Can a revoked PR apply for super visa?

[nitup]

Hello!

I posted some months back about my mother in law, who was denied her travel document in india because she did not comply with the residency obligations. We did file an appeal but the lawyers say that our case is not very strong.

While waiting for an appeal date, we have begun to consider withdrawing the appeal and trying to bring her here on a super visa instead. How likely is this? She, and we here in canada, meet all the criteria for super visa but, the fact that she has this revoked PR status on her, how does this fact play out with the deciding officer? Our lawyer said that if we go ahead with the super visa, this forfeits our right to appeal, but what if the super visa is also denied? Then we've closed both doors.

When we appealed, we did receive the notes from the officer who rejected her travel document. In those notes, he does write that applicant can come on visitor visa if she wishes to see her son. This looks hopeful to us, but I know it is not a guarantee. Super visas are meant for visitors, but would they consider giving it to an ex PR? Being that she's newly rejected and knowing that we have even tried to appeal the decision, would they trust her to allow her back into canada even temporarily?

Thanks in advance for any insight!

 

[Leon]

I actually think that if someone has lost their PR for staying in Canada to little, that is did not reach 2 years in the past 5, they will not be a risk of overstay. I do not however know if immigration has a policy regarding this. If she is not planning to spend more than 6 months in Canada at a time, you can also just apply for a regular multiple entry visit visa.

 

[nitup]

Thanks Leon. She just overstayed her obligations by two months. How or where can I find out for sure if immigration gives any type of visitor visas to those who have lost their PR status in the past?

 

[Leon]

They do give visas to people who have lost their PR status in the past because some people have posted here saying that they got them so I think you should just apply for it.

 

[nitup]

I just wish i knew how likely it was! If we don't get it, we've also lost any chance of an appeal. If however, she does get it, and immigration opens up the parental sponsorship again, can we re apply for a new PR while she is visiting? Or can we only do that once she returns to her home country?
Thanks for your input Leon!

 

[Leon]

It has never been a requirement of PR sponsorship that the person can not be in Canada. If they have a visit visa or are visa exempt, they can travel back and forth during their PR processing time.

So I am not sure I follow you there about losing chance of something. If you apply for a visit visa and are denied, then she doesn't get a visit visa but if you don't apply, then she doesn't get one either. You realize that even if she is denied a visit visa, she could apply again later on once she works on the reasons why they denied her. A denied visit visa will also not prevent you from sponsoring her for PR later on.

 

[nitup]

Hi Leon,
I meant losing our chance to appeal. Since she was denied her travel document, we appealed and are currently waiting for a date. But in order for us to try any sort of visit visa, we have to withdraw the appeal. If we are denied her visit visa, we have also lost our chance to appeal.

 

[Leon]

So what's the hurry? You can let the appeal roll and if it is denied, you can apply for a visit visa then.

 

[nitup]

Well we would like her here sooner than later actually. Plus the fees for appeal are a lot, and if we end up waiting and paying with no positive result, that would be so sad!
We thought it made sense if there was a good chance that she could get a super visa. She'd be here sooner and the money we would pay anyway for an appeal, we can put that towards the medical insurance.

 

[Leon]

So can you get the fees for the appeal back if you withdraw it? Then it seems like you have made up your mind to withdraw the appeal and apply for a super visa instead.

 

[Msafiri]

Well we would like her here sooner than later actually. Plus the fees for appeal are a lot, and if we end up waiting and paying with no positive result, that would be so sad!
We thought it made sense if there was a good chance that she could get a super visa. She'd be here sooner and the money we would pay anyway for an appeal, we can put that towards the medical insurance.

If you think your chances of appeal are good then sit out the appeal. How many days did she have in the 5 year review window and what were her reasons for being absent? Has she been in Canada at least once in the 365 days prior to TD application? Does she have a US visa?

