My wife was the main applicant and we came to BC on the PNN program from Australia. In 2015 my wife decided to return to Australia to continue her medical studies. Because I still have a business in South Africa and my wife and son in Australia I travel frequently and was just missed fulfilling my RO by 24 days due to family and business obligations. My PR card expired on the 19th August 2019, my application or renewal was received on 13th August 2019 and has been "in Process" since. A week ago I received documentation and a request to complete the IMM5511e ( returning resident ) forms and other documentation which I completed and returned to to the IRCC case officer. Do I stand a chance of my PR being renewed and should I be seeing an Immigration Lawyer for assistance? We are property owners in Prince George where I live.
RO
- Thread starter tonyfs
- Start date
It's really hard to tell. Generally, it is not recommended to renew your PR card when you are in breach, especially if you are already in the country (are you?), because all you would have needed to do is wait until you were in compliance again.
It will now all depend on how strong your H&C case is. Generally, business obligations are considered less convincing than family reasons.
Also remember if you leave Canada now, you may fall further short of your RO and since you have already been dealing with immigration officials, there is a chance you may have been flagged for secondary examination when you next come into the country.
I would probably wait with engaging a lawyer until you receive further communication. Would definitely recommend engaging one if you need to appeal a negative decision.
You could also decide to appoint a lawyer now to review the documents you have already submitted to ensure they are up to scratch, but this would only be useful if you were still able to submit additional documents, and not if all deadlines have already passed. In the latter case, I would wait.
I was mistakenly under the impression I have to renew my PR card before it expires and was not aware that the 730days are calculated from the day of arrival at the POE. When I submitted my application I was more than 730days in country and now have over 900 days in country since 7th July 2019 when my 5 year period lapsed. Would this count in my favor at all?
I am confused because now you seem to be saying that you are not in breach of the residency obligation when you applied.
What is important to note is that the RO is calculated on a five-year rolling period. This means you must be in compliance within the 5 years immediately preceding every single date that you are being examined by IRCC .
What is important to note is that the RO is calculated on a five-year rolling period. This means you must be in compliance within the 5 years immediately preceding every single date that you are being examined by IRCC .
- How many days of residency did you have in the five years immediately preceding your application to renew your PR card?
- Are you currently in Canada, or outside?
- Do you currently meet the RO, i.e. looking back 5 years from today, do you have 730 days of residency?
You should be expecting a refusal and for proceedings to start for the revocation of your PR status.
But up to 8th August 2019, you have less than 730 days in Canada - so you can expect a refusal.
That's unfortunate - you could have just waited a month with your application and you would have been in compliance.
Well, the ball is now in IRCC's court given that they very likely know about your non-compliance. What works in your favor is that your non-compliance is relatively minor, so your H&C reasons do not need to be as strong as for someone who is short by, say, 600 days. But that's still no guarantee that they will approve it.
But it's all speculation at this point. See what their response is, and if it is negative, make sure you appoint counsel and appeal the removal order within the specified deadline.
I am NOT clear why @steaky and @canuck_in_uk assert you should expect a "refusal" of the PR card application. Unless there is some reason to believe you have already lost PR status.
The obvious and far more likely course of events is precisely what is happening:
IRCC has ". . . initiated a Permanent Resident Determination investigation as a result of your application for a Permanent Resident Card. The purpose of the investigation is to determine whether or not you have met your residency obligations . . . " (quoted from an earlier version of the form sent to PRs in your situation)
As @Besram expressed, the relevant facts are NOT clear. In particular, it is not at all clear whether you have now been IN Canada enough days to be in compliance with the Residency Obligation.
BUT assuming you are currently IN Canada, staying in Canada, AND on the date you completed and submitted the IMM5511e form you had been IN Canada at least 730 days within the five years immediately preceding that day, YOU SHOULD BE OK. You may need to attend an interview. IRCC may investigate further to verify your reported presence. It may be a long while still before you get a new PR card. But if you are now in compliance, counting back five years from NOW (and ONLY five years), there are no grounds for issuing you a 44(1) Report for inadmissibility due to a breach of the RO. Good to go, meaning good to stay.
