PR reneval with less than 730 days, before 5 years since becoming a PR.

[JackC]

Hi,

My situation:
Landed (as a PR) on February 15, 2015. Spent 7 days in Canada and moved to my home country for business reasons.
Returned to Canada on January 22, 2018. Had a short New Year trip between January 2-9, 2019.
PR card expires on March 3, 2020.

To the present moment (May 27th, 2019) I have:
- Time outside Canada, from becoming PR date (March 15, 2015) - 1071 days.
- Time inside Canada - 492 days.

I want to send my PRC renewal application on the 30th of June, 2019 when I will have:
- Time outside Canada (same) - 1071 days.
- Time inside Canada - 527 days.

I will have a business trip (about 7 days) in January 2020. Thus, by February 15, 2020 I will have a bit more than 740 days in Canada, and about 1080 days outside Canada, which is still in compliance with RO, but very close though.

If I send a PRC renewal application in March 2020 (or even April - July 2020) I expect that it will be delayed beyond the average 4 weeks processing because it is very close to the required 730 days. This is the reason I want to send my application earlier, with a hope that it will take less than 8 months processing. There are several (Canadian-) job-related travels expected in March/April/May 2020, so I would prefer to have a valid PR card rather than to apply for travel document each time.

As far as I know, it is possible to send the PRC renewal application 9 months before current PR card expires, so June-July 2019 should be OK.
My questions:
1) Are there any obstacles for applying for a new PR card before having 730 days in Canada, given that the amount of days outside Canada is less than 1095. This is applicable when the time period from becoming a PR is less than 5 years. The form for PR card renewal asks whether time outside Canada is more (or equal) 1095 days, not whether time inside Canada is more 730 days.
2) Can I travel with an old, but valid PR card while a new one is being processed?
3) If I am outside Canada with an old (and valid) PR card and a new PR card is issued and sent to my home address in Canada, will I be able to enter Canada (actually more important question is will I be able to board the flight to Canada) with an old but not expired PR card. Here I consider the travels less than 10 days.

Since returning to Canada (January 2018), we are well established here, renting the same apartment, our child was born in March 2018, have same job since June 2018.

Thank you!

 

[21Goose]

1. You are currently well short of meeting your RO, so you shouldn't apply for a new PR. You have to be meeting your RO when you apply, you can't say that you will pull in six months from the future. How can IRCC (or anyone) tell if you will actually stay in Canada for those days? You have to wait till you have 730 days of presence otherwise your application will be denied.

2. Yes, if the card is valid.

3. Yes, if the card is valid.

 

[JackC]

>> You have to be meeting your RO
I assume that I am meeting my RO now, since I was absent for less than 1095 days, and I am able to show 730+ days in a 5 year period since becoming a PR.
I would not meet my RO only if I was absent for more than 1095(or 1094) days.

>> How can IRCC (or anyone) tell if you will actually stay in Canada for those days?
They can't say if I will NOT stay in Canada either.
If I am already in Canada which claim is more priotitised:
- I will stay in Canada next 6 months.
or
- I will not stay in Canada next 6 months?

The same form is used to apply for a new PR card, if the previous PR card was lost. If somebody spent 1 year in Canada and lost their PR card, I assume they should not wait another year before applying for a PR card replacement.
But technically the same question could be applied, how to prove that the applicant will spent another year in Canada?

 

[JackC]

This page (guide for the PR card renewal application) https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5445-applying-permanent-resident-card-card-first-application-replacement-renewal-change-sex-designation.html#appendixA
says that:

If you have been a permanent resident for less than five (5) years

• you must show that you will be able to meet the minimum of 730 days of physical presence in Canada within five (5) years of the date you became a permanent resident.

 

[21Goose]

This page (guide for the PR card renewal application) https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5445-applying-permanent-resident-card-card-first-application-replacement-renewal-change-sex-designation.html#appendixA
says that:

If you have been a permanent resident for less than five (5) years

• you must show that you will be able to meet the minimum of 730 days of physical presence in Canada within five (5) years of the date you became a permanent resident.

How exactly are you able to show that you will meet the minimum period?

You can apply for the PR card and immediately leave the country. Say you apply in June 2019, and then leave Canada for three months. By your reasoning, IRCC should process the application regardless and send you a renewed PR card, even though you won't have 730 days of presence.

Still, it's your choice. If you feel that you're reading the rules correctly, then go ahead and apply.

 

[JackC]

I see your point. Maybe I do not meet my 730 days out of 5 years requirements yet. At the same point, I do not breach my RO (unless I leave).

