H&C waiver of PR RO breach for PR abroad due to personal employment choice

[dpenabill]

Many of the cases involving the loss of PR status due to a breach of the PR Residency Obligation, which reach the Federal Court, including H&C cases, tend to be anomalies, some more than others.

But even the anomalies reveal the range of possibilities.

I do not mean to offer false hope when I cite the CONSTANCIO ABARQUEZ case. This one, I think, really is a highly, highly unusual exception. See
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/145420/index.do

(PR TD denial appeal)

But it is quite a remarkable case and illustrates the extent to which the H&C relief is so intensely focused on the particular and peculiar facts and circumstances of the individual case.

Thing is, Constancio Abarquez never really established himself in Canada, leaving soon after landing some two decades ago, and since then only spending sporadic periods of time in Canada with the exception of one eight month stay a decade and a half ago. No time in Canada in the relevant five years.

But his family, his spouse and children, and eventually grandchildren all settled in Canada.

Again, he had NO presence in Canada during the relevant five years. NONE.

His reason for not being in Canada was specifically because there was no work for him in Canada, so he returned to his former employment.

This time he sought a PR TD so he could come to Canada to settle and be with his family, as he had retired.

The IAD ruled in his favour based on H&C grounds. CIC or IRCC appealed, but Justice Roussel found that the IAD's decision was
reasonable and fell within the range of possible acceptable outcomes which are defensible in respect of the facts and law.

I cite this case precisely because it illustrates the range of factors, and how they interrelate, that can have a big influence in how the H&C case is decided for a PR who has breached the PR RO.

In this case it was largely the PR's family in Canada which made the difference. PR gets to keep status and live in Canada with his family.

 

[keesio]

Wow that is quite a ruling. But with his strong (and large) family ties, I'm sure that was a big factor. I wonder if he was paying (or at least filing) taxes to CRA all this time also. Since a spouse in Canada is considered a strong residential tie to CRA, I would imagine he would need too. If he was filing his taxes, then I can see why he had a strong case ("Hey, CRA considers me a resident for taxation!")

 

[zardoz]

In many respects, the IAD ruling against him would have been pointless as he could just have been re-sponsored. While unusual, it may be pragmatic.

 

[axelfoley]

@dpenabill

Thanks for pointing out this very informative case. In case I get reported for my own breach of the RO, I will look to see what I can learn from this case to position myself accordingly for my own appeal in the future at the IAD. As you say each case is different, but there are some lessons that can be gleaned.

 

[dpenabill]

@dpenabill

Thanks for pointing out this very informative case. In case I get reported for my own breach of the RO, I will look to see what I can learn from this case to position myself accordingly for my own appeal in the future at the IAD. As you say each case is different, but there are some lessons that can be gleaned.

To be clear, the decision in this case, it must be noted and emphasized, is highly unusual. Perhaps unique, in the true meaning of unique (one and only one).

The take-away is the extent to which IRCC can be influenced by various factors, including it appears those evoking sympathy. The H&C case for retaining PR despite a breach of the PR RO is quite different from H&C in other contexts, and whether the individual is seen as someone deserving to keep PR status tends to be a big factor. But it is very, very difficult to define what "deserving to keep status" means or how one goes about advocating this element.

Nonetheless, it should be remembered, the H&C case is a difficult one to successfully make. With some exceptions, like the PR who was removed from Canada while a child who promptly makes the H&C case in order to return to Canada soon after attaining the age of majority.

 

[Rob_TO]

In many respects, the IAD ruling against him would have been pointless as he could just have been re-sponsored. While unusual, it may be pragmatic.

I agree with this. Since the spouse could just turn around and sponsor him again under family class if the appeal was rejected and PR revoked, this may have had a factor in the final decision. By allowing the H&C claim they are effectively lessening the workload of CIC since they don't need to now submit and have a new family class PR app processed.

Wouldn't be surprised at all if there similar such cases where it would otherwise be a formality for the person to just get PR again right after an appeal is rejected.

Considering the length of time it takes to hear an appeal and possible high lawyer costs, I'm surprised people even choose to appeal these things to begin with when instead renouncing PR and applying under family class again would be quicker/easier in many cases.