Well, unless IRCC contests whether you actually were in Canada all those days you report you were.
BUT lets be clear about the dates: if you completed and sent in the forms January 28, 2020, what matters most is how many days you reported you were IN Canada between January 28, 2015 and that day, January 28, 2020. If that number is at least 730, and IRCC accepts your numbers as accurate, then you are in compliance with the RO and your previous breach of the RO is, in effect, cured, not grounds for finding you to be inadmissible.
The fact you were short the date you sent the PR card application, or the date it was received by IRCC, is not all that important. It matters, but that is in a practical sense. Being short at that time is NOT a problem if you have stayed enough after that to have 730 days presence within the last five years.
WHY? The days you have stayed in Canada after sending in your PR card application count toward meeting your Residency Obligation.
Not a good idea to make the PR card application before fully being in compliance with the RO. But as long as you stayed in Canada, your additional days in Canada count right up to the date of the formal RO compliance determination. This is not like a citizenship application, where the days that count are fixed as of the date of the application. Days in Canada after applying for a new PR Card do count.
A CAUTION: REMEMBER, the days you were IN Canada in 2014 NO LONGER COUNT. They are not within the last five years. This is a big part of why it is not clear that you have been IN Canada enough to be in compliance with the RO. What I describe above is ASSUMING that when you sent in the RQ form you had in fact been in Canada 730 days within the last five years as of THAT DAY (thus not counting any days in Canada prior to January 28, 2015 if you sent in the forms January 28, 2020). Your accounting of days in your posts go back to 2014. Those days no longer count.
Some more about the numbers . . .
Again, I am not clear about your numbers. Obviously you have not been "over 900 days in country since 7th July 2019," since there have been fewer than 200 days since 7th July 2019. And obviously your "5 year period" could not have lapsed July 7, 2019 since the relevant five year period never lapses, but rather each new day is a new five year period.
And "I'm still in Canada with a total of 932 days to date since 7th July 2014" fails to illuminate much since this is a period of time that encompasses more than six months of time that no longer counts.
FIRST ORDER OF BUSINESS: Get your numbers in order. Figure this out. Count days here, in Canada, within the last five years. Today is an OK day to do that. Count days IN Canada between February 2, 2015 and today, February 2, 2020, and if that number is more than 730, you can probably relax. If scheduled for an interview, for sure make that appointment. Be ready to answer questions about where you lived, worked, and so on, questions related to showing you actually were in Canada when you say you were.
If that number is less than 730, you are in breach. I cannot second-guess your numbers, but I suspect that if you are short today (counting days IN Canada between February 2, 2015 and today, February 2, 2020), that is because you were in Canada around this time five years ago, from the latter part of 2014 into 2015. So you could be losing a day (as it becomes more than five years past) for each new day you gain. That is, your calculation could continue to be the same for as long as your were here back in 2014/2015.
If you are in the latter situation, that's when H&C reasons come into play. As @Besram observed, assuming your numbers are indeed at least very close, you probably have good odds of not losing your PR status. BUT that is assuming you are now staying in Canada. Moreover, that is still tricky. It depends on many factors. Your reasons for being abroad so long. The actual number of days you were outside Canada versus in Canada. And how well settled in Canada you are now.
Non compliance is non compliance. Whether it’s meeting the number of days in meeting citizenship, or in maintaining PR. You’re compliant or not .
The spouse who was the PA got approved, then ELECTED to continue , not start her medical studies outside the country . Her choice . The spouse had business outside the country he elected to continue outside the country . Both choices they made . Those weren’t H&C choices . They were personal. The 2/5 years in maintaining PR are extremely generous, I’d be expecting , as mentioned an refusal
Why go thru the whole pnp process if one was not going to live in BC in the first place ?
From Canada.ca on H&C
Humanitarian and compassionate grounds apply to people with EXCEPTIONAL cases. No offence , the reasons given aren’t exceptional; education abroad, business abroad
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How is it not a problem be short of days when the application is received? In cases of common law it’s 1 year as of the date of application and that seems to be the standard IRCC applies to everything....the date of application. If that was the case I could apply for citizenship before the required days on the assumption I’ll be in Canada when the processing is done.
