+1(514) 937-9445 or Toll-free (Canada & US) +1 (888) 947-9445

Few scenarios on RO, Help needed!!

Rob_TO

VIP Member
Nov 7, 2012
11,426
1,551
Toronto
Category........
FAM
Visa Office......
Seoul, Korea
App. Filed.......
13-07-2012
AOR Received.
18-08-2012
File Transfer...
21-08-2012
Med's Done....
Sent with App
Passport Req..
N/R - Exempt
VISA ISSUED...
30-10-2012
LANDED..........
16-11-2012
PMM said:
Hi

Ah but that may change somewhat in the new year, when the ETA kicks in. If a PR who hasn't met their Residency decides to fly to Canada as a visitor, they have to apply for an ETA online. When this happens, the fact that they are/were a PR is going to pop up, which probably will lead to questions by CBSA as to their status.
Will be interesting to see who will require ETA processing, and who won't.

In the US they have the ESTA program, and green card holders from a visa-exempt (visa-waiver in US) country are EXEMPT from ESTA.

So similarly we could see PR holders from visa-exempt countries also exempt from ETA
 

dpenabill

VIP Member
Apr 2, 2010
6,503
3,274
Last notice I saw was that the electronic authorization will be required for all visa-exempt travelers except U.S. citizens.

Reminder: visa-exempt status really has little to do with PRs in possession of a valid PR card traveling to Canada.

Even if PRs abroad must obtain electronic authorization for a flight to Canada, at this stage it is not clear what sort of screening that will entail. It may only be a check that screens for valid Travel Documents (and a valid PR card suffices for travel to Canada), does a security check, and checks for immigration related flags such as for travelers banned from entering Canada.

It is possible the eta process will be so robust as to identify and flag PRs based on residency obligation issues, but my guess is that it will not do this . . . recognizing, after all, unless there is an enforceable Removal Order, a PR in possession of a valid PR card has authorization to enter Canada, and while the eta process is intended to screen travelers it is also intended to do so with minimal delays or problems for those with no security issues and with authorization to enter Canada.

There is though the question about whether or not the eta system will identify PRs who are a visa-exempt traveler, traveling to Canada using the visa-exempt passport, and thus require them to have a valid PR card. This could affect those visa-exempt PRs who are abroad without a valid PR card, who in the past have often been allowed to board flights destined for Canada by displaying their visa-exempt passports.

Regarding the extent to which CBSA officers willfully decline to enforce Canada's immigration laws even when a returning PR is unquestionably inadmissible: obviously there is disagreement, a disagreement which cannot be resolved because there is no source of information about how many PRs who are clearly in breach of the Residency Obligation are nonetheless given a pass by CBSA, not issued a 44(1) report, at Canada's Ports-of-Entry. But I will say I have been a participant in this forum since 2010, following PR reports, and a participant in other forums going back years prior to that, and I do not believe there is more than a small number of claimed accounts of PRs being given a pass despite having been outside Canada more than three consecutive years, who did not either present a credible H&C explanation or who did not engage in some fudging, of one sort or another (in effect concealing from examining officers that they have not been in Canada for more than three years).

But the bottom-line is this: Any PR who has been outside Canada for more than three consecutive years should be prepared to make their H&C case upon arrival at the POE. And, unless they are confident their H&C case is convincing, to at the least be prepared to deal with the issuance of a Removal Order. Relying on a few, sporadic reports, that CBSA officers will only issue a caution to a PR who has not been in Canada at all for more than three years, and counting on CBSA officers to deliberately decline to enforce the very laws they are charged with enforcing, would be foolish.
 

Rob_TO

VIP Member
Nov 7, 2012
11,426
1,551
Toronto
Category........
FAM
Visa Office......
Seoul, Korea
App. Filed.......
13-07-2012
AOR Received.
18-08-2012
File Transfer...
21-08-2012
Med's Done....
Sent with App
Passport Req..
N/R - Exempt
VISA ISSUED...
30-10-2012
LANDED..........
16-11-2012
dpenabill said:
Last notice I saw was that the electronic authorization will be required for all visa-exempt travelers except U.S. citizens.
The only notice on CIC website is this one: http://www.cic.gc.ca/english/department/acts-regulations/forward-regulatory-plan/eta.asp
Establish the eTA as a requirement for entry to Canada from specified foreign nationals. The regulations will also specify which foreign nationals will be exempt from the eTA requirement (e.g. U.S. citizens).

