Left Canada when a minor

[dpenabill]

Reminder: Still BEGGING for SOME SOURCE, ANY OBJECTIVE SOURCE of information (obviously government source preferred, but at this juncture any objective report will help) describing reasons for denying H&C relief to a removed-as-a-minor PR.

Your argument is well and good when it comes to being forced to leave

As is often the case, others able to express things far more simply than I can, @canuck78 has generally described what appears (by a good margin) to be the current approach.


BUT for further clarification . . . To be clear, the reason for the absence factor I describe above is NOT an argument, and definitely NOT my argument. It is merely a description of what is articulated in scores and scores of official sources.

I avoid presenting arguments as much as possible. My personal opinion does NOT count for much, and I make an effort to NOT rely on my own views much. (So no one should take it personally when I do not give much weight to other personal opinions either.)

I have grown lazy citing sources, for a couple reasons, but mostly so when I am largely repeating propositions for which I (and typically others as well) have previously cited and linked sources . . . such as the key factors I discuss in posts above. Moreover, my posts tend to be very long to begin with, often bordering or well into pedantic territory, which repeated citation of sources tends to further exacerbate.

In any event, I am mostly referring to what a wide range of sources reveal are the actual factors considered and how they are considered, relying extensively on IAD and FC decisions, but also taking into account sources like the relevant Operational Manuals but also considering anecdotal reports in forums like this.

Technically the most important factor, and the one most cited, is the "best interests of a child directly affected by the determination" factor (which is reiterated in literally many HUNDREDS of official sources), but in PR RO cases this factor tends, PRACTICALLY, to be a wash, the fact of the PR's absence tending to show the PR's absence is no great hardship to the child, or if the child is outside Canada, that it is no great hardship for the child to continue living outside Canada. (Again, to be clear, the latter is NOT my opinion but a paraphrased and condensed version of what is very often cited in official sources.) Which is to say this factor, the best interests of a child, generally has little impact on the outcome in at least a very large number of RO cases, probably the vast majority.

For the majority of PRs in breach of the Residency Obligation, the key factors which really make a difference (again, relying on sources, not my own opinion) are:

-- extent of the breach
-- extent of ties in Canada, which includes the extent of establishment in Canada
-- reason for the absence (what precluded the PR from returning to Canada sooner)​

There are other factors. Some can make a significant difference if the above factors are a fairly close call. The PR's intentions, for example, can have significant influence if the nature of the breach is not too extensive and the reason for the absence is not overtly negative. For example, while it is not entirely clear, the H&C analysis discussed in many IAD decisions suggest more leeway is allowed the PR still short of the fifth year anniversary, in breach but making a good faith effort to make the move to Canada to settle to stay (a fairly strong showing of intent).

For example, in contrast to the good faith effort of the new PR (less than five years since landing), which appears to get some leeway, a very strong showing of intent to settle and stay supported by actually coming and staying, even for YEARS pending an appeal, often falls short if prior to the Report or denial of a PR TD the PR was absent for years and had minimal establishment in Canada. That is, the best intentions do NOT make up for an extensive breach. (Will try to mention one other potentially important intention factor below.)

But those three factors tend to make or break the H&C case:

-- the bigger the breach, the more negative weight that factor carries
-- the more ties the PR has in Canada, including being more established in Canada, the more positive weight that carries
-- the less personal choice there is underlying the reason for the absence, or the more compelling the reason to be abroad, the more positive weight that carries​

Again, I am NOT arguing the weight of these factors. I am describing how official sources actually interpret and apply the H&C analysis in PR RO cases.

Additionally, none of the factors are independent but, rather, are considered in relation to each other. A small breach, for example, can be offset by a less compelling reason (and contrary to the view of some here, this includes even personal choice factors, like attending school or staying at a job, potentially having some positive influence). For the removed-as-a-minor PR, the total lack of personal choice has undoubtedly been a dominant factor for many years, in large part totally offsetting the length of the absence.


As I have often reiterated, other than the rather obvious very-little-to-remote-chance cases (we see them, rather often actually), which are easy to forecast (they have little or no chance), it is very difficult if not impossible to quantify the odds in individual cases . . . with perhaps only a few exceptions.

One of those exceptions has been the removed-as-a-minor PR coming to Canada SOON after reaching the age of majority. Indeed, in the past some forum participants have expressed virtual assurance they will be issued a PR TD, while most have soberly said the odds are very good but acknowledge NO guarantee.

THERE REALLY IS NO EVIDENCE THIS HAS CHANGED . . . so long as the removed-as-a-minor PR was in fact REMOVED from Canada (as in removed from a life being lived in Canada) and is making a timely effort to come to Canada.

