Case of Unintentional Misrepresentation in H& C Ground case for PR RO

[jakklondon]

Hi Sorry for coming back again .I have 1 question .If I am indeed reported is it mandatory to hire a lawyer to take up the case in the appeal .I have heard lawyers charge a lot for such cases .Cant the PR concerned take up his own case ?

Thanks

If you are accused of murder, you can go to trial and defend yourself. There is no such a thing as "must hire a lawyer". Anyone can represent themselves in any case, there is even a term for it, Pro Se. What you have to consider is complexity of your case and your ability to advocate for yourself, given your existing skill set, knowledge of the subject and difficulty of your matter.

 

[dpenabill]

@dpenabill stated "Wrong. A bad idea" and "This is half wrong" Like you said, you do not understand how "partly agree" fits in here.

As the other poster "singhno" shared his sister's experience despite didn't meet RO. Why would they must worry about things that haven't even yet happened?

While the second-hand anecdotal report posted by @singhno is barely a sketchy outline of a PoE experience about a PR apparently arriving (not what is usually referred to as "landing" in reference to PRs) in Canada after failing to comply with the Residency Obligation, it is a common scenario which those of us familiar with these situations can reasonably, fairly reliably, recognize. And it is precisely consistent with and an example of what I discussed and described.

And, precisely consistent in multiple respects:

-- It is an example of PoE questioning that does not result in a 44(1) Report being issued, no Departure Order, no need to make an appeal​

-- Since the PR was clearly in breach of the RO, it is also an example of informal relief, a more or less informal H&C waiver . . . that is, considering the circumstances, the extent of the absence, the PR's expressed intention to settle and stay permanently in Canada, the CBSA border official determined this PR deserved a chance to keep PR, that is, an informal H&C decision to allow the PR to keep PR status despite failing to comply with the RO​

-- And, the sketchy outline of it is consistent with how I described the common anecdotal report, this one fitting the "incomplete, vague" description​

Obviously, it should be noted, there are always more questions asked than what @singhno describes. After all, how did the border official determine the PR "was short of 6 months" (which could mean various things, but we get the picture, the gist of it: she was not in compliance with the RO)? Well, another possibility is the border official was not aware the PR was "short," in which case it is not an example of how the PoE examination goes when a returning PR is identified as being in breach of the RO.

But again, assuming it was recognized that the PR was "short," this is a common scenario. And it fits precisely into one of two informal ways a PR in breach can be allowed, upon arrival from abroad, to keep PR status despite being in breach of the RO. Those two are:

-- PIL officer waives the PR through with minimal questioning related to RO compliance; no referral to Secondary for immigration examination, OR​

-- attendant referral to Secondary, a CBSA immigration officer waives the PR through after questioning and despite being aware that the PR is not in compliance with the RO . . . this is the informal H&C decision that @armoured referenced​

Sure, a PR can gamble on luck and the generosity of border officials. And it is apparent more than a few fare OK doing this. Roll the dice.

But the prudent PR in breach of the RO will approach the return to Canada prepared to tell their story, without elaboration, not like a lawyer presenting a case to a jury, but an honest, simple, brief explanation of the reasons why the PR was abroad and why the PR did not come to Canada sooner. Then, if the PR in breach is referred to Secondary, they can respond to questions about RO compliance, and the failure to comply, clearly, intelligently, cogently, and thereby give themselves the best opportunity, their best chance, of being waived through without being Reported.

And then, if they are not waived through, if they are Reported, that preparation will help them better explain their situation and improve their chances of persuading the second, reviewing officer to set aside the 44(1) Report based on a decision the PR, in effect, deserves to keep PR status based on H&C considerations.

In other words, for a PR abroad and not in compliance with the RO, it is simply a damn good idea to be prepared to make their H&C when they arrive in Canada. That is when they get the best chance of saving their PR status.

Okay. This is to bring to the attention of OP. My sister landed in canada in Jan 2022 from india. SHe was short of 6 months. CBSA asked her how long she plans to stay and she obviously replied for forever. No other questions were asked and she was let go.

 

[armoured]

In other words, for a PR abroad and not in compliance with the RO, it is simply a damn good idea to be prepared to make their H&C when they arrive in Canada. That is when they get the best chance of saving their PR status.