 

[nitup]

Hi msafiri

We were told by our lawyer that our chances for appeal are not good. Though she has 622 days in canada, they did not consider the medical documents that we submitted as sufficient reason not to return to canada on time. She did have a US visa but I am assuming that it is void now since she was granted it when she held a PR status? At this point she is awaiting appeal. She does not have one day in canada in the 365 prior to applying for travel document.
That is why we are now considering super visa if our chances are good to obtain one. It will be quicker and cost less than the appeal, even after purchasing medical insurance. I was just writing to see if it was likely that she would even get a super visa being that her PR has been revoked.

 

[Msafiri]

The medical reasons for her lack of return to Canada must be of a compelling nature e.g. you get more joy from the Immigration & Refugee Board if its cancer than diabetes. If your lawyer says your chances are low why are they representing you? They are effectively saying you will lose before the IRB. I think her shortfall in days is not at the extreme you normally see before the IRB.

Until the date the case is decided by the IRB and this goes against her she remains a PR with associated rights (other than TD issuance). She gets a second shot at appeal via the Federal Court but this has to be on a point of law. It seems CIC already considered her medical situation and deemed it not compelling so the point of law route seems a non starter.

Given her PR retention rights and she had a US visa she should have crossed via a land border and not applied for a TD. She can still use the US visa if its valid. CBP doesn't need to know about her Canadian situation. Just travel to the US then pick her up in a private vehicle. The CBSA agent will likely question her (maybe even extensively and in a tough manner) but she will get admitted. This way she sits the appeal out in Canada. I suggest if she does this she doesn't leave until the appeal is resolved. Some people can't handle the stress at the border with this kind of situation so its your call.

Being in Canada as a PR under report as she is still beats being in Canada on any other visa. Look into the medical side though too if you live in say Ontario she won't be covered for 3 months and you need private insurance.

 

[nitup]

She is 70 and I am not sure she can handle the stress if being questioned so much at a land border crossing. Her PR card has been expired since 2011 so it's not likely she will just get by with few questions.

Are u saying that her case will most likely be denied by IRB and then addressed at federal court or that her case is not compelling enough to reach federal and that a favourable result will happen at IRB? I didn't quite understand that paragraph.

I know health care is an issue on visit visas but that insurance is still cheaper than lawyers fees and that too with being told that our chances are not strong. The lawyer has filed the appeal but has left it on us now to decide how we want to go from here. Generally how long does it take to get an IRB date? We appealed in mid may I believe. If the IRB denies and we decide not to take the case to federal court, then can we still apply for a super visa at this point?

You see, we applied for a travel document with three drs notes stating that she was unfit to travel. Nothing as serious as cancer thank god, but what more proof can I even bring to the IRB? I can bring more detailed notes from the same drs, but what else? The ailments that we mentioned on those notes is not gonna change.

 

[Msafiri]

1. With her advanced age they may go easier at the border but they can't just ignore the law. She is under report so admission won't change anything - I think she will be ok at the border but she won't get a wave in is what I'm saying. She will be sent to Secondary. How is her English/ French?

2. CIC review the H&C grounds presented and decide if they are of a compelling nature. IRB will take this into account and consider if CIC properly considered the evidence. FC will then also look at this. By the time it gets to the IRB disregarding your evidence then it usually means FC will bounce any appeal. But CIC and IRB can and do get it wrong. That your lawyer filed the appeal and has left you on your own is surprising....you could have filed the appeal yourself if that's all they've done. As a minimum I'd expect them to guide you on presenting better/ more solid evidence.

3. Last time I checked appeal time to listing before the IRB was circa 12+ months and the same to an FC appeal (maybe faster if deemed baseless). This would give her around the 2 year window in Canada prior to appeal finalization.

4. I think you need to look at your overall situation and if she will actually live in Canada in the long term. If not then you will be going through this PR appeal process again. Some people just want to visit Canada but with a better 'visa' than a standard visitor visa. If this is the case then go the super visa route. Insurance plans have age outs though!