Chances of appeal success when PRTD rejected

[crazyaboutcanada]

Hi friends/experts please guide me : My PRTD rejected because i could not fulfill the residency obligations. I returned from Canada in 2018 March and stayed there for about 400 days in the last 5 years. I had applied for PRTD in December 2019 and the decision came just today that it is rejected. I applied on the grounds that my father expired in January 2019 and it took one year to settle down the matters. Now my questions : (a) what are the chances that even if apply for an appeal, it is successful since the grounds remain the same (b) If i engage a lawyer, will the chances improve? (c) the cost of lawyers seems to be really high so is it worth to apply for an appeal or go for a fresh PR after the present PR is revoked

 

[scylla]

Hi friends/experts please guide me : My PRTD rejected because i could not fulfill the residency obligations. I returned from Canada in 2018 March and stayed there for about 400 days in the last 5 years. I had applied for PRTD in December 2019 and the decision came just today that it is rejected. I applied on the grounds that my father expired in January 2019 and it took one year to settle down the matters. Now my questions : (a) what are the chances that even if apply for an appeal, it is successful since the grounds remain the same (b) If i engage a lawyer, will the chances improve? (c) the cost of lawyers seems to be really high so is it worth to apply for an appeal or go for a fresh PR after the present PR is revoked

It's difficult to say what your chances of approval may be. Your father's death accounts for part of your absence from Canada but not all of it.

Yes, hiring a lawyer will generally increase your chances in an appeal since a lawyer has expertise about how to argue a case. Of course this doesn't guarantee approval by any means. I believe costs would be around $5,000.

How many points do you have under Express Entry? If you have a high number of points and selection under EE is guaranteed, it may make more sense to renounce PR.

 

[kabayan]

Hi friends/experts please guide me : My PRTD rejected because i could not fulfill the residency obligations. I returned from Canada in 2018 March and stayed there for about 400 days in the last 5 years. I had applied for PRTD in December 2019 and the decision came just today that it is rejected. I applied on the grounds that my father expired in January 2019 and it took one year to settle down the matters. Now my questions : (a) what are the chances that even if apply for an appeal, it is successful since the grounds remain the same (b) If i engage a lawyer, will the chances improve? (c) the cost of lawyers seems to be really high so is it worth to apply for an appeal or go for a fresh PR after the present PR is revoked

There are many factors that the tribunal considers in your appeal;
- Decision is wrong in law
- Humanitarian and compassionate causes; what were the main reasons why you cannot come back to Canada and did you try to come back as soon as you were able to?
- Are there any undue hardship to a child affected in your case?
- Degree of establishment in Canada, meaning you have settled, bank account, made a life for you and your family etc.

There must be strong documentation to back up you claims.

Based on the above, I suggest speak with RCIC or lawyer and ask them to review the documentation you have in hand and see if you have a strong case for appeal.

 

[canuck78]

Your case is a bit more complex that you are leading on. It seems as though you only returned to Canada in 2018 quite close to the end of your PR Card having landed in 2013 and spent a few months with your family then. Your family only spent 2 months in Canada and one daughter may now be over 22. Do you have any other siblings or uncles who could have resolved your families affairs. What about your mother? You would need to go into detail about what exactly needed to be resolved and why you needed to be the one to do and why it took so long since your father passed only a few months after you arrived home. The person with the best chance of retaining their PR status is your minor son. Did you attempt to renew PR for your whole family or just you?

 

[crazyaboutcanada]

Your case is a bit more complex that you are leading on. It seems as though you only returned to Canada in 2018 quite close to the end of your PR Card having landed in 2013 and spent a few months with your family then. Your family only spent 2 months in Canada and one daughter may now be over 22. Do you have any other siblings or uncles who could have resolved your families affairs. What about your mother? You would need to go into detail about what exactly needed to be resolved and why you needed to be the one to do and why it took so long since your father passed only a few months after you arrived home. The person with the best chance of retaining their PR status is your minor son. Did you attempt to renew PR for your whole family or just you?

I attempted to renew the PR of me and my daughter. Both rejected. Seems you studied my case in detail.. my father passed away in Jan 2019 (I returned in March 2018). And I was the only person to settle family pension for my mother, settle the property issues because my only sister i have resides in US. So there was absolutely no one to support my mother. I started to renew the process in September 2019 and applied for PRTD in December 2019. The decision came to me at the end of September 2020.

 

[crazyaboutcanada]

There are many factors that the tribunal considers in your appeal;
- Decision is wrong in law
- Humanitarian and compassionate causes; what were the main reasons why you cannot come back to Canada and did you try to come back as soon as you were able to?
- Are there any undue hardship to a child affected in your case?
- Degree of establishment in Canada, meaning you have settled, bank account, made a life for you and your family etc.