Wording sounds to me like they will extend the exemption beyond the US (they just use US as 1 example). I can only assume they will copy the US system and also exempt PRs with visa-exempt passports.
 

canuck_in_uk

VIP Member
May 4, 2012
31,548
7,210
Visa Office......
London
App. Filed.......
06/12
dpenabill said:
But I will say I have been a participant in this forum since 2010, following PR reports,

I do not believe there is more than a small number of claimed accounts of PRs being given a pass despite having been outside Canada more than three consecutive years, who did not either present a credible H&C explanation or who did not engage in some fudging, of one sort or another (in effect concealing from examining officers that they have not been in Canada for more than three years).
Prior to this month, you hadn't posted anything on this forum since April 2010; given the fact that you've posted around 40 times in the past 20 days, I doubt that you were actually on the forum in those 4.5 years and just not posting. I have been an active participant for several years and have seen case after case of PRs not being reported. Scylla, who has been an active participant since 2010 and has nearly 20 000 posts, has also seen this.

As I said before, read the forum. You will see a LOT more than just a "small number of claimed accounts". The majority are not reported.
 

dpenabill

VIP Member
Apr 2, 2010
6,503
3,274
Rob_TO said:
The only notice on CIC website is this one: http://www.cic.gc.ca/english/department/acts-regulations/forward-regulatory-plan/eta.asp
Establish the eTA as a requirement for entry to Canada from specified foreign nationals. The regulations will also specify which foreign nationals will be exempt from the eTA requirement (e.g. U.S. citizens).

Wording sounds to me like they will extend the exemption beyond the US (they just use US as 1 example). I can only assume they will copy the US system and also exempt PRs with visa-exempt passports.
I do not recall if the last notice I saw was more recent than the April 22 notice you link, and seeing this one, it seems to me that it too may have cited U.S. citizens as an example, not exclusively. And I do not recall seeing any recent notices in the Gazette (but I have not diligently been watching for immigration related notices in the Gazette like I have for citizenship).

In looking at that notice, though, I am reminded (as I suspected) that it specifically refers to the eta as applying to "Foreign Nationals" which would not include PRs (PRs are Canadians, not Foreign Nationals, pursuant to the immigration act).

But if a PR abroad without a currently valid PR card is attempting to board a flight to Canada using a visa-exempt passport (and is not from a country also exempt from the eta requirement), the question remains whether the eta system will identify that individual as a PR and in turn require that individual to present a valid PR card or PR Travel Document. (Reminder: CIC client number ordinarily is, and should be, connected to any passports a PR uses.)
 

dpenabill

VIP Member
Apr 2, 2010
6,503
3,274
Clarifcation regarding eTA requirements:

The notice I was thinking about was more recent than that which is posted on the CIC website and my initial recall was mostly correct, the only nationality completely exempted from the eTA requirements will be U.S. nationals.

French citizens who are residents of St. Pierre and Miquelon will also be exempted if they seek to enter Canada directly from St. Pierre and Miquelon (which is mandated due to a treaty with France).

The other exemptions are limited, specific exemptions, and better examples would be the exemption provided for members of the British Royal Family, crew members for means of transportation in transit, and certain travelers in transit. Most of the exemptions are the same as those listed in the current Immigration and Refugee Protection Regulation section 190(3).

Reminder, the visa exempt nationalities are listed in section 190(1)(a) of the regulations.

The exemptions from the eTA will be (assuming the regulation is adopted) listed in new section 7.1(3) and the full proposed section 7.1 is published in the Gazette, now archived (see Gazette Part I Vol 148 (2014) and the notice published June 21, 2014).

By the way, once obtained it will be good for five years, so long as the traveler is traveling on the same passport. So it is not as if it will have to be obtained for every trip.

Additionally, as I previously indicated, it will only apply to Foreign Nationals (FNs) from visa-exempt countries. (FNs who are from a country which is not visa exempt must, of course, obtain a visa to board a flight to Canada, and the eTA will not apply to a FN who holds a temporary resident visa.)