Thus, I assume that at least the application cannot be considered as an evidence of RO breach. So I expect 3 options:
- Application denied/cancelled with an advice to wait until I have 730 days.
- Application delayed for several months and PR card is finally issued.
- Application approved and PR card issued. The best option

 

[canuck78]

I see your point. Maybe I do not meet my 730 days out of 5 years requirements yet. At the same point, I do not breach my RO (unless I leave).

Thus, I assume that at least the application cannot be considered as an evidence of RO breach. So I expect 3 options:
- Application denied/cancelled with an advice to wait until I have 730 days.
- Application delayed for several months and PR card is finally issued.
- Application approved and PR card issued. The best option

You are missing the likely answer. PR card renewal denied for not meeting the RO. Process of PR revocation started.

 

[21Goose]

>> You have to be meeting your RO
I assume that I am meeting my RO now, since I was absent for less than 1095 days, and I am able to show 730+ days in a 5 year period since becoming a PR.
I would not meet my RO only if I was absent for more than 1095(or 1094) days.

>> How can IRCC (or anyone) tell if you will actually stay in Canada for those days?
They can't say if I will NOT stay in Canada either.
If I am already in Canada which claim is more priotitised:
- I will stay in Canada next 6 months.
or
- I will not stay in Canada next 6 months?

The same form is used to apply for a new PR card, if the previous PR card was lost. If somebody spent 1 year in Canada and lost their PR card, I assume they should not wait another year before applying for a PR card replacement.
But technically the same question could be applied, how to prove that the applicant will spent another year in Canada?

You are missing the likely answer. PR card renewal denied for not meeting the RO. Process of PR revocation started.

This. You can lose your PR status entirely.

 

[dpenabill]

Maybe I do not meet my 730 days out of 5 years requirements yet. At the same point, I do not breach my RO (unless I leave).

To be clear, there is NO requirement to spend at least 730 days in Canada BEFORE the fifth year anniversary of the date of landing. During the first five years, a PR meets (is in compliance with) the RO so long as the total number of days IN Canada ADDED to the number of days left on the calendar, up to the fifth year anniversary of landing, TOTALS at least 730 days.

A PR card application made prior to the fifth year anniversary GETS CREDIT for the days remaining on the calendar.

THUS, OVERALL:

I disagree that you face much risk of losing PR status.

But there is a significant, perhaps big risk, that an application for a new PR card will NOT go smoothly and thus result in a lengthy delay in getting a new card . . . enough so to leave you in a dilemma about traveling abroad around the time your current card expires and for awhile after that.


The longer explanation:
(This will go very long and take two posts.)

>> You have to be meeting your RO
I assume that I am meeting my RO now, since I was absent for less than 1095 days, and I am able to show 730+ days in a 5 year period since becoming a PR.
I would not meet my RO only if I was absent for more than 1095(or 1094) days.

This is correct. For a PR short of the fifth year anniversary of the date of landing, as long as the PR is NOT absent for more than 1095 days, the PR is IN COMPLIANCE with the Residency Obligation. And, yes, this meets the eligibility requirement to be issued a new PR card.

To show compliance with the RO there is NO need to show that you WILL meet the minimum 730 days presence by the fifth year anniversary of landing . . . only that you have been actually present in Canada enough days added to the number of days left to be able to meet the RO minimum.

In short: you are right, a new PR (less than five years since landing), does NOT need to actually be in Canada 730 days to be in compliance. The language you quote from the guide is taken from the statute itself (see (this should link) Section 28(2)(b)(i) IRPA):

. . . it is sufficient for a permanent resident to demonstrate at examination . . . if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident​

"Will be able" does NOT mean a showing that the PR will actually meet it. And there are scores and scores of IAD decisions quoting this language in this way . . . that is to say, what matters is that the total number of days actually IN Canada PLUS the total number of days left until the fifth year anniversary, adds up to at least 730. That is "sufficient" (to quote the language the statute employs, which in turn scores of IAD panels have also used) to demonstrate the PR "complies with the residency obligation."

Suggestions here to the contrary are simply incorrect.



BUT YOU ARE ALSO CORRECT ABOUT THE RISKS WHEN CUTTING-IT-CLOSE, including the risk that a total stranger bureaucrat in IRCC is NOT going to be easily persuaded that you have in fact been in Canada as much as you CLAIM to have been. Unless you are wearing a government certified monitored ankle-bracelet which records where you are located every day or the equivalent (which I am confident is NOT the case), or IRCC discovers a magical crystal ball in the meantime (hint: they are not looking for one), cutting-it-close means risking a bureaucrat is suspicious or even not convinced. (Contrary to popular perceptions, IRCC does NOT definitively rely on known dates of entry and next exit, but ALWAYS requires at least some proof of presence in-between those dates, and if there are questions, IRCC can require substantial OBJECTIVE proof of presence in-between.)