For clarity: I agree with this statement, best to be prepared to make one's case coherently, concisely and preferably with access to back-up documentation (as discussed.) And particularly since the examination at border is quite probably the best opportunity to make one's case and avoid the lengthier, risky and probably more costly steps after a report and under appeal.

I referred to procedure at border being less or not-entirely 'formal' - I believe those comments of mine were meant to indicate that the PR at the border is not making a formal pleading or statements (esp written) as may or could be the case in the quasi-judicial appeal process. Or if one prefers, that the format of the examination may appear less outwardly formal.

Obviously the process and any results or decisions emanating from it are official and hence formal in some sense; I hadn't intended for my comments to indicate otherwise.

 

[singhno]

While the second-hand anecdotal report posted by @singhno is barely a sketchy outline of a PoE experience about a PR apparently arriving (not what is usually referred to as "landing" in reference to PRs) in Canada after failing to comply with the Residency Obligation, it is a common scenario which those of us familiar with these situations can reasonably, fairly reliably, recognize. And it is precisely consistent with and an example of what I discussed and described.

And, precisely consistent in multiple respects:

-- It is an example of PoE questioning that does not result in a 44(1) Report being issued, no Departure Order, no need to make an appeal​

-- Since the PR was clearly in breach of the RO, it is also an example of informal relief, a more or less informal H&C waiver . . . that is, considering the circumstances, the extent of the absence, the PR's expressed intention to settle and stay permanently in Canada, the CBSA border official determined this PR deserved a chance to keep PR, that is, an informal H&C decision to allow the PR to keep PR status despite failing to comply with the RO​

-- And, the sketchy outline of it is consistent with how I described the common anecdotal report, this one fitting the "incomplete, vague" description​

Obviously, it should be noted, there are always more questions asked than what @singhno describes. After all, how did the border official determine the PR "was short of 6 months" (which could mean various things, but we get the picture, the gist of it: she was not in compliance with the RO)? Well, another possibility is the border official was not aware the PR was "short," in which case it is not an example of how the PoE examination goes when a returning PR is identified as being in breach of the RO.

But again, assuming it was recognized that the PR was "short," this is a common scenario. And it fits precisely into one of two informal ways a PR in breach can be allowed, upon arrival from abroad, to keep PR status despite being in breach of the RO. Those two are:

-- PIL officer waives the PR through with minimal questioning related to RO compliance; no referral to Secondary for immigration examination, OR​

-- attendant referral to Secondary, a CBSA immigration officer waives the PR through after questioning and despite being aware that the PR is not in compliance with the RO . . . this is the informal H&C decision that @armoured referenced​

Sure, a PR can gamble on luck and the generosity of border officials. And it is apparent more than a few fare OK doing this. Roll the dice.

But the prudent PR in breach of the RO will approach the return to Canada prepared to tell their story, without elaboration, not like a lawyer presenting a case to a jury, but an honest, simple, brief explanation of the reasons why the PR was abroad and why the PR did not come to Canada sooner. Then, if the PR in breach is referred to Secondary, they can respond to questions about RO compliance, and the failure to comply, clearly, intelligently, cogently, and thereby give themselves the best opportunity, their best chance, of being waived through without being Reported.

And then, if they are not waived through, if they are Reported, that preparation will help them better explain their situation and improve their chances of persuading the second, reviewing officer to set aside the 44(1) Report based on a decision the PR, in effect, deserves to keep PR status based on H&C considerations.

In other words, for a PR abroad and not in compliance with the RO, it is simply a damn good idea to be prepared to make their H&C when they arrive in Canada. That is when they get the best chance of saving their PR status.

SO she was short of 6 months because she first landed in 10th July 2018, stayed there for just 10 days . Then she made final landing on 21st of JAN 2022.

 

[singhno]

While the second-hand anecdotal report posted by @singhno is barely a sketchy outline of a PoE experience about a PR apparently arriving (not what is usually referred to as "landing" in reference to PRs) in Canada after failing to comply with the Residency Obligation, it is a common scenario which those of us familiar with these situations can reasonably, fairly reliably, recognize. And it is precisely consistent with and an example of what I discussed and described.