So it really does not apply to Permanent Residents, recognizing that PRs are not Foreign Nationals. (Allowing, again, the question I have already raised: a PR using a passport from a visa-exempt country for travel to Canada, rather than a valid PR card, that is, traveling as a FN rather than as a PR.)

I tend to agree with PMM, however, that the implementation of this is likely to be accompanied by elevated scrutiny of at least some returning PRs, since as I suggested above it is all part of an overall trend at CBSA and CIC to more strictly enforce Canada's immigration laws and regulations, including the PR Residency Obligation.

By the way: anyone interested in considering actual cases where POE officers issue the 44(1) report (inadmissibility report) for non-compliance with the PR Residency Obligation, followed very shortly by the issuance of a Removal Order (which is pursuant to 44(2)), can find the officially published cases at the CanII site by searching for cases involving "Removal Order" and "residency obligation." Most of the cases are appeals of rejected applications abroad for a PR Travel Document, and some are for in-Canada decisions arising from adjudications following very foolish applications for a new card by PRs in breach of the RO (though some of these in-Canada adjudications are follow-up procedures where the POE officers initiated an investigation rather than immediately issuing the inadmissibility report), but by focusing on those cases in which Public Safety and Emergency Preparedness was a party and those in which the 44(1) report and the Removal Order (often referred to in the decisions as a "Departure Order") were issued on the same day, one can find cases which are mostly those where the POE officers issed the 44(1) report and a supervisor or such issued the Removal Order. See, for example, IAD decision upholding Removal Order for Xiao Xiao Zhang (The 44(1) report and Removal Order both issued at POE August 12, 2012; challenge to authority of the officer issuing the Removal Order rejected, ruled to be a proper Minister's Delegate.)

An interesting example tending to illustrate that the approach leans toward strict rather than lenient, is found in the (Voulgaris v. Canada) decision. I am not sure this (Voulgaris v. Canada) is a POE case, although that seems likely (even though it is not for sure indicated), in any event the report was issued as was, then, a Removal Order by the "Minister's delegate" . . . and appealed. At the hearing on the appeal, the Minister (actually a representative of the Minister of course) admitted the evidence showed the PR was physically present in Canada for 869 days and conceded that the appeal should be granted, setting aside the departure order. This involved an Australian national, so perhaps (guessing, the decision does not say) he was returning to Canada using a visa-exempt passport rather than a valid PR card, but as I said, this tends to illustrates an approach leaning more toward strict than lenient, including at the POE.
 

GRV

Star Member
May 5, 2009
119
1
Hi Guys
Back in the mix again, as said earlier would be going to Canada in April 15 but due to personal emergencies couldn't make the cut (my grandma passed away in Feb 15 & my father got ill) now that things are back on track so planning to make the final move. I know it's already too late as PR expiry date is Apr 2016 but have decided to take the plunge. Now have been reading quite a few cases on RO being not met & getting reported at Poe.

Based on the same I have few queries:
1. What are the chances of getting reported if I enter via road and showing my still valid PR card as compare to when I enter via air? Or in my case as its just 6-7 months for pr expiry, in any case I would be reported?

2. Is it better to enter with my wife and kid (need to apply for a trp for my kid though) and on the basis of my grandma and fathers illness on r&c grounds can try to justify my ro being not met. And with my family ard at the time of questioning, will make all of us go through the ordeal at the same time as compare to when they come later on separately?

3. What all documents are required as a proof for supporting H&C grounds? Do I need to carry original documentation for the same?

4. Let's say I get reported and asked to appeal within 30 days, as I read it takes ard an years time on an average to get a decision made on ur case. Now will that year / time spent in canada count towards 730 ro?

5. Finally, Any advise as to how should I plan my return to canada (don't know if it's a wise move but hoping for the best)?

Once again Thanks in advance guys for the reply, will wait for ur thoughtful replies.

Thx
GRV
 

GRV

Star Member
May 5, 2009
119
1
Hi Leon, PMM, Canuck & others..
Pls advise on my queries.... Its been long thoughtful days to plan out things. So need your guidance as well.