WHAT THE RECENT ANECDOTAL REPORTS reflect is that some young PRs who had relatively minimal establishment in Canada are denied a PR TD. In response to this some forum participants have proffered the proposition that this is actually a specific policy or practice. And they have proffered the rationale for this. Both making sense. And as you speculate, this may have been accomplished by the distribution of a directive applicable to these kinds of cases.

BUT this fails to offer much insight into what makes the difference.

For the eighteen or nineteen year old PR living abroad whose only life in Canada was a matter of weeks or few months more than five or ten years ago, and who otherwise has no significant ties IN Canada, the recent anecdotal reports tend to be bad news if they were planning on coming to Canada as a PR to study or even to live and work in Canada. There appears to be quite a large number of such PRs in the world.


SOME PARTICULAR OBSERVATIONS REGARDING PERSONAL CHOICE ELEMENT:

Minors are in such cases first of all proving that they were removed against their own will and much less why did that happen (because unless it would be their direct family member as parent or a sibling; they cannot really claim to be restrained by illness of the other person, only by decision of their own parents).

As a matter of law, in Canada, minors have no control over where they live. The lack-of-personal-choice factor is not even a question of fact until the young PR reaches the age of majority. This is why the removed-as-a-minor PR case has been one of the few situations in which it has been fairly easy to forecast very good odds of H&C relief. SO long as the PR did make the effort to come to Canada SOON after legally having a personal choice.

As for illness as a reason for remaining abroad, as I noted before this is actually a lot WEAKER reason than many apprehend. Whether it is personal illness (which can be treated in Canada) or the illness of a family member. Again, this is NOT MY OPINION. This derives from what official sources say in actual cases.

BUT THIS DOES BRING UP A POTENTIAL ISSUE WHICH I HAVE PREVIOUSLY MENTIONED: I have a strong sense (this is a personal view) that some young PRs might be making the application for a PR TD TOO SOON, BEFORE THEY REACH THE AGE OF MAJORITY.

As I noted before, we know (again based on what is decided in actual cases officially reported) that when a minor PR applies for a PR TD together with a parent PR (or similarly they arrive at a PoE together), if the parent's application is denied the child's application is (usually) also denied. And similarly, if the parent is issued a 44(1) Report at a PoE, the child is as well (unless there is a real difference in their cases, like the child actually has been in Canada while the parent has been absent).

So, back to my analysis -- If the child is making an application for a TD to return to Canada, while still a minor, that must be done with the parent's permission. If the child has the parent's permission to come to Canada, that may obviate or offset the lack-of-personal-choice element in being "removed" from Canada as a minor.

This is ONE I DO NOT KNOW . . . but have seen some indications that suggest watching for related information regarding this.

 

[canuck78]

Reminder: Still BEGGING for SOME SOURCE, ANY OBJECTIVE SOURCE of information (obviously government source preferred, but at this juncture any objective report will help) describing reasons for denying H&C relief to a removed-as-a-minor PR.



As is often the case, others able to express things far more simply than I can, @canuck78 has generally described what appears (by a good margin) to be the current approach.


BUT for further clarification . . . To be clear, the reason for the absence factor I describe above is NOT an argument, and definitely NOT my argument. It is merely a description of what is articulated in scores and scores of official sources.

I avoid presenting arguments as much as possible. My personal opinion does NOT count for much, and I make an effort to NOT rely on my own views much. (So no one should take it personally when I do not give much weight to other personal opinions either.)

I have grown lazy citing sources, for a couple reasons, but mostly so when I am largely repeating propositions for which I (and typically others as well) have previously cited and linked sources . . . such as the key factors I discuss in posts above. Moreover, my posts tend to be very long to begin with, often bordering or well into pedantic territory, which repeated citation of sources tends to further exacerbate.

In any event, I am mostly referring to what a wide range of sources reveal are the actual factors considered and how they are considered, relying extensively on IAD and FC decisions, but also taking into account sources like the relevant Operational Manuals but also considering anecdotal reports in forums like this.

Technically the most important factor, and the one most cited, is the "best interests of a child directly affected by the determination" factor (which is reiterated in literally many HUNDREDS of official sources), but in PR RO cases this factor tends, PRACTICALLY, to be a wash, the fact of the PR's absence tending to show the PR's absence is no great hardship to the child, or if the child is outside Canada, that it is no great hardship for the child to continue living outside Canada. (Again, to be clear, the latter is NOT my opinion but a paraphrased and condensed version of what is very often cited in official sources.) Which is to say this factor, the best interests of a child, generally has little impact on the outcome in at least a very large number of RO cases, probably the vast majority.