And, precisely consistent in multiple respects:

-- It is an example of PoE questioning that does not result in a 44(1) Report being issued, no Departure Order, no need to make an appeal​

-- Since the PR was clearly in breach of the RO, it is also an example of informal relief, a more or less informal H&C waiver . . . that is, considering the circumstances, the extent of the absence, the PR's expressed intention to settle and stay permanently in Canada, the CBSA border official determined this PR deserved a chance to keep PR, that is, an informal H&C decision to allow the PR to keep PR status despite failing to comply with the RO​

-- And, the sketchy outline of it is consistent with how I described the common anecdotal report, this one fitting the "incomplete, vague" description​

Obviously, it should be noted, there are always more questions asked than what @singhno describes. After all, how did the border official determine the PR "was short of 6 months" (which could mean various things, but we get the picture, the gist of it: she was not in compliance with the RO)? Well, another possibility is the border official was not aware the PR was "short," in which case it is not an example of how the PoE examination goes when a returning PR is identified as being in breach of the RO.

But again, assuming it was recognized that the PR was "short," this is a common scenario. And it fits precisely into one of two informal ways a PR in breach can be allowed, upon arrival from abroad, to keep PR status despite being in breach of the RO. Those two are:

-- PIL officer waives the PR through with minimal questioning related to RO compliance; no referral to Secondary for immigration examination, OR​

-- attendant referral to Secondary, a CBSA immigration officer waives the PR through after questioning and despite being aware that the PR is not in compliance with the RO . . . this is the informal H&C decision that @armoured referenced​

Sure, a PR can gamble on luck and the generosity of border officials. And it is apparent more than a few fare OK doing this. Roll the dice.

But the prudent PR in breach of the RO will approach the return to Canada prepared to tell their story, without elaboration, not like a lawyer presenting a case to a jury, but an honest, simple, brief explanation of the reasons why the PR was abroad and why the PR did not come to Canada sooner. Then, if the PR in breach is referred to Secondary, they can respond to questions about RO compliance, and the failure to comply, clearly, intelligently, cogently, and thereby give themselves the best opportunity, their best chance, of being waived through without being Reported.

And then, if they are not waived through, if they are Reported, that preparation will help them better explain their situation and improve their chances of persuading the second, reviewing officer to set aside the 44(1) Report based on a decision the PR, in effect, deserves to keep PR status based on H&C considerations.

In other words, for a PR abroad and not in compliance with the RO, it is simply a damn good idea to be prepared to make their H&C when they arrive in Canada. That is when they get the best chance of saving their PR status.

BO have a system in place which tells them how short is the PR holder in meeting his RO. There is a software system of sort there.

 

[jakklondon]

@steaky - the Orwellian Occult Triple Hermetic Secret Worshippers have in the past two decades implemented several bilateral agreements, including one of the later ones which tracks land crossings with the US. And they trace any international departure from Canada by air. Thus, they no longer have to rely on PR to inform them of the time spent outside of Canada. They can look up and see when PR left the Canada and returned back. It won't work in case of PR who left many years ago and before Orwellian Occult Triple Hermetic Secret Worshippers started to log all departures, but those who were in and out in the last few years are fully traceable.

 

[steaky]

@jakklondon 2018 is not so long ago, so it should be fully tracable. Thank you for the information. Appreciated.

@dpenabill Wrong. The experience what "singhno" described was an example of how the PoE examination goes when a returning PR is identified as being in breach of the RO. Have you internationally travelled lately? If so, you should know what you need to do upon arriving Canada and the interactions between you and the BSO.

 

[jakklondon]

@steaky - you are welcome steaky.

 

[dpenabill]

For Context:

We see quite a few forum reports from PRs in breach of the RO who are often described as "lucky," who are waived through by the PIL (Primary Inspection Line) officer despite the PR's failure to comply with the RO.​

​

We also see quite a few forum reports from PRs in breach who are similarly described as "lucky," who are referred to Secondary and asked questions related to RO compliance and waived through, again despite the PR's breach of the RO.​

​

And we see forum reports from those who are NOT so "lucky," who are "Reported." But we also have a far better source, an official source, regarding a large number of these cases: the published, official IAD decisions.​

​

However, how it goes is not just about luck. PRs in breach of the RO can significantly improve their odds of keeping PR status.​

Observations:

@steaky . . . perhaps I misunderstand you. If you mean to say "do not worry, prepare," as in worrying does not help, rather it is preparing to make the H&C case that can possibly save PR status when a PR is returning to Canada in breach of the RO, I'll buy that.

