Appeal departure order

[MonMoi]

Hi, I need advice and suggestion, it is URGENT!! Thank you very much..

My story is as follows, I landed on May 2010, My PR card expire on June 2015, I submitted my PR renew on April 2015, when I have residente in Canada for 744 days.
I went back to my original country on September 2015, at that time my PR renew was approved, but transferred to local CIC office. I applied for PRTD in my original country as my PR card expired, It was approved on November 2015 as I meet the RO (it is valid until May 2016). I came back to Canada on Jan 2016, but I got reported at POE and a departure order, as they calculated that I lived in Canada for 694 days during the five years immediately back to the day I this time I entered to Canada.

One more important thing is that I'm sponsoring my wife, her application was approved, she just sent out her passport three days before I got the departure order.

I definitely will appeal, my question is that how much chance I will win? my wife's visa will be suspend?? Any advice and suggestion are welcome, thank you very much.

 

[zardoz]

Hi, I need advice and suggestion, it is URGENT!! Thank you very much..

My story is as follows, I landed on May 2010, My PR card expire on June 2015, I submitted my PR renew on April 2015, when I have residente in Canada for 744 days.
I went back to my original country on September 2015, at that time my PR renew was approved, but transferred to local CIC office. I applied for PRTD in my original country as my PR card expired, It was approved on November 2015 as I meet the RO (it is valid until May 2016). I came back to Canada on Jan 2016, but I got reported at POE and a departure order, as they calculated that I lived in Canada for 694 days during the five years immediately back to the day I this time I entered to Canada.

One more important thing is that I'm sponsoring my wife, her application was approved, she just sent out her passport three days before I got the departure order.

I definitely will appeal, my question is that how much chance I will win? my wife's visa will be suspend?? Any advice and suggestion are welcome, thank you very much.

The compliance with the residency obligation requirements must be continuous. Just because you were in compliance when you applied for renewal, it doesn't give you a free pass when you are next examined. You passed for the PRTD but not at the POE. Your sponsorship of your wife is suspended I believe. Chances of a successful appeal? Slim, would be my guess, in the absence of H&C considerations.

 

[MonMoi]

The compliance with the residency obligation requirements must be continuous. Just because you were in compliance when you applied for renewal, it doesn't give you a free pass when you are next examined. You passed for the PRTD but not at the POE. Your sponsorship of your wife is suspended I believe. Chances of a successful appeal? Slim, would be my guess, in the absence of H&C considerations.

Any suggestion for provide H&C grounds, Thank you very much.

 

[nadia601]

This PR renewal application process is time consuming for applicants & CIC officers. we need to submit thousands of papers just to convince the visa officer we have met the required days. Guess what, if the officer is junior or is not convinced, he/ she will send you for secondary review or local office.

Canadaian and PR residents pay tax. why don't they use some of the tax money and CIC budget to install machines ( similar to e- gates) to record our exites from airport. They already know have link with land border.

This will solve thousndas of PR holders+ applicationat to citizen ship.

 

[dpenabill]

Hi, I need advice and suggestion, it is URGENT!! Thank you very much..

My story is as follows, I landed on May 2010, My PR card expire on June 2015, I submitted my PR renew on April 2015, when I have residente in Canada for 744 days.
I went back to my original country on September 2015, at that time my PR renew was approved, but transferred to local CIC office. I applied for PRTD in my original country as my PR card expired, It was approved on November 2015 as I meet the RO (it is valid until May 2016). I came back to Canada on Jan 2016, but I got reported at POE and a departure order, as they calculated that I lived in Canada for 694 days during the five years immediately back to the day I this time I entered to Canada.

One more important thing is that I'm sponsoring my wife, her application was approved, she just sent out her passport three days before I got the departure order.

I definitely will appeal, my question is that how much chance I will win? my wife's visa will be suspend?? Any advice and suggestion are welcome, thank you very much.

Any suggestion for provide H&C grounds, Thank you very much.

H&C reasons for retaining PR despite failure to comply with PR Residency Obligation:

For information about Humanitarian and compassionate determinations relative to the enforcement of the PR Residency Obligation, see ENF 23 Loss of permanent resident status.

