Chances of winning an IAD appeal

[bengalister]

Hi,

I am a permanent resident who did not satisfy the RO. I lived in Canada 3,5 years between 2009 & 2012 and wanted to go back there to settle in (again).

My last journey there (just 2 weeks ago), I have received a departure order, left before the 30 days and notified an immigration officer ( he actually accompanied me to the flight gate). I did not appeal yet (I only have a few days left to do so) and I am pondering if I should or not. My other option would be to re-apply for a permanent residency.

I am not sure if I would fit in the "compassionate reasons".
I left Canada because the company I worked for closed its office in Quebec and offered me a relocation abroad but the company is not Canadian. I had been told by my company (but only orally) they could relocate me in Canada since they have now new offices but now I think it will not happen any time soon.
I don't own a property in Canada, don't have any family ties there (only friends). I am in my late 30s, a Belgian bachelor and financially self-sufficient.

Let's say that I appeal, and I go back there (If I understood well I don't lose my PR as long as the appeal has not been examined by SIA), buy an apartment (as a proof that now I really want to stay) and get a job (I work in IT and so far did not have any issues finding job be it in Canada or Europe), would it help to keep the PR ? Or only "compassionate" reasons (health/family) are taken into account ? How do you consider the chances of wining it : poor/so-so/good ?
The officer told me that it could easily take 2 years before the decision is made.

 

[scylla]

No - your reasons for appealing certainly do not meet the compassionate criteria. Employment reasons are not accepted. Buying an apartment and getting a job likely won't help your appeal. They're looking for compassionate reasons for why you didn't relocate to Canada earlier (e.g. you were the primary caregiver for a critically ill immediate relative such as a parent for several years and were unable to move since there were no other family members to play this role). Since you lack compassionate reasons and haven't lived in Canada for four years, I would say your changes of success are very low. But you can certainly give it a shot if you want.

 

[bengalister]

Thanks,

in the list of compassionate reasons I had seen that one:

* to what extent you have established a home in Canada,

but I am not sure if it applies only for the period prior to the report of not meeting the requirements or at the time I will be audited by the immigration judge.

Well anyway I think it is too risky for me to try

 

[axelfoley]

To the OP, I am in a similar situation to you. I personally shall be appealing because I intend to work in Canada the period between the Removal Order being given to me and the final hearing at the IAD. In the mean time I have maybe 2 years (possibly longer) to fully prepare my case to appeal the Removal Order on H&C grounds.

The work I do for my anticipated employer in Canada (also in IT), I hope, should assist me to get a high-skilled job offer (with positive LMIA opinion) from my employer and that way give me priority for re-applying for PR status in future, should I lose the appeal at the IAD in the future. Obviously, when preparing for the hearing I shall at all times be factual and credible about the reasons why I could not meet the 2 in 5 years obligation on residency (I had obligations towards my elderly mother as carer and she herself would likely be medically inadmissible to Canada due to her diabetes, except as a visitor with travel insurance).

FYI - while you are on appeal, you can still renew your PR card, except that they will give you a one year expiry rather than a 5 year expiry. This means you will have to renew your PR card once per year until your IAD hearing in order to retain a valid PR card for re-entering the country again should you need to leave before the IAD hearing.

 

[dpenabill]

H&C cases are difficult given how generous the PR Residency Obligation itself is. The best opportunity to make the H&C case for retaining PR status has passed: that was when you were examined at the PoE.

For an appeal dependent on a more complicated H&C case, the assistance of a reputable, experienced immigration lawyer is advisable. At the least, it would be a good idea to pay for a consultation with a lawyer to go over the specifics of your situation (ranging from degree of establishment in Canada when you were in Canada, to all circumstances involved in leaving Canada and staying outside Canada, to current circumstances including future intent) and roughly assess whether it would be worth an appeal or making a new Express Entry application.

I do not have a clue what scylla means in stating "Employment reasons are not accepted."

I do know that ALL reasons proffered by the PR MUST be considered in assessing H&C reasons for allowing the PR to retain status despite the breach of the PR RO. In particular, an explanation based on your employment circumstances MUST and WILL be considered. However, that does not guarantee how this explanation will influence the assessment, whether it will considered a positive, negative, or neutral factor. How the explanation relates to all the other circumstances will have a big influence.


Regarding this statement by scylla:
"Buying an apartment and getting a job likely won't help your appeal."

This is not correct. There are many official decisions which clearly indicate that what the PR does between the time of being issued the Departure Order and the time of the IAD hearing on the appeal (this can range from a year to three years, some recently taking four years, but many barely taking just a year) matters, that it may be a positive factor, sometimes even a strong positive factor, if the PR is established in Canada during this time (which may be evidenced by property ownership but more importantly by regular employment in Canada and actual presence in Canada during the period). I have cited and linked some of these official decisions recently in other topics here.

And even your intent is a factor that matters and will be taken into consideration.

But for purposes of calculating whether the PR RO was breached, no time in Canada after the Departure Order was issued will count. And even completely settling down in Canada after the Departure Order is not necessarily sufficient to win on H&C reasons.

