As
@mpsqra suggested, in line with what
@scylla posted, no need to think much about this, no need to wrestle with
what-ifs, as long as you come to Canada, stay, and wait two years to apply for a new PR card.
That is: Get here. Stay. Wait two years to apply for a new PR card. That is the safest, most for-sure path to a positive outcome. No need to over-think things beyond that.
Probably NOT worth drilling into the
what-if scenarios beyond that. Probably best to go that safe route.
BUT . . . my participation here tends to go into the more complicated
what-if scenarios, into the nuances, down paths wandering into the weeds . . .
So . . . For-What-It-Might-Be-Worth . . . which might be worth SKIPPING . . .
Again, you "can" apply for a new PR card any time after you are back in Canada. Whether you *
should* or not is the tricky question. Well, again, knowing the *safe* approach is not tricky. Safe approach is to come, stay, and wait two years. Repetition here for emphasis. But you can apply for a new PR card, and present your H&C case in the application, and IRCC could proceed to issue you a new PR card . . . based on either the visa office decision in-effect recognizing the H&C case warrants allowing you to keep status, or based on its own evaluation of your H&C case.
I am
NOT recommending you do this. If you are thinking of doing this, I would recommend you at least
consult with a competent immigration lawyer IN Canada (that is, after you get here) before deciding to proceed with a PR card application sooner rather than waiting.
But there are situations in which a PR might need, not just "want" but actually need, to take the risk of applying for a new PR card. A returning PR who knows, for example, he or she will need to travel abroad on some occasions within the next two years.
This would be a bad risk if the H&C case is anything less than very, very strong. So even considering doing this depends, foremost, on being extremely confident in the strength of the H&C case itself.
Regarding this, it warrants remembering, there are very, very
FEW H&C cases which are likely to be,
for-sure, successful. No H&C case is guaranteed.
This leads back to your particular questions, and the suggestion that there was a mistake in issuing you a PR TD without the coding for H&C.
You appear to be confident, if not certain, that your H&C case is so strong that it was an error to not formally grant you H&C relief.
But let's review the situation without any such assumption . . . As suggested by others, it is NOT likely there was an "error" to be corrected. Similar outcomes have been reported here by others.
As suggested by others, not likely there will be a problem on arrival at the PoE.
[That noted, you will need a valid PR TD to board a flight to Canada. I do not know how Canada is handling date of travel issues due to Covid-19; but as long as they consider the PR TD valid (whether you make the trip before this one expires, or they extend validity or suspend expiration, or issue a new PR TD, or whatever) that is what will work. As long as you have a valid PR TD, or in-effect-valid PR TD, as far as reporting reveals it appears UNLIKELY there will be any RO compliance issues at the PoE upon your arrival. ]
Which leaves the question about whether to apply for a new PR card after you have come to Canada and are settled here . . . and again, the response offered by
@scylla is the SAFE approach. If you STAY in Canada and wait two years, that cures any breach of the Residency Obligation. That eliminates the possibility of a PR card application triggering a formal RO compliance examination at a point in time you have been IN Canada fewer than 730 days within the previous five years. Effectively eliminating the risk of being issued a Removal Order based on a breach of the RO.
But you "can" apply for a new PR card any time after you are back in Canada. Whether you *should* or not is a tricky question. You appear to have understood that if the visa office issued a PR TD coded for H&C, then it would have been OK, "safe," to make a PR card application soon after arriving in Canada. To be clear, however, while doing this should be relatively safe, it is NOT guaranteed safe. Especially if a significant amount of time passed between the date the PR TD was issued and the date the PR made the actual trip to Canada, and in consideration of any other circumstances in the individual PR's situation. That is, a favourable H&C decision is generally given credit and deference but it does not necessarily restart the RO compliance clock.
BUT the visa office did not issue a PR TD coded for H&C.
If you were obviously in breach of the RO, of course the decision to issue the PR TD had to be based on H&C reasons (unless it was an error . . . which warrants addressing separately, and I will). So, even if the PR TD does not bear the coding for H&C, there was nonetheless a favourable H&C decision of some sort.
Which brings this round to your current situation ASSUMING you are able to use this PR TD, or an extension of it, or a replacement, to actually get here (that is depending on how things go in regards to actually making the trip to Canada).
So, assuming you get here. Assuming no RO issues at the PoE (and there shouldn't be). What then? Apply for a new PR card soon? Or wait?
Again, consistent with what
@scylla commented, the SAFE approach is to wait.
Otherwise, how certain are you that your H&C reasons would compel IRCC to allow you to keep PR status despite failing to comply with the PR Residency Obligation? That is what you are gambling if you apply for a new PR card soon after arriving here. You are gambling that IRCC either relies on the fact the visa office decision, to issue the PR TD, was based on sufficient H&C reasons for allowing you to keep PR status (assuming that was the decision), or that otherwise IRCC's evaluation of your H&C case will result in a favourable decision allowing you to keep PR status.
How confident are you that a favourable H&C decision is virtually mandated?
This, in turn, takes the discussion back to your feeling that the visa office made a mistake in not issuing a PR TD with the H&C coding. As noted, it is likely, highly likely, there was NO error. We have seen this in a fair number of other anecdotal reports. It makes sense.
But sure. Any decision can be the result of error. Of course
the more likely error, if there was an error, is that a PR TD was issued. How certain are you that if there was a procedure for reconsidering the PR TD decision, that doing so would result in a PR TD with the H&C coding, and NOT a correction denying a PR TD altogether?
Back to
it-makes-sense for the visa-office to issue the PR TD without H&C coding: again, we have seen more than a few anecdotal reports of this. I have not seen any authoritative let alone official sources addressing this, but it is easy to infer that the visa office may have concluded there are sufficient H&C reasons to allow the PR the opportunity to return to Canada but leaving open the H&C question otherwise. Technically you are correct, this does leave the door open a crack for the PoE officials to screen the returning PR, upon arrival at a PoE with the PR TD, for RO compliance. Which could mean the PR needs to again present the H&C case to the PoE officials. This is NOT likely. The PR TD decision itself will, in almost all cases, be sufficient assurance to the PoE officials that the PR should be allowed to return without being Reported for a RO breach.
BEYOND THAT, however, in the time of cholera . . . or, more to the point currently, during a global pandemic due to a novel corona virus . . . during which there have been comprehensive restrictions on travel, it would not surprise me if the visa-offices (and this may become true at the PoE as well) are being more flexible, perhaps outright lenient, in allowing PRs to return without negative RO decisions . . . in effect putting off when such PRs will face more strict scrutiny for RO compliance . . . an opportunity to continue a life IN Canada but NOT a free pass. Just a possibility.
