H&C Appeal

[Sagar Parekh]

Greetings!!
I am permanent resident and living in Canada for more than two years. My sister is also PR. She came to Canada last year before 10 days of her PR card expiry and she wasn't meeting RO. She was asked to leave country by CBSA at airport because of not meeting RO. We filed appeal based on H&C grounds and decision of appeal was fortunately in our favor and she is now allowed to stay in Canada as PR (Removal order has been removed by IRCC). My question is should we file renewal of PR card based on the appeal decision or wait till she meets RO and then file renewal? Which would be better way to get renewed PR card?

Thanks in advance.

 

[dpenabill]

Greetings!!
I am permanent resident and living in Canada for more than two years. My sister is also PR. She came to Canada last year before 10 days of her PR card expiry and she wasn't meeting RO. She was asked to leave country by CBSA at airport because of not meeting RO. We filed appeal based on H&C grounds and decision of appeal was fortunately in our favor and she is now allowed to stay in Canada as PR (Removal order has been removed by IRCC). My question is should we file renewal of PR card based on the appeal decision or wait till she meets RO and then file renewal? Which would be better way to get renewed PR card?

Thanks in advance.

Assuming she has remained in Canada, and will continue remaining in Canada, it is OK to proceed with an application for a new PR card.

Will likely be OK to apply for a new PR card even if she has left Canada some and leaves Canada some in the near future, BUT it is for-sure OK if she has been in Canada during this last period and remains in Canada at least long enough to be delivered a newly issued PR card (this could take some time).

NO PROBLEM applying sooner rather than waiting.

Further Observations -- the IAD decision has three effects which are especially important:

-- it sets aside the decision to terminate PR status (which you obviously know)​

-- it establishes that she is in compliance with the Residency Obligation as of the date of the decision​

-- it means that the days she has been IN Canada since the Removal Order was issued count toward complying with the Residency Obligation​

 

[Sagar Parekh]

Thanks for reply.

So in case we apply for renewal, what would be the procedure? Do I need to attach specific documents(such as IAD decision) other than mentioned in checklist as RO is not satisfied?

 

[ExpiredPR2013]

Thanks for reply.

So in case we apply for renewal, what would be the procedure? Do I need to attach specific documents(such as IAD decision) other than mentioned in checklist as RO is not satisfied?

In may 2021 my mother arrived in Canada after a long time away. She centered through Rainbow bridge using long expired PR card. She was let in but was told that she was given a "permanent residency determination" but was not given any documentation to that effect.

Its been almost four weeks and she has not received any thing in mail. I have read many posts and most of the ENF and OP manuals and its up tot he BSO to either report or not , also called 44(1) report. So if a BSO writes a report does she need to provide you a copy at the border? Or may be she referred it to MD who will review and then decide? I have read about "some possibilities" in very detailed posts from some members. But was hoping to find out if someone has recently experienced or become aware of similar situation.

Also is there a way to know if they have reported you or you just have to wait and see if something arrives in mail?

Any knowledge you can share on this process will be greatly appreciated.

Thanks in advance!

 

[A.Baig]

Assuming she has remained in Canada, and will continue remaining in Canada, it is OK to proceed with an application for a new PR card.

Will likely be OK to apply for a new PR card even if she has left Canada some and leaves Canada some in the near future, BUT it is for-sure OK if she has been in Canada during this last period and remains in Canada at least long enough to be delivered a newly issued PR card (this could take some time).

NO PROBLEM applying sooner rather than waiting.

Further Observations -- the IAD decision has three effects which are especially important:

-- it sets aside the decision to terminate PR status (which you obviously know)​

-- it establishes that she is in compliance with the Residency Obligation as of the date of the decision​

-- it means that the days she has been IN Canada since the Removal Order was issued count toward complying with the Residency Obligation​

Can one even apply for renewal of PR if you have not met the RO? As per my understanding, in the renewal form, you need to satisfy the authorities that you were inside Canada for 730 days. Are there circumstances that someone can apply for renewal even if they dont meet RO?