 

[dpenabill]

Regarding Influence of Potential Partner-Sponsored PR Application If PR Status is Lost:

It warrants noting that the possibility, in the event a PR loses PR status due to a breach of the PR RO, that the PR may be sponsored by a spouse who is living in Canada, has actually been oft cited as a reason for NOT allowing the PR to retain PR status based on H&C reasons.

In fact, in upholding a decision by the IAD the Federal Court (Justice Bédard) has, for example, explicitly affirmed the IAD's conclusion that the possibility of future sponsorship obviates the hardship that would result from the loss of PR status due to the PR being separated from a spouse and children living in Canada, noting:
" . . . the applicant’s departure from Canada would be sad for the applicant and his family. However, . . . the applicant could apply for a visitor’s visa and when he is ready to come to Canada permanently, the family could sponsor him."

see http://canlii.ca/t/fr0p8 (Justice Bédard decision re Nekoie), a case which has been cited as authority in more than a hundred other decisions


Similar reasoning, to uphold the denial of a PR TD and thereby result in loss of PR status, was very recently (this year) applied by the IAD:

"The appellant does not need permanent resident status to come and go as it is available to him to apply for a multiple entry visa which given the presence of his family here he would likely have no difficulty obtaining. Furthermore, it is available to his wife to sponsor his return to Canada as a member of the family class if and when he decides that he wants to reside here permanently."

see http://canlii.ca/t/grz9l re Madol Cuot Cep


Similarly for a PR who regularly visited his family in Canada but who failed to comply with the PR RO, and here too the IAD specifically cited the fact that there appears "to be no reason why [the PR's] wife could not successfully sponsor [the PR] once he decides that it is time to retire. In the meantime, his wife can visit him [abroad]."

See http://canlii.ca/t/grph4 re Aoun

also see http://canlii.ca/t/grph6



I do not read all IAD decisions (but have been reading nearly all related Federal Court decisions for many years), but overall, except for the Abarquez decision, the capacity of the PR to be sponsored (even in a parental sponsorship by children in Canada) is typically cited as obviating the hardship which might result from loss of PR and being separated from family in Canada. Thus, eligibility to be sponsored for PR status is a reason oft cited to uphold taking away PR status (when there is a breach of the PR RO).

But again, reading such decisions amply illustrates that it is very rare for one factor to dominate the decision-making process; illustrating, rather, that the interrelationship of many factors has a lot of influence.

In particular, definitive declarations regarding the impact of this or that circumstance are rarely entirely accurate and too often misleading. Sure, it is true that one may safely say certain factors will increase or decrease the odds for or against a successful H&C case. For example, yes, one can safely say that the more days in breach the worse the odds, or the more the reasons for being abroad were based on personal choices, the lower the odds. And yes, certain circumstances tend to have more consistent results, such as H&C reasons made by a PR removed from Canada while a minor attempting to return to Canada, and keep PR status, shortly after attaining the age of majority. But overall, generalizing based on isolated or individual factors is not reliable and too often misleading.


Overall: best shot at H&C reasons succeeding:

Overall, it still appears that for PRs in breach of the PR Residency Obligation, the PR's best shot of making a successful H&C argument, for relatively minor breaches of the PR RO, is at the PoE, persuading either the examining officer, or the examining officer's superior (who is often the Minister's Delegate, the officer who decides whether to issue a Departure Order or not), to allow entry into Canada without being reported or issued a Departure Order. In contrast, PR TD applications appear to be the harder way to succeed in making the H&C case.

Obviously, complex H&C cases will require a more thorough assessment, and the PoE officers are less likely to waive a PR through, without report or Departure Order, if there is a large shortfall in compliance.

Additionally, PRs with obviously strong H&C cases, like the PR who was removed from Canada while a minor and is seeking to live in Canada soon after attaining the age of majority, might be better off applying for a PR TD and obtaining a more formal H&C decision which would enable them to apply for and obtain a PR card (without having to stay in Canada long enough to come into compliance with the PR RO before applying for a new card, which is what the PR in breach needs to do if lucky enough to be waived into Canada without being reported).

 

[Rob_TO]

"The appellant does not need permanent resident status to come and go as it is available to him to apply for a multiple entry visa which given the presence of his family here he would likely have no difficulty obtaining. Furthermore, it is available to his wife to sponsor his return to Canada as a member of the family class if and when he decides that he wants to reside here permanently."

