Into the Weeds . . .
In my previous post I said it is not "established" that the choices of parents will not "enhance" the young PR's H&C case. What is "established" law in regard to evaluating H&C claims in the RO-breach case is complicated and a tangent prone to be more misleading than illuminating.
[Basically the Federal Court decisions do not "establish" binding precedent, and otherwise the impact they have on IRCC, CBSA, or the IAD, varies considerably, depending . . . which, again, goes down a tangent that will not illuminate much that is practically useful. Some IAD panels state they are "bound" by Justice Barnes statement in
Lai 2006 FC 1359, where he stated that the
child's "
claim to relief should not be enhanced by those parental decisions," even in some cases which fall outside the scope of the ruling itself where the IAD panel is not dealing with a minor child's claim but an independent adult. And overall, how FC decisions affect IAD decision-making is more complicated than that. Again, that is a tangent tending to be more confusing than helpful. And for purposes of the particular issue being addressed here, the impact of being
removed-as-a-minor on an adult's H&C claim, there is plenty enough clarification otherwise.]
As a practical matter, with exceptions and subject to trends I have addressed in depth before, elsewhere, it nonetheless warrants much emphasis that so far as we can discern, including anecdotal reports here (including one successful report just this week by a PR issued a PR TD soon after reaching the age of majority, who had spent one year in Canada as a minor and was absent from Canada since then) as well as what can be extrapolated from IAD decisions AND also some Federal Court decisions, a
removed-as-a-minor PR seeking to return to Canada soon after attaining independence or the age of majority,
generally appears to have good or perhaps very good odds of being issued a PR Travel Document based on H&C reasons despite failing to meet the PR Residency Obligation.
But it also warrants cautioning, nonetheless, that there is
NO guarantee.
Some cases go the other way. And the reporting suggests this may be
increasingly so in regards to individuals with minimal establishment in Canada, who had spent a minimal amount of time in Canada many years before (such as soft landing family with no subsequent return to Canada), very little time in Canada within the relevant five years, and who otherwise have minimal to zero other ties to Canada.
It also warrants emphasis that the longer it goes after reaching the age of majority, the older the PR is before pursuing a return to Canada, the lower the odds of a favourable outcome.
It further warrants emphasizing the dominant factor in these cases is showing that the PR made the effort to return to Canada "
at the first opportunity" AFTER attaining the age of majority. And emphasizing that the absence from Canada is, otherwise, largely a neutral factor.
As I previously noted, the
Lai 2005 CanLII 77672 (CA IRB) case invites some further clarification:
In
Lai (the same case which eventually established that a PR removed while a minor should not have their claim to relief "enhanced" by the choice of their parents to relocate abroad), the Board wrote that "The appellant likely has other options to return to Canada...as an international student." By that point, she had attended a high school in Canada for over a year.
This decision was largely focused on issues related to applying the new PR Residency Obligation on an individual granted PR status under the previous law. For present-day matters this is largely OLD, OLD stuff. Not much relevant, though some may find the discussion in that case regarding the role of intent, under the old law, informative when contrasted to the changes.
Moreover, this is not actually a case in which a PR
removed-as-a-minor is seeking H&C relief soon after attaining the age of majority. Lai was a minor (still a child) when the underlying inadmissibility decision was made, and indeed still only 17 at the time of the IAD hearing.
Which provides some context for the reference to the parents' choices in the later Federal Court decision,
Lai 2006 FC 1359, by Justice Barnes, where it was stated that the
child's "
claim to relief should not be enhanced by those parental decisions."
While this particular statement has been oft cited by IAD panels, whether or not it is an "established" or binding rule is far less important than what it means assuming it is a definitive rule.
The simple version is that it means the reason for the minor being abroad is essentially neutral. Well, almost neutral even if not quite.
But that tends to gloss over the real impact of how being
removed-as-a-minor affects a PR's claim for H&C relief in order to return to Canada "
at the first opportunity" AFTER attaining the age of majority (for emphasis: again, in most but not all such cases).
For example, some insight into what this (the claim to relief should not be enhanced by parental decisions) means is offered in the relatively recent (fall 2019) IAD decision
Faisal 2019 CanLII 130873, which quotes Justice Barnes. Cutting through the rhetoric and legalese, allowing that it still seems relief is largely, usually, allowed, this is because (as stated in
Faisal 2019 CanLII 130873):
Regardless of what the appellant’s parents had in mind when they removed her from Canada, she had no real agency in making decisions as she was a minor.
Fairness dictates that she should not have to answer for her parents’ actions.
So saying that the parents' choices do not "enhance" the young PR's H&C case, per se, is basically beside the point, since the length of the absence is essentially obviated by the fact it was due to the parents' choices not the PR's, and this largely eliminates the biggest negative factor in these cases: how long the PR was not IN Canada.
Leading to the IAD panel's reasoning in
Faisal (which I believes is the more common approach to these cases, recognizing again, however, there are cases which go the other way):
Given the particular circumstances, the appellant does not have many of the positive factors that are usually required for special relief to be granted.
But despite that H&C relief is granted because
"Fairness dictates that she should not have to answer for her parents’ actions."
That is, even if one does not describe the effect of being
removed-as-a-minor, by a parent's choice, as "enhancing "the H&C claim,
this specific circumstance is the main reason why such PRs are allowed H&C relief notwithstanding a breach of the RO which otherwise would almost certainly result in the loss of PR status, so long as they make the effort to return to Canada soon AFTER attaining the age of majority (and again emphasizing that while this appears to be the usual result, some cases do go the other way).
