Missed appeal deadline for PR renewal
- Thread starter WordMouth12
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how long did she work in Canada before choosing to be transferred overseas?
what about you? are you a PR? so you have not complied with your RO as well?
Additionally her transfer to abroad needs to be seen always as a temporary and once ended she should have position in Canada secured.
Such transfers are usually meant for people that go abroad to start a new branch or to temporary help with a difficult situation. It is never meant a permanent solution neither an option for company to do so (meaning if one employee will not agree to that, they will have to send a different employee to deal with the situation).
Such transfers are usually meant for people that go abroad to start a new branch or to temporary help with a difficult situation. It is never meant a permanent solution neither an option for company to do so (meaning if one employee will not agree to that, they will have to send a different employee to deal with the situation).
@k.h.p. has more or less provided what you need to know.
And I emphatically agree with the observation by @k.h.p.
That said, some aspects of this may warrant some emphasis.
PR Card Applications Need to be Made by PRs IN Canada:
A big one: why would conditions in Iran have any relevance for the timing of an appeal IN Canada, for a procedure IN Canada, for an application which IRCC specifically instructs clients MUST be made IN Canada?
I realize that there continues to be a bit of a disconnect with judicial rulings which have, in effect, said that the IRCC rule limiting eligibility to be issued a new PR card to PRs IN Canada is not enforceable as a stand alone reason for denying a PR card application, and IRCC still mandating that eligibility depends on making the PR card application from within Canada. But it does not appear that IRCC attempted to enforce that rule here if the reason for denying the PR card application is a failure to meet the PR Residency Obligation.
So, even if for whatever reason your spouse proceeded with a PR card application while outside Canada, despite the instructions, with some expectation that would be OK despite the instructions saying otherwise, the instructions in this regard should be plenty notice enough that there would be VERY LITTLE likelihood of any leeway or concessions allowed due to being outside Canada.
IRCC expects PRs abroad to WAIT to apply for a new PR card when they are back living IN Canada. In the meantime, IRCC will issue PRs a PR Travel Document for the purpose of traveling to Canada, so long as the PR is in compliance with the RO of course.
This appears to be accepting an overseas position, taking a job that is itself located abroad. And the length of time in the position tends to further indicate this. That does NOT meet the criteria for credit while abroad in the employ of a Canadian business. As others here reference, the credit is only available IF THE PR IS TEMPORARILY ASSIGNED ABROAD.
It can be more complex than that. Often is. Qualifying for the working-abroad-in-employ-of-Canadian-business RO credit can be so tricky I have oft times suggested, exaggerating only a bit, that any PR who qualifies for the credit most likely already meets the RO based on time in Canada. That is, only PRs who otherwise meet the RO can qualify for the working-abroad-in-employ-of-Canadian-business RO credit (again, this is a bit of an exaggeration).
In any event, unless there is clear indication that the PR was TEMPORARILY ASSIGNED abroad, with a concrete plan for the PR to return to the PR's position IN Canada, the PR does not qualify for the credit and the other complexities are of little relevance.
Basis For Appeal:
Notwithstanding the late filing of the appeal, perhaps your lawyer can successfully make the case the appeal should be heard and decided on its merits.
IF SO . . . if the appeal is allowed to proceed despite missing the deadline (obviously missed it by WEEKS not just two days) . . . apart from claiming the working-abroad-in-employ-of-Canadian-business RO credit, in almost all such appeals the best shot is in making an alternative H&C case . . . which can include a request for H&C relief on the grounds the PR was confused, did not know that credit for working abroad would not be allowed, and support this with information about how and why the PR was confused or misled. I cannot forecast the odds. Your best source of information about any of this is again YOUR LAWYER. My sense is that this would be a tough case to successfully make, and it is not helped much by the fact of being outside Canada all this time, including while making the PR card application.
Ok thanks for feedback everyone. Need to re-read this thread. We could not get back to Canada to make the appeal as the travel document was not issued for us to get back to Canada.
You can still have your lawyer attempt to have the appeal heard and then appeal by telephone. You do not need to be in Canada to appeal.
You don't need to be in Canada to appeal.
As others have said, the chances of this working out in your favour are really quite low.
Consider abandoning the appeal and instead looking into requalifying for PR through a program like Express Entry if you have sufficient points. That's where I would direct my energy.
Can this H and C be made from outside of Canada or must we be in Canada for this?
It would be part of the argument made in the appeal to the refusal of the PR card. It would not be a separate application.
Regarding the observations about being outside Canada, to be clear, those were in reference to making the application for a new PR card while outside Canada. The instructions, AND the IRCC website description of eligibility for a new PR card, explicitly state that the PR must be IN Canada.