Otherwise, I have sufficiently and accurately described the procedures, including variables, to explain why a prudent PR in breach of the RO should be prepared, when returning to Canada from abroad, to answer questions and provide information explaining the reasons for being abroad and reasons for not coming to Canada sooner, and they should also be prepared to put forth any other H&C factors (like the welfare of a minor child) to be considered.

That is, the returning PR in breach of the RO should be prepared to present their H&C case upon arrival at a Canadian PoE.

There is no doubt about that . . . except, perhaps, those who are confident they will be lucky and waived through, or those who are just OK seeing how it goes, taking their chances.

Obviously I believe this is important. For many PRs who encounter difficulty meeting their RO during the first five years, in particular, especially the soft-landing PR whose move to come to Canada to settle and stay is delayed despite their every intention to actually settle and live in Canada, it can make the difference in whether or not they get to keep PR status and fulfill their dream of establishing a life in Canada. How soon they actually get here is what probably makes the biggest difference. The sooner the better. But why they are late, why they stayed abroad, why they did not come sooner, and any other positive H&C factor they might have, can make the difference; and in many cases certainly does make a difference.

So, while I am being repetitive, since this is important let's be clear:

Sometimes a PR in breach of the RO is waived through with minimal questioning. Many times, however, they are referred to Secondary and asked questions about RO compliance. Sure, if the PR could know in advance they will be waived through with minimal questioning (such as @singhno's sister apparently was), no need to worry about explaining why they were abroad, why they did not return to Canada sooner, or what other H&C considerations favour their being allowed to keep PR status despite failing to comply with PR obligations.

BUT for the PR in breach there is NO WAY to KNOW in advance, absolutely NO WAY to be sure, they will be waived through with minimal questioning.

For those who are not waived through with minimal questioning, which is a risk for any and every PR in breach of the RO, how it goes in the course of the Secondary examination can very much depend on whether the examining officer is persuaded the PR deserves a chance to keep PR status.

For those referred to Secondary and questioned more extensively in regards to RO compliance, being able to state their case, including the key H&C factors (reasons for being abroad; reasons for not returning to Canada sooner; effect on the welfare of a child; intent to make Canada their home; and such) can make the difference in whether the officer in Secondary waives the PR through (no 44(1) Report) or the officer prepares a 44(1) Report. It warrants emphasizing this can often be the PR's BEST OPPORTUNITY to persuade an officer they should be allowed to keep PR status.

If that fails, if the PR's H&C factors fail to convince the examining officer in Secondary to allow the PR to proceed into Canada without being Reported (despite the breach of RO), and the PR is Reported, THEN the PR still gets another chance (then and there, while in the PoE) to present H&C information. Moreover, if the PoE examination gets to this stage, the Minister's Delegate MUST take into consideration H&C factors presented by the PR. And the Minister's Delegate MUST set aside the 44(1) Report if the H&C factors weigh in favour of allowing the PR to retain status.

That is, to sum it up, when a PR in breach of the RO returns to Canada, and is at risk there will be a decision made to terminate their PR status, if the PR is not waived through the PIL inspection, the PR will get two chances, two opportunities, to make their H&C case, to persuade at least one of two officers they should be allowed to keep PR status.

And, to be clear, they only need to persuade one of the two. If they make a convincing H&C case for the first, they get waived through, no Report. If they make a convincing H&C case for the second officer (the Minister's Delegate), the Report is set aside. Thus, if they persuade either officer they have a good H&C case, they get to keep PR status despite the breach of the RO.

Which leads to the discussion about what is "formal" and "official" in the discussion with @armoured

 

[dpenabill]

Further Observations Regarding the Difference When a 44(1) Report is Prepared, But Set Aside, Versus When a PR in Breach is Not Reported (Waived Through):

I referred to procedure at border being less or not-entirely 'formal' - I believe those comments of mine were meant to indicate that the PR at the border is not making a formal pleading or statements (esp written) as may or could be the case in the quasi-judicial appeal process. Or if one prefers, that the format of the examination may appear less outwardly formal.