For the majority of PRs in breach of the Residency Obligation, the key factors which really make a difference (again, relying on sources, not my own opinion) are:

-- extent of the breach
-- extent of ties in Canada, which includes the extent of establishment in Canada
-- reason for the absence (what precluded the PR from returning to Canada sooner)​

There are other factors. Some can make a significant difference if the above factors are a fairly close call. The PR's intentions, for example, can have significant influence if the nature of the breach is not too extensive and the reason for the absence is not overtly negative. For example, while it is not entirely clear, the H&C analysis discussed in many IAD decisions suggest more leeway is allowed the PR still short of the fifth year anniversary, in breach but making a good faith effort to make the move to Canada to settle to stay (a fairly strong showing of intent).

For example, in contrast to the good faith effort of the new PR (less than five years since landing), which appears to get some leeway, a very strong showing of intent to settle and stay supported by actually coming and staying, even for YEARS pending an appeal, often falls short if prior to the Report or denial of a PR TD the PR was absent for years and had minimal establishment in Canada. That is, the best intentions do NOT make up for an extensive breach. (Will try to mention one other potentially important intention factor below.)

But those three factors tend to make or break the H&C case:

-- the bigger the breach, the more negative weight that factor carries
-- the more ties the PR has in Canada, including being more established in Canada, the more positive weight that carries
-- the less personal choice there is underlying the reason for the absence, or the more compelling the reason to be abroad, the more positive weight that carries​

Again, I am NOT arguing the weight of these factors. I am describing how official sources actually interpret and apply the H&C analysis in PR RO cases.

Additionally, none of the factors are independent but, rather, are considered in relation to each other. A small breach, for example, can be offset by a less compelling reason (and contrary to the view of some here, this includes even personal choice factors, like attending school or staying at a job, potentially having some positive influence). For the removed-as-a-minor PR, the total lack of personal choice has undoubtedly been a dominant factor for many years, in large part totally offsetting the length of the absence.


As I have often reiterated, other than the rather obvious very-little-to-remote-chance cases (we see them, rather often actually), which are easy to forecast (they have little or no chance), it is very difficult if not impossible to quantify the odds in individual cases . . . with perhaps only a few exceptions.

One of those exceptions has been the removed-as-a-minor PR coming to Canada SOON after reaching the age of majority. Indeed, in the past some forum participants have expressed virtual assurance they will be issued a PR TD, while most have soberly said the odds are very good but acknowledge NO guarantee.

THERE REALLY IS NO EVIDENCE THIS HAS CHANGED . . . so long as the removed-as-a-minor PR was in fact REMOVED from Canada (as in removed from a life being lived in Canada) and is making a timely effort to come to Canada.

WHAT THE RECENT ANECDOTAL REPORTS reflect is that some young PRs who had relatively minimal establishment in Canada are denied a PR TD. In response to this some forum participants have proffered the proposition that this is actually a specific policy or practice. And they have proffered the rationale for this. Both making sense. And as you speculate, this may have been accomplished by the distribution of a directive applicable to these kinds of cases.

BUT this fails to offer much insight into what makes the difference.

For the eighteen or nineteen year old PR living abroad whose only life in Canada was a matter of weeks or few months more than five or ten years ago, and who otherwise has no significant ties IN Canada, the recent anecdotal reports tend to be bad news if they were planning on coming to Canada as a PR to study or even to live and work in Canada. There appears to be quite a large number of such PRs in the world.


SOME PARTICULAR OBSERVATIONS REGARDING PERSONAL CHOICE ELEMENT:



As a matter of law, in Canada, minors have no control over where they live. The lack-of-personal-choice factor is not even a question of fact until the young PR reaches the age of majority. This is why the removed-as-a-minor PR case has been one of the few situations in which it has been fairly easy to forecast very good odds of H&C relief. SO long as the PR did make the effort to come to Canada SOON after legally having a personal choice.

As for illness as a reason for remaining abroad, as I noted before this is actually a lot WEAKER reason than many apprehend. Whether it is personal illness (which can be treated in Canada) or the illness of a family member. Again, this is NOT MY OPINION. This derives from what official sources say in actual cases.

BUT THIS DOES BRING UP A POTENTIAL ISSUE WHICH I HAVE PREVIOUSLY MENTIONED: I have a strong sense (this is a personal view) that some young PRs might be making the application for a PR TD TOO SOON, BEFORE THEY REACH THE AGE OF MAJORITY.