There must be strong documentation to back up you claims.

Based on the above, I suggest speak with RCIC or lawyer and ask them to review the documentation you have in hand and see if you have a strong case for appeal.

Thank you Kabayan.. It gave me a good hope and a ground why and how I should appeal.

 

[crazyaboutcanada]

It's difficult to say what your chances of approval may be. Your father's death accounts for part of your absence from Canada but not all of it.

Yes, hiring a lawyer will generally increase your chances in an appeal since a lawyer has expertise about how to argue a case. Of course this doesn't guarantee approval by any means. I believe costs would be around $5,000.

How many points do you have under Express Entry? If you have a high number of points and selection under EE is guaranteed, it may make more sense to renounce PR.

Thank you.

 

[canuck78]

I attempted to renew the PR of me and my daughter. Both rejected. Seems you studied my case in detail.. my father passed away in Jan 2019 (I returned in March 2018). And I was the only person to settle family pension for my mother, settle the property issues because my only sister i have resides in US. So there was absolutely no one to support my mother. I started to renew the process in September 2019 and applied for PRTD in December 2019. The decision came to me at the end of September 2020.

You and your daughter can appeal the loss of your PR status. How old is your daughter? If she is over 20 and has only spent a few months in Canada the chances of retaining PR are quite minimal because she never established any form of life in Canada. In order to attempt to keep your PR I would hire a lawyer and I would go into detail as to why you needed to be in India for the past almost 2 years since your father passed and why you couldn’t meet your RO in the first 5 year period. You will need to go into detail in terms of the tasks that needed to be done in person to settle your father’s affairs and show a chronological timeline of tasks you did, why it took so long, why you couldn’t return to Canada and solve these issues during a trip home, why your wife or mother could not deal with these issues, etc.

 

[vensak]

Not sure what he want to appeal. His only H&C argument (at least according to what was posted here) is deceased father and nothing else. However he was supposed to show his H&C reasons for all days outside Canada, but at least for more than 3 years. Showing 1 year which could be easily done by his mother (as he did not mentioned that she was not physically or mentally capable to do that), means rejection. And in his appeal he could only appeal that rejection given on the facts he gave.
As for his daughter, if she ever left Canada after turning 18, from that time onward she could not use removed as minor loophole. Additionally after turning 18 which was again according to the given info somewhere app. 4 years ago she should have taken first possibility to return to Canada. So yes she had plenty time to meet RO. And no deceased grand father is not H&C for her from the moment she turned 18.

 

[dpenabill]

My PRTD rejected because i could not fulfill the residency obligations. I returned from Canada in 2018 March and stayed there for about 400 days in the last 5 years. I had applied for PRTD in December 2019 and the decision came just today that it is rejected. I applied on the grounds that my father expired in January 2019 and it took one year to settle down the matters. Now my questions : (a) what are the chances that even if apply for an appeal, it is successful since the grounds remain the same (b) If i engage a lawyer, will the chances improve? (c) the cost of lawyers seems to be really high so is it worth to apply for an appeal or go for a fresh PR after the present PR is revoked

@scylla and @kabayan covered the essential basics.

Generally I am reluctant to comment on the probability of making a successful H&C case. There are many variables. There is almost no limit on what factors can be considered. How this or that factor influences things can vary a lot, including the same factor having a virtually opposite influence for one individual compared to another, depending on context and how that factor relates to other factors. It can get complicated. Forecasting outcomes is extremely difficult.

Generally, to the extent the PR can explain why he or she remained abroad, that is what the PR relying on H&C reasons should do: give IRCC, or once the matter is on appeal give the IAD, a complete explanation for all the reasons the PR has been abroad. This includes explanations many in this forum will say do not count. Like remaining abroad for employment or business reasons. A full and truthful explanation covering how and why the PR did not come to Canada to settle sooner and how and why the PR remained abroad otherwise, including some accounting of efforts to get to Canada to stay, is generally the best the PR can do, and hope his or her explanation persuades IRCC, or the IAD in an appeal, to allow the PR to keep PR status DESPITE failing to comply with the Residency Obligation.

The PR RO H&C case is very different from other H&C cases. Yes, like other H&C cases, compelling humane and compassionate circumstances will make the case. A PR who was kidnapped and held hostage for years abroad is not going to be denied H&C relief. BUT for PRs the nature and scope of H&C relief can and often does go well beyond the parameters of what are considered compelling H&C factors in other cases. IRCC, and the IAD, will consider and oft times make favourable decisions based on factors which are more about whether the PR, in effect, DESERVES a chance to keep PR status, a chance to settle and live PERMANENTLY in Canada.