There are many reports suggesting that IRCC is more or less likely to divert an application like this into non-routine processing. There are NO formal policy statements confirming it, but the signs are there, that IRCC is at least somewhat likely to delay making a determination until it is clear whether or not you will continue to meet the Residency Obligation. Whether this results from a referral to Secondary Review, or a Program Support Unit, or a referral to a local office to conduct a formal RO compliance examination, or some other non-routine processing (perhaps a referral to CBSA to investigate), it seems fairly likely that cutting-it-close, this close, will trigger one sort of non-routine processing or the other and a significant delay.

My guess, just a guess, is that applying sooner is NOT likely to get you past the goal posts much if any sooner. That is, given the extent to which it appears you are indeed cutting-it-close, I suspect you will not achieve your goal of getting a new PR card in time to cover prospective travel around the time your current PR card expires. Part of this derives from the likelihood you will be going abroad a fair amount of the time.

BUT how it goes can vary. And perhaps your circumstances otherwise will present the picture of a PR well-settled in Canada and there will NOT be a lengthy delay in processing your PR card application.


Leading to some observations about the particular risks of losing PR Status if PR makes PR card application when NOT in compliance with RO:

The conventional wisdom in this forum has some misconceptions about this. To be addressed in next post.

 

[dpenabill]

As previously noted, how it goes can vary. And perhaps your circumstances otherwise will present the picture of a PR well-settled in Canada and there will NOT be a lengthy delay in processing your PR card application.


Which, again, leads to some observations about the particular risks of losing PR Status if PR makes PR card application when NOT in compliance with RO:

And again, the conventional wisdom in this forum has some misconceptions about this.

As long as you are in fact in compliance when you are examined, IRCC is NOT going to decide to terminate PR status.

Assuming a February 15, 2015 date of landing, you are IN COMPLIANCE --

-- before Feb 15, 2020 (up to Feb 14, 2020), you are in compliance so long as total days IN Canada since Feb 15, 2015 ADDED to number of days left until Feb 14, 2020, TOTALS 730 or more (in other words, so long as you have not been absent 1096 or more days since Feb 15, 2015)
-- after Feb 14, 2020 (beginning Feb 15, 2020), you are in compliance so long as the total number of day IN Canada in the immediately preceding FIVE years is 730 or more (thus, for example, as of March 23, 2020, the calculation would be based on days IN Canada between March 23, 2015 and March 22, 2020)​

Applying for a new PR card in the latter part of 2019 does NOT change the calculation of compliance. Again, it is NOT necessary to wait to have spent 730 days actually in Canada to apply for a new PR card (subject to RISK caveats).

MOREOVER, EVEN for the PR who is cutting-it-close on the negative side, FALLING short of meeting the minimum RO, there is very LITTLE risk of losing PR status so long as the PR is close enough to meet the RO by the date of a formal interview or examination based on written submissions, assuming of course the PR does in fact stay in Canada to get those days.

The latter is because days IN Canada after applying for a PR card still count toward meeting the RO . . . In particular, unless and until the PR is issued a 44(1) Report or a formal Decision determining that the PR has not met the RO, until then the PR's days in Canada STILL count toward compliance EVEN AFTER a PR card application has been made.

That is, IRCC cannot decide the PR is inadmissible and terminate status (issue a Removal or Departure Order) three months after the application was submitted, based on the PR not being in compliance on the day the application was submitted, UNLESS the PR is still NOT in compliance as of that date when the decision is actually made.

That said, these days IRCC is processing PR card applications rather quickly . . . and thus it is possible that a formal examination could be scheduled in just a matter of weeks after the PR card application is made. More likely a matter of at least three months, probably even longer, but IRCC could move quickly to refer the matter to a local office and concurrently schedule an interview date there. The interview date would be the critical date by which the PR needs to be in compliance (and again, be aware of proving-it risks).

WHAT WE ACTUALLY SEE are NOT at all close cases. The risks in cutting-it-close are more about (1) delayed PR card processing resulting in problematic travel situations for those needing to travel, and (2) practical risks, since stuff-happens, such as an emergency requiring a PR to stay abroad longer than planned and then failing to comply with the RO.

In particular, even if the PR is a little short at the time the PR makes a PR card application, as long as the PR is settled in Canada and is staying enough in Canada to meet the obligation going forward, the risk of losing status is SMALL but there is a substantial risk of delayed processing and having to go a long while without a valid PR card.

It warrants noting that actually there are very few IAD decisions arising out of PR card applications. Cases related to the loss of PR status due to breach of the RO are almost all about denied PR TD applications or PoE examinations resulting in a 44(1) Report and Departure Order. There are some PR card related cases. FEW. And they are NOT close call cases. They either involve a PR falling short by a big, big margin, or a PR who is abroad (at least mostly abroad).


