Issue: PR issued 44(1) report and Removal Order, Removal Order successfully appealed based on H&C grounds:
Alurra71 said:
They have approved your appeal based on H & C appeal. They will renew your card also based on that. If you still have an issue with your R/O and you leave the country still not meeting it, you can find yourself starting all over again from square one if you leave the country. The reason being they gave you a 'pass' to get you back into the country and agreed that your reasons were valid. What reasons are you going to use this time if you leave the country and they report you for failing to meet the RO again when you try to come back?
Winning an appeal gives you the pass, but it doesn't remove your RO obligation.
In contrast:
CanV said:
Are you implying that after the OP is approved under H&C and he/she gets new PR cards then leaves the country for lets say 1 or even 6 months, that he/she risks getting reported when returning? Thats definitely not true.
I am no expert, no lawyer, but having followed the few, sporadically published Federal Court and IAD decisions there are in PR Removal Order cases based on inadmissibility due to a breach of the PR Residency Obligation, for a number of years now, my sense is that the post by
Alurra71 is closer to the mark than the categorical assertion to the contrary by
CanV, but it is not as though merely traveling abroad will involve a reassessment of the previous absences in effect
excused due for H&C reasons.
In particular, for sure, getting the H&C pass once does not thereafter forever immunize a PR from being found inadmissible due to a breach of the PR Residency Obligation. The question is what extent of absence will (1) trigger a residency examination which (2) CBSA and CIC (if Removal Order issued and appealed) determine to constitute a breach of the PR Residency Obligation rendering the PR inadmissible (and thereby revoking PR status).
I am quite confident this is not a question which can be answered in the abstract, but is one that is dependent on a wide, wide range of circumstances and factors specific to the individual, and specific to the particular event itself. A brief absence, for example, will almost certainly not trigger a residency examination upon return to Canada, but even if it does the ultimate outcome should not be negative. The longer the absence, the more risk there is to the contrary.
Some older cases have fairly explicitly said that once an absence is, in effect, adjudicated (meaning there was a successful appeal usually) as
excused due to H&C grounds, the validity of the H&C grounds cannot be revisited (due to what is called
"res judicata," meaning the thing has been decided) and thus that absence
should not, going forward, be counted against the PR for purposes of assessing compliance with the PR Residency Obligation. What is not clear, however, is the extent to which longer absences can be considered a change in circumstances warranting a reconsideration overall. Remember, the H&C evaluation is complex, and while the reason(s) for remaining abroad is a critical factor, other factors loom large as well, including the duration of the absence and whether or not the applicant returned to Canada at the soonest opportunity.
There are a number of things which make it particularly difficult to predict what sort of absence might trigger problems, perhaps even a Removal Order that survives an appeal thus becoming enforceable (thus constituting the revocation of PR status), and while the variability of circumstances for the specific individual looms largest among these, it should be remembered that the trend over recent years has been for both CBSA and CIC to be increasingly strict in enforcing the PR Residency Obligation.
In general, though, I would consider leaving Canada for anything other than a clearly temporary reason to be risky. For example, leaving Canada within a month of receiving the new PR card, to live and work abroad, elevates the risk dramatically, recognizing that how soon one thereafter attempts to return to Canada is probably a big factor . . . within a month or so, probably not so much a problem . . . more than six months, very risky.
Also note that the fact that the PR had to appeal the earlier Removal Order indicates what the sentiment, inclinations, of CBSA and CIC are, as in not favourable. Engaging in conduct (extended absence for example) which might give CBSA or CIC an excuse to attempt to issue and make a Removal Order enforceable, is probably a bad idea.