As I noted before, we know (again based on what is decided in actual cases officially reported) that when a minor PR applies for a PR TD together with a parent PR (or similarly they arrive at a PoE together), if the parent's application is denied the child's application is (usually) also denied. And similarly, if the parent is issued a 44(1) Report at a PoE, the child is as well (unless there is a real difference in their cases, like the child actually has been in Canada while the parent has been absent).

So, back to my analysis -- If the child is making an application for a TD to return to Canada, while still a minor, that must be done with the parent's permission. If the child has the parent's permission to come to Canada, that may obviate or offset the lack-of-personal-choice element in being "removed" from Canada as a minor.

This is ONE I DO NOT KNOW . . . but have seen some indications that suggest watching for related information regarding this.

Unfortunately some parents may have seen and heard that others were easily able to claim that their children had been removed as a minor to return to Canada and study while paying domestic fees. Some will be in for an unpleasant surprise. I would imagine that CIC was likely seeing an increasing volume of these cases and decided to start refusing applications to discourage others from following this strategy. Unfortunately families will be counting on this PRTD route but without meeting your RO there is no way to guarantee your PR status. We will only be able to tell if this is a change of directive from the management or political level of CIC if we keep on seeing refusals over time.

 

[jesh08]

Immigrant families have decided to become Canada's permanent resident not only for local school fees but for the good future of their children.
But often the immigrant family can not meet RO due to social problems. And its victims are always children.
.

 

[canuck78]

Immigrant families have decided to become Canada's permanent resident not only for local school fees but for the good future of their children.
But often the immigrant family can not meet RO due to social problems. And its victims are always children.
.

Children can always apply when they are adults to become PRs after they have studied in your home country or could have relinquished their PR and applied as international students if it wasn’t about the domestic fees.

 

[darl500]

Naturally when a child attains the legal age of adulthood he/she will be 18 years and it coincides with the time to enter University. This is the age he/she is capable to make the choice to settle permanently in Canada or not (below 18 he/she still needs a guardian or parent's approval). Why should it be considered that the choice is made only to avail the domestic fees. Will not this adult pay taxes after returning to Canada? So why the attention to 'domestic fees'?

At the same time, is it fair to have allowed some the PRTD while refuse some others? As @dpenabill has pointed - no one knows for certain the criteria for refusal. Its only based on assumption that the 'not having sufficient ties' could be the reason.

And please let's not assume that every 18 year old wanting to return is solely doing so to avail the domestic fees. Which may not be the case.

 

[canuck78]

Naturally when a child attains the legal age of adulthood he/she will be 18 years and it coincides with the time to enter University. This is the age he/she is capable to make the choice to settle permanently in Canada or not (below 18 he/she still needs a guardian or parent's approval). Why should it be considered that the choice is made only to avail the domestic fees. Will not this adult pay taxes after returning to Canada? So why the attention to 'domestic fees'?

At the same time, is it fair to have allowed some the PRTD while refuse some others? As @dpenabill has pointed - no one knows for certain the criteria for refusal. Its only based on assumption that the 'not having sufficient ties' could be the reason.

And please let's not assume that every 18 year old wanting to return is solely doing so to avail the domestic fees. Which may not be the case.

So renounce PR and pay international fees like every other international student since you haven’t met the RO. If it isn’t about the domestic fees you should be happy to pay international fees since your family didn’t meet RO.

 

[darl500]

The reason for the return is on H&C grounds - to return back to Canada and retain PR status. This is the subject and not the international or domestic fees - which I guess the responses and the subject has deviated to.

 

[dpenabill]

Naturally when a child attains the legal age of adulthood he/she will be 18 years and it coincides with the time to enter University. This is the age he/she is capable to make the choice to settle permanently in Canada or not (below 18 he/she still needs a guardian or parent's approval). Why should it be considered that the choice is made only to avail the domestic fees. Will not this adult pay taxes after returning to Canada? So why the attention to 'domestic fees'?

At the same time, is it fair to have allowed some the PRTD while refuse some others? As @dpenabill has pointed - no one knows for certain the criteria for refusal. Its only based on assumption that the 'not having sufficient ties' could be the reason.

And please let's not assume that every 18 year old wanting to return is solely doing so to avail the domestic fees. Which may not be the case.

"Why should it be considered that the choice is made only to avail the domestic fees."

I very much doubt that is happening, that this consideration plays a role in individual decisions.

"And please let's not assume that every 18 year old wanting to return is solely doing so to avail the domestic fees. Which may not be the case."

There is NO such assumption that I am aware of and I do not see anyone pushing that. In contrast, that some have apprehended a trend suggesting this is happening, that it derives from a deliberate scheme to exploit the Canadian immigration system, and that this may have triggered elevated scrutiny of certain types of cases, that makes sense.