Leading to your particular outline of possibilities:

Thus, I assume that at least the application cannot be considered as an evidence of RO breach. So I expect 3 options:
- Application denied/cancelled with an advice to wait until I have 730 days.
- Application delayed for several months and PR card is finally issued.
- Application approved and PR card issued. The best option

Again, I disagree with the suggestions that a decision terminating your PR status is a potential, let alone likely outcome, in the scenario you describe.

So far as I have seen (watching these issues for more than a decade now), IRCC does NOT deny applications with advice to wait. So that is NOT at all likely.

There are, potentially, multiple grounds for denying a PR card application which will have the effect of terminating any claim to PR status (based on a conclusion the individual does NOT have valid PR status, such as there was already a PR TD denial terminating status, or it was renounced, or . . . ). Obviously, any such decision must be appealed or it will become final and regardless of what defenses the individual might have, what arguments or proof of valid status the individual might have, it will have conclusive effect terminating status. This does NOT appear to be at play in your scenario.

As I have gone into some depth regarding, IRCC does NOT just deny the application based on falling short of the RO . . . instead, if this is the issue, there will be a formal examination of compliance in a local office OR IRCC will wait to see how things go. If at the time of a formal examination in the local office, on that date, the PR is in breach of the RO AND there are not sufficient H&C reasons to warrant retaining status, a Report and Removal Order will be issued as of that date. As I have outlined, the chance of this process is rather SMALL even if you were to apply falling short a little. This process is far more about those falling short by at least more than a few weeks.

Which leaves your other two options. Either a lengthy delayed process or no problem. And those are the realistic ones. You basically got it right. BUT cutting-it-so-close tends to put the bet on the lengthy delay before issuing a new card option.

 

[21Goose]

"And there are scores and scores of IAD decisions quoting this language in this way . . . that is to say, what matters is that the total number of days actually IN Canada PLUS the total number of days left until the fifth year anniversary, adds up to at least 730."

@dpenabill Could you link to a few? I'd be interested in reading these decisions. Did these cases reach the IAD because the PR was revoked and then the applicant appealed?

 

[JackC]

@dpenabill, thank you very much for the thorough explanation!
Yeah, cutting-it-close is the reason for some headaches now. But I cannot change it, only try to avoid it in the future.

I will try to send my application at the end of June. Hopefully it will be processed before the expiration of an old PR card.


If everything is successful, I am going to apply for citizenship in 1.5 years, when I will have 3+ years inside Canada.

Do you have any suggestions on the following options?
Example 1: I decided not to apply for the PR card, and just live inside Canada with expired PR card, and apply straight for citizenship when I will be eligible for it (I understand that this might involve at least 6-18 month of citizenship consideration time, and travel issues without a valid PR).
I assume that even in this case, my application could trigger RO checks for PR (2 years out of 5) and citizenship (3 years out of 5) eligibility.

Example 2: I applied for the PR card renewal with just 520 days inside Canada and after a long delay (8-12 months) and additional checks the PR card was issued. One year after that I applied for citizenship. Would this reduce the probability of RO checks for citizenship? Or it could be triggered by another department and delayed again?

 

[dpenabill]

"And there are scores and scores of IAD decisions quoting this language in this way . . . that is to say, what matters is that the total number of days actually IN Canada PLUS the total number of days left until the fifth year anniversary, adds up to at least 730."

Could you link to a few? I'd be interested in reading these decisions. Did these cases reach the IAD because the PR was revoked and then the applicant appealed?

-- Re days-remaining-to-fifth-year-anniversary credit toward RO compliance --

PART I. BACKGROUND OBSERVATIONS:

A significant baseline of my understanding about this issue is rooted in recall from reading many, many cases over the course of a decade plus. It warrants visiting why and how I was reading cases relevant to this issue. That requires some HISTORY. A decade ago, or so, the Jhrga and Ruiz cases, which I cite and discuss below (next post), were unusual. There were rather few reports (talking about anecdotally, in the forums) of PRs being Reported at a PoE if they had a valid PR card and it was their first PR card. Indeed, it appeared that as long as a PR had a valid PR card, the odds of being reported for a breach of the PR Residency Obligation upon arrival at a PoE was quite low . . . basically it did not appear to happen UNLESS it was rather blatantly obvious that the PR was in breach (such as it being clear the PR had been abroad for YEARS, or there was a very obvious pattern of only visiting Canada briefly such as for holidays . . . many such older cases involved a PR showing up in Canada barely weeks before the PR card expired, after an absence of YEARS).

The forum conventional wisdom years ago was almost opposite what it is today: PR with a valid PR card faced a relatively low risk of being reported at PoE even though not in compliance with the RO. If it is the PR's first PR card, the risk was even lower. (With exceptions for the egregiously obvious cases.)

