Below is what the CBSA officer told me when he called me. According to my attorney this officer is the Minister's delegate.
I could see that there may be HC Grounds that were not mentioned at the POE examination, and that I wanted you to be able to express those as part of your PR card renewal application – something that I do not issue, and you would provide that to IRCC. Once you send me a proof of renewal application I will drop this report.
When my attorney reached out to the officer, the officer told him the same thing. Based on which my attorney is saying that if we don't apply for renewal, the officer will issue a removal order. But if we file for renewal, the officer will drop the report.
As
@armoured noted, this is hugely important context. And damn good to know. Your experience here adds considerable texture to what we know about the parameters of leniency being exercised toward PRs, in addition to also more fully addressing the concerns expressed in
@Ponga's question, which frankly but for this explanation would be rather well-founded.
In particular, unless it is clearly erroneous, I am reluctant to second-guess what a lawyer says. And I am not qualified at all to offer advice, let alone challenge a lawyer's advice.
BUT, but until this explanation there were some serious red flags flying. After all, it was not clear what the lawyer meant when the lawyer "
explained the CBSA is not legally obligated to consider the HC ground . . ." SINCE, actually, the CBSA officer acting in the role of a Minister's Delegate
is legally obligated to consider H&
C factors before the officer/MD can issue a Removal/Departure Order.
What you say about the lawyer's comments seems to suggest that even at that stage of formally commenced inadmissibility proceedings (the Report roughly constituting the equivalent of filing a complaint in a civil lawsuit or an indictment in a criminal case) the officer/MD has discretion to dismiss or drop or set aside the Report without formally deciding that there are sufficient H&C reasons for allowing the PR to keep their status.
But this is not something we have seen others report. And here's the thing: it is hugely important whether the CBSA officer/MD actually sets the Report aside (drops/dismisses the Report) rather than, say, simply puts it on hold or in some fashion leaves it in limbo. So please return here to share how this goes. It will really help some of us help others to know. So, again,
please do return here to share how this goes.
We are in the process of applying for renewal of card.
that application requires some letters of support. I can perhaps start a separate thread on letters of support to see if anyone has any experience with that.
Actually making a PR card application relying on H&C factors does not require letters of support. It requires an explanation of whatever H&C reasons the PR has to present together with some supporting evidence, documents which help prove the existence, validity, and scope of those reasons. That can include letters of support, but does not necessarily mean that they must be included, such as letters from other family in Canada attesting to the PR's ties in Canada and perhaps supporting the PR's claim to be pursuing permanent settlement in Canada.
So, your query about supporting letters was among the red flags. If you have a lawyer, the far, far better source of how to go about this is your lawyer's advice, guidance, and instructions, addressed to the specific facts and circumstances IN YOUR PARTICULAR situation. What any other PR has submitted is largely NOT relevant because this is so dependent on the specific facts in the individual's case.
Some Further Observations About the 44(1) Report:
Once the Report was prepared, your days in Canada did not get credit toward meeting the RO. And generally this means that in conducting the H&C assessment, in which the calculation of days credited toward the RO is a huge factor (the biggest factor in most RO cases), days in Canada since the Report was prepared are not counted.
But if the Report is in fact set aside, generally that should mean the days you have been in Canada since May will count. Not enough to meet the RO, but 150 days is better than just 10 days.
In contrast, if the Report was put on hold, for example, your days in Canada would continue to NOT get credited toward meeting the RO.
Your situation, however, is not clear. Technically the applicable regulation provision which states that days in Canada do not count "
after" the Report is prepared (this is Section 62(1)(a) in IRPR, which is here:
https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-9.html#h-686425 ) "
does not apply" if the PR "
is subsequently determined to have complied" with the RO (the latter is subsection 62(2) IRPR).
Generally, once the Report is prepared by a CBSA officer, the reviewing CBSA officer (the MD), the Report is set aside if the MD determines:
-- the PR complied with the RO, or
-- there are sufficient H&C reasons to allow the PR to keep status
So, here's the thing, the officer/MD will need to make some entry into your GCMS records to effect dropping/dismissing/setting-aside the Report.
As I noted,
we have not seen this scenario reported by others. It is not at all clear how this will be notated or documented by the officer/MD. Following the lawyer's advice to proceed with the H&C based PR card application is probably your best approach no matter how the officer/MD documents the decision to "
drop" the Report.
So in terms of what you do, how the officer/MD does this probably does not affect what you need to do, what you should do. So following your lawyer's guidance is most likely the best approach.
But how this is formally documented in your records could potentially have a big impact on how this goes for you. And if in terms of what goes into your GCMS records it reflects the equivalent of a positive H&C ruling by the officer/MD (decision setting aside the Report), that should evoke section 28(2)(c) IRPA (which is here:
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-5.html#h-274598 ) which provides that the H&C determination "
overcomes any breach of the residency obligation prior to the determination," which could mean your PR card application should be approved on H&C reasons.
THING IS . . . IRCC does not strictly follow its prescribed practices. Just this setup itself is outside prescribed practices. So again, it could be really helpful here if you follow-up and keep us informed about how this goes for you.
@canuck78 may be correct, and indeed that appears to be the officer/MD's intent, to in effect punt the H&C assessment . . . but again, the 44(1) Report means formal inadmissibility proceedings were commenced, so it is curious how that will be reflected in your records, and what effect that will have.
CAVEAT: there is no guarantee how this will go. If the manner in which the Report is dropped has the effect of a positive H&C determination, should go OK. But otherwise, a lot will depend on the strength of your H&C reasons.
