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

[MUSTAFACAN]

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.



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.

Thanks again for a informative reply.

If I consider last 5 yrs... before a44(1) report my stay is 8 months and then I left to India and came in 2018 and now almost 14 months...in 2 months total stay will be 2 yrs in last 5years.
If I am allowed to stay in CAnada on H&C basis..will all these days of stay can be counted if in future I apply for Citizenship? Or say renewal of PR card?

And if I am not communicated by Minister delegate in coming months and if I complete 2 years stay in last 5 years...can I get a 5 year card? Even still I'm under a44(1) report?

 

[MUSTAFACAN]

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

Why you think they are lucky? They did have valid reason to be considered under H&C grounds.
And if you are giving suggestion that they need to stay in Canada for 1 year fine...but do you think by law it is required?

I see here in the forum that mostly members give advices and suggestions even though when not asked ...Instead of just replying and answering to what is asked for.

 

[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.

If they got lucky once why not again???

 

[dpenabill]

If I consider last 5 yrs... before a44(1) report my stay is 8 months and then I left to India and came in 2018 and now almost 14 months...in 2 months total stay will be 2 yrs in last 5years.
If I am allowed to stay in CAnada on H&C basis..will all these days of stay can be counted if in future I apply for Citizenship? Or say renewal of PR card?

It appears you can win the appeal ONLY if H&C reasons are sufficient to allow you to keep PR status.

If you win the appeal, again IF you win the appeal, THEN the breach of the Residency Obligation is cured. THEN, and ONLY then, will the days you have been IN Canada recently (since the date of the 44(1) Report) count toward your ONGOING Residency Obligation. (I am quite sure we have discussed this in detail before.)

If you win the appeal you will be able to apply for and be issued a 5 year PR card. Just like I have described regarding your family.

And if I am not communicated by Minister delegate in coming months and if I complete 2 years stay in last 5 years...can I get a 5 year card? Even still I'm under a44(1) report?

As I said (multiple times as I recall), UNLESS and UNTIL you win the appeal, your days IN Canada AFTER the date of the 44(1) Report do NOT count toward meeting the PR RO. So NO, staying here two years and more while the appeal is pending will NOT bring you into compliance with the RO. You will NOT be issued a PR card for five years. At best you will be able to renew/obtain the one-year card issued to PRs in Canada with an appeal pending.

Again, these days IN Canada, after the date of the 44(1) Report, DO NOT COUNT.

IF you win the appeal, however, that totally cures the breach. And THEN, and ONLY THEN, these days IN Canada, after the date of the 44(1) Report, will count. They will count if and when there is a RO compliance examination in the future.

SIMPLE VERSION:

-- For now, for as long as the appeal is pending, your recent stay in Canada does NOT count.
-- If you win the appeal, all is good. Days count.
-- If you do not win the appeal, your recent stay in Canada does NOT count.​

By the way, I agree the outcome of your family's case is more about the facts and circumstances and not all that much about "luck." Nonetheless it is common for forum participants to characterize such decisions as "lucky" because (1) PRs in breach of the RO are NOT entitled to keep PR status, and thus (2) keeping PR status is very much based on the DISCRETIONARY judgment of the officer, or in an appeal the IAD Panel member.

And given the very generous leniency of the RO itself, it is recognized that the RO is intended to accommodate any and nearly all reasons that might delay a PR's return to Canada. So the burden of persuading IRCC the RO was not enough tends to be a difficult burden to meet.

Even very compelling H&C reasons do NOT give the PR a right to keep PR status. Even very compelling H&C reasons do NOT guarantee a PR will be allowed to keep PR status. So, when those in breach, especially when in breach by a lot (hundreds of days short), are allowed to keep PR, many here consider that "lucky." No disparagement intended (I believe and hope).


Another by the way: suggestion that family stay in Canada a full year before traveling abroad is indeed a prudent suggestion. A weekend trip to the U.S. PROBABLY would not trigger a new RO compliance examination when they return to Canada. But even that risk is probably NOT worth taking. Beyond that it is difficult to quantify the risk of longer trips abroad. But we know this much: the longer they stay in Canada, and the more settled it appears they are in Canada (yes, appearance matters), the lower the risk of a RO examination when they return. And the other big factor is how long they are abroad. The longer they are abroad, the bigger the risk of a RO examination when they return.