Then cases like Jhrga and Ruiz were popping up. PRs getting reported even though they were carrying and presenting a valid PR card.

While I was far from the only one, I was one of those who challenged the conventional wisdom here and in other similar forums, to raise awareness that the extent to which PoE officers had been so lenient in the past NO LONGER reflected the ongoing risks PRs in breach of the RO faced when arriving at a PoE (note, the change was concurrent with broad sweeping crackdown by Harper government generally). As it tends to go when challenging the conventional wisdom in a forum like this, the road goes up a rather steep hill. It was not easy to convince the forum that the risk of being reported had increased substantially for PRs in breach and arriving at a PoE in the latter part of their first five years after landing, that even a PR card valid for another year might be little insurance if they were coming to Canada after an absence of YEARS or had an apparent pattern of just visiting Canada briefly. Time flies, so I cannot precisely state how recently the conventional wisdom here finally recognized that a valid PR card was itself not much insurance of getting waived through a PoE for such PRs (more or less easily discerned to have RO compliance issues), but it was not all that long ago. Changing the CW here itself took YEARS.

So in the meantime I paid close attention to IAD and FC decisions illustrating instances in which such PRs were getting reported. I am sure there are some older posts of mine citing and linking a significant number of such cases. And all those cases involved a PR who had been absent at least 1095 days since landing (thus, credit for remaining days to fifth year anniversary NOT sufficient to meet the RO), and many if not most of them involved H&C assessments, in which my general recall is that the PR was usually if not nearly always credited for the remaining days in weighing the extent-of-non-compliance factor. I cite and link ONE exception below (Ruiz), along with a similar exception (Merena) but in relation to the appeal of a PR TD denial. I reference these exceptions because they are easy to find AND to my view they represent the outside parameters, a kind of worst case scenario.

To be clear, I know of NO case in which days remaining to the fifth year anniversary have NOT been counted where it would make the difference between being in compliance versus not being in compliance. My recall is that there are many more cases like Jhgra, in which the remaining days were counted in the H&C assessment, than like Ruiz where they were not.

It is worth further noting that the factual situation in Jhgra still appears to be unusual . . . considering all sources of relevant information, it still appears to be somewhat unusual for a PR to be reported at the PoE when the PR is that close to compliance presenting a valid PR card and still within the first five years of landing. I relied on cases like Jhgra to emphasize that notwithstanding many anecdotal reports of NO PROBLEM (from PRs similarly just a little short, but short nonetheless), the RISK of being reported is real. There are still occasional anecdotal reports of this sort, THIS YEAR. And some of these are posted as if to say there is little or no risk.

But that is about those who are SHORT even with credit for days remaining to the fifth year anniversary.

I cannot cite any cases in which the IAD set aside a PR TD denial or PoE Report and Departure/Removal Order which failed to give credit for days remaining to the fifth year anniversary, where such credit would result in a different LEGAL result. And I am confident the reason why is the same reason why I cannot cite any cases in which the IAD denied an appeal of a case in which there was a PR TD denial or PoE Report and Departure/Removal Order where credit for days remaining to the fifth year anniversary was not given, where such credit would result in a different LEGAL result. The reason is there are NO such cases, or to the extent there might be some rare instances, the Minister takes action to set aside the erroneous decision without need for a formal IAD hearing.

By the way, I only recall ONE decision in the appeal of a denied PR card application. Just ONE. There are probably some out there. But there is little to no indication that PR card applications are denied based on a failure to comply with the RO, at least not very often . . . rather, in such cases there is a formal RO compliance examination in the local office and a Removal Order is issued based on non-compliance as calculated as of the date of that examination . . . or IRCC simply does NOT issue a new card and waits until the PR undergoes a RO examination attendant a PR TD application or at a PoE upon arrival in Canada.

 

[dpenabill]

PART II. OBSERVATIONS ABOUT RESEARCHING THIS ISSUE (and dodging the question a bit):

To be more precise, the language oft seen quoted in the IAD decisions is either the phrasing quoted from the guide by @JackC or the language I quoted from Section 28(2)(b)(i) . . . but in looking how I phrased my comment here, "scores and scores" may be somewhat misleading to the extent it suggests cases turning on this precise issue . . . . that is there is a much smaller number of cases specifically involving applicants who had not yet been in Canada five years since landing. And, actually, there are relatively few of these cases and they mostly (perhaps nearly all) arise from a 44(1) Report and Departure Order issued at a PoE to a returning PR who has clearly been outside Canada for well over 1095 days since landing. (There are some PR TD denials, but very, very few, since it is unusual for a PR to not have a valid PR card until AFTER the fifth year anniversary of landing; I cite one such case below, involving a PR who lost his PR card and thus needed a PR TD prior to the fifth year anniversary of landing.)