That does NOT change what factors are considered in the individual case. That does not necessarily mean there is a change in how various factors are weighed. That does NOT lead to a presumption or assumption about any individual young PR wanting to come to Canada.

The ONLY presumption is one mandated by statute, in Section 31(2)(b) IRPA:

" . . . a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status"​

This means that a young PR applying for a PR Travel Document is PRESUMED to NOT have valid PR status.


"As dpenabill has pointed - no one knows for certain the criteria for refusal. Its only based on assumption that the 'not having sufficient ties' could be the reason."

This is NOT a fair description of what I have said, or at least not what was meant when understood in context.

We do know the KEY FACTORS and roughly how they influence decision-making. It is NOT likely there is any precise criteria, as such, so of course we do not know precisely (for example) what durational presence or residence in Canada will be considered to constitute establishment in Canada. Largely because a precise criterion does NOT work well in providing a FAIR approach to weighing such matters.

Let's be clear: most of the factors which are considered in PR RO H&C assessments are KNOWN, and often described in many sources, from the Operational Manuals to many IAD and Federal Court decisions.

Moreover, we have a good deal of information about what the KEY FACTORS are, and lots of information about how those factors have been addressed (weighed) in a wide variety of actual cases. As I previously posted:

For the majority of PRs in breach of the Residency Obligation, the key factors which really make a difference (again, relying on sources, not my own opinion) are:

-- extent of the breach
-- extent of ties in Canada, which includes the extent of establishment in Canada
-- reason for the absence (what precluded the PR from returning to Canada sooner)​

There are other factors. But the key factors are not mysterious. Even though they are NOT weighed according to a precise scoring system, the manner in which they influence decisions generally is oft illustrated in IAD and Federal Court decisions.

It is important to remember that a PR in breach of the PR Residency Obligation, regardless of the reasons for the breach, has NO affirmative claim to keeping PR status beyond petitioning officials to exercise their discretion to allow the PR to retain status. Even the PR removed as a minor.

The right to a fair procedure is NOT a right to a particular outcome.

In contrast, there are still outcomes which emphatically weigh heavily in favour of the so-called "removed" as a minor young PR. An officially published IAD decision, from early this year, for example, illustrates that despite the denial of PR TDs for SOME minimally established-in-Canada young PRs, there STILL REMAINS some strong sentiment to allow them a chance to keep their status.

See Ashoori v Canada 2019 CanLII 31048 http://canlii.ca/t/hzrg8

18 year old had spent a total of 20 days in Canada and had spent ZERO days within the five years preceding the PR TD application. Moreover, this 18 year old expressly described his plan was to come to Canada to STUDY toward a medical degree.

BUT the IAD panel nonetheless distinguished this one individual from the rest of his family (all denied H&C relief). The panel stated:

In another decision I have stated my view that permanent residents who were removed from and remained out of Canada while they were minors, and who take steps shortly after their 18th birthday to comply with the obligation should be afforded humanitarian and compassionate consideration on the basis that they do not possess full legal rights while they are minors and are usually financially dependent and to some extent under the control of their parents. This is the situation for Amir. In his testimony he expressed a wish to study medicine in Canada . . .
. . . Intention to reside in Canada is not directly relevant to residency obligation appeals, although it is a consideration. Fulfilling the residency requirement will be up to Amir in the future. He is no more established in Canada than the other members of his family and it cannot be said he will suffer hardship if his appeal is denied. However, if we are to hold permanent residents to their residency obligation, there must be a reasonable prospect of fulfilling that obligation. Minors are not legally “free agents” who can enter into contracts such as leases. Most minors, unless they are financially self-sustaining, would require the support of their parents to relocate to another country. There is no evidence that he had the permission and support of his parents to do so. It is not reasonable to expect Amir to have fulfilled or attempted to fulfill the residency obligation without that support when he was less than 18 years old. He promptly made an application to return to Canada shortly after he turned 18.
I therefore find that in the appeal of Amir, there are sufficient humanitarian and compassionate factors to warrant allowing his appeal.​

This is has been a very common approach in many removed-as-a-minor cases.

As the discussion in this topic addresses, there has been some reporting about cases NOT going this way (and indeed, for the 18 year old in this case, the PR TD was denied). And some here have offered very credible explanations for why there are recent reports of Visa Offices and IRCC generally NOT following the approach expressed by the IAD panel in the Amir case.

But make no mistake, the IAD panel here, Stuart J. Mutch, referenced the extent to which multiple factors play a role in the weight to be given to the key factors. The outcome for Amir was NOT easily predictable.