The risk can be reduced to near zero ONLY by staying two full years before going abroad.

 

[MUSTAFACAN]

It appears you can win the appeal ONLY if H&C reasons are sufficient to allow you to keep PR status.

If you win the appeal, again IF you win the appeal, THEN the breach of the Residency Obligation is cured. THEN, and ONLY then, will the days you have been IN Canada recently (since the date of the 44(1) Report) count toward your ONGOING Residency Obligation. (I am quite sure we have discussed this in detail before.)

If you win the appeal you will be able to apply for and be issued a 5 year PR card. Just like I have described regarding your family.



As I said (multiple times as I recall), UNLESS and UNTIL you win the appeal, your days IN Canada AFTER the date of the 44(1) Report do NOT count toward meeting the PR RO. So NO, staying here two years and more while the appeal is pending will NOT bring you into compliance with the RO. You will NOT be issued a PR card for five years. At best you will be able to renew/obtain the one-year card issued to PRs in Canada with an appeal pending.

Again, these days IN Canada, after the date of the 44(1) Report, DO NOT COUNT.

IF you win the appeal, however, that totally cures the breach. And THEN, and ONLY THEN, these days IN Canada, after the date of the 44(1) Report, will count. They will count if and when there is a RO compliance examination in the future.

SIMPLE VERSION:

-- For now, for as long as the appeal is pending, your recent stay in Canada does NOT count.
-- If you win the appeal, all is good. Days count.
-- If you do not win the appeal, your recent stay in Canada does NOT count.​

By the way, I agree the outcome of your family's case is more about the facts and circumstances and not all that much about "luck." Nonetheless it is common for forum participants to characterize such decisions as "lucky" because (1) PRs in breach of the RO are NOT entitled to keep PR status, and thus (2) keeping PR status is very much based on the DISCRETIONARY judgment of the officer, or in an appeal the IAD Panel member.

And given the very generous leniency of the RO itself, it is recognized that the RO is intended to accommodate any and nearly all reasons that might delay a PR's return to Canada. So the burden of persuading IRCC the RO was not enough tends to be a difficult burden to meet.

Even very compelling H&C reasons do NOT give the PR a right to keep PR status. Even very compelling H&C reasons do NOT guarantee a PR will be allowed to keep PR status. So, when those in breach, especially when in breach by a lot (hundreds of days short), are allowed to keep PR, many here consider that "lucky." No disparagement intended (I believe and hope).


Another by the way: suggestion that family stay in Canada a full year before traveling abroad is indeed a prudent suggestion. A weekend trip to the U.S. PROBABLY would not trigger a new RO compliance examination when they return to Canada. But even that risk is probably NOT worth taking. Beyond that it is difficult to quantify the risk of longer trips abroad. But we know this much: the longer they stay in Canada, and the more settled it appears they are in Canada (yes, appearance matters), the lower the risk of a RO examination when they return. And the other big factor is how long they are abroad. The longer they are abroad, the bigger the risk of a RO examination when they return.

The risk can be reduced to near zero ONLY by staying two full years before going abroad.

Thanks. I appreciate.

 

[MUSTAFACAN]

I will win the appeal only when I appeal and to appeal first I need to get removal order...

When I applied for renewal of PR Card I was refused and a a44(1) inadmissibility report was sent to Minister Delegate...it's been 2 years and Minister Delagate has not contacted me.

What will be the next step?
Can Minister delegate approve my PR status without giving removal order?

 

[dpenabill]

I will win the appeal only when I appeal and to appeal first I need to get removal order...

When I applied for renewal of PR Card I was refused and a a44(1) inadmissibility report was sent to Minister Delegate...it's been 2 years and Minister Delagate has not contacted me.

What will be the next step?
Can Minister delegate approve my PR status without giving removal order?

The fact there is no appeal pending is an important fact. To a significant extent my previous observations were based on there being an appeal pending. It is not clear to me how or why you are being issued one-year PR cards if you have no appeal pending. So I am NOT certain what your situation is.