Obviously the process and any results or decisions emanating from it are official and hence formal in some sense; I hadn't intended for my comments to indicate otherwise.

I am not clear how you are using terms like "formal," "informal," and "official."

At the risk of belaboring the difference it makes IF a 44(1) Report is prepared, the hearing that follows determines whether a PR's status is terminated or not. This is a hearing, even though its format is essentially an interview (and even though it is sometimes conducted by telephone), that usually takes place then and there at the PoE BEFORE (with some exceptions due to logistics) the PR is then given authorization to physically enter Canada (which is what happens, that is the PR is ultimately allowed to proceed into Canada, whether the 44(1) Report is set aside by the Minister's Delegate or a Departure Order is issued).

The decision by the Minister's Delegate constitutes an adjudication of the PR's status, which has the same force and effect on the PR's status as a decision to grant or deny a PR Travel Document made by a Visa Office. Thus, for example, if the MD upholds the 44(1) Report and issues a Departure Order, that has the same legal effect as a Visa Office decision denying a PR Travel Document. It is an official adjudication of status terminating the PR's status (subject to appeal, of course; only difference, apart from the physical location of the PR, is there is a 60 day window for filing an appeal when a PR TD is denied versus the 30 day window to appeal when issued a Departure Order based on a 44(1) Report for inadmissibility due to a RO breach).

Likewise a decision by the MD to set aside the 44(1) Report for H&C reasons, same as a Visa Office decision to issue a PR TD coded for H&C. These decisions constitute an adjudication of PR status. Since RO compliance is always dependent on facts as they exist on the date of the examination, these decisions do not absolutely clear the PR of RO concerns in subsequent examinations (later PoE examination, or subsequent application for a PR TD or PR card application) but both of these decisions have the weight of adjudicating the PR's H&C case up to the date of the respective decision, and unless there has been a material change in circumstances (such as a lengthy absence in the meantime) going forward the PR is not inadmissible despite failing to be in Canada at least 730 days within the previous five years.

In contrast if a PIL officer waives the PR through despite recognizing the PR is in breach, that is NOT an adjudication of status; it is a decision authorizing the PR to enter Canada (on the basis they are a Canadian).

Likewise, even if questioned in Secondary, and it is recognized the PR is in RO breach, and the immigration officer allows the PR to proceed into Canada, that is, the officer does not prepare a 44(1) Report, that too is simply a decision authorizing the PR to enter Canada (on the basis they are a Canadian).

In neither of these latter two circumstances is there a formal or official adjudication of PR status. There is a formal and official decision to allow entry into Canada, and yes that is based on the traveler's PR status, but it is not an adjudication of status. I, like many, will often refer to this as an "informal" H&C decision, where the PR is known to be in breach but the officer waives the PR through anyway, because as a practical matter it is a decision to waive the breach based on a conclusion, of one sort or another, the PR deserves to keep PR status despite the RO breach, which is essentially a positive H&C decision . . . albeit not a definitive determination the PR's failure to comply with the RO is excused for H&C reasons.

Does this make any difference? Is it significant, let alone important?

Yes. As illustrated, for example, in what can happen if the PR proceeds to make an application for a new PR card:

-- The PR who is waived through by either the PIL officer or by an officer in Secondary, without a 44(1) being prepared, should WAIT to apply for a new PR card UNTIL AFTER they have remained in Canada long enough to be in RO compliance.​

-- In contrast, much like the PR who was issued a PR TD for H&C reasons, the PR who was subject to a 44(1) Report that has been set aside for H&C reasons, is OK to apply for a new PR card, as the validity of their status has been adjudicated, determining they are NOT inadmissible despite failing to be in Canada at least 730 days within the preceding five years.​

It also makes a difference in the extent of risk involved if the PR needs to travel outside Canada before they have stayed in Canada at least 730 days within the preceding five years:

-- Here too, a PR who is waived through by either the PIL officer or by an officer in Secondary, without a 44(1) being prepared, should avoid traveling outside Canada UNTIL they have stayed long enough to be in RO compliance​