Outside what I cite and link in forum posts, which over time has added up to many, many such cases, I do not keep a log of case decisions, so I cannot easily link just those decisions about PRs who, at the time of the relevant examination (which again, for PRs who "have been a permanent resident for less than five years," is the date of a PoE examination resulting in being reported and issued a Departure Order). There are nearly NINE HUNDRED IAD decisions citing this particular language, and trying to formulate search criteria to narrow the hits to particular facts would require a rather substantial amount of homework.

In contrast, NOT once in following these issues for more than a decade (including several years during which I was the only active moderator for a forum similar to this), have I seen a single case in which a PR was asked let alone challenged to so much as assert the PR would in fact be staying in Canada any FUTURE days up to the fifth year anniversary of landing . . . those days simply count as CREDIT toward RO compliance.

In all this time I cannot recall a single case in which any PR has even been reported, let alone actually lost PR status in an appeal, where the number of days IN Canada plus the number of days left on the calendar until the fifth year anniversary adds up to at least 730. (So no, I cannot cite and link any such cases, since so far as I can discern the remaining days to the fifth year anniversary ALWAYS get credited.)

Why I referenced "scores and scores" of decisions derives from the many, many cases in which there is passing reference to credit for the days remaining to the fifth year anniversary even though calculating those days is NOT a significant factor in the particular case . . . IAD panels, and more than a few Federal Court justices as well, just casually cite the same language with no hint that there is any controversy or issue about how it interpreted and applied. Days left to the fifth year anniversary simply count.

In any event I do not have time to do much homework about this (an issue which, by the way, I have virtually no reservations about) . . . I have not even had much time to do the homework to more fully explain how some common forum positions about the credit for time-abroad-employed-by-Canadian-business miss the mark, in some respects by a lot, which I began months ago. See topic linked in the following post:

I have been researching the working-abroad-RO-credit issue . . .

. . . which is still a work-in-progress.

But at a glance I can offer a small sample. I will start with a decision which coincides with my recall of many other cases and which I think illustrates the way in which days remaining to the fifth year anniversary count. But I will focus more on a couple cases in which credit was NOT given but ONLY in the context of evaluating the *extent-of-non-compliance* factor in considering whether H&C relief should be allowed.


Jhgra case at http://canlii.ca/t/gjqc7

Note, for example, that as of the date a PR is issued a 44(1) Report, days IN Canada following that day do NOT count as credit toward meeting the PR Residency Obligation (this is Regulation 62(1)(a) IRPA Regulations ).

BUT notwithstanding this, IAD panels will (ordinarily) COUNT those days that are still within the FIRST five years of landing. See the Jhgra case at http://canlii.ca/t/gjqc7 for example. In this case the PR was issued a 44(1) Report at a PoE upon his arrival. The facts are:

-- landed July 8, 2006; first five year period thus July 8, 2006 to July 7, 2011
-- arrived at Canadian PoE March 17, 2011, at which time he had spent 600 days in Canada since landing

-- -- as of March 17, 2011 there were 113 days left to the fifth year anniversary
-- -- total credit toward RO compliance 17 days SHORT of 730​

-- Report valid in law, but PR allowed to retain status for H&C reasons specifically including the fact that the PR was only short by LESS than 20 days as of the date of being reported (that is, the 113 days were credited)​

As is often the case, there are some wrinkles and nuances in the case overall, but the reason I am citing it here is that notwithstanding the regulation which precludes counting days in Canada after the date of being reported, the IAD panel nonetheless still gave this PR credit for those 113 days left to the fifth year anniversary. Which is precisely what Section 28(2)(b)(i) prescribes, recognizing that for purposes of assessing whether the report was "valid in law," that calculation depends on counting days as of the date of the Report, which in this case was 600 days for days actually in Canada PLUS the 113 days left until the fifth year anniversary of landing.


Merana 2018 CanLII 127735 (CA IRB) http://canlii.ca/t/hwz46 . . .

