Help with PR Card Renewal: Clarification Needed for Sections 3.2 and 3.4 of IMM 5444

[Hibo03]

Hello Everyone

I’m seeking advice and clarification regarding my PR card renewal application, specifically questions 3.2 and 3.4 in Section 3 of form IMM 5444. Here's some background:

I am a permanent resident, and my PRTD was refused last year due to a failure to meet the residency obligation. I was given 60 days to appeal or risk losing my PR status. I appealed to the Immigration Appeal Division (IAD), which overturned the original decision on humanitarian and compassionate grounds. Earlier this year, I was issued a PRTD with RC-1, and I am now back in Canada and close to completing my residency obligation. Will be applying for my PR Card in coming days once I am in compliance of the obligation.

Question 3.2:
"If an immigration officer or a Canadian Border Service Agency officer has ever issued you an inadmissibility report under Subsection 44(1) of the Immigration and Refugee Protection Act or has made the decision that you have not met the residency obligations for Canadian permanent residents. "

The guide for the form explains this question further as:
"Has an immigration officer or a Canadian Border Service Agency officer made the decision that you have not met the residency obligations for Canadian permanent residents?"
(Source: PR Card Guide - Canada.ca)

From my understanding:

• Subsection 44(1) is generally issued at the border or within Canada.
• In my case, the original decision of not meeting the residency obligation came with the refusal of my PRTD application outside Canada. While that decision was later overturned, the officer did raise concerns about residency obligations at that time.

Question 3.4:
"Have you ever appealed to the Immigration and Refugee Board of Canada?"

For this question, I intend to answer Yes because I appealed to the Immigration Appeal Division (a branch of the IRB), and the initial decision was overturned.

I am seeking advice as there seems to be a difference of opinion regarding how to approach question 3.2. Some have suggested answering Yes due to the original residency obligation related concerns, while others believe the reference to subsection 44(1) means I should answer No. I attempted to contact IRCC for clarity, but they were unable to provide a conclusive answer.

Any guidance from those with similar experiences or knowledge of how to navigate this would be greatly appreciated.

 

[Hibo03]

@dpenabill and @armoured I will really appreciate if you can spare some time and share your valuable opinion.

I am also considering whether it would be appropriate to answer "No" to section 3.2, and instead provide additional details in section 3.6 (mandatory explanation if any "Yes" is selected in section 3) and attached letter of explanation as a last resort. In doing so, I would clarify my uncertainty regarding the correct response and emphasize that I am not attempting to withhold any information but rather taking a cautious and transparent approach.

 

[armoured]

I am seeking advice as there seems to be a difference of opinion regarding how to approach question 3.2. Some have suggested answering Yes due to the original residency obligation related concerns, while others believe the reference to subsection 44(1) means I should answer No. I attempted to contact IRCC for clarity, but they were unable to provide a conclusive answer.

To quote the text and bolding the parts that clearly apply to you:
"If an immigration officer or a Canadian Border Service Agency officer has ever issued you an inadmissibility report under Subsection 44(1) of the Immigration and Refugee Protection Act or has made the decision that you have not met the residency obligations for Canadian permanent residents. "

This is clear and unambiguous, in my opinion. Any sophistry about it not having been done under 44(1) is clearly specious and should be ignored, since the text covers your situation. (And probably wrong, in my opinion, but the text I've bolded means I don't even have to go back and read the relevant part of the act.) The PRTD refusal means, no question, that you were determined by an officer not to have met the residency obligation.

No big deal, mind. You'll provide the explanation and documentation that you have that on appeal, you were found by the IAD to have met the RO (via the H&C provisions that are part of the act). Or more simply, an officer did find that, but a higher instance overturned that determination.

By the way, I don't believe you have to wait now to apply for a PR card (that is, until you have the 730 days/five years). The decision overturning that was a decision that you DID meet the RO (via the H&C provisions that - again - are an integral part of the act). But if you're close to having the days, sure, wait.

 

[Ponga]

@dpenabill and @armoured I will really appreciate if you can spare some time and share your valuable opinion.

I am also considering whether it would be appropriate to answer "No" to section 3.2, and instead provide additional details in section 3.6 (mandatory explanation if any "Yes" is selected in section 3) and attached letter of explanation as a last resort. In doing so, I would clarify my uncertainty regarding the correct response and emphasize that I am not attempting to withhold any information but rather taking a cautious and transparent approach.

Since the person that processed the PRTD would have [likely] been an immigration officer, I say leave it as `yes'.

 

[Hibo03]

@armoured Thank you for reviewing my query and sharing your insights. What you mentioned makes sense, although my concerns stemmed from the highlighted portion being included in the guide but not in the application itself. Nonetheless, I will proceed by marking the section as you advised.

I had previously assumed I could apply for my PR card immediately without any waiting period. However, based on what an immigration consultant suggested and what I was told during a call with IRCC, there’s a possibility that submitting a new application could trigger a fresh review. They advised that this might not be ideal. Now since I’m only a few weeks away from meeting the residency obligation, I feel it’s safer to wait rather than take any unnecessary risks.