Thx,
Gaurav
 

Msafiri

Champion Member
Nov 18, 2012
2,667
104
Job Offer........
Pre-Assessed..
1. Historically trend was for the land border crossings to be more 'relaxed' compared to air but it all depends on who you find on the day.

2. Depends - one view is if you make then all make it but if you get reported then all get reported. Seems most PRs send one spouse to Canada then follow afterwards to give themselves a chance of both passing through without report. Your decision will be influenced by TRV/TRP acquisition. Waiting for this continues to increase your breach! Your H&C conditions cover only x days of the shortfall. They are not in themselves unless most compelling a complete get out of jail free card.

3. Letter from attendant physicians detailing the illness to include onset, impact, need and extent of care plus death certificate where someone is deceased (sorry about your grandma). A secondary aspect to these H&C reasons is for you to clarify why you were the one taking care of your parent...its easy if you live in the same city as he does and all your siblings live several hundred kilometres away.

4. Any time in Canada after report does not not count towards the RO..if it did no one would care about being reported and the lawyers would make sure your case dragged through the courts. You already had 1825 days to get 730 days...you can only get so much of a chance eh!

5. The RO clock is ticking so you have no option but to take the risk of re-entry and then dealing with your situation thereafter. This is a risk many RO breaching PRs end up facing where Plan A is go to Canada asap and Plan B is Go to Canada asap. That is if you want to be a PR and sponsor your minor child. It would be sensible to try and line up employment but this isn't an easy task if you are overseas and that the Canadian economy isn't in the sunshine phase it was when you left.
 

GRV

Star Member
May 5, 2009
119
1
Thanks for the reply Msafiri, yeah I was expecting the similar response. Actually, I know things are tough but will give it a try.

Msafiri said:
2. Depends - one view is if you make then all make it but if you get reported then all get reported. Seems most PRs send one spouse to Canada then follow afterwards to give themselves a chance of both passing through without report. Your decision will be influenced by TRV/TRP acquisition. Waiting for this continues to increase your breach! Your H&C conditions cover only x days of the shortfall. They are not in themselves unless most compelling a complete get out of jail free card.
Didn't get that sentence?

I am planning to file a TRV for my 2 year old kid. So you mean while filling the form I would be entering my details and the Immig. authorities can find out that we're (My wife & I) in a breach of RO? And if they reject her application, it would give a sign of what to expect, right?
But can't I, then, apply a TRP for her? (Its just that I want to take them along with me, dunno if thats a good idea but....)

Any idea on how much a lawyer charges for this type of case, if i plan to hire one. And if you or others know of someone who deals with such cases, then pls let me know.

Thx,
GRV
 

Msafiri

Champion Member
Nov 18, 2012
2,667
104
Job Offer........
Pre-Assessed..
GRV said:
Thanks for the reply Msafiri, yeah I was expecting the similar response. Actually, I know things are tough but will give it a try.

Didn't get that sentence?

I am planning to file a TRV for my 2 year old kid. So you mean while filling the form I would be entering my details and the Immig. authorities can find out that we're (My wife & I) in a breach of RO? And if they reject her application, it would give a sign of what to expect, right?
But can't I, then, apply a TRP for her? (Its just that I want to take them along with me, dunno if thats a good idea but....)

Any idea on how much a lawyer charges for this type of case, if i plan to hire one. And if you or others know of someone who deals with such cases, then pls let me know.

Thx,
GRV
1. You may not get a TRV (or it may take several months to get one) in which case one parent would presumably stay behind until a sponsorship is initiated unless you intend to leave the non PR child in the care of a relative. There is a PR on the forum from a couple of years back who ended up leaving her infant baby with the father as she had PR. She wanted to be able to sponsor her spouse and the child but was in breach of the RO. She applied for sponsorship too early upon her return to Canada while breaching the RO and got really lucky as CIC wanted to report her but gave her a pass. Bear in mind that family separation is often the self inflicted consequence of playing the RO roulette.


2. A TRV/ TRP application won't bring your RO breach to light as this is not reviewed in the respective applications. No idea how much you would be charged by a lawyer as it depends on extent of help you need and what this is for TRP, Sponsorship etc. For an idea maybe reach out to the owner of this forum.