A real lot depends on how much you have been in Canada during the five years that count. It appears you may have less than a year in Canada. That is difficult to overcome. (In contrast, PRs just a few weeks or months short have better odds.)

But make no mistake: H&C cases are difficult to win. The bigger the shortfall, the more difficult. The more the reasons for being abroad were personal choices, the more difficult. But any claim that this or that particular factor will not be considered is wrong.

I have populated many posts in other topics here with links to IAD and Federal Court decisions assessing H&C cases. Or, to do more homework, you can go to the CanLII website to search IAD decisions at http://www.canlii.org/en/ca/irb/ or to search Federal Court decisions at http://www.canlii.org/en/ca/fct/ Search terms which will pull up more hits than you will want to read among IAD decisions: "residency obligation" and "permanent resident"

No harm in making the appeal, doing some more homework, consulting with a lawyer, considering the logistics and pros and cons of settling in Canada pending an appeal, and deciding later whether to withdraw the appeal or to proceed with it.

 

[bengalister]

A real lot depends on how much you have been in Canada during the five years that count. It appears you may have less than a year in Canada. That is difficult to overcome. (In contrast, PRs just a few weeks or months short have better odds.)

Actually when the departure order has been issued beginning of May 2016, I only stayed around 420 days (1year and 2months) in the last 5 years since May 2011. (overall since I became PR in 2009, I staid 3,5 years in Canada)
I travelled to Canada every year from 2013 to 2016 for a week every time to visit friends and because I was missing Montreal.

Thanks for the links, I'll have a look at the different cases and your older posts to get an idea but so far for the few I saw I am not confident at all that I would win because it was mostly for personal reasons I still could have quit my job to get back to Canada ( even though I was waiting for a relocation opportunity from my company that never came despite repeated requests to my employer ).

Maybe you are right I could appeal to give me more time to think about it and withdraw it later, I'll search this forum for the procedure.

 

[bengalister]

The work I do for my anticipated employer in Canada (also in IT), I hope, should assist me to get a high-skilled job offer (with positive LMIA opinion) from my employer and that way give me priority for re-applying for PR status in future, should I lose the appeal at the IAD in the future.

well if your appeal is dismissed (I hope that won't be the case, you seem to have more acceptable reasons than mine), I guess you'll be forced to leave the country. It will take some time between the moment you are forced to leave the country and applying again for PR and getting the approval. Have you assessed how long it could take ? I guess you are referring to the express entry procedure. Maybe your next employer won't have the patience to wait (unless you can work for them remotely)

 

[axelfoley]

well if your appeal is dismissed (I hope that won't be the case, you seem to have more acceptable reasons than mine), I guess you'll be forced to leave the country. It will take some time between the moment you are forced to leave the country and applying again for PR and getting the approval. Have you assessed how long it could take ? I guess you are referring to the express entry procedure. Maybe your next employer won't have the patience to wait (unless you can work for them remotely)

You are right that there would be a gap of several months or even a year if I lose my appeal and before I could come back as a new PR on a new application. Fortunately, I am in the IT field and most of my work can be done remotely from anywhere in the world, so it should not stop me being able to continue working for the employer, except as a foreign consultant based abroad under a new contract while I am waiting for the employer to get the positive LMIA opinion for the new permanent job offer. My plan is that the two years or so that I expect to work for him before the appeal hearing should be sufficient time to ensure that I make myself an important part of his business, that's my plan and intent anyway. I am going for a very small company rather than a large one as things are more "negotiable"

In terms of your own situation, if you decide to appeal, I believe the relevant forms may be found in section "Removal Order Notice of Appeal" at the following website:

http://www.irb-cisr.gc.ca/Eng/res/form/Pages/IadSaiAppForm.aspx

As you can see the form is rather simple. I believe that the office you should apply to is the office where you last resided in Canada (there are three offices that deal with matters according to the regions of Canada that they cover).

I believe that if you have been in Canada in the 365 days before you issue your Notice of Appeal you are usually allowed a PRTD to attend your appeal hearing (in case your PR card has expired). I am not expert on that aspect, so I will defer to one of the more senior members to address that point.

 

[princessofdiamonds]

Can I ask how you received the departure order ? Did you present that you were a PR at the gate and and they reported you? Or did you get something in the post ? I don't understand how you got a departure order and not just a revoke of status report ... Could you let us know the details ? Thanks

Hi,

I am a permanent resident who did not satisfy the RO. I lived in Canada 3,5 years between 2009 & 2012 and wanted to go back there to settle in (again).

My last journey there (just 2 weeks ago), I have received a departure order, left before the 30 days and notified an immigration officer ( he actually accompanied me to the flight gate). I did not appeal yet (I only have a few days left to do so) and I am pondering if I should or not. My other option would be to re-apply for a permanent residency.