This makes it very, very difficult to predict the outcome of the PR RO H&C case. Statistical odds are LOW absent typical compelling H&C factors, but the outcome is not based on statistical odds. The outcome is not determined by the spin of a roulette wheel or other game of chance. The outcome depends on the individual, the specific facts and circumstances and deserts (what the PR deserves) for the particular PR who often is, in effect, basically asking for a chance to settle and live in Canada despite failing to meet the RO.

Thus, I am reluctant to comment on the probability of making a successful H&C case because how it is likely to go depends on way, way too many factors that are very difficult to assess. Absent typically compelling H&C reasons (the individual faces torture if deported; or the individual is the only parent who can care for minor children who are Canadians and who know no other life than a life in Canada; or such), the odds are NOT good but various circumstances can persuade Canada to allow the PR to keep status and a chance to live in Canada permanently . . . the latter depending a lot on how big the breach was.



That said, many H&C cases are NOT a close call.

For many cases there is little or no reason to entertain false hope, or to spend a lot of money and effort pursuing an appeal. And that appears to be the crux of the query here, whether the OP has a case worth investing money, effort, and time to pursue the chance of a favourable IAD decision allowing the OP to retain PR status based on H&C reasons.

As I noted, again (it warrants emphasis), generally I am reluctant to comment on the probability of making a successful H&C case. Whether to proceed is very much a personal decision. For example, what the individual can afford is a big factor in deciding whether to spend the money for a lawyer, totally apart and separate from the merits of the H&C case itself. Among other factors apart from the merits (the strength) of the H&C case itself, one is the prospect of obtaining PR status anew as suggested by @scylla.

Of course the strength of the H&C case is the key factor in making the personal decision about whether to appeal and whether to spend the money for a lawyer in prosecuting the appeal.

Note: you can appeal and make the case yourself, as best you can, without a lawyer. Odds of successfully doing so are probably not good, but the only downside is if you have an alternative plan to reapply for PR, you cannot do that until there is a final decision on the appeal or you withdraw the appeal. If you do this, if you pursue an appeal, give the IAD a complete explanation for ANY and ALL reasons for remaining and going abroad. Just lay your entire situation out for the IAD to consider. Thus, while a lawyer can probably BETTER put together the case to make to the IAD, you can do it yourself, and if you do, then be sure to explain the whole story, truthfully, and then all you can do is hope for the best.

Also note: There is usually some possibility IRCC (the Visa Office) failed to follow the law and proper procedure, which would be grounds for the IAD to set aside the decision denying the application for a PR Travel Document. This is a more difficult case to make and even with a very good lawyer the odds of success, on this ground, are NOT at all good. That is, the odds are very high that the decision was valid in law and will be upheld in this regard (given your acknowledgement that you were well short of complying with the RO).

That is, you have been determined to be in breach of the PR Residency Obligation and it is highly likely this determination is valid in law.

That leaves you with the H&C case.


Some further observations regarding the strength of the H&C case:

As noted, there are many factors which may be considered in evaluating whether there are H&C reasons for allowing a PR to keep PR status despite breaching the RO.

The reasons why the PR remained abroad are a big factor of course. But the nature and extent of the PR's connection to Canada, and especially the PR's ties to living a life IN Canada, are also huge factors. Overall, nonetheless, how many days the PR has been in Canada is the biggest factor.

HOWEVER, there is one factor which looms rather large in the factual circumstances described here: it appears you were ALREADY in BREACH of the PR Residency Obligation BEFORE you left Canada due to your parent's death.

For purposes of calculating whether there was a breach of the RO, only the five year period of time prior to the date you made the PR TD application is considered. Since you spent more than a year in Canada, it is not a totally egregious breach, but it is not like you were close. 1400 days abroad compared to 400 in Canada, some ten months or so short of the bare minimum, there is no doubt about you substantially breaching the RO.

For purposes of assessing H&C factors, the PR's overall history and connections to Canada and time in Canada, can be and likely will be considered. And again, based on what you describe, it appears you were already in BREACH BEFORE you left Canada due to your parent's death. Moreover, your personal ties REMAIN largely outside Canada. Where your family has been living these past years is relevant. The fact they have not been living in Canada further shows your primary ties are OUTSIDE Canada, NOT in Canada.

I remain reluctant to so much as suggest how you should proceed. But in terms of what you have shared in this forum (including other topics and other parts of the forum), there is not much to indicate you can make a persuasive case even if you have the assistance of the best lawyers.

Did you attempt to renew PR for your whole family or just you?