Unfortunately, neither the IAD, CBSA, IRB, nor IRCC were able to provide clear guidance on this matter, and the formal procedural documents do not explicitly outline the rights or steps to follow after receiving a favorable outcome. Given the importance of these applications—especially when there’s a residency obligation concern—I firmly believe it’s wise to seek professional assistance in the absence of clear documentation.

That said, I was also comfortable waiting to submit my application rather than spending a few hundred dollars on professional advice unnecessarily.



@Ponga Thank you for your valuable advice, it’s greatly appreciated.

 

[armoured]

@armoured Thank you for reviewing my query and sharing your insights. What you mentioned makes sense, although my concerns stemmed from the highlighted portion being included in the guide but not in the application itself.

I'll just clarify here that regardless, with IRCC it is definitely safer in almost all cases to err on the side of disclosure, even if it seems questionable - and then provide any clarifying info in letter of explanation.

So better safe than sorry, and disclosing things to them (even if they already know about them and even if language could be quibbled about) is the better move. (Or put differently: only lawyers should be parsing language like that, and even they probably shouldn't most of the time).

On your point about the PR card app: given where you are now, certainly does make more sense to wait.

 

[scylla]

@armoured Thank you for reviewing my query and sharing your insights. What you mentioned makes sense, although my concerns stemmed from the highlighted portion being included in the guide but not in the application itself. Nonetheless, I will proceed by marking the section as you advised.

I had previously assumed I could apply for my PR card immediately without any waiting period. However, based on what an immigration consultant suggested and what I was told during a call with IRCC, there’s a possibility that submitting a new application could trigger a fresh review. They advised that this might not be ideal. Now since I’m only a few weeks away from meeting the residency obligation, I feel it’s safer to wait rather than take any unnecessary risks.

Unfortunately, neither the IAD, CBSA, IRB, nor IRCC were able to provide clear guidance on this matter, and the formal procedural documents do not explicitly outline the rights or steps to follow after receiving a favorable outcome. Given the importance of these applications—especially when there’s a residency obligation concern—I firmly believe it’s wise to seek professional assistance in the absence of clear documentation.

That said, I was also comfortable waiting to submit my application rather than spending a few hundred dollars on professional advice unnecessarily.



@Ponga Thank you for your valuable advice, it’s greatly appreciated.

If unsure, disclose. This is by far the safer option.

 

[dpenabill]

@armoured Thank you for reviewing my query and sharing your insights. What you mentioned makes sense, although my concerns stemmed from the highlighted portion being included in the guide but not in the application itself. Nonetheless, I will proceed by marking the section as you advised.

I had previously assumed I could apply for my PR card immediately without any waiting period. However, based on what an immigration consultant suggested and what I was told during a call with IRCC, there’s a possibility that submitting a new application could trigger a fresh review. They advised that this might not be ideal. Now since I’m only a few weeks away from meeting the residency obligation, I feel it’s safer to wait rather than take any unnecessary risks.

Unfortunately, neither the IAD, CBSA, IRB, nor IRCC were able to provide clear guidance on this matter, and the formal procedural documents do not explicitly outline the rights or steps to follow after receiving a favorable outcome. Given the importance of these applications—especially when there’s a residency obligation concern—I firmly believe it’s wise to seek professional assistance in the absence of clear documentation.

That said, I was also comfortable waiting to submit my application rather than spending a few hundred dollars on professional advice unnecessarily.

@Ponga Thank you for your valuable advice, it’s greatly appreciated.

Others have well covered what you need to know.

First reason for additional comment is to emphasize their observations that if in doubt, disclose, and otherwise lean toward disclosing by a lot.

Here's the thing: if the information is capable of causing a problem the odds are IRCC will know or learn of it anyway, if say it is not disclosed in the application. And in that situation the failure to disclose it will make things worse, and depending on how clear it is it should have been disclosed, potentially a lot worse (ranging from reason to question credibility, to prosecuted misrepresentation if it is something that for sure should be disclosed). On the other hand, disclosing is not at all likely to make things worse and in some scenarios may help move the application through processing more quickly (especially if it avoids the need for IRCC to make further inquiries or requests for additional information or documents).

Consulting Professionals:

I fully concur in getting professional assistance. No reservations at all.

Well, perhaps one reservation. I favour lawyers. I am no fan of consultants. This may be unwarranted bias (the core of my experiences with Canadian immigration was a period of time 10 to 15 years ago now, a time during which there was widespread fraud being committed by a rather large number of "consultants." And I saw too many tales of woe told by scores and scores of victims (many asking for such services but unaware of the scope of what they were doing and how severe its consequences could be, especially in regards to members of their families).

Advice to Wait:

Here it appears the consultant gave good advice. Even if overly cautious.