URL: http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
Link: Link to ENF 23 Loss of permanent resident status

In particular, see section 7.7, beginning on page 26.


Status of spouse sponsored PR application:

If the Removal Order / Departure Order was issued prior to the final approval of your spouse's PR application, as zardoz suggests it is likely to be suspended. I am not certain of this however.

And I am in particular not at all certain about how the Departure Order affects the spouse's status after final approval.

The rub is that approval is technically not final until the visa is actually issued and affixed to the applicant's passport, and even then technically the visa can be cancelled (if there are grounds to do so) any time prior to the completion of landing. Practically, however, depending on which visa office is involved, a Decision Made on the PR application (not just the sponsorship application) followed by the request for the passport usually means the visa will be issued unless an action or flag is made to the spouse's file. I do not know if this happens automatically if the sponsor is issued a Removal Order. I suspect not, thinking there was probably a more or less final FOSS/GCMS check of the sponsor prior to the Decision Made and only if there is an action entry or flag directly to the sponsored spouse's record will that stop the actual affixing of the visa into the passport and delivering that to the applicant. This is based, however, on somewhat dated information when I knew with more confidence that the visa was issued at the time of the Decision Made, but was still subject to whatever final clearances are done before the visa was affixed to the passport and delivered to the applicant -- in the not too distant past, my sense is that the final screening was, again, only as to the applicant and perhaps really only an examination of the passport itself to verify its validity, the client's identity, name, date of birth, and such.

But the government is continually upgrading its systems and expanding cross-checking capabilities, so it may be that indeed, even at this late stage the issuance of a Removal Order to you will preclude delivery of the PR visa to your spouse pending the outcome of the proceedings to terminate your PR status.

All that said, your spouse should soon learn whether or not the visa is issued and affixed in the passport.

The passport will be sent back, either with the visa affixed in it or not. It will be informative for others in similar situations if you update the forum with how this aspect of things turn out.



Otherwise and Overall:

If you can afford to hire a lawyer, now is a good time to do that.

I can conceive H&C arguments based on your circumstances, but I cannot guess what odds of success they might have, except I can say the odds of success would have been far better if they were cogently made at the time you entered Canada. While I can conceive such arguments, that is in the abstract, without regard to a wide, wide range of other very important factors, and of no practical use to you beyond the observation that an H&C argument can be made. H&C cases tend to be complicated unless there is a very specific and compelling H&C ground (like some external force beyond your control precluding you from returning to Canada sooner), and they are even more complicated and difficult to persuasively present in the process of an appeal (compared to making the case to a POE officer).

I can say that my sense of an argument would be related (if the true facts support this) to remaining abroad longer than planned due to your relationship with your spouse . . . but again, the actual argument would be more detailed (by a lot), more specific to many other factors, significantly nuanced according to your actual situation . . . and might nonetheless fall well short of being persuasive. A legal professional would be the proper source to help you fashion an argument from the actual facts and circumstances in your situation.

Among factors which can have an impact on how this goes is the dates for your previous presence in Canada, and the extent to which some are now falling out of the preceding five years, together with the pattern of your presence in Canada.

By the way, my guess would have been that the PR TD would have given you a pass on the PR RO at the POE, particularly given that the extent of shortfall was only a bit more than a month. Obviously I would have guessed wrong. I wonder whether the PR card application resulted in a flag in your FOSS/GCMS.

Please consider keeping the forum informed as to how this goes.

 

[MonMoi]

Thank you dpenabill!!
It takes more than a year for sponsoring my wife. I invited my wife to visit me in July 2015, but her visa was declined.
I told the officer at the POE that and and also told her that I was absent for visiting my wife and accompanying her for immigration interview, but she told me I should not leave when I was sponsoring someone, It's my choice to marry a person outside Canada.

 

[zardoz]

Thank you dpenabill!!
It takes more than a year for sponsoring my wife. I invited my wife to visit me in July 2015, but her visa was declined.
I told the officer at the POE that and and also told her that I was absent for visiting my wife and accompanying her for immigration interview, but she told me I should not leave when I was sponsoring someone, It's my choice to marry a person outside Canada.