IRCC continues with this policy despite decisions which have stated that the PR being outside Canada when the application was made does NOT constitute a stand-alone ground for denying the application.
How it is that IRCC can continue with this policy, let alone why it does, gets complicated (especially since there is no formal explanation so far as I have seen). But as I previously observed, it nonetheless is a rather emphatic notice that PR card applications by PRs who are abroad are unwelcome and quite likely to be more strictly scrutinized, and thus allowed very little if any leeway.
Procedure For Making the H&C Case:
As others note, the H&C case is presented as alternative grounds for setting aside the decision being appealed, and is thus part of the same appeal. In particular, in an appeal of a decision based on a finding the PR failed to comply with the PR Residency Obligation, generally there are two grounds which may be advanced as reason for granting the appeal:
-- the decision was not valid in law, or alternatively (that is, even if it was a valid decision, a legally the correct decision)
-- there are H&C reasons for allowing the PR to retain PR status despite having failed to comply with the Residency Obligation
Regarding argument the decision was not valid in law, for your case, this is essentially the argument that the PR was legally entitled to the working-abroad-for-Canadian-business credit, and thus the decision was not valid in law because the PR did actually comply with the Residency Obligation. (Which appears to be a weak case but that depends on the particular facts and YOUR LAWYER is the better source for information and advice about this.)
Regarding argument there are sufficient H&C reasons for allowing the PR to keep PR status despite the RO breach, a POSSIBLE (lawyer is better source for determining actual arguments to be made) H&C argument in your situation is that the PR fully intended to meet the RO and was confused or misled about the working-abroad-for-Canadian-business credit. That is, the PR would have returned to Canada to live sooner if he or she knew that the working-abroad-for-Canadian-business credit was not going to be applied. (H&C cases are almost always tricky, most are difficult, this one is particularly difficult, and thus again relying on the LAWYER is important.)
BOTH of these are rather complex in a case like this and thus it is especially important to have and rely on a qualified LAWYER.
Of course the biggest hurdle you now face is whether or not the lawyer can successfully persuade authorities to hear the appeal on its merits, given the failure to timely make the appeal. And this too is a matter that virtually demands entrusting to a qualified LAWYER.
NOTE Re Denied PR card Applications Generally:
This forum rarely sees reports of a PR card application being denied. I have read only a portion of IAD decisions related to PR Residency Obligation cases, but over the course of the last decade or so I have read a rather large selection, and while it is not always clear precisely what decision is the subject of the appeal, I have so far seen ONLY ONE for-sure case in which a PR card was denied for non-compliance with the Residency Obligation.
This warrants mention for a few reasons, the biggest one being how important it is to rely on YOUR LAWYER. The appeal of a denied PR card application is simply not a familiar subject here. The substantive elements are familiar, because they are essentially the same for cases involving PR Travel Document applications denied based on RO non-compliance, and cases involving the appeal of a 44(1) Report and Departure Order or Removal Order issued at PoE upon a PR's arrival in Canada, or the appeal of a Removal Order following a RO examination attendant a PR card application. These cases, and particularly those involving denied PR TDs and PoE Reports, are very common and very often discussed in this forum, and there are scores and scores of IAD decisions which recount the facts and rulings in these actual cases, as well as a significant number of Federal Court decisions.
But reports about denied PR card applications are RARE at most. And the procedure in such cases is not clear. So your lawyer is a far, far better source of information and for-sure the better source for advice (this is not a proper venue for giving advice; many participants here make a concerted effort to provide good information with analysis and explanation, but no one here should be offering any advice).
In the weeds a bit: A significant aspect of this is that the statutes and regulations specifically refer to the effect of and procedures regarding denied PR Travel Document applications (referred to as decisions in visa office terminating PR status), the issuance of a 44(1) Report of Inadmissibility for breach of the RO, and Departure or Removal Orders (essentially different names for the same thing). It is clear in the statutes and regulations that these decisions TERMINATE PR status, and will take effect either upon the expiration of the time within which they may be appealed (when there is no timely notice of appeal), or when an appeal is finally decided unless the PR succeeds in having the decision set aside.
IN CONTRAST there is no particular reference in the statutes and regulations to decisions denying a PR card application constituting the termination of PR status. That said, in effect such decisions are probably considered to be a formal adjudication that the applicant is NOT a PR, and thus must be successfully appealed for the individual to retain PR status. BUT the procedural mechanics in these cases has not been discussed much, if at all, in this forum, and not in the IAD decisions I have so far seen (and I have looked). So you are really dependent on THE LAWYER for this.