 

[A.Baig]

In may 2021 my mother arrived in Canada after a long time away. She centered through Rainbow bridge using long expired PR card. She was let in but was told that she was given a "permanent residency determination" but was not given any documentation to that effect.

Its been almost four weeks and she has not received any thing in mail. I have read many posts and most of the ENF and OP manuals and its up tot he BSO to either report or not , also called 44(1) report. So if a BSO writes a report does she need to provide you a copy at the border? Or may be she referred it to MD who will review and then decide? I have read about "some possibilities" in very detailed posts from some members. But was hoping to find out if someone has recently experienced or become aware of similar situation.

Also is there a way to know if they have reported you or you just have to wait and see if something arrives in mail?

Any knowledge you can share on this process will be greatly appreciated.

Thanks in advance!

what documents did she show on the border to the officer? The expired PR card only? or something else as well?

 

[dpenabill]

Can one even apply for renewal of PR if you have not met the RO? As per my understanding, in the renewal form, you need to satisfy the authorities that you were inside Canada for 730 days. Are there circumstances that someone can apply for renewal even if they dont meet RO?

A PR who is not in compliance with the Residency Obligation may still apply for and be issued a PR card based on sufficient H&C reasons. This is RISKY, since making the PR card application can trigger a formal adjudication of RO compliance which would result in a decision terminating the PR's status UNLESS there is a determination allowing the individual to keep PR status based on H&C reasons. With some narrow exceptions, H&C cases are NOT easy to win.

Once in Canada, if not issued a 44(1) Report and Removal Order upon arrival at the Port-of-Entry (PoE), a PR who is not in compliance with the RO can just stay and wait for how long it takes to get into compliance (for most this is two years, but can be less for those who spent time in Canada in the last three or so years). So for a PR not in compliance, it is usually better to wait, better to not apply for a new PR card . . . unless the PR is very, very confident the H&C case is compellingly strong.

In contrast, and what this topic is about, if a PR abroad and in breach of the RO applies for a PR Travel Document relying on H&C reasons, and a PR TD is issued based on H&C reasons (I forget the precise coding that means it is based on H&C), that means the H&C case has been adjudicated. So for that PR, assuming the PR comes to Canada using the PR TD and settles to stay in Canada, it is not much of a risk to apply for a new PR card even though the PR has not been in Canada at least 730 days within the previous five years. Although there may be exceptions, IRCC will give credit to the Visa Office's favourable H&C adjudication and issue a new PR card.

CAUTION: In addition to IRCC instructions which say a PR must be IN Canada to make a PR card application, it would be foolish for a PR abroad to apply for a new PR card if the PR is NOT in compliance with the RO. Odds of a negative outcome are high, and otherwise, if not outright rejected, the odds are very high the application will not result in a decision UNTIL the PR either applies for a PR TD or applies for entry into Canada at a PoE (that is, showing up at a PoE during a return to Canada), and in either case then subjected to a formal RO examination (with a likely negative outcome). And on top of that, EVEN IF it happens that IRCC issues a new PR card, that does not solve the RO breach problem. When next arriving at a PoE the PR can still be (and in this scenario this is most likely, unless again there is a compelling H&C case) subject to a RO compliance examination and if short of being in Canada 730 within the last five years, as of the day the PR arrives at the PoE, that in turn results in being Reported and issued a Removal Order. Even if the PR card is brand new and does not expire for another four plus years.

 

[ExpiredPR2013]

what documents did she show on the border to the officer? The expired PR card only? or something else as well?

Just the old landing paper.

 

[ExpiredPR2013]

Once in Canada, if not issued a 44(1) Report and Removal Order upon arrival at the Port-of-Entry (PoE), a PR who is not in compliance with the RO can just stay and wait for how long it takes to get into compliance (for most this is two years, but can be less for those who spent time in Canada in the last three or so years). So for a PR not in compliance, it is usually better to wait, better to not apply for a new PR card . . . unless the PR is very, very confident the H&C case is compellingly strong.

I assume this means 44(1) report or departure order are only issued at PoE. For those who don't get any such thing issued at the border can wait the two years and then apply for her PR card.

