The statutorily enumerated ways of complying with the PR simply illustrate that complying with the RO does NOT necessarily require that "
PRs MUST physically live in Canada."
Beyond that, even if it is determined that a PR has failed to comply with the RO, that does not necessarily mean the PR should lose PR status. Thus, even rephrasing the premise of your statement to say "
PRs must comply with the residency obligation," it is NOT necessarily correct to say if they don't "
they should lose PR." That is NOT what the law prescribes. Not what the law mandates. That is not how it works. (Noting, however, most will lose PR; but that is NOT an outcome mandated by the law.)
In fact, the law requires consideration of any reasons explaining the absence from Canada with due regard for a number of H&C factors, which are repeatedly articulated in numerous IAD and Federal Court decisions, BEFORE a decision to terminate PR status is made, and if there are H&C reasons justifying the retention of PR status, the law specifically states that "
overcomes any breach of the residency obligation prior to the determination." Meaning not only that it is NOT correct to say "
they should lose PR," but in such cases where there are sufficient H&C reasons, the law specifies they be allowed to retain PR status. Even though they failed to comply with the RO.
Caveat: Again, this should not be understood to minimize let alone dismiss the risk posed by failing to comply with the RO.
Which leads to your reliance on the legal imperative language in Section 28(1).
Legal imperatives come in various shapes and sizes. After all, the import of "must" in a statutory prescription does not have the force and effect of the physical laws of science. What is the operation and effect of this particular statutory prescription? That is what matters. As I said, the RO is explicitly an "obligation," and not, for example, a condition. The RO is neither self-executing nor self-enforcing. Indeed, Subsection 28(2) specifies a number of provisions governing the RO, and there is an extensive volume of IAD and Federal Court decisions which amply illustrate and illuminate what the law specifies, how it is interpreted and applied, and its effects. Simplistic dichotomies, such as what is mandatory ("shall") versus what is permissive ("may"), might pass for jurisprudence in a rudimentary course about legal terminology (perhaps like one I taught for court reporters nearly four decades ago) but it does not illuminate much about how a complex matter like the PR RO is actually construed and applied.
Some legal imperatives are self-executing, some are self-enforcing, many impose conditions, while many more involve a range of remedies or POTENTIAL consequences. The RO is among the latter. Thus . . .
"If we don’t [comply with the RO], then IRCC has the legal right to revoke our PR based on s.28(1) of IRPA."
That is almost, but not quite, the gist of it. And I'd substitute the term "authority" for "legal right," or if one wants to emphasize that authority derives from law, the "legal authority" to determine a PR is inadmissible due to a breach of the RO. But this is NOT unfettered legal authority to revoke PR status let alone a mandate to terminate or revoke PR status. Bringing this back to 28(2)(c) as just one of the complex aspects of the RO and its application.
This in turn brings the discussion around to its context, "
the circumstance of the person in question:"
Actually, as others have pointed out, we know only a small slice of the relevant details, so I emphatically agree with those who caution against making judgmental pronouncements based on sketchy facts and, relative to some comments posted here, unfounded assertions about what matters. The general outline, however, fits a somewhat common pattern: family landed and became PRs, did not stay long, and then many years later one or more of the children wants to come to Canada to attend university or such; in more than an occasional instance, which appears is the case being discussed here, the parents and/or other family members are also looking or at least hoping to also finally come to Canada to settle.
The precise details matter. The few details shared suggest the odds are not good. But the target of some disdain here, the young PRs whose objective is to take advantage of educational opportunities in Canada, actually have the better odds. That is not to say they have good odds. Or poor odds. Again their specific details matter. Including how much past 18 years of age they are. Among other factors, like how long ago they were last in Canada, and when in Canada for how long.
The general situation being discussed here is somewhat similar to an actual case decided by the IAD earlier this year. And I have discussed, cited, and linked this case in this particular topic, back during the summer as I recall. Family landed as PRs, stayed in Canada just 20 days, left and never returned, and thus in the five years preceding the date they applied for PR Travel Documents they had spent ZERO days in Canada. Parents and two sons. One of the sons, the younger one, had just turned 18. All were denied a PR TD by visa office in Turkey. But the IAD allowed the appeal for the youngest son, who had explicitly expressed the intention to come to Canada to attend school. This decision was specifically predicated on H&C relief for a
removed-as-a-minor PR seeking to come to Canada soon after his 18th birthday.
See Ashoori v Canada 2019 CanLII 31048
http://canlii.ca/t/hzrg8 . . . in which the IAD emphasized that the reason for this individual's absence was NOT at all in the young PR's control.
So lets be clear, the
removed-as-a-minor PR has among the strongest possible positive
reason-for-absence factors, given a total
lack-of-personal-choice. And as long as the young PR makes the effort to return to Canada soon after attaining the age of majority, that reason covers the full period of absence. This factor, however, does NOT negate or totally override all the other factors. So there are varying results for young PRs attempting to return to Canada relatively soon after reaching the age of majority. In general, it appears the policy still leans well IN FAVOUR of allowing young PRs a chance to come and live in Canada, EVEN IF their stated or apparent objective is primarily to take advantage of Canadian educational opportunities.
In particular, so far as I have found in researching this, the young PR's intention to come to Canada because of educational opportunities in Canada does NOT hurt the PR's H&C case.
In particular, there is NO support for the following:
The premise of this is incorrect. Removed-as-a-minor WAS NOT a guaranteed way to get a PR TD "
in the past," not anymore than now. I addressed and debunked that in this very topic back in the summer, again citing and linking OFFICIAL ACTUAL cases illustrating that ten and fifteen years ago the results varied much like recently. Again, the particular details in each case matter.
I specifically asked for any sources which evidence that CBSA, IRCC, or the IAD has taken a more negative view toward
removed-as-a-minor cases, or that suggest CBSA, IRCC, or the IAD considers a motive related to taking advantage of Canadian educational opportunities (including resident tuition) as a negative factor, and NONE have been offered. I have made this request repeatedly.
All I have found (and I have looked) are cases which indicate that at least lawyers representing such individuals must think it is actually a positive factor, based on their advocating the young PR's intention to come to Canada to go to school as a positive factor in making their client's H&C cases to the IAD.
There may have been an apparent increase in anecdotal reports in this forum, but the actual number is so small and sporadic even that now seems not credible, and in any event the scope of detail offered in the few, isolated reports is rarely informative. AGAIN, the details in the particular case matters . . . this past summer, here, I also went into some detail about how several of the key elements play out in the OFFICIAL accounts of ACTUAL cases published in IAD and Federal Court decisions, and its no mystery why the outcome for some can be very different than the outcome for others.
There is a big, big difference between pushing what someone thinks the law should be and how they think it should be applied, versus actually doing the research to discern what the law actually is and how it is actually being applied.
The
removed-as-a-minor H&C case still appears to be among the strongest, if not specifically the strongest H&C case for retaining PR status.