Appeal Allowed ...Can I apply for PR Card?

[MUSTAFACAN]

Hi

My wife and children applied for PRTD and they got negative decision about PR obligation (stay less than 730 days)but got PRTD as they were in Canada a year before applying PRTD. They appealed the decision and IAD has allowed the appeal on H&C basis.

They are in Canada. Can they apply for PR card? Will they get 5 year card?. Their stay is only 330 days in last 5 years.

Thanks.

 

[scylla]

Hi

My wife and children applied for PRTD and they got negative decision about PR obligation (stay less than 730 days)but got PRTD as they were in Canada a year before applying PRTD. They appealed the decision and IAD has allowed the appeal on H&C basis.

They are in Canada. Can they apply for PR card? Will they get 5 year card?. Their stay is only 330 days in last 5 years.

Thanks.

Yes - they can apply. They will get a 1 year card and should limit travel outside of Canada to have the highest chance of the H&C appeal being successful.

 

[MUSTAFACAN]

Yes - they can apply. They will get a 1 year card and should limit travel outside of Canada to have the highest chance of the H&C appeal being successful.

Their appeal has been already allowed. The decision is in their favour. They won the appeal.

 

[scylla]

Their appeal has been already allowed. The decision is in their favour. They won the appeal.

Ah - missed that. Then yes - they should be able to apply for a 5 year card.

 

[MUSTAFACAN]

Will they get 5 yt Card with stay less than 730 days in past 5 years!

 

[dpenabill]

Hi

My wife and children applied for PRTD and they got negative decision about PR obligation (stay less than 730 days)but got PRTD as they were in Canada a year before applying PRTD. They appealed the decision and IAD has allowed the appeal on H&C basis.

They are in Canada. Can they apply for PR card? Will they get 5 year card?. Their stay is only 330 days in last 5 years.

Thanks.

The successful appeal essentially wipes the slate clean, as if there was no failure to comply with the PR Residency Obligation. But that does not entirely restart the clock.

That is, yes, they can apply for and should be issued new PR cards. The cards should be, most likely will be, valid for five years.

That does not mean, however, they could then leave Canada for a lengthy period of time, such as for months or more than a year or longer, and not face losing PR status again. They are still subject to the PR Residency Obligation and that is based on physical presence within the preceding five years, the 2/5 rule.

If they leave Canada then they could be subject to an examination as to compliance with the RO based on the date they return to Canada; based on how many days they have been in Canada within the five years preceding that day.

Nonetheless, as long as they are settled and staying in Canada they should be able to make BRIEF trips abroad relatively worry free, with their new cards, as long as the trips are short enough they are obviously temporary, short enough they will not be perceived to be a change in circumstances sufficient to trigger reasons for engaging in a Residency Obligation compliance examination when they arrive back in Canada.

Many, if not most PRs in a similar situation, will avoid traveling abroad for at least a year or more, or even until they are in full compliance with the RO based on days in Canada (rather than just H&C reasons) after a successful appeal on H&C grounds, just to totally minimize the chance of being reported (based on not being present at least 730 days within the preceding five years when they arrive at a PoE to enter Canada) and having to appeal again.

But yes, they should get their new PR cards and the PR cards should be valid for five years . . . recognizing of course the validity date on PR cards is NOT relevant when compliance with the RO is questioned and if there is a breach of the RO then PR status can be lost no matter how much longer the PR card says it is valid (if and when a determination is made that PR status is lost, due to inadmissibility for a breach of the RO, that automatically renders the PR card invalid no matter what date is on the card).

And being able to get the PR card can be important for any immigrant who applies for health care, drivers license, or admission to Canadian schools. Can even be important for opening some bank accounts. So they can apply for and get new cards. And they should do that.

 

[canuck78]

As @dpenabill indicated if they leave and return they will be out of status. It is unclear what your status is. Your family got lucky once but will likely not get so lucky a second time.

 

[MUSTAFACAN]

As @dpenabill indicated if they leave and return they will be out of status. It is unclear what your status is. Your family got lucky once but will likely not get so lucky a second time.

You mean they can't travel out of Canada? Plz...

 

[MUSTAFACAN]

The successful appeal essentially wipes the slate clean, as if there was no failure to comply with the PR Residency Obligation. But that does not entirely restart the clock.

That is, yes, they can apply for and should be issued new PR cards. The cards should be, most likely will be, valid for five years.

That does not mean, however, they could then leave Canada for a lengthy period of time, such as for months or more than a year or longer, and not face losing PR status again. They are still subject to the PR Residency Obligation and that is based on physical presence within the preceding five years, the 2/5 rule.

If they leave Canada then they could be subject to an examination as to compliance with the RO based on the date they return to Canada; based on how many days they have been in Canada within the five years preceding that day.