SHORT EXPLANATION of two basic principles:
Thus . . .
Separately, for clarification:
How it actually works (again, for a PR IN Canada who responds appropriately to communications from IRCC):
When a PR card application exposes an apparent breach of the PR Residency Obligation, that can trigger a referral to a local IRCC office which conducts an investigation and, if deemed appropriate, the local office commences "proceedings . . . for the revocation of [the] PR's status." Unless a positive decision can be made based on the file itself, the procedure calls for scheduling an interview.
If the local office determines, at the time of the interview (which is typically months after the date the PR card application is made), the PR is in breach of the RO, and there are insufficient H&C reasons to allow the PR to keep status, a 44(1) Report is issued. That in turn is referred to a Minister's Delegate, who reviews the 44(1) Report to determine if the finding of a breach is valid in law. If the MD finds the Report to be valid in law and that there are insufficient H&C reasons to allow the PR to keep status, the MD issues a Removal Order (also called a Departure Order).
Even then IRCC still does NOT HAVE LEGAL authority to deny the application for a PR card. And once it has been issued, the Removal Order is still NOT enforceable for at least thirty days. If there is an appeal, the Removal Order will remain unenforceable pending the outcome of the appeal.
ONLY IF AND WHEN the Removal Order becomes enforceable will IRCC have legal authority to deny or "refuse" the PR card application. That authority is prescribed in the IRPA Regulations, Section 59(1)(a). Otherwise Section 59 in the IRPA Regulations mandates the issuance of a new PR card (there are other requirements unrelated to RO, like making a proper application, providing biometrics, not having been convicted of misusing a PR card, and such).
As noted, in the meantime, including anytime after the issuance of a 44(1) Report, IRCC can elect to issue a one-year card rather than a five-year card. But unless and until it is formally and FINALLY adjudicated that the PR has lost PR status, IRCC has no legal authority to deny the PR a PR card on the grounds the PR has failed to comply with the PR RO.
CAVEAT: I recognize there are cases with vague references to PR card applications refused or denied for RO non-compliance, BUT these appear to be cases where the PR is not in Canada and in most cases they were not in Canada when they made the PR card application, which gets into complications not relevant to this discussion, and otherwise situations in which it is not clear the reference accurately reflects what has happened.
Again, full explanation to follow in a longer post.
-- generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have, in the meantime, been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance
-- non-compliance with the Residency Obligation is NOT a basis for "refusing" a PR card application; only IF there is a FINAL adjudication that a PR has LOST PR status can IRCC deny a PR card application (IRCC can and will issue a one-year card instead of five-year card for those who have inadmissibility proceedings in process)
Full explanation to follow in a longer post.-- non-compliance with the Residency Obligation is NOT a basis for "refusing" a PR card application; only IF there is a FINAL adjudication that a PR has LOST PR status can IRCC deny a PR card application (IRCC can and will issue a one-year card instead of five-year card for those who have inadmissibility proceedings in process)
Thus . . .
NOT how it works.
Separately, for clarification:
The way it actually works goes in the opposite direction. At least for a PR who is IN Canada when making the PR card application and who stays in Canada pending processing. Things can go off in different directions IF the PR fails to respond to requests, or fails to appear for a scheduled interview, or IRCC has reason to conclude the PR is outside Canada, or the PR is outside Canada without a valid PR card.
How it actually works (again, for a PR IN Canada who responds appropriately to communications from IRCC):
When a PR card application exposes an apparent breach of the PR Residency Obligation, that can trigger a referral to a local IRCC office which conducts an investigation and, if deemed appropriate, the local office commences "proceedings . . . for the revocation of [the] PR's status." Unless a positive decision can be made based on the file itself, the procedure calls for scheduling an interview.
If the local office determines, at the time of the interview (which is typically months after the date the PR card application is made), the PR is in breach of the RO, and there are insufficient H&C reasons to allow the PR to keep status, a 44(1) Report is issued. That in turn is referred to a Minister's Delegate, who reviews the 44(1) Report to determine if the finding of a breach is valid in law. If the MD finds the Report to be valid in law and that there are insufficient H&C reasons to allow the PR to keep status, the MD issues a Removal Order (also called a Departure Order).