I am not sure if I would fit in the "compassionate reasons".
I left Canada because the company I worked for closed its office in Quebec and offered me a relocation abroad but the company is not Canadian. I had been told by my company (but only orally) they could relocate me in Canada since they have now new offices but now I think it will not happen any time soon.
I don't own a property in Canada, don't have any family ties there (only friends). I am in my late 30s, a Belgian bachelor and financially self-sufficient.

Let's say that I appeal, and I go back there (If I understood well I don't lose my PR as long as the appeal has not been examined by SIA), buy an apartment (as a proof that now I really want to stay) and get a job (I work in IT and so far did not have any issues finding job be it in Canada or Europe), would it help to keep the PR ? Or only "compassionate" reasons (health/family) are taken into account ? How do you consider the chances of wining it : poor/so-so/good ?
The officer told me that it could easily take 2 years before the decision is made.

 

[bengalister]

Can I ask how you received the departure order ? Did you present that you were a PR at the gate and and they reported you? Or did you get something in the post ? I don't understand how you got a departure order and not just a revoke of status report ... Could you let us know the details ? Thanks

I still own a valid PR card. I had it renewed 1 year after I left (I learned later that I was not supposed to because not living in Canada at the time I asked for the renewal). I did not know at that time that what mattered most was how much time I spent in Canada in the last five year and not really the card ( I would not had renewed it) and thought that every 5 year the counter was reset. It is also a reason why I waited too long because I thought that for the 5 years period I could still spend at least 2 years in Canada, actually this is valid but only for the first 5 years (for the first 5 years you can go out of Canada before having spent the minimum of 730 days and are still allowed to enter).

So my 2nd mistake was to go to Canada for a week of vacation beginning of this month (to visit friends) knowing that with my status it could be problematic and that I still wanted to settle in Canada waiting for a possible relocation to Canada with the company I worked for (and that relocated me to Europe). I still have a job and apartment in Europe.
When I arrived at the airport I went to visitor entry since I don't live in Canada anymore and was there only for a week. (Maybe I should have gone through the PR entry since now you only need to scan your documents yourself, maybe I would have been allowed to get in without the hassle, i'll never know, I guess there are some controls anyway)

I presented my passport and the officer noticed that I was a PR. I did not tell him immediately presenting my passport but when he saw after scanning the passeport that I was also PR he told me and I replied that I did not live in Canada anymore,that I still had a PR card and I was there for a week. He asked me how long I had been living abroad and then asked me to go to the immigration office of the airport for explanations...
Then it went a little bit out of control for me, I was tired (late even flight + jet lag) and I was under the impression I was treated as a criminal and did not know what was going on (they did not tell me). I explained first the reasons of my visit, that also I still wanted to move in later and was waiting for a decision of the company I work for. They actually never asked me if I wanted to revoke my status on my own.
The officer told me that the procedure was administrative and did not have consequences unless I did not leave within 30 days. I could still visit Canada later and re-apply for PR, I hope that's the truth

Anyway I don't think I'll appeal the revocation because from what I read I will very likely lose it (I left only because of a job), even if I move in Canada now and show that I want to stay and won't a burden for the Canadians.
I will re-apply for a PR even if it is much more complicated than it used to be and that it will be hard to get selected because of my age (late 30s).

 

[ashs]

i also have a question. my pr card was in production and I was out of Canada so I applied for a temporary travel document. i have just received a reply that my application is rejected and I need to submit an appeal in 60 days. my residency was less than 2 years. what is the probability of appeal acceptance? i have been filing taxes every year. had good conduct working for Canadian company part-time.

 

[Ponga]

i also have a question. my pr card was in production and I was out of Canada so I applied for a temporary travel document. i have just received a reply that my application is rejected and I need to submit an appeal in 60 days. my residency was less than 2 years. what is the probability of appeal acceptance? i have been filing taxes every year. had good conduct working for Canadian company part-time.

Are you sure that your PR card was in production? if it was, that would seem to indicate that your PR card (renewal?) was approved. Why would your PRTD have been denied? What was the reason given?

In terms of whether or not an appeal would be approved, it depends on the reasons why the PR was outside of Canada and failed to meet the R.O., so...tell us your story.

 

[ashs]

Well. my card was ready and i had to fly outside to live with my husband and my mother was ill. i submitted my email evidence that I need to go and pickup my pr card and I sent IRCC email that the Dubai consulate is delaying the process. so I need to reschedule my card pickup appointment. i agree my number of days were less but this was because my spouse's sponsorship application was taking too much time and I had to live with my husband

 

[Ponga]

Well. my card was ready and i had to fly outside to live with my husband and my mother was ill. i submitted my email evidence that I need to go and pickup my pr card and I sent IRCC email that the Dubai consulate is delaying the process. so I need to reschedule my card pickup appointment. i agree my number of days were less but this was because my spouse's sponsorship application was taking too much time and I had to live with my husband

Not sure that would be a valid reason in the eyes of IRCC.

 

[ashs]

Not sure that would be a valid reason in the eyes of IRCC.

my question is what is the probability of appeal acceptance?