As I oft emphasize, I am NO expert. Even as to matters I follow, there sometimes are peculiar or otherwise not-so-common procedures I am not familiar with. Usually unexplained complexities in these matters are mostly about particular facts or circumstances, or some miscommunication or misunderstanding. But sometimes it is about process or procedure done behind the curtain, so to say, and it is not easy to figure these situations out.

I have some ideas about the situation, including some which might indicate your position is better than I understood. But also some leaning the other direction. But the situation is complex enough, and the way things work in this kind of situation (PR card application denied but no Removal Order issued) NOT clear enough, this is a situation in which it would be far better to do a paid-for consultation with a competent, licensed lawyer who can look over all the relevant paperwork and review all the circumstances in a confidential client-attorney relationship with you.

It looks like any further effort to address this situation in this venue is likely to be more confusing than helpful. Better to obtain a lawyer's opinion and advice.

Overall, however, the longer you are allowed to stay in Canada even though the 44(1) Report process appears to be suspended in some way, that probably (not for sure but probably) signals that it is more likely IRCC will eventually allow you to keep PR status with the past breach cured. Moreover, as long as your spouse stays, settles, and is eligible to be a sponsor, even if you were to lose PR status your spouse should be able to sponsor you for PR again (best not done unless and until you are ready to yourself settle and stay in Canada, establish IN-FACT permanent residence in Canada).

 

[MUSTAFACAN]

The fact there is no appeal pending is an important fact. To a significant extent my previous observations were based on there being an appeal pending. It is not clear to me how or why you are being issued one-year PR cards if you have no appeal pending. So I am NOT certain what your situation is.

As I oft emphasize, I am NO expert. Even as to matters I follow, there sometimes are peculiar or otherwise not-so-common procedures I am not familiar with. Usually unexplained complexities in these matters are mostly about particular facts or circumstances, or some miscommunication or misunderstanding. But sometimes it is about process or procedure done behind the curtain, so to say, and it is not easy to figure these situations out.

I have some ideas about the situation, including some which might indicate your position is better than I understood. But also some leaning the other direction. But the situation is complex enough, and the way things work in this kind of situation (PR card application denied but no Removal Order issued) NOT clear enough, this is a situation in which it would be far better to do a paid-for consultation with a competent, licensed lawyer who can look over all the relevant paperwork and review all the circumstances in a confidential client-attorney relationship with you.

It looks like any further effort to address this situation in this venue is likely to be more confusing than helpful. Better to obtain a lawyer's opinion and advice.

Overall, however, the longer you are allowed to stay in Canada even though the 44(1) Report process appears to be suspended in some way, that probably (not for sure but probably) signals that it is more likely IRCC will eventually allow you to keep PR status with the past breach cured. Moreover, as long as your spouse stays, settles, and is eligible to be a sponsor, even if you were to lose PR status your spouse should be able to sponsor you for PR again (best not done unless and until you are ready to yourself settle and stay in Canada, establish IN-FACT permanent residence in Canada).

Thanks

I was issued 1 yr PR Card as I am been reported a44(1) to Minister Delegate. The appeal process takes place if the Minister Delegate issue Removal Order and then I appeal to IAD.
My question is can Minister Delegate approve my status without taking any further action.?

I remember I read in some RO booklet that MD can approve without any further action...but not sure ..just want to know if anyone gone through similar process.

 

[dpenabill]

Thanks

I was issued 1 yr PR Card as I am been reported a44(1) to Minister Delegate. The appeal process takes place if the Minister Delegate issue Removal Order and then I appeal to IAD.
My question is can Minister Delegate approve my status without taking any further action.?

I remember I read in some RO booklet that MD can approve without any further action...but not sure ..just want to know if anyone gone through similar process.

Similar to what the IAD panel will do in a RO appeal, the Minister's Delegate role is:

-- first, to review the 44(1) Report to determine if it is valid in law, and
-- if the report is found to be valid in law, the MD then assesses H&C considerations to determine if the PR should be allowed to keep PR status DESPITE failing to comply with the RO​

Again, the determination as to whether the Report is valid in law is specifically about counting days IN Canada as of the date the Report was made (days after do NOT count). It appears there is no doubt, in your case, the Report was valid in law. So then the MD's role is to consider H&C reasons.