For clarity: There is no process for renewing PR. Not individually. Not for a family.

I get it, that it is likely this comment was not really about "renewing PR." But it needs to be clear, there is NO need to renew PR. There is NO process or procedure for renewing PR.

 

[crazyaboutcanada]

@scylla and @kabayan covered the essential basics.

Generally I am reluctant to comment on the probability of making a successful H&C case. There are many variables. There is almost no limit on what factors can be considered. How this or that factor influences things can vary a lot, including the same factor having a virtually opposite influence for one individual compared to another, depending on context and how that factor relates to other factors. It can get complicated. Forecasting outcomes is extremely difficult.

Generally, to the extent the PR can explain why he or she remained abroad, that is what the PR relying on H&C reasons should do: give IRCC, or once the matter is on appeal give the IAD, a complete explanation for all the reasons the PR has been abroad. This includes explanations many in this forum will say do not count. Like remaining abroad for employment or business reasons. A full and truthful explanation covering how and why the PR did not come to Canada to settle sooner and how and why the PR remained abroad otherwise, including some accounting of efforts to get to Canada to stay, is generally the best the PR can do, and hope his or her explanation persuades IRCC, or the IAD in an appeal, to allow the PR to keep PR status DESPITE failing to comply with the Residency Obligation.

The PR RO H&C case is very different from other H&C cases. Yes, like other H&C cases, compelling humane and compassionate circumstances will make the case. A PR who was kidnapped and held hostage for years abroad is not going to be denied H&C relief. BUT for PRs the nature and scope of H&C relief can and often does go well beyond the parameters of what are considered compelling H&C factors in other cases. IRCC, and the IAD, will consider and oft times make favourable decisions based on factors which are more about whether the PR, in effect, DESERVES a chance to keep PR status, a chance to settle and live PERMANENTLY in Canada.

This makes it very, very difficult to predict the outcome of the PR RO H&C case. Statistical odds are LOW absent typical compelling H&C factors, but the outcome is not based on statistical odds. The outcome is not determined by the spin of a roulette wheel or other game of chance. The outcome depends on the individual, the specific facts and circumstances and deserts (what the PR deserves) for the particular PR who often is, in effect, basically asking for a chance to settle and live in Canada despite failing to meet the RO.

Thus, I am reluctant to comment on the probability of making a successful H&C case because how it is likely to go depends on way, way too many factors that are very difficult to assess. Absent typically compelling H&C reasons (the individual faces torture if deported; or the individual is the only parent who can care for minor children who are Canadians and who know no other life than a life in Canada; or such), the odds are NOT good but various circumstances can persuade Canada to allow the PR to keep status and a chance to live in Canada permanently . . . the latter depending a lot on how big the breach was.



That said, many H&C cases are NOT a close call.

For many cases there is little or no reason to entertain false hope, or to spend a lot of money and effort pursuing an appeal. And that appears to be the crux of the query here, whether the OP has a case worth investing money, effort, and time to pursue the chance of a favourable IAD decision allowing the OP to retain PR status based on H&C reasons.

As I noted, again (it warrants emphasis), generally I am reluctant to comment on the probability of making a successful H&C case. Whether to proceed is very much a personal decision. For example, what the individual can afford is a big factor in deciding whether to spend the money for a lawyer, totally apart and separate from the merits of the H&C case itself. Among other factors apart from the merits (the strength) of the H&C case itself, one is the prospect of obtaining PR status anew as suggested by @scylla.

Of course the strength of the H&C case is the key factor in making the personal decision about whether to appeal and whether to spend the money for a lawyer in prosecuting the appeal.

Note: you can appeal and make the case yourself, as best you can, without a lawyer. Odds of successfully doing so are probably not good, but the only downside is if you have an alternative plan to reapply for PR, you cannot do that until there is a final decision on the appeal or you withdraw the appeal. If you do this, if you pursue an appeal, give the IAD a complete explanation for ANY and ALL reasons for remaining and going abroad. Just lay your entire situation out for the IAD to consider. Thus, while a lawyer can probably BETTER put together the case to make to the IAD, you can do it yourself, and if you do, then be sure to explain the whole story, truthfully, and then all you can do is hope for the best.

Also note: There is usually some possibility IRCC (the Visa Office) failed to follow the law and proper procedure, which would be grounds for the IAD to set aside the decision denying the application for a PR Travel Document. This is a more difficult case to make and even with a very good lawyer the odds of success, on this ground, are NOT at all good. That is, the odds are very high that the decision was valid in law and will be upheld in this regard (given your acknowledgement that you were well short of complying with the RO).

That is, you have been determined to be in breach of the PR Residency Obligation and it is highly likely this determination is valid in law.

