach. It is almost (but not quite) the same as if the PR had just spent two years in Canada. So you should be able to apply for and be issued a new PR card.
BUT REMEMBER that the PR RO is a continuing, ongoing obligation. So the actual effect for a particular individual can depend on the extent of absences in the meantime, and even more so on absences going forward. For example, a new PR card has little relevance when the PR is examined for RO compliance, which can happen any time the PR is arriving at a PoE to enter Canada. That is, even if you are issued a new PR card in early 2019, you can still be questioned about RO compliance during any future PoE examination, even just months after you get the new PRC.
One might question which date IRCC effectively deems the prior breach cured. If it is the date of the original report (back in 2017 for you as I understand it), then a future PoE examination for RO compliance would focus on absences since that date, not counting absences prior to that date. If it is the date of the decision, that would mean absences while the appeal was pending also would not count. Obviously the latter would make your life easier (give you more leeway going forward).
But the problem is that even though IRCC ORDINARILY treats the prior breach cured, once there is a formal H&C decision in favour of the PR, IRCC is NOT REQUIRED to treat it that way. Subsequent absences and behaviors inconsistent with the purpose of PR can trigger a calculation based strictly on days-present-within-immediate-last-five-years, and effectively limit the previous positive H&C decision as a factor to consider in assessing H&C factors as of the date of this more recent examination.
That is, for the PR with a positive H&C decision, ORDINARILY the PR is considered in compliance virtually the same as a PR who just spent two years in Canada. BUT there is some risk it could go otherwise.
All that said, it appears that one huge factor (assuming I understand the facts correctly) weighing heavily in your favour, now that the appeal has had a positive outcome, is that for the most part your life is now largely centralized in Canada even though you still need to travel abroad often. And that ordinarily your work travel only requires a week at a time outside Canada:
Without wrestling with the particulars of your employment, if you are now regularly coming and going, spending a significant number of days EVERY MONTH in Canada, and you do not maintain a residence in any other place, such that Canada is your primary place of residence, my sense is you should be OK. . . . OK even if it takes some time before you reach having spent 730+ days in Canada within the previous five years (of any particular day). Assuming that the IAD has indeed granted the appeal on H&C grounds and that the Minister does not seek further review of that decision.
Moreover, if you now work for a Canadian company, a business located in Canada doing business IN CANADA, and your employment in particular is to work at a location in Canada or out of a location in Canada, and your travel abroad is to do work for this employer on an assignment basis, you really should have no problems. In this situation, even the time abroad should count toward the PR RO. This is a rather substantial IF. It depends on some particular details in how you were first employed, what your actual position with the employer is, who the employer is, and what is the nature of the employer's business in Canada (if it is to only provide services or products abroad, for example, that can change the equation), and whether your trips abroad are specifically about being temporarily assigned abroad.
But in any event, if you are spending an average of 12 to 15 days a month in Canada, month in and month out, and your primary residence is in Canada, odds are you are good to go even if technically, as of right now, you have not been in Canada 730+ days within the preceding five years. (Again, assuming that the IAD has indeed granted the appeal and that the Minister does not seek further review of that decision.) Eventually, on such a schedule, you will be in compliance, and so long as your life is centralized in Canada, it is not likely IRCC will have a problem.
Thank you for explaining @dpenabill. I will be having 730 days around 3 months after my temporary PR card expired. I am contemplating to apply the new PR card now when I just received the positive outcome or later when it has been expired. I will always need PR card due to travel requirement. I am out in average 7 days in a month to USA mostly and I do not have US working visa, traveling with business visa. In the previous years, I did not live in USA. Just the job in Canada requires US travel.