Days in Canada after the Report was issued are *considered* in weighing H&C reasons.

If the MD determines there are sufficient H&C reasons and thus allows you to keep PR, that will effectively set aside the Report. Such a decision would have essentially the same effect as winning the appeal. (For clarity, yes of course this decision-making process takes place BEFORE an appeal, and if there is an appeal, that is in effect an appeal of the Report and decision by the MD.)

But I am hesitant to draw many, if any conclusions, about how this will proceed for you in particular. The situation is NOT one commonly seen.

The gap in time you report, between the date of the Report and the interview with the Minister's Delegate, is one aspect of your situation which sets it apart from the vast majority of reports we see AND from the procedure recounted in official decisions for actual cases (mostly IAD decisions, but some Federal Court decisions as well). But there are also other aspects of what you report that are at least incongruous compared to known cases.

All I can offer is that such a lengthy time period between a 44(1) Report and a decision by the MD is unusual, at least unusual in terms of what we see reported. So it is difficult to know the procedure going forward. Frankly, among the very few somewhat similar scenarios (most involve a 44(1) Report issued at a PoE rather than attendant processing a PR card application), it appears the PR is either poorly reporting the facts (largely due to misunderstanding) OR the PR has failed to keep contact information sufficiently up-to-date for getting IRCC notices. So it is very difficult to even guess what the status of your case is.

If IRCC will issue you another one-year PR card, that tends to signal you are likely to be OK going forward and at some point this will be resolved so that you have full valid PR status, no Report for Inadmissibility hanging over you. The caveat is that there enough open questions about your situation to NOT be too confident this is where it is headed. When there is a lot we do not know, well, you cannot know what you do not know.

And of course, if this is resolved in a way that allows you to keep PR status, you will still have to comply with the PR RO going forward, just like every other PR.

 

[MUSTAFACAN]

Similar to what the IAD panel will do in a RO appeal, the Minister's Delegate role is:

-- first, to review the 44(1) Report to determine if it is valid in law, and
-- if the report is found to be valid in law, the MD then assesses H&C considerations to determine if the PR should be allowed to keep PR status DESPITE failing to comply with the RO​

Again, the determination as to whether the Report is valid in law is specifically about counting days IN Canada as of the date the Report was made (days after do NOT count). It appears there is no doubt, in your case, the Report was valid in law. So then the MD's role is to consider H&C reasons.

Days in Canada after the Report was issued are *considered* in weighing H&C reasons.

If the MD determines there are sufficient H&C reasons and thus allows you to keep PR, that will effectively set aside the Report. Such a decision would have essentially the same effect as winning the appeal. (For clarity, yes of course this decision-making process takes place BEFORE an appeal, and if there is an appeal, that is in effect an appeal of the Report and decision by the MD.)

But I am hesitant to draw many, if any conclusions, about how this will proceed for you in particular. The situation is NOT one commonly seen.

The gap in time you report, between the date of the Report and the interview with the Minister's Delegate, is one aspect of your situation which sets it apart from the vast majority of reports we see AND from the procedure recounted in official decisions for actual cases (mostly IAD decisions, but some Federal Court decisions as well). But there are also other aspects of what you report that are at least incongruous compared to known cases.

All I can offer is that such a lengthy time period between a 44(1) Report and a decision by the MD is unusual, at least unusual in terms of what we see reported. So it is difficult to know the procedure going forward. Frankly, among the very few somewhat similar scenarios (most involve a 44(1) Report issued at a PoE rather than attendant processing a PR card application), it appears the PR is either poorly reporting the facts (largely due to misunderstanding) OR the PR has failed to keep contact information sufficiently up-to-date for getting IRCC notices. So it is very difficult to even guess what the status of your case is.

If IRCC will issue you another one-year PR card, that tends to signal you are likely to be OK going forward and at some point this will be resolved so that you have full valid PR status, no Report for Inadmissibility hanging over you. The caveat is that there enough open questions about your situation to NOT be too confident this is where it is headed. When there is a lot we do not know, well, you cannot know what you do not know.