There was very little in the original post about the content of the communication (notifying of the period for appeal).
It therefore seems to me that the first order of business (for the lawyer) is to determine whether the decision constituted (narrowly) a denial of the PR card, OR factually a termination of PR status. (If I have missed something in this thread about the specific language in the denial/notification of appeal period, then my mistake.
If the former, it may not be productive to pursue an appeal of the narrow decision, but rather to apply for a PRTD. This may then be denied, and that would constitute termination of status, but would have its own separate appeal process - and finding the narrow grounds for appealing after the allotted period of time may be particularly challenging and/or impossible. (In fact, I don't think I've seen here that the OP's PR card has actually expired, leaving open the possibility of returning to Canada before expiry and chancing not being reported at point of entry or getting reported and dealing with that process, but let's assume it has expired)
And we should flag here that the lawyer would likely also consider and provide advice about whether, for the spouse of a Canadian citizen, it is more effective to go through the fraught, expensive and lengthy appeal process - with very uncertain prospects of success - or to re-apply anew under spousal sponsorship.
These are thoughts only, as pointed out, it seems to really need a lawyer for advice; and if I've missed something, mea culpa.
To clarify (as I think my own para got a bit jumbled here), I am referring to two different potential appeals:
-appealing the denial of PR card now, after the allotted appeal period has lapsed;
-appealing (in future) a PRTD denial.
Again for lawyers, but I believe appealing after the appeal period has lapsed is far more challenging, as may have to be appealed on more narrow procedural grounds. If a PRTD application can be lodged (and denied), that would have its own appeal period that can be prepared for and met, and would not face the procedural issues.
And of course, who knows, it is not impossible that the PRTD would be issued, so worth a shot.
But as noted, we have not seen the communications and appeals notice, so this is somewhat speculative.
As a follow-up / additional thought to my previous point, the centrality of what was in the denial letter (denial of PR card OR effectively revocation of PR status) as it relates to H&C factors.
1) If you are appealing based on missing the appeal deadline, the government lawyers WILL argue (quite possibly successfully) that the only applicable H&C considerations are those related to filing the appeal on time. An example of a narrowly construed H&C reason would be you were literally in hospital during the 30 days. And from what I understand, filing the appeal is in substance little more than returning a form saying "I appeal" - you don't per se need a lawyer to do so, and pleading I couldn't find a lawyer in time / did not understand the process carries a lot less weight, you're not presenting substantive arguments in detail at that point.
2) If you can still apply for PRTD and appeal any refusal in that context, then ALL H&C factors will be treated as per any appeal. (You may also be able to raise these in the PRTD application). I'm not saying that appeal would be successful, but you would get 'fair' consideration for all H&C factors (family separation, etc) in a much broader sense. (Or put differently, government likely could not argue that only the H&C issues specific to February/March were relevant).
This is perhaps another way of saying that an appeal on procedures can be a lot harder to mount.
This is very much what I have wondered about over the course of many years. Since I saw the one for-sure PR card denial appeal.
Researching and analyzing this gets COMPLICATED.
Discussing this inevitably goes deep into the weeds. And what I have so far been able to find leaves some key aspects unresolved. So any attempt to sort this out here is bound to be more or less an academic exercise and a distraction. Which tends to be my kind of thing -- which I try to keep under control when there are real and practical questions to be addressed.
Here the real and practical questions lead, emphatically, to the conclusion that the OP really needs to sort this stuff out with the LAWYER. Enough background and explanation has been provided to illuminate the substantive issues and to acknowledge the biggest hurdle, the procedural roadblock due to failing to timely make the appeal. And that turning to the LAWYER about these things is the OP's only real option (well someone suggested possibly conceding loss of PR status and apply for PR anew, which may indeed be the OP's only viable path to establishing a life in Canada).
Thus, for the OP, to be clear: turn to the LAWYER. Or consider re-applying for PR anew.
Wandering a Bit Into the Weeds:
There are many IAD and even some Federal Court decisions which have definitely distinguished PR card applications, and eligibility requirements, from other formal Residency Obligation compliance determinations. Including the 2017 Federal Court decision in Geng v. Canada 2017 FC 1155 (CanLII) http://canlii.ca/t/hpdvf and the 2012 decision in Khan v. Canada, 2012 FC 1471 http://canlii.ca/t/fv90w, in which Justice McDonald and Justice Zinn respectively specifically distinguished the regulations governing the issuance of a PR card (governed by Section 59(1) IRPA Regulations https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-14.html#h-686417 versus the statutory provisions governing Residency Obligation enforcement and compliance determinations, which includes Section 28 IRPA https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-274598 governing the Residency Obligation itself, and Sections 44 and 46 IRPA https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#docCont governing, respectively, reports for inadmissibility and loss of PR status.
