Appeal

[Roofster]

My PR expired in Jan 2012, I applied for a Travel document in a canadian embassy in my country although i didn't fulfill the requirements , only stayed 1y 4months in canada in the last 5y. I asked for humanitarian and compassionate reasons since my father was really sick and had to be next to him, which was the main reason I didn't stay in canada.
The officer refused to grant me the travel document & refused to grant me a visa saying that since I was more than 356 away from canada, I'm not entitled for a visa and I can attend the appeal if I wish to file one by video conference.
I filled for an Appeal in March 2013.
My wife has a visitor visa to canada, she came in last May and gave birth to our 1st child who is Canadian now. I managed to enter through the US borders with no questions raised to attend the birth of my child. We stayed 1 month then flew back to our country.
I came back again through the US borders, this time the officer on duty told me that they checked my file and saw that my residency was in question, he let me in saying that he can take my IMM5292 that I use to prove my residency but will not since I can easily get it back but advised me to renew it. He also said that the officer who refused to renew my appeal didn't report me which mean that I'm not a risk ?!?!

My questions:
1- When is the appeal due ? I filled it in March 2013 and didn't hear anything from them till now ? Is there a way to make it faster ?
2- Do i have a chance winning the appeal ? especially that I have a canadian child few months old ?
3- If I win the appeal and renew my PR, how long is the new PR valid for ? 1y, 2y, 5y ??
4- If I don't win the appeal, will i be exported immediately ? and what will happen to my rented house, my bank accounts, insurance,.... ?
5- I don't want to stay long away from my wife and kid, if the appeal will not take place before few months, can I still leave and enter again from the US borders ?
6- Are my chances of winning the appeal as strong if I just attend it by video conference from my country instead of personally in Canada ?

 

[Leon]

From what I have heard, an appeal can take 12 to 18 months. Your case will be stronger if you stay in Canada.

Your appeal will not be won based on having a Canadian child. Your child is too young to have ties to Canada. Immigration will not see that it is necessary for you to live in Canada just because you have a Canadian child. If you win your appeal, it will be based on your fathers illness if you can prove it sufficiently that he was indeed ill and that you were taking care of him.

If you win the appeal and renew your PR card, you will get a card valid for 5 years but you still have to meet the residency requirements for the next 5 years so it would not be safe for you to leave Canada again except for a short visit to your wife at most. You also have to sponsor her for PR and for that you must be residing in Canada as well. If you want to apply for a PR card now that you are under appeal, you might get one for 1 year at a time if they allow it.

If you lose the appeal, you will be asked to leave. You will have at least 30 days to do that. Your bank accounts still belong to you. You can empty them or keep them as you wish. I do not suppose you want to keep the house and insurance when you are no longer living in Canada so you would give notice.

 

[Roofster]

Thanks Leon for your reply.

Few questions:

1- I live in Egypt where there is chaos and political instability. Isn't the best interest of a Canadian child put into consideration ?

2- Anyway to make the appeal earlier ?

3- Are you sure that if I win the appeal, i get a 5y PR ?

4- Can I renew my PR now ?

5- Can I enter though the US borders again the same way ?

 

[scylla]

1. I agree with Leon. Forget about using your Canadian citizen child as an H&C reason. It's not going to work. What you need to prove during the appeal is why you could not meet the residency requirement. Your child has nothing to do with this. Your father's illness is the reason why you could not meet the residency requirement and this is what you need to focus on. You should bring as much proof as you can to demonstrate that you needed to be there to take care of your father. Good proof would be things like: letters from doctors confirming that your father was unable to take care of himself, proof that you are the only relative available to take care of your father and had to stay in the country, any hospitalization or doctors records showing your father's situation and condition.

2. No - unfortunately all you can do is wait.

3. Yes - you'll get a 5 year PR card.

4. No - definitely not. You'll have to wait for the results of the appeal. If the results are positive, you'll be able to renew your PR. You don't qualify to apply now.

5. Yes - you can certainly try. And I once again agree with Leon, your chances will be much better if you're in Canada for the appeal. If you manage to re-enter, I would recommend that you not leave Canada again until after the appeal. It's in your best interest to demonstrate that you are serious about living in Canada and ready to make a commitment by staying here.

 

[Leon]

Thanks Leon for your reply.

Few questions:

1- I live in Egypt where there is chaos and political instability. Isn't the best interest of a Canadian child put into consideration ?

2- Anyway to make the appeal earlier ?

3- Are you sure that if I win the appeal, i get a 5y PR ?

4- Can I renew my PR now ?

5- Can I enter though the US borders again the same way ?