 

[dpenabill]

I assume this means 44(1) report or departure order are only issued at PoE. For those who don't get any such thing issued at the border can wait the two years and then apply for her PR card.

This stumbles at the word "only" . . .

In regards to the 44(1) Report for Inadmissibility due to a breach of the Residency Obligation and attendant Departure (or Removal) Order:

While the Port-of-Entry (PoE) procedure is the most common, by far, it is NOT the "ONLY" scenario in which a PR may be issued the Report and Removal or Departure Order (different names for what is effectively the same thing).

A formal RO compliance examination, which in turn may result in the Report and Removal Order being issued, may be triggered by various events. Again, a PoE examination is the most common. Applications to IRCC which involve verifying the individual's PR status can trigger a formal RO compliance examination, which in turn may result in the Report and Removal Order being issued. This includes an application for a new PR card and an application to sponsor a family member for PR.

Moreover, sometimes officers at the PoE do not have sufficient information to make a determination then and there. Some PRs, for example, foolishly think that being evasive and uncooperative in answering questions might improve their odds of avoiding a 44(1) Report. It might, but only TEMPORARILY. The border officials can and sometimes will refer the case to an inland IRCC office to follow up, in which cases the PR's evasiveness and lack of cooperation at the PoE will typically severely damage the PR's credibility and elevate the odds of a negative outcome.

There are also some occasions in which a second reviewing officer (technically designated a "Minister's Delegate," but typically just another CBSA immigration officer) is not available when the PR is being examined at the PoE. The PR may be allowed to proceed into Canada but will be scheduled for a further interview later, which may result in the issuance of a Removal or Departure Order.

Technically IRCC can investigate and take action against a PR who is in breach of the RO even though the PR was waived through the PoE and remains in Canada without initiating any transactions with IRCC which might trigger the formal RO compliance examination. In practice we simply do not see this happening. It is readily apparent that IRCC does not actively pursue RO non-compliance cases UNLESS the PR engages in some transaction which triggers a RO compliance examination. WITH SOME LIKELY EXCEPTIONS. I referenced one example already, the PR who may have been uncooperative at the PoE and a referral to a local office is made regarding the PR, and followed up by the local office. For another example, it is possible that a PR who is not in compliance with the RO who gets involved in a criminal or security matter may be investigated and examined, and potentially subject to a decision to terminate PR status based on the failure to comply with the RO.

Back to how you phrased it:
"I assume this means 44(1) report or departure order are only issued at PoE. For those who don't get any such thing issued at the border can wait the two years and then apply for her PR card."

Actually . . . this means 44(1) report AND departure order are USUALLY issued at PoE . . . and for those who don't get any such thing issued at the border, they can TYPICALLY wait the two years and then apply for her PR card.

 

[tempshakir]

44(1) Report for Inadmissibility due to a breach of the Residency Obligation and attendant Departure (or Removal) Order

If a PR gets reported at POE and an appeal is rejected
1. Will the PR (having 2 years of validity in PR card) asked to leave immediately ??

 

[scylla]

If a PR gets reported at POE and an appeal is rejected
1. Will the PR (having 2 years of validity in PR card) asked to leave immediately ??

This process takes a while. By the time an appeal is rejected, the person's PR card will almost certainly no longer be valid.

 

[ExpiredPR2013]

This stumbles at the word "only" . . .

In regards to the 44(1) Report for Inadmissibility due to a breach of the Residency Obligation and attendant Departure (or Removal) Order:

While the Port-of-Entry (PoE) procedure is the most common, by far, it is NOT the "ONLY" scenario in which a PR may be issued the Report and Removal or Departure Order (different names for what is effectively the same thing).

A formal RO compliance examination, which in turn may result in the Report and Removal Order being issued, may be triggered by various events. Again, a PoE examination is the most common. Applications to IRCC which involve verifying the individual's PR status can trigger a formal RO compliance examination, which in turn may result in the Report and Removal Order being issued. This includes an application for a new PR card and an application to sponsor a family member for PR.