Without taking the time to drill into the many decisions again (been awhile since I tried to sort this stuff out in depth; again it gets complicated), at a glance and as I recall, most (if not nearly all) the IAD and Federal Court decisions distinguishing PR card issuance decisions from Residency Obligation determinations, are largely about (indirectly if not directly) the validity of decisions terminating PR status for a breach of the RO despite the PR having been recently issued a new PR card. That is, and this is something I repeat here from time to time, even though a PR has applied for and been issued a new PR card, the PR can still be Reported and issued a Departure or Removal Order at a PoE upon arrival if on that date the PR is determined to be in breach of the RO . . . and for a PR who is abroad but needs a PR TD to return to Canada to pick up a recently issued PR card, if the PR has failed to comply with the RO the visa office can deny the application for a PR TD and that will be upheld (unless H&C reasons justify settling the decision aside). Some of these decisions, however, address the situation where IRCC has already issued a new PR card and then in the course of a counter-pick-up-interview the PR is determined to be, at that time, in breach of the RO . . . which goes off in yet an entirely different direction but nonetheless revolves around the fact that issuing and delivering the new card is distinguishable from a formal RO determination.
As noted before, one rarely sees things going the other way, rarely seeing a decision denying a PR card. And, indeed, the statutorily defined events specifying when a person loses permanent resident status, Section 46(1) IRPA https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#docCont makes NO MENTION of status being terminated when a PR card application has been denied.
MY GUESS, just a GUESS . . . which would circumvent the questions suggested here by @armoured . . . is that IRCC does not actually "deny" PR card applications based on the failure to comply with the Residency Obligation. MY GUESS is that, actually, in some manner, in these cases, the FORMAL DECISION is the issuance of a Removal Order. Which when the time for making an appeal has expired comes into force and thus terminates PR status pursuant to Section 46(1)(c) IRPA.
Except, I have indeed seen at least one official decision which was, purportedly, the denied appeal of a decision denying a PR card application . . . and there are occasional (rare but occasional) reports like the OP's which specifically states that the PR card application was denied and that is the subject of their attempt to appeal.
Which invites the questions suggested here by @armoured . . . as in what would happen if the PR simply ignored the decision denying the PR card application and either made a PR Travel Document application or was able to travel to Canada so as to arrive at a PoE seeking entry as a PR. (Whether by using a still valid PR card or traveling via the U.S.) And then, if a PR TD was denied, appeal that, or if Reported at the PoE, appeal that.
It is possible, and my GUESS still leans in this direction, that in these cases where it is stated that the PR card application was denied, they are still, actually, formally, cases in which it is *said* that IRCC has denied the PR card application, but that is more in effect given the issuance of a Removal Order which, pursuant to Section 46(1)(c) IRPA, is a decision terminating PR status . . . which can be appealed. (Note: the provisions governing appeals also makes NO MENTION of a right to appeal a decision denying a PR card application.)
Which brings up the observation . . .
Yep. My guess suggests that the formal communication of decision is likely in the form of a Removal Order. But the OP reports a decision denying the PR card application. And, again, I have seen at least one IAD decision specifically referencing the subject of the appeal was a decision denying a PR card application. So . . . ???
Does not illuminate much if anything at all regarding the OP's situation, regarding which, again, the OP should be turning to and relying on the LAWYER.
So why even entertain this rather weedy tangent? The bigger, broader import is to put PR card applications into context. It is very UNUSUAL for IRCC to deny a PR card application for non-compliance with the Residency Obligation. As I have oft tried to emphasize, for the PR with a potential RO compliance problem, negative action resulting from a PR card application will almost always be one of two things:
-- a formal RO compliance examination, and if that results in a determination the PR breached the RO, the issuance of a Removal Order (not a decision denying issuing a new PR card), OR
-- non-routine processing, including Secondary Review, which can bog the application down in a very lengthy processing time, potentially adding a YEAR to the timeline (and in the wake of Covid-19, perhaps even longer)
But . . . it needs to be noted, that is about PR card applications properly made by PRs IN Canada. So, to be clear, so far as I have seen reports about PR card applications being "denied," all those involve PRs who are ABROAD. Which includes the OP's case AND includes one official case I have seen, that PR likewise was outside Canada.
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There was never any mention about how long your family actually spent in Canada which will likely factor into the possibility of keeping PR status if you get your appeal.