Nonetheless, as long as they are settled and staying in Canada they should be able to make BRIEF trips abroad relatively worry free, with their new cards, as long as the trips are short enough they are obviously temporary, short enough they will not be perceived to be a change in circumstances sufficient to trigger reasons for engaging in a Residency Obligation compliance examination when they arrive back in Canada.

Many, if not most PRs in a similar situation, will avoid traveling abroad for at least a year or more, or even until they are in full compliance with the RO based on days in Canada (rather than just H&C reasons) after a successful appeal on H&C grounds, just to totally minimize the chance of being reported (based on not being present at least 730 days within the preceding five years when they arrive at a PoE to enter Canada) and having to appeal again.

But yes, they should get their new PR cards and the PR cards should be valid for five years . . . recognizing of course the validity date on PR cards is NOT relevant when compliance with the RO is questioned and if there is a breach of the RO then PR status can be lost no matter how much longer the PR card says it is valid (if and when a determination is made that PR status is lost, due to inadmissibility for a breach of the RO, that automatically renders the PR card invalid no matter what date is on the card).

And being able to get the PR card can be important for any immigrant who applies for health care, drivers license, or admission to Canadian schools. Can even be important for opening some bank accounts. So they can apply for and get new cards. And they should do that.

Thanks for the reply.
As usual lengthy and scary reply from you.

 

[dpenabill]

. . . and scary reply from you

There should be nothing at all scary about my previous observations. They won the appeal. They are allowed to keep PR status. They can apply for and should be issued new PR cards. They can stay and live in Canada. Should be NOTHING SCARY about that at all.

My other observations were little more than a reminder that just like every other PR they will still need to comply with the PR Residency Obligation going forward. And actually they have something of an advantage over many other PRs.

Other PRs must meet the RO based strictly on counting the number of days IN Canada during the preceding five years, and if that number is less than 730, they are in breach and at risk for decisions terminating their PR status. If they leave Canada, and upon returning to Canada a PoE officer takes notice they have not been in Canada at least 730 days within the previous five years, there is a risk the officer will proceed with a RO examination and the PR is at risk for being reported and losing PR status.

Technically that remains true for your family. Just like every other PR they need to comply with the RO. And that means, going forward, they need to stay in compliance with the RO, they need to spend at least 730 days in Canada within the previous five years.

But given the successful appeal they have significant advantages other PRs do not have.

-- They can apply for and be issued PR cards DESPITE not having been IN Canada at least 730 days within the previous five years
-- And even if they travel abroad and are not yet in compliance with the RO based on having been IN Canada at least 730 days within the previous five years, upon their return to Canada they will get a significant amount of leeway given the formal IAD H&C decision​

A pretty sweet deal.

I am guessing that what you found scary is that it will be risky for them to travel outside Canada for any extended period of time UNTIL they are in compliance with the RO based on being IN Canada at least 730 days within the previous five years.

In this regard it warrants emphasizing that they have been allowed to keep PR status DESPITE failing to comply with the Residency Obligation. AND THIS WAS SO THEY CAN SETTLE and PERMANENTLY RESIDE in Canada. They have, in effect, been given another chance to settle PERMANENTLY in Canada because the IAD concluded their circumstances were compelling enough to overlook their failure to settle in Canada sooner.

They can travel, as in take trips. To be cautious, better to FIRST be actually settled into a permanent home in Canada. At the least. Meaning staying here long enough for it to be clear they are PERMANENTLY living in Canada.

And then to avoid travel abroad for any extended period of time UNTIL they have been IN Canada at least 730 days within the previous five years. (Again, just like any other PR.)


Side note: There appears to be some tendency to underestimate the import of the term "PERMANENT," and more than a few PRs seem to think that the term "PERMANENT" somehow means something not-so-permanent. The lenient, oft described as rather generously lenient Residency Obligation, is NOT intended to be contrary to the explicit purpose of the grant of PR status: so that the individual granted that status can settle PERMANENTLY in Canada.

 

[MUSTAFACAN]

There should be nothing at all scary about my previous observations. They won the appeal. They are allowed to keep PR status. They can apply for and should be issued new PR cards. They can stay and live in Canada. Should be NOTHING SCARY about that at all.

My other observations were little more than a reminder that just like every other PR they will still need to comply with the PR Residency Obligation going forward. And actually they have something of an advantage over many other PRs.

Other PRs must meet the RO based strictly on counting the number of days IN Canada during the preceding five years, and if that number is less than 730, they are in breach and at risk for decisions terminating their PR status. If they leave Canada, and upon returning to Canada a PoE officer takes notice they have not been in Canada at least 730 days within the previous five years, there is a risk the officer will proceed with a RO examination and the PR is at risk for being reported and losing PR status.

Technically that remains true for your family. Just like every other PR they need to comply with the RO. And that means, going forward, they need to stay in compliance with the RO, they need to spend at least 730 days in Canada within the previous five years.

But given the successful appeal they have significant advantages other PRs do not have.