Even then IRCC still does NOT HAVE LEGAL authority to deny the application for a PR card. And once it has been issued, the Removal Order is still NOT enforceable for at least thirty days. If there is an appeal, the Removal Order will remain unenforceable pending the outcome of the appeal.
ONLY IF AND WHEN the Removal Order becomes enforceable will IRCC have legal authority to deny or "refuse" the PR card application. That authority is prescribed in the IRPA Regulations, Section 59(1)(a). Otherwise Section 59 in the IRPA Regulations mandates the issuance of a new PR card (there are other requirements unrelated to RO, like making a proper application, providing biometrics, not having been convicted of misusing a PR card, and such).
As noted, in the meantime, including anytime after the issuance of a 44(1) Report, IRCC can elect to issue a one-year card rather than a five-year card. But unless and until it is formally and FINALLY adjudicated that the PR has lost PR status, IRCC has no legal authority to deny the PR a PR card on the grounds the PR has failed to comply with the PR RO.
CAVEAT: I recognize there are cases with vague references to PR card applications refused or denied for RO non-compliance, BUT these appear to be cases where the PR is not in Canada and in most cases they were not in Canada when they made the PR card application, which gets into complications not relevant to this discussion, and otherwise situations in which it is not clear the reference accurately reflects what has happened.
Again, full explanation to follow in a longer post.
As I stated in my post, and have similarly observed before, the PR card application is NOT like a citizenship application, or any of the many other immigration related applications for which the application date definitively establishes the time period for calculating presence in Canada.
I explained why. I stated:
"WHY? The days you have stayed in Canada after sending in your PR card application count toward meeting your Residency Obligation."
CAVEAT: The calculation can be more complicated if days five years old are falling out of the relevant five years at the same time, such that even though days in Canada after applying count, those days are offset by days five years ago which are no longer counting; which appears could be the issue for the OP here.
I further stated:
An attempt to unravel the multitude of variables and contingencies underlying this inevitably wanders way deep into the weeds. But the glossy version is not so complicated:
-- The applicable statutes and the applicable regulations make it clear that days a PR is in Canada count toward RO compliance. The only exceptions are prescribed in the IRPA Regulations, Section 62(1)(a) and Section 62(1)(b), pursuant to which days in Canada will NOT count AFTER a 44(1) Report is issued, or AFTER a PR TD application is denied.
-- And, in particular, Section 28(2)(b)(ii) IRPA specifically provides "it is sufficient for a permanent resident to demonstrate at examination . . . that they have met the residency obligation in respect of the five-year period immediately before the examination."
-- And, in particular, Section 28(2)(b)(ii) IRPA specifically provides "it is sufficient for a permanent resident to demonstrate at examination . . . that they have met the residency obligation in respect of the five-year period immediately before the examination."
Thus, when a PR appears for an interview scheduled as a result of an investigation into RO compliance, triggered by a PR card application (or by some other transaction with IRCC, such as an application to sponsor a family member's PR visa application), there is no legal basis for NOT counting the days the PR has been in Canada up to the day of the examination.
And that is the way it actually works. As can be seen in the actual cases.
And, actually, the general approach taken by IRCC is more generous than that. PRs are actually given the benefit of which five year period is better, since in the "paper review" phase, if it is determined the PR was in compliance on the date the application was made, that ends the investigation, and the file is returned to CPC- PRC to issue a new card. In particular, the applicable Operational Manual guidelines state:
"This means that clients, who met the residency requirement at the time the application was filed but who may no longer meet this requirement by the time an officer reviews the application, would not be penalized for any delay between the time the application is filed and the time that an officer reviews the application."
But in the "paper review" the officer may also "take into account the five-year period immediately prior to the time that the application is reviewed by an officer," which means that if the PR is in compliance based on counting days in Canada up to that day, that too will warrant a positive decision, and the file can be referred back to CPC-PRC for the issuance of a new PR card.Thus, if there is a positive decision in the local office based on the paper review, there is no need to even conduct an interview. PR card issued.