Hmm. So, along with the RO issue, you were a sponsoring PR who was not resident in Canada for 4 months during the application. I'd be surprised if the application isn't refused on that basis alone.

 

[MonMoi]

NO, since June 2014, most of the time I resident in Canada. I failed RO because during 2011, 2012 and 2013, I spent little time in Canada.

Hmm. So, along with the RO issue, you were a sponsoring PR who was not resident in Canada for 4 months during the application. I'd be surprised if the application isn't refused on that basis alone.

 

[scylla]

NO, since June 2014, most of the time I resident in Canada. I failed RO because during 2011, 2012 and 2013, I spent little time in Canada.

September to January is a large break in residency. This could certainly result in a spousal sponsorship refusal. But hopefully for your sake CIC hasn't put two and two together. In order to qualify to sponsor a spouse for PR you don't just have to meet the residency obligation - you actually have to be physically living in Canada. Generally it's recommended that people keep trips outside of Canada to three weeks or less. You were out for around four months. This is a very long time.

 

[MonMoi]

It's too late to know this valuable suggestion. I thought it would be no problem with valid travel document.

September to January is a large break in residency. This could certainly result in a spousal sponsorship refusal. But hopefully for your sake CIC hasn't put two and two together. In order to qualify to sponsor a spouse for PR you don't just have to meet the residency obligation - you actually have to be physically living in Canada. Generally it's recommended that people keep trips outside of Canada to three weeks or less. You were out for around four months. This is a very long time.

 

[kateg]

Canadaian and PR residents pay tax. why don't they use some of the tax money and CIC budget to install machines ( similar to e- gates) to record our exites from airport. They already know have link with land border.

This will solve thousndas of PR holders+ applicationat to citizen ship.

No, it won't.

As a Citizen or Permanent Resident, you do not require a passport to leave Canada. If you are (for example) a Chinese citizen, then you can fly to China on a Chinese passport. The gate would have no way to know.

Maybe your PR visa is linked to a passport, and they could detect that. If you renew your passport, though, it would no longer be. If you have multiple passports, it would no longer be.

You can take a bus out of Canada. That's logged by the US, but as you are leaving, Canada has no legal right to detain you. You could use a different passport to enter the US, and there would be no link.

I'm a US citizen for the moment. I can enter the US without a passport, and I can walk across at Peace Arch. There is no place to put a gate there.

There's a border crossing into the US from Canada that is completely unguarded. You can cross, and Canada would have no record.

You can fly on a private plane out of Canada, and bypass the terminals. Canada is a free country, and you don't need permission to leave - there's no need to provide ID to Canada to do so.

There are so many different ways to travel across the border - today, I used my US passport card. The agent didn't scan it, so there's no entry record. It has a different number than my Passport, so it's not linked to my PR. I also have a Nexus Card, which is still linked to my old work and study permits (since they won't change it until my PR card shows up). I've used my passport, but that number changed when I changed my last name. My passport card number changed too. Sometimes, I cross with just a CoPR and a BC license.

The closest they can get to telling exactly when I cross the border is using the License Plate data. That is still not perfect, as it would include times that my spouse was in the car, and not include times when I walked. The US has better data than Canada, but the US data won't include times I travelled internationally.

There is no easy way for them to determine residency, as long as they permit dual citizenship and don't close their own borders and require permission to leave.

 

[kateg]

I cannot guess what odds of success they might have, except I can say the odds of success would have been far better if they were cogently made at the time you entered Canada.

Definitely. If you raise H&C when you cross, you get two shots at acceptance. The officer may accept them (and not place you on report), and you may then raise them in an appeal if necessary.

When you fail to raise them at time of crossing, the notes will reflect that. This may make things harder at the hearing, as if you had compelling reasons for being away, why didn't you bring them up?

 

[kateg]

By the way, my guess would have been that the PR TD would have given you a pass on the PR RO at the POE, particularly given that the extent of shortfall was only a bit more than a month. Obviously I would have guessed wrong. I wonder whether the PR card application resulted in a flag in your FOSS/GCMS.

Would it, though? They are supposed to give a letter if they are denying the renewal, but it looks like they can code for an admissibility hearing. Perhaps they flagged it and issued the document anyway?