There is a contrary and more recent IAD decision, see Merana 2018 CanLII 127735 (CA IRB) http://canlii.ca/t/hwz46 . . . in which the IAD summarily rejected counsel's argument that a PR's shortfall should be calculated to merely be 41 or 45 days, based on credit for the days remaining between the date of the PR Travel Document application and the fifth year anniversary, rather than over 700 (given the PR had been in Canada just a total of 28 days). And it makes a difference . . . in the H&C analysis, the "extent of non-compliance factor." Here is the entirety of what that IAD panel said on this subject:

"The appellant’s counsel argued the appellant’s breach should be considered as 45 days because of his specific circumstances. To be more accurate and following his logic, the breach should be considered as 41 days (730 days – 689 days [3]), which is based on the date of the application made by the appellant on August 12, 2015. Following this argument, the days subsequent to the appellant’s application would count towards his residency obligation. The appellant’s counsel’s argument is not legally founded and has no merit. Therefore, it will not be considered."​

From this it is impossible to discern to what extent Counsel made an effort to cite legal authority, or even what the argument was based on. There is no reference to the Jhgra case at http://canlii.ca/t/gjqc7 for example, in which the IAD panel specifically did give such credit (and there are many others, but I know this from recall; this is not easily researched in a brief setting). And this IAD also fails to cite any legal authority for rejecting counsel's submission.

Nonetheless the juxtaposition of these cases is illustrative: in both cases, whether credit is given or NOT, the decision to terminate PR status (a 44(1) Report in one; denied PR TD application in the other) was VALID in law. Even if credit is allowed, both PRs were SHORT. (One appeal allowed for H&C reasons; the other dismissed.)

In contrast, I have yet to come across any case in which such credit has been denied where, if credited, that would meet the RO minimum . . . which I believe is because there are no more than rare instances of this (and then either a mistaken outcome or otherwise an anomaly . . . such as a case derived from or related to the investigation of potential fraud).


Ruiz 2012 CanLII 101519 (CA IRB), http://canlii.ca/t/gj8kp

In the Ruiz 2012 CanLII 101519 (CA IRB), http://canlii.ca/t/gj8kp decision an IAD panel also declined to give the PR credit for days remaining to the fifth year anniversary in weighing the extent-of-non-compliance factor as a H&C consideration. He arrived at a PoE having already been absent for well over 1095 days since his landing AND had a return ticket to his home country. And he did NOT stay in Canada pending the appeal, so by the time the IAD heard his case he had been absent from Canada for nearly five full years. His return ticket was considered "proof of his plans" and thus, again in the H&C assessment of weight to be given the extent-of-non-compliance factor, he did not get the benefit of credit for the remaining days.


TO BE CLEAR . . . even though these latter two cases represent NO credit for the remaining days, they DO NOT represent denying credit that would have allowed the PR to be deemed in compliance. I KNOW of NO cases that deny credit for days remaining to the fifth year anniversary in determining whether a PR TD denial or Removal Order was valid in law.

To my view these latter two cases represent a kind of worst case scenario.

 

[dpenabill]

@dpenabill, thank you very much for the thorough explanation!
Yeah, cutting-it-close is the reason for some headaches now. But I cannot change it, only try to avoid it in the future.

I will try to send my application at the end of June. Hopefully it will be processed before the expiration of an old PR card.


If everything is successful, I am going to apply for citizenship in 1.5 years, when I will have 3+ years inside Canada.

Do you have any suggestions on the following options?
Example 1: I decided not to apply for the PR card, and just live inside Canada with expired PR card, and apply straight for citizenship when I will be eligible for it (I understand that this might involve at least 6-18 month of citizenship consideration time, and travel issues without a valid PR).
I assume that even in this case, my application could trigger RO checks for PR (2 years out of 5) and citizenship (3 years out of 5) eligibility.

Example 2: I applied for the PR card renewal with just 520 days inside Canada and after a long delay (8-12 months) and additional checks the PR card was issued. One year after that I applied for citizenship. Would this reduce the probability of RO checks for citizenship? Or it could be triggered by another department and delayed again?

Repeating the obvious: I am NOT qualified to offer personal advice.

To the extent your questions can be answered in general terms, I can offer a bit:

Foremost, which regards BOTH *examples,* how things go will depend on many, many individual factors. The factors you reference may have some influence, but how much so will be easily outweighed by many other factors. For example, when you apply for a new PR card may be in the matrix of considered factors, when applying for citizenship, but your particular travel, residence, and work history will have far more influence on how it goes.

Sure, some factors will have definitive consequences. In the citizenship part of this forum, for example, a participant recently posed queries related to falling short . . . as of the PI Interview for a citizenship application, this individual realized (as the interviewer helped the applicant to realize) falling fifty or so days SHORT of the 1095 days present-in-Canada requirement. No mystery there: the application will be rejected.

BUT whether or not an applicant will be subject to non-routine processing, of any sort, or will be issued RQ-related requests in particular, involves a wide range of facts and circumstances few of which will definitively dictate, for example, that for sure there will be RQ, and virtually NONE of which will guarantee there will NOT be RQ.

But sure, otherwise one can point to vague, general factors, and broad, vague ranges of risk. The stronger the case the less risk of RQ. Yep. But that does not really illuminate a whole lot.