3. Regardless who you use no lawyer can explain away your RO breach if its due to lifestyle reasons. The other indisputable fact is that your RO clock continues to tick and your breathing room continues to decrease. At some point in time you just have to take a decision...you don't want your PR Card to expire or worse get lost while you continue to 'evaluate' a suitable plan.
 

GRV

Star Member
May 5, 2009
119
1
Hi, Once again Msafiri thanks for taking time & replying. These kind of selfless acts really helps so many people out there. Its a great forum.

Now coming to your answers, I dint get the fact that:
1. Why is it difficult in my case that I wont be getting a TRV when getting reported on RO breach is nil? And u said it may take months to get a TRV whereas on CIC i checked it says processing time of 9-14 days.

2. Any which way, I am preparing to file for my kids' TRV, and I have few doubts on filling up my kids TRV appl. form:
a. HOW LONG WILL YOU STAY IN CANADA? clueless as to what to declare - 2years?

b. FUNDS AVAILABLE FOR MY STAY? - any estimate? should i show some funds in my Canadian Bank account but that would be like coming in the account in next few days and might show its not past years'

c. NAME & ADDRESS WHOM YOU WILL MEET? just the address of the place where we will be staying?

d. Also, as i am the inviter, so i have to present the written letter with proofs on financial stability but not sure if I can write in the invitation letter itself that we, the parents being the PR already, want to take our 2 years' old kid to Canada. Don't know what exact statement to mention? Any idea on this???

e. Shall I use the Representative's form if i am filling up my kids' form?

Any kind of QUICK help with above queries will really be appreciated. And once again, thx for the help with your answers. It really helps :)

Thx,
GRV
 

dpenabill

VIP Member
Apr 2, 2010
6,503
3,274
I strongly suggest that somehow you obtain the assistance of a reputable immigration and citizenship lawyer , a Canadian lawyer, a full member of the Bar in Canada. Not easy while abroad, granted, but even the simplest H&C cases are tricky. If you even have a H&C case, it is not a simple one.

Any application to CIC now is likely to trigger a Residency Determination given that it has been more than four years since you were last in Canada.

The problem you have is that your best hope (none of us know what the odds are, but best guess has to be NOT good) may be to, in effect, come to Canada and by presenting a valid PR card get waived into the country without being examined regarding the PR Residency Obligation. This may be your only hope.

But you should obtain the advice of a Canadian lawyer about these things as soon as possible.

In contrast, applying for a TRV or TRP for the child is very, very likely to result in a Residency Determination for you . . . or, at the least, result in a flag on your FOSS virtually guaranteeing an examination at the POE which is likely to result in the issuance of the 44(1) Report and a Removal Order. Problem is that the application for the TRV or TRP will be processed at the visa office abroad, and as best as I can discern, these offices tend to be far more strict than CBSA at a POE or CIC local offices in Canada.

You are in a tough spot relative to preserving your Canadian PR status. Based on what you have reported, you have some H&C reasons but they tend to only explain segments of the time . . . whether tacking H&C reasons together along with practical hurdles will suffice to persuade CBSA or CIC you deserve to retain PR status is, well, almost impossible to guess. My strong sense is that you really need the assistance of a Canadian lawyer in order to have much hope of successively retaining your PR status.

That said, there are still some indications that CBSA and CIC (at least CIC in Canada offices) may be lenient regarding the PR RO for PRs still within the first five years and who demonstrate a commitment to actually establishing a life in Canada. A lawyer should be able to tell you far more. And a lawyer should be able to help you put together a decent H&C case, including if you decide to apply for the child's TRV.

Edit to add: to be clear, what I am saying is that I think it would be foolish to make the TRV application without at least first obtaining some advice from a Canadian lawyer.
 

dpenabill

VIP Member
Apr 2, 2010
6,503
3,274
For futher clarification (in recognition of how difficult your situation is):

As I emphasized above, my sense is that applying for the TRV without the advice and assistance of a Canadian lawyer is foolish. I am not sure of this, but the risk is so apparent, so high, it is difficult to see the TRV application accomplishing anything more than alerting CIC you are in breach of the RO and eventually resulting in a likely negative Residency Determination for you.