Moreover, sometimes officers at the PoE do not have sufficient information to make a determination then and there. Some PRs, for example, foolishly think that being evasive and uncooperative in answering questions might improve their odds of avoiding a 44(1) Report. It might, but only TEMPORARILY. The border officials can and sometimes will refer the case to an inland IRCC office to follow up, in which cases the PR's evasiveness and lack of cooperation at the PoE will typically severely damage the PR's credibility and elevate the odds of a negative outcome.

There are also some occasions in which a second reviewing officer (technically designated a "Minister's Delegate," but typically just another CBSA immigration officer) is not available when the PR is being examined at the PoE. The PR may be allowed to proceed into Canada but will be scheduled for a further interview later, which may result in the issuance of a Removal or Departure Order.

Technically IRCC can investigate and take action against a PR who is in breach of the RO even though the PR was waived through the PoE and remains in Canada without initiating any transactions with IRCC which might trigger the formal RO compliance examination. In practice we simply do not see this happening. It is readily apparent that IRCC does not actively pursue RO non-compliance cases UNLESS the PR engages in some transaction which triggers a RO compliance examination. WITH SOME LIKELY EXCEPTIONS. I referenced one example already, the PR who may have been uncooperative at the PoE and a referral to a local office is made regarding the PR, and followed up by the local office. For another example, it is possible that a PR who is not in compliance with the RO who gets involved in a criminal or security matter may be investigated and examined, and potentially subject to a decision to terminate PR status based on the failure to comply with the RO.

Back to how you phrased it:
"I assume this means 44(1) report or departure order are only issued at PoE. For those who don't get any such thing issued at the border can wait the two years and then apply for her PR card."

Actually . . . this means 44(1) report AND departure order are USUALLY issued at PoE . . . and for those who don't get any such thing issued at the border, they can TYPICALLY wait the two years and then apply for her PR card.

Thanks for your detailed reply.

As for my mother she told the CBSA agents that she has been out of country for 9 years. Did not lie or refuse to answer any question, simply stated the facts.

The CBSA agent mentioned she has "added notes" in my mother's profile and given my mother a determination. I understand that border agents have to write a report 44(1) and send it to internal IRCC office or MD to start official process and if they only add notes that means they are not writing a report, however I may be wrong. I think my mother happened to come across a CBSA agent who did not want to put an old woman in a difficult situation.

Another thing to consider is that if CBSA don't ask you to present your self for a follow up interview then "your PoE examination" has concluded. Furthermore, if they don't issue a formal 44(1) report then you can start counting the time that you are now spending in Canada towards PR renewal.

I also understand that its not simply black and white and legally IRCC has the right to investigate her anytime. But going by the standard protocol - if a PR not in compliance of RO - makes it through the PoE without being asked to appear in follow up interview or without being issued a 44(1) report then its more likely that he/she can establish their PR and apply for PR card renewal after two years. But its not a 100% until the two years pass and they meet their RO obligation.

 

[armoured]

But going by the standard protocol - if a PR not in compliance of RO - makes it through the PoE without being asked to appear in follow up interview or without being issued a 44(1) report then its more likely that he/she can establish their PR and apply for PR card renewal after two years. But its not a 100% until the two years pass and they meet their RO obligation.

Yes, if she was not issued a report and it wasn't referred for later action (which seems pretty rare), and she remains in Canada the two years, etc., without initiating further 'transactions' (eg applying for a card before RO met), she should be fine.

The only question it seems (based on what you've reported) is whether there was some referral for later action. Which - if you don't hear from them - is likely the case.

(I don't know if there is a way to find this out other than waiting)

 

[ExpiredPR2013]

The only question it seems (based on what you've reported) is whether there was some referral for later action. Which - if you don't hear from them - is likely the case.

Based on body language of the CBSA agent and based on all the ENF and OP manuals I have read in the last month I understand that "writing notes" is recommended when an agent does not want to initiate a report. Notes will remain on her file and if she leaves Canada and re-enters or if she initiates another transaction with IRCC then she can get called out. But other than she should be fine.