I went back to my original country on September 2015, at that time my PR renew was approved, but transferred to local CIC office. I applied for PRTD in my original country as my PR card expired, It was approved on November 2015 as I meet the RO (it is valid until May 2016).

I applied for PRTD in my original country as my PR card expired, It was approved on November 2015

Reading through OP-10:

There are five cases in which a visa officer will issue a travel document to a permanent
resident following a determination of residency status:

...
Where an officer has determined that neither 1) or 2) apply, but where the permanent
resident
a. has been physically present in Canada at least once within the 365 days before
the date of application; AND
...
the period for making such an appeal (60 days from the date of the decision of
the residency determination) has not yet expired;

The requirement to issue a travel document is not contingent on a positive residency
determination. There are five scenarios that generate a travel document (see section
17 below). Of most operational relevance is the requirement imposed by A31(3)(c) that a
permanent resident outside Canada be issued a travel document if the officer is satisfied that
they were physically present in Canada at least once within the 365 days before the
examination and they made an appeal within 60 days that has not been finally determined; or
the period for filing a notice of appeal has not yet expired.

...

CAIPS coding indicates that a negative residency determination has been made (see section
18.2below). When issued, the travel document is coded RX to alert ports of entry. The coding
for travel documents in general is important as it flags for ports of entry and inland offices the
residency determination that has been made overseas (see section 19 below).

...

In such cases, a “Watch For” posted in FOSS will alert ports of entry and, if appropriate,
generate an admissibility hearing when the person arrives in Canada.

 

[dpenabill]

Definitely. If you raise H&C when you cross, you get two shots at acceptance. The officer may accept them (and not place you on report), and you may then raise them in an appeal if necessary.

When you fail to raise them at time of crossing, the notes will reflect that. This may make things harder at the hearing, as if you had compelling reasons for being away, why didn't you bring them up?

Agree. But would add that actually making the H&C case at the POE mostly improves the odds because CBSA officers at the POE tend (though not always) to be the most open and flexible.

Additionally, it actually gives the PR three shots at persuading someone. First there is the examining officer at the POE. If the H&C argument fails to persuade that officer, a 44(1) Report is issued. This is not appealed, but rather goes to a Minister's delegate (often the first officer's superior right then and there at the POE), who makes the decision whether or not to issue a Removal Order or Departure Order, and the PR has an opportunity to persuade this officer to not issue a Departure Order based on H&C grounds. If that fails, the third shot is in the appeal.

MonMoi only has the last shot available now, given that a Departure Order has been issued.

It's too late to know this valuable suggestion. I thought it would be no problem with valid travel document.

September to January is a large break in residency. This could certainly result in a spousal sponsorship refusal. But hopefully for your sake CIC hasn't put two and two together. In order to qualify to sponsor a spouse for PR you don't just have to meet the residency obligation - you actually have to be physically living in Canada. Generally it's recommended that people keep trips outside of Canada to three weeks or less. You were out for around four months. This is a very long time.

If the PR visa has already been issued, which a Decision Made in visa office processing together with the passport request suggests it has, there probably is no worry about the sponsorship application being refused on the grounds that the sponsor is not or has not been in Canada. This is not an issue to worry about.

The PR TD would have no bearing on that in any regard.


The real issue has to do with the impact of the Departure Order itself.

If the 44(1) Report and Departure Order preceded the visa office Decision Made, it would have, as zardoz suggested, at the least resulted in the sponsored application being suspended.

At this juncture it is not at all clear what will happen, including whether the visa office will or will not affix the PR visa in the passport. My sense is the odds are favourable, that they will still deliver the PR visa, but I do not know for sure. It could go either way. I very much doubt anyone else here knows. But that does not matter, since your spouse will know fairly soon: your spouse will soon get the passport back and it will either have the PR visa affixed in it or it will not. Again, please let the forum know which way this goes.

That does not necessarily mean your spouse will be able to land and become a PR. Here too I doubt anyone here can say for sure how this is going to go. Again my sense is that if your spouse does indeed get the passport back with the PR visa affixed, your spouse will be able to go ahead and come to Canada and land and become a PR. But again I do not know this for sure. Again I doubt anyone here knows. Again it could go either way.