KEY TAKE-AWAY: As common as it has been that Canada gave young PRs the chance to come to Canada and keep status, if they made the effort to do so soon after reaching the age of majority, the outcome in an individual case can depend a great deal on all the individual factors in that specific case.

And as much as IRCC and CBSA may be more strictly scrutinizing the never-really-established-in-Canada young PR's case, now, it is NOT likely that there is any assumption the young PR's petition for H&C relief should be denied based on any assumption of a scheme to exploit Canada's immigration system for particular educational advantages.

 

[darl500]

Can anyone respond to the below queries:

Incase the PRTD is not approved and you would have a 60 day appeal period. Can one apply to voluntarily renounce the PR status within the appeal period? or does one have to wait for the appeal period to be over before applying?

Can a student study permit application be submitted along side with the voluntarily PR renouncing application? or does one have to wait until the decision is made of the renouncement and then apply for the student visa?

 

[dpenabill]

Can anyone respond to the below queries:

In case the PRTD is not approved and you would have a 60 day appeal period. Can one apply to voluntarily renounce the PR status within the appeal period? or does one have to wait for the appeal period to be over before applying?

Can a student study permit application be submitted along side with the voluntarily PR renouncing application? or does one have to wait until the decision is made of the renouncement and then apply for the student visa?

To renounce/surrender PR status, no need to wait for the time within which an appeal can be made to lapse.

I am not clear about the mechanics in making the application for a student visa and do not know how things are likely to go in the event of a joint submission. Others here are probably better informed, but I believe the renunciation of PR status will quickly and summarily result in the termination of PR status, and thus a subsequent student visa application (even just a day later) should proceed on the basis the individual is a Foreign National (no PR status).


A FURTHER OBSERVATION ABOUT REMOVED AS A MINOR:

I may have unwittingly embraced, at least in part, the forum Conventional Wisdom, when that take on things might not have been as valid or accurate as proffered by more than a few.

Denying H&C relief to young PRs removed-as-a-minor may not be so much a *recent* trend as has been suggested.

For example, I recently came across a 2006 decision by Justice Barnes (who I might note has been rather judicious and compassionate in those cases I have previously been familiar with), in which he denied relief for a young PR who had been removed as a minor. It warrants further noting that in this case the young PR returned to Canada and spent more than a year in Canada, was living and going to school in Canada, and then was abroad on a vacation from school in Canada when she applied for a PR TD to again return to Canada. The PR TD was denied. The IAD appeal was denied. And Justice Barnes also dismissed her appeal.

Justice Barnes acknowledged that the young PR's "status in Canada may have been jeopardized by the decisions of her parents, but her claim to relief should not be enhanced by those parental decisions."

See Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 1359 (CanLII), http://canlii.ca/t/1pzzm

This decision has been cited by many dozens of other tribunals.

I cannot quantify the number of similar cases, but it is not difficult to find examples in which the removed-as-a-minor PR has been denied a PR TD and whose appeal is also denied. Example: Battu v Canada (Citizenship and Immigration), 2013 CanLII 99781 (CA IRB), http://canlii.ca/t/gj9bt . . . a 2013 case going against 19 year old attempting to return to Canada. This PR was removed, as a minor, after spending more than six months in Canada, including attending school in Canada for more than six months. PR TD denied. Appeal dismissed.

There are still those cases like the one I cite and link in a separate post above, the Ashoori v Canada 2019 CanLII 31048 http://canlii.ca/t/hzrg8 . . . cases which emphasize that the reason for the absence was NOT at all in the young PR's control and H&C relief was allowed the removed-as-a-minor PR. I am NOT suggesting that such cases do not reflect how these scenarios are ordinarily approached.

But it is readily apparent there are VARYING RESULTS for young PRs attempting to return to Canada. And this has been the situation for longer than just recently.

 

[darl500]

Thank you all. The PRTD was not approved with a 60 days appeal letter. Not appealing. Case closed.

 

[dpenabill]

Thank you all. The PRTD was not approved with a 60 days appeal letter. Not appealing. Case closed.

Thank you for updating the forum. Current information such as this helps the forum stay apprised of IRCC practices.

Good luck with your educational plans and aspirations.

 

[canuck78]

To renounce/surrender PR status, no need to wait for the time within which an appeal can be made to lapse.

I am not clear about the mechanics in making the application for a student visa and do not know how things are likely to go in the event of a joint submission. Others here are probably better informed, but I believe the renunciation of PR status will quickly and summarily result in the termination of PR status, and thus a subsequent student visa application (even just a day later) should proceed on the basis the individual is a Foreign National (no PR status).