And of course, if this is resolved in a way that allows you to keep PR status, you will still have to comply with the PR RO going forward, just like every other PR.

Thanks once again.
I was issued 1 yr PR in 2017 ..I left to India then came back to Canada just 4 days before the PRCard expiry . I again applied for PR Card which is going to expire in a month.
I am guessing that MD is waiting for my family appeal outcome and then move my case.

 

[mahtab54]

Hi all,
I have a question. I got my new PR card based on H&C grounds 2 months ago. At present, due to family emergency issue I should leave Canada for at least 1 year. I want to know if I return to Canada on September 2020, It is possible to lose my status? my PR card is extended until 2024. Thank you in advance for your replies.

 

[dpenabill]

Hi all,
I have a question. I got my new PR card based on H&C grounds 2 months ago. At present, due to family emergency issue I should leave Canada for at least 1 year. I want to know if I return to Canada on September 2020, It is possible to lose my status? my PR card is extended until 2024. Thank you in advance for your replies.

See discussions above. If you leave Canada AND as of the day you return to Canada you will NOT have been in Canada at least 730 days within the five years preceding that day, there is SOME RISK of a Residency Obligation compliance examination resulting in being reported for Inadmissibility. How much risk will vary depending on the facts and circumstances in your particular situation.

Date until which your PR card is valid is NOT relevant.

All PRs are subject to the PR Residency Obligation. Compliance is based on whether the PR spent 730 days IN Canada within the previous five years. That is, the 2/5 rule.

Thus, whenever a PR is examined about RO compliance, the most relevant factor is the number of days that have been spent in Canada within the previous five years.

If you leave Canada for a full year, obviously you may be questioned and examined about RO compliance when you return to Canada. Like every other PR, again the most relevant factor will be the number of days that have been spent in Canada within the previous five years as of the day you arrive at the PoE. If the number of days IN Canada, during the relevant five years, is fewer than 730, then H&C reasons will be considered. Previous H&C decision carries a lot of weight but does not necessarily start the clock again. And of course the reason for the most recent absence will be weighed pursuant to H&C considerations. The outcome is very difficult to predict.

Some key factors include:

-- extent of settlement in Canada prior to extended absence
-- length of absence; the longer the recent absence the greater the risks
-- reason for absence
-- overall history of settlement and presence in Canada versus absences​

REMINDER: the presumption is that the 2/5 rule itself should be sufficiently flexible to accommodate almost all circumstances compelling extended absences. There is almost always some risk of losing PR when absences result in falling short of the 2/5 rule.

There is NO guarantee you will be allowed to keep your PR status if, after another lengthy absence, you are well short of meeting the 2/5 rule. Maybe it will be OK. Maybe it will not.

 

[canuck78]

Hi all,
I have a question. I got my new PR card based on H&C grounds 2 months ago. At present, due to family emergency issue I should leave Canada for at least 1 year. I want to know if I return to Canada on September 2020, It is possible to lose my status? my PR card is extended until 2024. Thank you in advance for your replies.

You literally just got your PRTD back after being denied and then appealing. You have only been in Canada for months so there is a huge risk since you have yet to establish yourself in Canada. You have to stay in Canada for 730 days in order to become compliant with your RO. After your first PR card you must be in Canada for 730 during the past 5 years on any day. You are currently not compliant with your RO.

 

[farda]

Hi,

I have some questions regarding extend your PR card based on H&C ground .

Have you applied in Canada and How long does it take to receive your new pr card?

Did they ask to pick up your or card in person? did they have interview with you for extend your pr card?

Hi all,
I have a question. I got my new PR card based on H&C grounds 2 months ago. At present, due to family emergency issue I should leave Canada for at least 1 year. I want to know if I return to Canada on September 2020, It is possible to lose my status? my PR card is extended until 2024. Thank you in advance for your replies.

 

[MUSTAFACAN]

Hi,

I have some questions regarding extend your PR card based on H&C ground .

Have you applied in Canada and How long does it take to receive your new pr card?

Did they ask to pick up your or card in person? did they have interview with you for extend your pr card?

PR Card should be applied from Canada.