-- They can apply for and be issued PR cards DESPITE not having been IN Canada at least 730 days within the previous five years
-- And even if they travel abroad and are not yet in compliance with the RO based on having been IN Canada at least 730 days within the previous five years, upon their return to Canada they will get a significant amount of leeway given the formal IAD H&C decision​

A pretty sweet deal.

I am guessing that what you found scary is that it will be risky for them to travel outside Canada for any extended period of time UNTIL they are in compliance with the RO based on being IN Canada at least 730 days within the previous five years.

In this regard it warrants emphasizing that they have been allowed to keep PR status DESPITE failing to comply with the Residency Obligation. AND THIS WAS SO THEY CAN SETTLE and PERMANENTLY RESIDE in Canada. They have, in effect, been given another chance to settle PERMANENTLY in Canada because the IAD concluded their circumstances were compelling enough to overlook their failure to settle in Canada sooner.

They can travel, as in take trips. To be cautious, better to FIRST be actually settled into a permanent home in Canada. At the least. Meaning staying here long enough for it to be clear they are PERMANENTLY living in Canada.

And then to avoid travel abroad for any extended period of time UNTIL they have been IN Canada at least 730 days within the previous five years. (Again, just like any other PR.)


Side note: There appears to be some tendency to underestimate the import of the term "PERMANENT," and more than a few PRs seem to think that the term "PERMANENT" somehow means something not-so-permanent. The lenient, oft described as rather generously lenient Residency Obligation, is NOT intended to be contrary to the explicit purpose of the grant of PR status: so that the individual granted that status can settle PERMANENTLY in Canada.

Thanks...regarding scary...hahaha you do scare with your messages...I really appreciate you for replying and giving info in detail....but I also see that you caution people in every reply which I find scary...you did this to me for my past posts too...thanks once again...hope my family gets 5 year PR card....regarding my case ...i applied for renew of PR card and recieved a letter stating that a report a44 (1) has been sent to ministers delegate...it was in 2017....till now I have take 1 yr PR card twice and no communication from Minister Delagate.

Does my stay after the a44(1) report will be consider ? ..number of days will b counted in taking decision???

 

[canuck78]

You mean they can't travel out of Canada? Plz...

Your spouse and children don’t seem to currently meet their RO and have not be in Canada for over 730 days over the past 5 years. Given that they were lucky enough to get a second chance why would they risk leaving Canada until they have lived in Canada for 730 days in the past 5 years. They could be reported on their return at the moment for not meeting their RO.

 

[canuck78]

Thanks...regarding scary...hahaha you do scare with your messages...I really appreciate you for replying and giving info in detail....but I also see that you caution people in every reply which I find scary...you did this to me for my past posts too...thanks once again...hope my family gets 5 year PR card....regarding my case ...i applied for renew of PR card and recieved a letter stating that a report a44 (1) has been sent to ministers delegate...it was in 2017....till now I have take 1 yr PR card twice and no communication from Minister Delagate.

Does my stay after the a44(1) report will be consider ? ..number of days will b counted in taking decision???

Only if you can keep your PR. If you are refused the days don’t count and your spouse would have to sponsor you.

 

[dpenabill]

.I really appreciate you for replying and giving info in detail....but I also see that you caution people in every reply which I find scary...

A common problem in this forum is the proliferation of observations, even outright advice, which makes a declarative statement that is often true but also more than occasionally NOT true . . . not true because there are other factors or circumstances which affect how things go.

And then there are those responses which totally gloss over what can happen based on a perception (some accurate, many not-so-accurate) about how such cases USUALLY go . . . "you'll be FINE." And indeed, many if not most typically are "fine," depending on what that means. But that can be dangerously misleading for more than a few.

Your family, for example, they won the appeal. They are in Canada. It is easy to say "they will be fine." And it is likely they will indeed be fine.

That is unless they go live abroad before they meet the Residency Obligation.

.i applied for renew of PR card and recieved a letter stating that a report a44 (1) has been sent to ministers delegate...it was in 2017....till now I have take 1 yr PR card twice and no communication from Minister Delagate.

Does my stay after the a44(1) report will be consider ? ..number of days will b counted in taking decision???

NO, days in Canada since the 44(1) report do NOT count in determining whether that report was valid in law. Only days prior to the date of the 44(1) Report are counted in that calculation. If you were short of meeting the RO as of that day, the report will be found to be valid in law.

If the report is determined (by IAD) to be valid in law, then H&C factors will be considered in determining whether you should be allowed to retain PR status DESPITE the breach of the RO.

THEN your days in Canada since the 44(44(1) report will be considered in the analysis of H&C reasons, and they should help (assuming you have mostly been in Canada during this time) make the case that you should be allowed another chance to keep PR status. The fact your family is settled in Canada in the meantime should help as well.

I think I have specifically explained this in response to your queries before.

 

[canuck78]

In general your family was lucky to keep their PR status. They need to stay in Canada for at least the next year.