-- A PR who was issued a PR TD for H&C reasons, or a PR who was subject to a 44(1) Report that has been set aside for H&C reasons, is generally OK to take brief trips outside Canada, as again the validity of their status has been adjudicated, determining they are NOT inadmissible despite failing to be in Canada at least 730 days within the preceding five years; HOWEVER, until the PR has stayed long enough to be in compliance based on counting days, some CAUTION should be exercised before such travel, and in addition to limiting the duration of trips abroad, the longer the PR is in Canada before traveling abroad, the lower the risk of a RO compliance problem; in particular, the PR wants to avoid a "change in circumstances" potentially triggering a new RO compliance and H&C assessment.​

The CAVEAT, as I previously discussed, is that it is not always clear to the PR whether they were waived through without any 44(1) Report being prepared or there was a Minister's Delegate decision to set aside a 44(1) Report for H&C reasons. That is, it may not be readily apparent whether there was a formal adjudication of status (the 44(1) Report set aside by the Minister's Delegate on H&C grounds), or there was only a decision authorizing entry into Canada (despite the RO breach). It appears PRs are often not clearly advised of what procedures are taking place, and unless a Minister's Delegate upholds the 44(1) Report and issues a Departure Order (which is what in this forum is typically referred to as being "Reported"), the PR is not given any paperwork. Even where a 44(1) has been prepared, if it is set aside the PR may not get a copy or even be clearly informed such a Report was prepared against them. For a PR who is uncertain, before relying on what they think was a definitive H&C decision at the PoE, they can probably find out by making a customized ATIP request.

 

[canuck78]

Okay. This is to bring to the attention of OP. My sister landed in canada in Jan 2022 from india. SHe was short of 6 months. CBSA asked her how long she plans to stay and she obviously replied for forever. No other questions were asked and she was let go.

Being 6 months short is very different than this situation.

 

[canuck78]

There are quite a few considerations in your case. Will you be able to continue to work full-time since you won’t qualify for disability payments when you arrive and disability payments are very low and very difficult to live off of. If you aren’t employed or don’t have a job without drug coverage what will your medication costs be out of pocket and can you afford the costs? You will need to reapply for a new health card because you didn’t qualify to get a health card when you arrived in 2021 since you on,y stayed for 3-4 months. What about your wife? She also hasn’t met her RO. In general children are considered when it comes to H&C applications but your son has lived in India his whole life so not coming to Canada would not be considered a reason for your whole family to be able to be granted H&C. He is not even a PR yet. In general you should try to come back to Canada as soon as possible. The fact that you need to sponsor your son but both you and your wife aren’t compliant with your ROs complicates your life. A TRV is not guaranteed. If you have not found work when you are able to sponsor your child that can be an issue. You need to show that you can support your family without government help.

 

[singhno]

There are quite a few considerations in your case. Will you be able to continue to work full-time since you won’t qualify for disability payments when you arrive and disability payments are very low and very difficult to live off of. If you aren’t employed or don’t have a job without drug coverage what will your medication costs be out of pocket and can you afford the costs? You will need to reapply for a new health card because you didn’t qualify to get a health card when you arrived in 2021 since you on,y stayed for 3-4 months. What about your wife? She also hasn’t met her RO. In general children are considered when it comes to H&C applications but your son has lived in India his whole life so not coming to Canada would not be considered a reason for your whole family to be able to be granted H&C. He is not even a PR yet. In general you should try to come back to Canada as soon as possible. The fact that you need to sponsor your son but both you and your wife aren’t compliant with your ROs complicates your life. A TRV is not guaranteed. If you have not found work when you are able to sponsor your child that can be an issue. You need to show that you can support your family without government help.

Excellent advice

 

[Eusufzai]

Hello Everyone! I just want to ask anyone in this forum who didn't meet residency obligation and reported at the Port of Entry and then faced the trial? Can anybody share his/her own experience?

Thanks and regards,

Eusufzai

 

[jakklondon]

Hello Everyone! I just want to ask anyone in this forum who didn't meet residency obligation and reported at the Port of Entry and then faced the trial? Can anybody share his/her own experience?

Thanks and regards,

Eusufzai

I have a thread dedicated to this subject, if you have any relevant experiences please share here:
https://www.canadavisa.com/canada-immigration-discussion-board/threads/have-canadian-pr-never-lived-in-canada.747259/