A FURTHER OBSERVATION ABOUT REMOVED AS A MINOR:

I may have unwittingly embraced, at least in part, the forum Conventional Wisdom, when that take on things might not have been as valid or accurate as proffered by more than a few.

Denying H&C relief to young PRs removed-as-a-minor may not be so much a *recent* trend as has been suggested.

For example, I recently came across a 2006 decision by Justice Barnes (who I might note has been rather judicious and compassionate in those cases I have previously been familiar with), in which he denied relief for a young PR who had been removed as a minor. It warrants further noting that in this case the young PR returned to Canada and spent more than a year in Canada, was living and going to school in Canada, and then was abroad on a vacation from school in Canada when she applied for a PR TD to again return to Canada. The PR TD was denied. The IAD appeal was denied. And Justice Barnes also dismissed her appeal.

Justice Barnes acknowledged that the young PR's "status in Canada may have been jeopardized by the decisions of her parents, but her claim to relief should not be enhanced by those parental decisions."

See Lai v. Canada (Minister of Citizenship and Immigration), 2006 FC 1359 (CanLII), http://canlii.ca/t/1pzzm

This decision has been cited by many dozens of other tribunals.

I cannot quantify the number of similar cases, but it is not difficult to find examples in which the removed-as-a-minor PR has been denied a PR TD and whose appeal is also denied. Example: Battu v Canada (Citizenship and Immigration), 2013 CanLII 99781 (CA IRB), http://canlii.ca/t/gj9bt . . . a 2013 case going against 19 year old attempting to return to Canada. This PR was removed, as a minor, after spending more than six months in Canada, including attending school in Canada for more than six months. PR TD denied. Appeal dismissed.

There are still those cases like the one I cite and link in a separate post above, the Ashoori v Canada 2019 CanLII 31048 http://canlii.ca/t/hzrg8 . . . cases which emphasize that the reason for the absence was NOT at all in the young PR's control and H&C relief was allowed the removed-as-a-minor PR. I am NOT suggesting that such cases do not reflect how these scenarios are ordinarily approached.

But it is readily apparent there are VARYING RESULTS for young PRs attempting to return to Canada. And this has been the situation for longer than just recently.

Wonder what happened in the Ashoori appeal. After reading the whole case the finding was a bit of a surprise.

Find it a bit ironic that after all these arguments about not returning to Canada using PRTD to secure domestic fees that is exactly what happened. Assume the child has admission for September and once a PRTD was refused they are renouncing PR to hopefully secure a study permit.

Would advise the family that they need to inform the program that they will no longer be a domestic student vs international student.

 

[dpenabill]

Wonder what happened in the Ashoori appeal. After reading the whole case the finding was a bit of a surprise.

Find it a bit ironic that after all these arguments about not returning to Canada using PRTD to secure domestic fees that is exactly what happened. Assume the child has admission for September and once a PRTD was refused they are renouncing PR to hopefully secure a study permit.

Would advise the family that they need to inform the program that they will no longer be a domestic student vs international student.

As I have observed previously, it makes sense that perceived patterns of exploitation for educational advantages may very well factor into the decision making which establishes policy. Such as a policy which more strictly applies the PR Residency Obligation, including weight given other negative factors (such as lack of establishment in Canada) for those who exited Canada as minors (I hesitate to describe those who never had much establishment here as "removed").

But I doubt that the impact on qualifying for domestic rather than non-Canadian fees factors much, if at all, into individual decisions.

The decision in Ashoori suggests that the minor's plans for university in Canada were offered and considered as a positive factor, the IAD panel appearing to mostly consider the minor's educational ambitions in relation to intent to return to Canada. And did not give that much weight as those ambitions seemed unrealistic if not farfetched. But nonetheless the IAD panel found it sufficient, for H&C purposes, that Amir promptly made an application to return to Canada shortly after he turned 18.

I have yet to see any formal decision articulating exploitation of domestic fees advantages as a factor in removed-as-a-minor RO H&C decisions.

--- --- --- --- --- --- --- --- --- --- --- --- --- --- ---

It is too soon to see any Federal Court case if the Minister elected to appeal the IAD's decision to allow the minor in the Ashoori case, Amir, to keep PR status. Apparently the minor has extended family in Canada with whom to reside and find support.