I agree with @armoured that it is very likely OK to make the PR card application without waiting to meet the RO based on days present in Canada within the preceding five years. But that is because in the scenario you describe there should be a very, very low risk of the application triggering a new inadmissibility proceeding.

It is not a zero risk. Thus the "professional" advice.

This is related to the one quibble I have with the observations by @armoured is in regards to the disposition of the appeal.

You'll provide the explanation and documentation that you have that on appeal, you were found by the IAD to have met the RO (via the H&C provisions that are part of the act). Or more simply, an officer did find that, but a higher instance overturned that determination.

By the way, I don't believe you have to wait now to apply for a PR card (that is, until you have the 730 days/five years). The decision overturning that was a decision that you DID meet the RO (via the H&C provisions that - again - are an integral part of the act). But if you're close to having the days, sure, wait.

As noted, I concur in the view that it is not necessary to wait to you have been in Canada 730 days within the last five years to make a PR card application (albeit with a very small risk). But otherwise, I aslo concur that being close, "sure, wait."

Where I part from @armoured is in regards to the view that a positive H&C decision is "a decision that you DID meet the RO." On the contrary, the language in IAD decisions, for example, clearly reference whether the decision to issue a Removal Order (resulting from a 44(1) proceeding) or deny a PR TD, both amounting to decisions to terminate PR status due to inadmissibility on the grounds of a RO breach, was valid in law. In H&C cases the decision is typically valid in law. There is a breach of the RO. But there are sufficient H&C reasons to set aside the decision terminating PR status . . . the H&C factors being sufficient to "overcome not meeting the residency requirement," and thus the typical IAD decision based on H&C grounds is that "the appellant has not lost his permanent status." NOT that they have complied with the RO.

Still, it is generally safe to proceed with a PR card application because absent a change in circumstances (such as the PR leaving Canada for an additional period of time, especially if it is a lengthy absence, and more so if they are again living outside Canada), the positive H&C decision will carry a lot of weight.

 

[armoured]

Where I part from @armoured is in regards to the view that a positive H&C decision is "a decision that you DID meet the RO." On the contrary, the language in IAD decisions, for example, clearly reference whether the decision to issue a Removal Order (resulting from a 44(1) proceeding) or deny a PR TD, both amounting to decisions to terminate PR status due to inadmissibility on the grounds of a RO breach, was valid in law. In H&C cases the decision is typically valid in law. There is a breach of the RO. But there are sufficient H&C reasons to set aside the decision terminating PR status . . . the H&C factors being sufficient to "overcome not meeting the residency requirement," and thus the typical IAD decision based on H&C grounds is that "the appellant has not lost his permanent status." NOT that they have complied with the RO.

To clarify, my difference on this was/is only a semantic one due to loose paraphrasing on my part, in that the relevant part of the IRP says: "a determination by an officer that humanitarian and compassionate considerations ... justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination."

My paraphrasing above of this was that a determination that 'overcomes any breach' of the obligation means, effectively, that the non-compliance has been, well, overcome - voided. But yes, stating that it means one did meet the RO is not precise - I misspoke.

Not worth (in my view) debating whether that is the same as compliance having been restored; I didn't mean much more than that the breach (non-compliance) is no longer actionable in this specific circumstance.

Still, it is generally safe to proceed with a PR card application because absent a change in circumstances (such as the PR leaving Canada for an additional period of time, especially if it is a lengthy absence, and more so if they are again living outside Canada), the positive H&C decision will carry a lot of weight.

Where my paraphrasing was potentially misleading, and hence why you're right to correct me, is the point in your para just above here that I very much agree with - about whether circumstances can be found to have changed (such as in your examples).

I still think that on pure logic, 'the positive H&C decision will carry a lot of weight' rather understates it, as a decision has already been rendered, a challenge of which (eg by IRCC) I strongly doubt would stand up to legal scrutiny. But I don't deny the logic in being cautious, either.

Side note: the 'overcomes any breach ... prior to the determination' in the actual law implies (or arguably says quite explicitly) that IRCC should not go back to points prior to that determination, and only consider absences afterwards (eg in the event that circumstances change). But that's not what I'd call a terribly strong argument and I wouldn't want to have to rely upon it, nor argue it on a closely-read textual basis - most of all practically (expensive and slow). Not something I'd suggest testing further; the H&C decision is about restorign the ability of the PR to reside in Canada, not argue semantics about breaches being overcome or reside outside Canada.

 

[Hibo03]

Like always, @armoured and @dpenabill, your insights and guidance have been incredibly valuable and greatly appreciated. Your deep understanding of the subject matter, coupled with advice and opinions rooted in logical reasoning rather than hearsay, truly sets you apart. You are both tremendous assets to this forum, and I’m certain you’ve made a positive impact and provided much-needed peace of mind to countless members grappling with complex and critical dilemmas.

I cannot thank you enough—not only for addressing my query but also for generously dedicating your time to help fellow members in need. This forum is truly fortunate to have members like you.