Conditional PR:

Beyond the questions about whether your spouse will still be able to land and become a PR, there then is the question about how the spousal PR condition will work given that the sponsor has been issued a Departure Order. How that works may depend on whether you win or lose the appeal. But here again, this is largely uncharted territory and I do not know how it will work and I doubt anyone else here knows either.



Of course, the big question is how the appeal will go, whether the Departure Order will be made final and enforceable, terminating your PR status.

As I observed above, you may be able to fashion an H&C case.

Again, see ENF 23 Loss of permanent resident status.

URL: http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
Link: Link to ENF 23 Loss of permanent resident status

In particular, see section 7.7, beginning on page 26.


Further observations regarding H&C arguments:

I recognize that my perception of H&C determinations, in a PR RO breach case, is different from that of many if not most participants in this forum. Many, most even, often state that this or that does not constitute H&C grounds, or is not considered to be H&C reasons.

At the risk of appearing arrogant, regarding this they are simply wrong. There is no limitation precluding any factor from consideration in these cases. On the contrary, policy requires ALL reasons proffered by the PR be considered.

Perhaps the difference is rooted in glossed over nuance, the difference between reasons or explanations which must be and will be considered versus what constitutes sufficient H&C reasons to warrant retaining PR status despite failing to comply with the PR Residency Obligation.

For example:
For example, many state that "economic reasons" do not constitute H&C grounds. That is simply not true. But it is true that mere economic reasons are generally NOT sufficient grounds to, in effect, waive the breach of the PR RO.

The difference is important because what really matters is the totality of all the facts and circumstances, in the specific context of the individual PR's situation, and economic factors can constitute an important aspect of the totality of the PR's situation. That is, contrary to what many here assert, economic reasons can be an important part of making a successful H&C case justifying retention of PR status despite a breach of the PR RO.

Likewise relative to reasons rooted in being abroad due to getting married and being with one's spouse, although unlike economic reasons which have been addressed in a significant number of IAD and Federal Court cases, I have not seen this factor addressed much in the official, actual cases decided by the IAD or Federal Court. It may not be an easy case to make. Many other factors loom large. But it can at least form a key part of the H&C case since it can explain why the PR did not return to Canada sooner. That, after all, is the key to the PR RO breach case, the reasons why the PR did not return to Canada sooner and whether, given those reasons in the attendant circumstances (including the extent of the breach), Canada should forgive or waive the breach and allow the PR to retain PR status.

This is not to say, not at all, that making the H&C case is at all easy in the absence of an explanation based on a compelling force beyond the PR's control. The PR RO is considered to be very liberal, if not generous, precisely to allow sufficient flexibility for those PRs who encounter difficulties in getting settled in Canada; and indeed, it really is rather liberal, quite lenient if not generous, and allows PRs to retain permanent resident status even though the PR actually resides outside Canada most of the time.

Nonetheless, the distinction between what is considered (that being any and all reasons for not returning to Canada sooner) and what constitutes sufficient reasons should not be overlooked or otherwise confused. This is especially true for a PR in your situation, already issued a Departure Order: the facts are what they are, and cannot be changed now; all you can do is fully examine and marshal any and all reasons explaining why you remained abroad as much as you did, and organize that into the most persuasive argument you can make that you should be allowed to retain your PR status.

Thus, factors which might be important can include
-- reasonable mistake that once the PR TD was obtained, you had six months in which to return to Canada to fully settle in Canada
-- full intent to settle and remain in Canada, particularly once your partner is able to join you and live with you in Canada

Among any and other explanations for why you remained abroad as long as you did.

I am not suggesting how this will go, what the outcome will be. I am not advising you to make any particular argument. I offer the above to illuminate the range of what might be argued. Best thing to do is to hire a competent, reputable lawyer and follow the lawyer's advice as best you can.

 

[MonMoi]

Hi, dpenabill
Thank you for your thorough analysis and valuable time.
My spouse receive the passport with PR visa, will encounter any problem when landing?
I has sent out the appeal paper, but has not received any notice yet.