That said, I doubt there will be a further appeal. The IAD panel articulated the basis for the decision to allow Amir to retain PR status, and given the reasonableness standard of review by the Federal Court it seems quite likely the Minister will not pursue such review . . . after all, even if the Federal Court very much disagrees with the IAD panel's decision that would not be a basis to overrule the IAD panel . . . to set aside the IAD decision a Federal Court justice would have to find the decision was unreasonable. As many FC justices say, "it is not for me to substitute my own decision for that of the [lower tribunal]" or “courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it." In particular, IAD decisions in PR RO H&C cases solidly fall "within the expertise of the IAD and [attract] a high degree of deference."

I also cannot see that the decision should be that much of a surprise. The parents, who lost, had a minimal H&C case for a very extensive breach, so the denial of their appeal fits what we have seen again and again. The decision in favour of Amir, in contrast, fits what most in this forum have stated was a fairly likely outcome for quite some time, and is in particular right in line with what this particular IAD panel (Stuart J Mutch) has ruled previously. The fact that some of the cases going the other direction have recently been more frequently reported does not negate those like the decision in Ashoori. And as I noted, in doing just a little homework I quickly discovered that negative PR TD decisions have long been the outcome, SOMETIMES, for so-called removed-as-a-minor PR but were never much established in Canada.

 

[canuck78]

As I have observed previously, it makes sense that perceived patterns of exploitation for educational advantages may very well factor into the decision making which establishes policy. Such as a policy which more strictly applies the PR Residency Obligation, including weight given other negative factors (such as lack of establishment in Canada) for those who exited Canada as minors (I hesitate to describe those who never had much establishment here as "removed").

But I doubt that the impact on qualifying for domestic rather than non-Canadian fees factors much, if at all, into individual decisions.

The decision in Ashoori suggests that the minor's plans for university in Canada were offered and considered as a positive factor, the IAD panel appearing to mostly consider the minor's educational ambitions in relation to intent to return to Canada. And did not give that much weight as those ambitions seemed unrealistic if not farfetched. But nonetheless the IAD panel found it sufficient, for H&C purposes, that Amir promptly made an application to return to Canada shortly after he turned 18.

I have yet to see any formal decision articulating exploitation of domestic fees advantages as a factor in removed-as-a-minor RO H&C decisions.

--- --- --- --- --- --- --- --- --- --- --- --- --- --- ---

It is too soon to see any Federal Court case if the Minister elected to appeal the IAD's decision to allow the minor in the Ashoori case, Amir, to keep PR status. Apparently the minor has extended family in Canada with whom to reside and find support.

That said, I doubt there will be a further appeal. The IAD panel articulated the basis for the decision to allow Amir to retain PR status, and given the reasonableness standard of review by the Federal Court it seems quite likely the Minister will not pursue such review . . . after all, even if the Federal Court very much disagrees with the IAD panel's decision that would not be a basis to overrule the IAD panel . . . to set aside the IAD decision a Federal Court justice would have to find the decision was unreasonable. As many FC justices say, "it is not for me to substitute my own decision for that of the [lower tribunal]" or “courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it." In particular, IAD decisions in PR RO H&C cases solidly fall "within the expertise of the IAD and [attract] a high degree of deference."

I also cannot see that the decision should be that much of a surprise. The parents, who lost, had a minimal H&C case for a very extensive breach, so the denial of their appeal fits what we have seen again and again. The decision in favour of Amir, in contrast, fits what most in this forum have stated was a fairly likely outcome for quite some time, and is in particular right in line with what this particular IAD panel (Stuart J Mutch) has ruled previously. The fact that some of the cases going the other direction have recently been more frequently reported does not negate those like the decision in Ashoori. And as I noted, in doing just a little homework I quickly discovered that negative PR TD decisions have long been the outcome, SOMETIMES, for so-called removed-as-a-minor PR but were never much established in Canada.

Felt as though the judgement was very negative until the very end so was surprised by the ruling. Not saying that it didn’t make sense but having read the ruling I was guessing that it would be denied until the last few points. Definitely does depend on who is making the judgement. Was reading through some judgements for grandparents who had been denied PR for H&C reasons and there was one member who seems to approve all the parents and grandparents even when they missed the minimum income amount by significant amounts. It was pretty shocking. Was trying to figure out whether the government appealed the rulings but couldn’t find any new cases for the claimants. A father failed a false refugee claim and also used someone else’s passport to fly into Canada and the member said “I find that the principal applicant’s overstay in Canada is, more likely than not, not a deliberate flouting of Canada’s immigration laws. I assign significant weight to this factor, including to the sincere expressions of remorse heard in testimony.” Quite the entertaining and frustrating read.

https://www.canlii.org/en/ca/irb/doc/2018/2018canlii132390/2018canlii132390.html?searchUrlHash=AAAAAQAPR3JhbmRwYXJlbnQgaCZDAAAAAAE&resultIndex=14