Beyond that:

A PR does NOT generally need a valid PR card to live, work, or otherwise stay in Canada. The fact a PR does not have a valid PR card has far less significance in an internal (in Canada) transaction with IRCC than WHY the PR does not have a valid card. That is, your travel and residence and work history is what will have far more influence than if or when you apply for a new PR card.

A PR abroad without a valid PR card, in contrast, is PRESUMED to NOT have valid PR status (see Section 31(2)(b) IRPA). This can be fairly easily rebutted, but this legal presumption puts a substantial burden of proof on a PR abroad applying for a PR Travel Document.

A PR arriving at a PoE without a valid PR card is in a somewhat in-between place, but is nonetheless statutorily entitled to enter Canada upon establishing PR status EVEN if INADMISSIBLE. The main thing about arriving at a PoE without a valid PR card is that tends to invite RO queries if there are indications of a RO compliance issue (in contrast, many PRs report crossing the U.S. border into Canada without a currently valid card without being questioned much, WHEN it is otherwise apparent they are settled and living in Canada and there is no indication there might be a RO compliance issue).

Once a PR has a SIN, and a provincial drivers licence, and health care card, most PRs do not run into problems later using an expired card to renew the drivers licence or health card (I was NOT even asked to present any proof of status when renewing). Starting again (after going a period without a valid DL or health care coverage) may be problematic without a currently valid PR card. There are reports of some employers requiring proof of current status. Reports of the latter seem to be anomalies to me, but I do not know how extensively employers demand this.

SOME SPECULATION:

I will try to send my application at the end of June. Hopefully it will be processed before the expiration of an old PR card.

I do NOT know. I can only guess. But my sense (for what that is worth) is that applying so far in advance might itself trigger elevated scrutiny if not skepticism. Where you are cutting-it-so-close, it might not take much to push a total stranger bureaucrat to be suspicious. Hard, very, very hard, to guess the best timing, but the more established you are in Canada before applying, and to the extent you are still traveling abroad, the more settled a pattern of living and staying in Canada and only briefly traveling abroad, the stronger your case.

This leans into that Stronger-Case => Lower-Risks kind of observation, too vague, too broad to help a whole lot. But it can be prudent to be aware how your situation might appear to a total stranger bureaucrat and take into account that it takes time to show establishment and, where there are continuing trips abroad, a travel pattern consistent with being established and settled in Canada.

ALSO BE AWARE of the RISKS if contingencies lead you to be abroad more than you planned. Stuff-Happens. The biggest risks when cutting-it-close are practical risks . . . such as something happening that results in spending so much time abroad you fall short of complying with the RO. In this regard, be aware that there are some indications PRs with PR card applications in non-routine processing have a flag or alert in their file, so that PoE officials are aware and can be more cognizant if circumstances suggest a potential RO compliance issue. Likewise if the PR applies for a PR Travel Document.

Personally I probably lean a little too heavily in the risk-adverse direction . . . but if there is a chance you might end up abroad and SHORT, my sense is the risk of being reported upon returning to Canada goes up if at the same time there is a PR card application which, say, has been referred to Secondary Review.

This forum is rife with tales of woe arising from well-crafted but little margin-of-error plans going awry . . . a car crash abroad requiring hospitalization abroad for weeks . . . a family or business emergency demanding a stay abroad for longer than anticipated . . . even events like the widespread cancellation of airline flights, such as a few years ago when an Icelandic volcano eruption caused many disruptions in trans-Atlantic travel, for some delaying their trip by several weeks. Longer ago, but also very disruptive, was the closing down of North American airspace for a lengthy period following the events of 9-11-2001. Stuff-Happens. If and when the PR is short being in compliance, reasons for being stuck abroad for an extra 30 or 50 days DO NOT explain away being abroad for the other THOUSAND plus days the PR has been absent from Canada.

EDIT TO ADD -- I should caution that as adamant as I have been about days remaining to the fifth year anniversary get credit, there is the overall IMPRESSION factor. You will NOT find it explicitly referenced in the rules or cases. BUT obviously, in terms of impression made, days not yet spent in Canada do not make as strong a positive impression as the number of days already spent in Canada. Not so obviously, but more so than many realize, the overall IMPRESSION factor can have a lot of influence. My guess is that this factor alone may have had a big impact in the Morena case I discuss in an above post . . . just 27 days actually spent in Canada, against which the mere possibility of another 650 or so days, which would still leave Morena short, does NOT make a good impression. Apart from all the formal reasons for which decisions hang on particular details and numbers, it is well apparent that how it goes in many of those cases is as much about intangible factors, like the impression the PR makes. Of course the biggest element in this is the effect impression has on the PR's credibility, but it is apparent that a general sense of whether the PR DESERVES to keep status plays a large albeit not spoken role.