That leaves you with the H&C case.


Some further observations regarding the strength of the H&C case:

As noted, there are many factors which may be considered in evaluating whether there are H&C reasons for allowing a PR to keep PR status despite breaching the RO.

The reasons why the PR remained abroad are a big factor of course. But the nature and extent of the PR's connection to Canada, and especially the PR's ties to living a life IN Canada, are also huge factors. Overall, nonetheless, how many days the PR has been in Canada is the biggest factor.

HOWEVER, there is one factor which looms rather large in the factual circumstances described here: it appears you were ALREADY in BREACH of the PR Residency Obligation BEFORE you left Canada due to your parent's death.

For purposes of calculating whether there was a breach of the RO, only the five year period of time prior to the date you made the PR TD application is considered. Since you spent more than a year in Canada, it is not a totally egregious breach, but it is not like you were close. 1400 days abroad compared to 400 in Canada, some ten months or so short of the bare minimum, there is no doubt about you substantially breaching the RO.

For purposes of assessing H&C factors, the PR's overall history and connections to Canada and time in Canada, can be and likely will be considered. And again, based on what you describe, it appears you were already in BREACH BEFORE you left Canada due to your parent's death. Moreover, your personal ties REMAIN largely outside Canada. Where your family has been living these past years is relevant. The fact they have not been living in Canada further shows your primary ties are OUTSIDE Canada, NOT in Canada.

I remain reluctant to so much as suggest how you should proceed. But in terms of what you have shared in this forum (including other topics and other parts of the forum), there is not much to indicate you can make a persuasive case even if you have the assistance of the best lawyers.





For clarity: There is no process for renewing PR. Not individually. Not for a family.

I get it, that it is likely this comment was not really about "renewing PR." But it needs to be clear, there is NO need to renew PR. There is NO process or procedure for renewing PR.

Thank you very much for the valuable analysis. Sorry I could not login all these days to respond to you. After reading the responses to my post, I am of the view that nothing can be hoped in my case to retain my PR status I stayed in Canada for a total days of 563 days but some of the earlier stay was not considered due to the immediate 5 years period.

I am not sure about applying for a new PR now at this age (50 years) and if that will ever be accepted in view of my previous PR getting expired due to residency obligations. Moreover, if I apply a new PR now, my daughter cannot be covered because she is not a minor. My son is a minor for only one more year and he has not applied for PRTD along with me and my daughter so we do not know if I can include him in my new PR application (if I make one). If I do not appeal to IAD, I will lose the PR status permanently and if by any chance, my new PR application is not accepted, I will not be able to enter Canada anymore. That is what is bothering me a lot. At the same time, I am unwilling to spend huge amount of time, money and efforts (especially my hope) on outcomes whose probability is very less

Thanks

 

[canuck78]

Thank you very much for the valuable analysis. Sorry I could not login all these days to respond to you. After reading the responses to my post, I am of the view that nothing can be hoped in my case to retain my PR status I stayed in Canada for a total days of 563 days but some of the earlier stay was not considered due to the immediate 5 years period.

I am not sure about applying for a new PR now at this age (50 years) and if that will ever be accepted in view of my previous PR getting expired due to residency obligations. Moreover, if I apply a new PR now, my daughter cannot be covered because she is not a minor. My son is a minor for only one more year and he has not applied for PRTD along with me and my daughter so we do not know if I can include him in my new PR application (if I make one). If I do not appeal to IAD, I will lose the PR status permanently and if by any chance, my new PR application is not accepted, I will not be able to enter Canada anymore. That is what is bothering me a lot. At the same time, I am unwilling to spend huge amount of time, money and efforts (especially my hope) on outcomes whose probability is very less

Thanks

You likely won’t be able to qualify for PR again. If you have the money to spend on a lawyer appeal is the best option. When was your PRTD denied?

 

[crazyaboutcanada]

You likely won’t be able to qualify for PR again. If you have the money to spend on a lawyer appeal is the best option. When was your PRTD denied?

In September 2020..

 

[crazyaboutcanada]

I consulted 2-3 advisors who opined that the chances of my appeal are feeble. Moreover, it may take 12-18 months to get the decision.. I can apply for a fresh PR only if I do not go for appeal.

 

[scylla]

I consulted 2-3 advisors who opined that the chances of my appeal are feeble. Moreover, it may take 12-18 months to get the decision.. I can apply for a fresh PR only if I do not go for appeal.

Yes, an appeal will likely take a year and a half (maybe long now due to COVID-19 processing delays). And yes, while the appeal is in progress, you cannot reapply for PR. You have to pick one or the other. You cannot do both.