1. Is the situation in Egypt such that people from Egypt are being accepted as refugees world wide? If yes, then you could use that as an angle. If no, immigration will tell you that your Canadian child can safely grow up in Egypt and will be most welcome to come to Canada once they are 18 years old, without his parents. Having a baby in Canada grants you no special rights in Canada.

2. Wouldn't everybody want to make their application faster? You can not speed up immigration. They have a lot of cases to work on. Yours is one of a million. You can not make it faster.

3. If you win the appeal, you get to apply for a new PR card. You would get one that is valid for 5 years. However, that does not mean that you are allowed to go back and live outside Canada for another 3 years before it becomes a problem. If an immigration officer catches you on entry to Canada say a year or two later and realizes that you do not meet the RO (residency obligation) for the past 5 years, they can still report you and you would have a new appeal and would have to explain why you did not stay in Canada this time.

4. I have heard that in some cases, limited PR cards of 1 year are issued to people who are under appeal.

5. It is possible that you can re-enter through the US again but you will have a better chance for your appeal if you stay in Canada and show that you are ready to settle in Canada than if you leave or if you try to go back and forth.

 

[Msafiri]

...... My questions:
1- When is the appeal due ? I filled it in March 2013 and didn't hear anything from them till now ? Is there a way to make it faster ?
2- Do i have a chance winning the appeal ? especially that I have a canadian child few months old ?
3- If I win the appeal and renew my PR, how long is the new PR valid for ? 1y, 2y, 5y ??
4- If I don't win the appeal, will i be exported immediately ? and what will happen to my rented house, my bank accounts, insurance,.... ?
5- I don't want to stay long away from my wife and kid, if the appeal will not take place before few months, can I still leave and enter again from the US borders ?
6- Are my chances of winning the appeal as strong if I just attend it by video conference from my country instead of personally in Canada ?

1. Appeals take 12-18 months to be listed before the IAD. Your timeline may or may not be longer depending on the IAD caseload. Any party that loses at the IAD may apply for leave to appeal to the FC. The appeal if allowed by the FC also serves as a judicial review. The FC will only accept arguments on a point of law. Appeal will take another 12-18 months to be listed before the FC.

2. There is always a chance but yours unless you can detail the H&c reasons including extensive medical documentation has little chance of success. Why are you the only one that can look after your father? What is your father's ailment? How long has he had this medical condition? Do you work in Cairo? Is this the same job you had before landing? CIC lawyer will try to show you stayed in Egypt for work reasons and the 'care for my father' angle is not necessarily the real reason you are in breach of the RO.

3. If you win the appeal then you get a 5 year validity PR Card but remember you still have to meet the RO at each examination so when you go travelling to Cairo and return the border agent can report you again....you won't get a second chance at the IAD...they can't keep giving you a pass on the RO.

4. See 1 - you can appeal to the FC but you need a point of law aka legal reason e.g. the IAD failed to review evidence you submitted that was before the IAD and the CIC in good time etc. Where you lose the IAD appeal and the FC appeal you are issued a removal order to leave Canada within 30 days.

5. Unless you have criminal convictions and are say out on bail no one will stop you leaving Canada but as has been pointed out its a negative factor in the appeal...you are already on weak ground so why make your case even more problematic. Sure you can return via the US land border but what happens the day CBP decide to bounce you when seeking admission to the US or the passport with your US visa gets lost? No US no Canada...you continue to play roulette?

6. You always stand a better chance at any legal/ court session when you appear in person so your credibility can come across...conversely if your credibility is minimal/ non existent it will be clear to see. The IAD have been dealing with cases like your for decades....its going to be tough to explain why you all over suddenly have issues with the situation in Egypt that have existed beforehand. Why did you not stay in Canada? Why did you not bring your family over to Canada and stay with them here in a safety especially as your wife had a visitor visa - you could have applied for PR inland and it would have been considered. Be prepared for the CIC lawyer to work you hard on the 'lifestyle' choice - why should CIC help you out if you have intentionally placed yourself in the environment you now are in?

 

[unitedbritishphilippines]

This is a classic case that I hope CIC will look at deeply. All this tear jerking story is so classic that every one uses this appeal to emotion argument just to avoid residence obligations. I hope you have all the proof necessary to win your argument. I went to Egypt just last month and I don't see any reason that any child will be deprived of living or growing up. The people are okay with their government and I just don't think why would countries like Canada continues to patronized these free loaders. A person coming from Syria or Tunisia or Sudan or even Madagascar are more qualified under humanitarian and compassionate grounds.

 

[Leon]

It is common for people to think that they will gain special rights by having a baby in Canada but that is not the case. The baby gets citizenship. The parents get a baby, that's it.