But for clarification, by way of illumination, some of your questions highlight the quandry:

GRV said:
Hi, Once again Msafiri thanks for taking time & replying. These kind of selfless acts really helps so many people out there. Its a great forum.

Now coming to your answers, I dint get the fact that:
1. Why is it difficult in my case that I wont be getting a TRV when getting reported on RO breach is nil? And u said it may take months to get a TRV whereas on CIC i checked it says processing time of 9-14 days.

2. Any which way, I am preparing to file for my kids' TRV, and I have few doubts on filling up my kids TRV appl. form:
a. HOW LONG WILL YOU STAY IN CANADA? clueless as to what to declare - 2years?

b. FUNDS AVAILABLE FOR MY STAY? - any estimate? should i show some funds in my Canadian Bank account but that would be like coming in the account in next few days and might show its not past years'

c. NAME & ADDRESS WHOM YOU WILL MEET? just the address of the place where we will be staying?

d. Also, as i am the inviter, so i have to present the written letter with proofs on financial stability but not sure if I can write in the invitation letter itself that we, the parents being the PR already, want to take our 2 years' old kid to Canada. Don't know what exact statement to mention? Any idea on this???

e. Shall I use the Representative's form if i am filling up my kids' form?

Any kind of QUICK help with above queries will really be appreciated. And once again, thx for the help with your answers. It really helps :)

Thx,
GRV


2. Any which way, I am preparing to file for my kids' TRV, and I have few doubts on filling up my kids TRV appl. form:
a. HOW LONG WILL YOU STAY IN CANADA? clueless as to what to declare - 2years?


The obvious answer is permanently, and that you plan to apply to sponsor your child for PR. This illustrates the horns of one dilemma (among many): at this stage, if your plans are anything other than to settle permanently in Canada, the extent to which you deserve to retain PR status declines dramatically. But, by answering permanently or indefinitely, depending on outcome of sponsorship application, that is going to trigger further inquiry into the validity of your status (if that has not happened already).

In any event, though, you need to be honest. If the honest answer is not permanently or indefinitely, depending on outcome of sponsorship application, why bother pursuing this at all?

b. FUNDS AVAILABLE FOR MY STAY? - any estimate? should i show some funds in my Canadian Bank account but that would be like coming in the account in next few days and might show its not past years'

Whatever you have available, honestly available, and not less.The funds can be in any account anywhere, so long as you will have access to them. Moreover, your status as a PR allows you to assert your capacity to support the child by earning an income in Canada . . . how much weight the latter carries given your absence from Canada, thus lack of employment history in Canada, is uncertain. Here too, your status will most likely be tagged as an issue, thus again triggering at the least a flag in FOSS if not the commencement of a Residency Determination.


c. NAME & ADDRESS WHOM YOU WILL MEET? just the address of the place where we will be staying?

Without looking at the form, if there is a way to say something to the effect "accompanying parent PR," that is the better answer for "name" . . . and yeah, if you have an address to use in Canada, by all means use that. In any event, here too the honest response cannot avoid the overriding fact of this involving you, and your status as a PR.

d. Also, as i am the inviter, so i have to present the written letter with proofs on financial stability but not sure if I can write in the invitation letter itself that we, the parents being the PR already, want to take our 2 years' old kid to Canada. Don't know what exact statement to mention? Any idea on this???

What else can you say? You absolutely need to be honest in whatever application and submissions you make. Anything which so much as hints of fudging the facts will sabotage any hope you have of being allowed to retain PR status on H&C grounds.


I went into the above mostly to illustrate that the application for a TRV (unless a lawyer says otherwise) will inherently put your status in issue, front and center, and that seems to be a bad idea if you want to retain PR status.

Your path to retaining PR is a difficult one.

I have said (similar to much of that which underlies what others have said) that your best hope might be, in effect, slipping back into Canada without a residency examination at the POE. That really is mostly about you personally retaining PR status and then going through a rather convoluted process to pull your family into Canada later . . . recognizing again that any application by you before you are in actual compliance with the PR RO risks the commencement of at least a residency investigation if not Residency Determination . . . which could entail some rather lengthy separations and all the difficulties that would entail.

