MORE IN PARTICULAR REGARDING THE EFFECT A FAVOURABLE H&C DECISION HAS WHEN RO COMPLIANCE IS AN ISSUE IN A SEPARATE MATTER AFTER THAT DECISION
First, an important distinction: The fact that PoE officers, including PoE immigration officers, allow a PR to enter Canada, does NOT constitute a decision that is binding on any other CBSA or IRCC officer conducting a RO compliance examination for a different date, even if there is not much time difference in the respective dates. Even presuming that the PoE decision included a RO compliance determination, it is NOT binding. It has NO
res judicata effect. The Federal Court decision which most directly articulates this is Sarfaraz v. Canada (Public Safety and Emergency Preparedness), 2012 FC 735 (CanLII),
http://canlii.ca/t/fs042
That case clearly distinguishes a PoE decision in which a PR is allowed entry without a Departure Order specifically based on H&C reasons (see paragraph 17 in the decision). This distinction is emphasized in the Kuksov IAD decision which I cite, link, and discuss more below.
Sarfaraz is, however, a decision which most clearly states the principles underlying the forum's conventional wisdom about a PR in breach nonetheless allowed into Canada without being Reported, emphasizing the need to avoid any transaction with IRCC UNTIL the PR has cured the breach (been in Canada long enough to be in compliance with the RO). Sarfarz applied for a new PR card just ten days after arrival . . . and ended up losing PR status.
HERE, IN CONTRAST, this is about the situation in which there was a FORMAL PoE determination that the PR is allowed to retain status for H&C reasons.
@jack grover was in fact issued a 44(1) Report at the PoE but then the Minister's Delegate determined there were sufficient H&C reasons to allow the PR to keep status. This is evidenced by a written notice (letter).
Relative to queries posed by
@jack grover regarding this situation, I previously observed that as long as the PR has not left Canada since the PoE event resulting in a formal H&C decision by a Minister's Delegate, it should be OK to apply for the new PR card.
No need to wait the full two years.
[Referencing post by
@Rob_TO that says] if minister's delegate approves the H&C, then everything is clear. I was reported and MD approved my H&C submission. So it is same as PRTD approval. Is my understanding correct?
AS LONG AS there is a FORMAL H&C determination. Then YES.
@Rob_TO correctly stated (in the post linked) that if there is a formal assessment of RO done at the border with a Ministers Delegate, and they accept H&C reasons for not meeting RO, this will be noted on the PR's file and the PR can enter Canada
and immediately apply to renew the PR card.
As long as the PR is settled and staying in Canada, there should be no problem. It is very likely there will be NO problem. NO NEED to WAIT two years.
BUT it is NOT an absolute guarantee. IT is definitely NO guarantee if the PR soon travels abroad again. And even after receiving a new PR card it will be better to AVOID travel abroad for as long as practically feasible until the PR is in compliance with the RO based on actual presence in Canada (which for many takes two years). Any extended absence would be particularly risky.
Leading to the official interpretation and application of the statutory provision which governs this:
The statutory provision governing the effect of a favourable H&C decision is subsection 28(2)(c) IRPA (see
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-274598 ) which states:
". . . a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident . . . justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination."
Multiple decisions by both the Federal Court and IAD panels have definitively ruled this does
NOT entirely restart the clock. It does not have what is called "
res judicata" effect.
But short of that, its impact mostly depends on the extent to which it can be said there has been a change in circumstances since the favourable H&C determination . . . though to some extent, the validity of the decision can sometimes be questioned by an officer in a subsequent examination (the latter is likely UNUSUAL unless there are rather obvious reasons strongly indicating an erroneous decision, such as the appearance of misrepresentations).
I do not have time to revisit previous in-depth coverage of this issue, but I and others have indeed addressed this in-depth more than once. Bottom-line, though, is that the conventional wisdom in this forum is that a PR who has been allowed to keep PR status based on a formal H&C determination should nonetheless AVOID travel abroad for a long while . . . maybe not the full two years it takes to establish full RO compliance, but at least long enough to have clearly established long-term in fact residence in Canada. And, for sure to NOT remain abroad for very long UNLESS or UNTIL full compliance with the RO (based on actual presence in Canada) is established.
As noted, however, as long as the PR remains in Canada, the formal H&C decision protects the PR's status. So it should be OK to apply for a new PR card sooner rather than having to wait.
BUT when a PR triggers a subsequent RO compliance determination, which most often involves a PoE examination upon returning to Canada or a PR TD application from abroad, but which also includes making a PR card application, any change in circumstances can result in a reassessment of the relevant factors FROM a PERSPECTIVE BASED ON THE FACTS AS OF THE DATE OF THE LATER DETERMINATION. The most obvious change in circumstances which tends to occur is that the PR has spent some additional time abroad.
As I have oft emphasized, the FIRST and FOREMOST factor is the extent of the breach . . . the amount of time the PR has been OUTSIDE Canada. More time outside Canada can change the balance of factors in the H&C analysis. An adequate "reason" for remaining outside Canada as of the first determination does NOT necessarily mean that reason is still adequate if the PR has spent additional time outside Canada. And the reason for the additional time outside Canada, itself, can be considered and could add negative weight to the equation.
The above is based on following this issue in many contexts for years. But I can cite and link some decisions which illustrate the above observations.
Wan v. Canada (Citizenship and Immigration), 2008 CanLII 43707 (CA IRB),
http://canlii.ca/t/20k99
A particularly informative IAD decision, which is cited by the Federal Court in the Sarfaraz decision, is Wan v. Canada (Citizenship and Immigration), 2008 CanLII 43707 (CA IRB),
http://canlii.ca/t/20k99 . . . while this decision is more than a decade old, it directly addresses the situation in which there is a positive H&C decision and then, a number of months later, there is another RO compliance assessment and a negative H&C decision. This case involved a young PR who traveled abroad shortly after coming to Canada on a PR TD granted for H&C reasons, whose second PR TD application was denied.
The second decision denying the PR TD was determined to be "valid in law." Even though there was only a few months difference in the relevant five year time periods assessed, the second decision was based on a different five year period. That is, the Visa Office was not bound to treat the earlier decision as "
res judicata" or otherwise a definitive restarting of the clock. Nonetheless, this PR was granted H&C relief by the IAD.
Kuksov v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101471 (CA IRB),
http://canlii.ca/t/gj87j
In the Kuksov case, the IAD also ruled that a PoE determination does NOT have
res judicata effect (is not binding) . . . but the IAD panel gave the first positive H&C decision a lot more weight in any subsequent determination. In particular, this case involved a PR who was examined at a PoE, determined to be in breach of the RO BUT allowed to retain PR status based on H&C reasons, who was later issued a Report and Departure Order attendant an interview in processing his PR Card application. The IAD ruled that the CIC officer was precluded from making that decision by the operation of subsection 28(2)(c) IRPA given the CBSA immigration officer's earlier H&C determination.
Mohamed v Canada (Citizenship and Immigration), 2013 CanLII 104358 (CA IRB),
http://canlii.ca/t/h5630
In the Mohamed decision the IAD likewise rejected
res judicata applied, this time in respect to an IAD grant of appeal resulting in the issuance of a PR TD but the PR was unable to travel within the time period provided so applied again for another PR TD. Minister nonetheless consented to allowing this appeal on H&C grounds as well.
These decisions discuss and illustrate the relevant factors and considerations in determining the weight to be given the earlier positive H&C decision.