The "no difficulty obtaining" part seems to fly in the face of reality, where we see daily reports here of TRVs being rejected due to applicant having family in Canada that gives too strong a tie and concern they will not leave.

 

[dpenabill]

The "no difficulty obtaining" part seems to fly in the face of reality, where we see daily reports here of TRVs being rejected due to applicant having family in Canada that gives too strong a tie and concern they will not leave.

I agree that these decisions gloss over real, practical difficulties imposed on those who lose PR status and thus are not entitled to enter Canada in order to spend time with family in Canada.

It reminds one of the rather cavalier position of IRCC relative to delays in processing PR card renewals, which is that such delays do not impose a significant burden on PRs because if abroad the PR can obtain a PR Travel Document to facilitate the return to Canada. Much easier said than done, and for many, particularly those traveling to certain parts of the world, obtaining a PR Travel Document can indeed be problematic, not merely a burden but outright difficult.

That said, the issuance of TRVs is another one of those processes regarding which the underlying factors loom very large and for which it is a mistake to generalize prospective outcomes based on single factors. Yes, in general, Foreign Nationals who are not visa-exempt tend to encounter more difficulty obtaining any visitor status in Canada if there is an ostensible incentive for that individual to stay in Canada once the individual has physically entered Canada. And relatively close family, let alone immediate family (like partner or children) are indeed considered to be a big incentive to stay rather than just visit. But former PRs are NOT "in general" Foreign Nationals. Moreover, even FNs with a history of international travel in compliance with immigration laws in other countries, but especially those who have traveled to Canada and timely left (and without otherwise violating Canadian immigration laws, such as not working illegally while in Canada), generally tend to be issued visitor status to Canada even if there are some incentives for them to stay (like family in Canada). Remember, breaching the PR Residency Obligation is in no way a violation of Canadian immigration law. And the PR who loses PR status because of spending time outside Canada has a demonstrated history of leaving Canada.

In other words, while obtaining a TRV is not so easy as these decisions allude, the former PR seeking visitor status to spend time with family in Canada will not likely face elevated difficulty due to the fact of having family in Canada, and actually (subject to other factors) family in Canada should help (even though, again, generally it appears to raise the bar considerably for most FNs who are not visa-exempt).

Another distinction worth noting, in the Abarquez case, is that Abarquez was already retired and seeking to return to Canada to stay permanently. In most of the cases I have read in which a PR with family well-settled in Canada loses PR due to breach of PR RO and unsuccessful H&C plea, it is either apparent the PR will continue to spend, at the least, a considerable amount of time abroad, or continue to be employed abroad, or there is at least no clear indication the PR is himself or herself (noting that female PRs are sometimes involved in such cases, but this tends to be rare compared to the number of men) is now settled or settling permanently in Canada. I vaguely recall one or two cases otherwise, but even in those it may have been there was doubt whether the PR was actually finally settling in Canada permanently. In any event, in one way or another, the majority of these cases tend to refer to the prospect of sponsorship if and when the individual is ready to settle permanently in Canada. Whereas it was apparent that Abarquez was ready to settle in Canada permanently.

It warrants further noting that these decisions also gloss over how difficult it can be to successfully sponsor a family member. There is no guarantee the family sponsorship will succeed. This is especially true for children sponsoring a parent, the requirements for which are now far more stringent than in the past. Thus, for example, if the spouse in Canada suddenly dies, or becomes terminally ill with a life expectancy less than how long it would take to sponsor the former PR spouse for a new PR visa, the former PR's opportunity to return to Canada to be in Canada for his children and grandchildren is suddenly, dramatically, diminished.

For example, if the former PR himself is injured and can no longer pursue his employment abroad, thus is no longer able to support his family in Canada, and thus the family in Canada needs to obtain social assistance to get by, the family will not be eligible to sponsor. (May be H&C relief for this scenario, but H&C relief is never a guarantee.)

In any event, there are scores of cases in the IAD decisions which specifically cite the future prospect of being sponsored for a new PR as a reason for rejecting H&C reasons, and deciding the PR in breach of the PR RO loses PR status, despite the fact that loss of PR status will separate the PR from spouse and children in Canada.