That said, if what you do brings about a more or less formal assessment of your status, and you successfully make the H&C case, in effect resulting in either CBSA or CIC recognizing that you should be allowed to retain PR status based on H&C grounds, your status would be more or less secure for the near future. This would be subject to a bit of risk, and you probably would not be eligible for a new PR card until meeting the 730 days obligation, but sufficient to do things like apply for your child's TRV and even to sponsor your child's PR.

That is a big if. This is something where a lawyer's help might significantly improve your chances. There are risks and some luck involved. But if your objective is to retain PR status with a minimal disruption to keeping your family together, it might actually be better to get into a situation where CBSA or CIC assesses your compliance with the PR RO and find out if your H&C case will fly. If not, then you know. If so, welcome to Canada.

Caution: Most reports suggest such determinations made by CIC visa offices abroad are far more strict than those made by CBSA at a POE or CIC in a local office in Canada. That is, an action which triggers the examination at a POE or while the PR is in Canada appears to have significantly better odds of success than if the action (such as an application for a TRV, or the PR's application for a PR TD) triggers a determination by a visa office.


Thus, for example . . . . If there was a way to have your child cared for by another, and both you and your spouse make the trip fully prepared to make the H&C case at the POE, including having all related supporting documents in your hands (not in checked baggage) upon arrival, and then one of two things is likely to happen:

-- you are waived into Canada without much of an examination regarding compliance with the RO

-- you are subjected to a residency examination at the POE, at which you make your H&C case, following which you are then waived into Canada (no report issued) or a 44(1) Report is issued and there is then an interview with the "Minister's Delegate" (typically the reporting officer's supervisor) who decides whether or not to issue a Removal Order

What you do then depends, foremost, on what happened at the POE, and then in large part on how soon you need your child to be reunited with you. If for example you are waived into Canada, without an examination as to the RO, and you have someone you trust to care for and raise your child abroad for an extended period of time, you can wait to you are fully settled, have employment, a definite home, and so on, and then obtain the advice and assistance of a Canadian lawyer in how you will proceed from there, as in how soon you might go ahead and attempt to obtain a TRV for the child despite the risk of triggering the Residency Determination, but prepared to make the H&C case for preserving PR status.

The irony is that in some respects, the best scenario is to face a residency examination at the POE, in secondary, to have a sufficiently probing examination to constitute a more or less formal assessment of H&C grounds for waiving the breach of the PR RO. That should obviate any challenges to PR status based on RO grounds if thereafter you get established, obtain employment, have a home in Canada, and so long as there then are no further extended absences until you have solidly met the PR RO. You could even travel some while your current PR card remains valid (after a reasonable period of time remaining in Canada and having established yourselves in Canada), apply for your child's TRV, even make the application to sponsor your child for PR . . . just not apply for a new PR card. The reason for this is that once the PR has established H&C grounds sufficient to preserve PR status, this determination will ordinarily not be revisited.

Technically it would be more secure to actually be issued the 44(1) Report but then convince the Minister's Delegate you deserve to retain PR status for H&C reasons. That would constitute a formal determination of status. But this scenario is not likely . . . most reports suggest that if there are H&C grounds anywhere near sufficient, the examining officer will consult with the supervisor before issuing the 44(1) Report, so that in practice (at least this is how it appears to usually work) if the 44(1) Report is issued, the Minister's Delegate is almost certain to issue the Removal Order.

If the Removal Order is issued, appeal. Assistance and representation by a qualified Canadian lawyer is virtually imperative at this stage, that is if the individual wants to have any real chance of a favourable outcome on appeal.
 

abhinavshah

Full Member
Nov 13, 2013
38
3
Hi,

I have my Ontario PNP approved and my Federal part of PR application is in process. It is under the regular process and not under express entry system. My current status in Canada is open work permit. I plan to get married to my girlfriend in India in January 2016, and plan to add my spouse to my pending PR application soon after I come back to Canada after my wedding.. While I am in India, after my wedding, I plan to apply for her open work permit under the spouse open work permit category.

How does it work? Can one apply for spouse open work permit while that spouse's name is already added on the primary person's PR application? Also, do you think if it is wise to apply for her work permit before I add her name on my PR application? or apply after the name is added? During her work permit application time, do I need to inform CIC that my PR application is under process?