If the local office cannot make a positive decision "based on the information at hand," meaning in the paper review, THEN the applicant should be called in for an interview. Since up to that point no 44(1) Report has been issued, and there is no visa office determination that the PR has failed to comply with the RO, again the PR must be given credit for days in Canada in the five year time period immediately prior to that examination.
And again that is the way it actually works.
What this looks like in actual cases tends to be messy, because these cases do not get to the appeal stage without complications. Again, they do not even get to the interview step, let alone a negative decision resulting in a 44(1) Report and Removal Order which is appealed, IF the paper review shows the PR met the RO on the date the application was made, or it shows the PR was in compliance by the date of that review. So the known actual cases tend to be far more focused on the H&C factors or unusual circumstances such as cases involving principles of res judicata.
Just a sample selection for reference:
-- Kuksov v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101471 (CA IRB), http://canlii.ca/t/gj87j
-- Yedahalli v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101064 (CA IRB), http://canlii.ca/t/gh09t
-- Wysozki v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 106167 (CA IRB), http://canlii.ca/t/j39hc
-- Yedahalli v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101064 (CA IRB), http://canlii.ca/t/gh09t
-- Wysozki v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 106167 (CA IRB), http://canlii.ca/t/j39hc
In all these cases, consistent with how it works generally, the RO determination was based on the five year time period up to the day of the interview and not the date the PR card application was made. In the latter case however, in Wysozki, the panel refers to the "initial" review based on the date of the application, but for the RO determination made attendant the interview, the PR was given "the benefit of the five year period preceding the interview" (note, even with credit up to the interview, Wysozki was still well short of compliance and the case was mostly about H&C factors). The way it reads in the decision one might think that was an act of charity. But this is precisely the process outlined in the Operational Manual, and giving the PR "the benefit of the five year period preceding the interview" is what is specifically prescribed by Section 28(2)(b)(ii) IRPA. No act of charity.
Further Observations:
I want to avoid getting bogged down in the weeds about one particular aspect of this, but feel it needs mentioning: Being in compliance with the RO is technically NOT a valid eligibility requirement. But the guide for PR card applications lists meeting the RO as an eligibility requirement.
Note, however, the guide also states that to be eligible the PR must "be physically present in Canada," which similarly is technically NOT a valid eligibility requirement to be issued a PR card (and the Federal Court has ruled that IRCC cannot deny a PR card application on the sole grounds that the PR was outside Canada at the time the application was made).
In any event, neither the applicable statutes nor the applicable regulations provide for denying a PR card application on the basis that the PR was NOT in compliance with the PR Residency Obligation. And that is ordinarily, by a big margin, NOT how IRCC goes about it . . . rather, IRCC follows the process I describe above . . . referral to local office, investigation, if needed an interview, if then determined to not be in compliance there is a 44(1) Report and the procedures which follow the issuance of a 44(1) Report. In the meantime, IRCC will issue a one-year card.
Overall, the PR card application itself does not result in a negative decision based on RO non-compliance UNLESS and UNTIL AFTER the loss of PR status is FINALLY adjudicated.
AN IMPORTANT CLARIFICATION:
To be clear, I totally agree with the conventional wisdom, which is well-founded: for a PR who is in breach of the RO who is able to return to Canada without being Reported, stay and WAIT until getting into full RO compliance BEFORE engaging in any transactions with IRCC including any PR card application.
So for those who ask about applying for a new PR card any time before they are in compliance with the RO, the best answer is simple: DO NOT DO IT.
But this thread arose out of the situation where the PR DID DO IT. And trying to sort out where things go from there.
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"Furthermore, it is trite law that the greater the shortfall in the number of days, the greater the H&C factors the Appellants must present in order to overcome the shortfall. "
https://www.canlii.org/en/ca/irb/doc/2019/2019canlii102250/2019canlii102250.html?autocompleteStr=102250&autocompletePos=4
This is what I stated. There is no question in case law that the extent of non-compliance is an important factor and determines how strong the H&C factors need to be.
Whether or not the OP has H&C reasons and, if so, whether they are sufficient to overcome the non-compliance, will require a lot more detail about his situation.