Returning to Canada (didn't meet RO)

[Ranvir Moore]

Hi Experts,

Need some advise on the following matter pertaining to RO.

Me and my wife landed in December 2013 and the 5 year term expires in December this year. We have barely stayed in Canada for 3-4 months. Back in 2015 I tried my best to get established in Canada and even completed my certification in Arbitration from the ADR Institute Canada. But, I was not able to find employment and/or get any clientele. Because of this we moved back to our home country (India) and I resumed my profession here. Another reason to move back was that my wife’s mom was not feeling well; who passed away in 2016.

Now we want to take another short trip to Canada. We are still not ready to move in permanently as my wife’s dad is quite old, dealing with medical issues, and she is quite attached to him (although not living in the same household).

I understand that we won’t have any issues flying out of India as we still have valid PRs. Although, upon landing in Canada we could get a Deportation Order by the CBSA officer as we have not completed our Residency Obligations. If this happens, what are my options? Do I get to appeal to the IAD and if so in how many days do I have to file an appeal? And if we do file an appeal, do I have to be in Canada until a decision is made? I would also like to file for renewal of the PR on H&C grounds (elderly parents) so that we can make our final move by 2020.

Please advise on what should be done. Thank You!!!

 

[Binabik]

The officer can report you but not deny your entry as long as your PR card is still valid. If you are reported you can appeal and defend your case during a hearing (whether you are in Canada or not). The following link should answer your questions about the whole process: http://www.irb-cisr.gc.ca/Eng/BoaCom/references/procedures/Pages/ProcessResObl.aspx

I recommend not to tell you left Canada because you couldn't land a job: this is not a valid reason for not meeting your RO, and it actually suggests that you have little to no tie to Canada. Humanitarian and compassionate reasons (taking care of sick relatives) is probably your best shot.

If you win your appeal you should consider moving to Canada sooner rather than later. I would not take the risk of a second hearing in 2020...

 

[Buletruck]

The fact you don’t plan to stay in Canada permenently will work against you. If you are reported, then appeal and leave the country, you are effectively indicating you have no intention of staying. Although your wife’s mother being sick might work for H&C, the fact she died in 2016 and you didn’t return will likely be a negative or of no influence on an appeal. Personally, I wouldn’t attempt to return until you are prepared to settle. Even if you receive new PR cards under appeal (they are only good for a year) leaving Canada and returning would probably result in you being reported again. And time in Canada does not count towards RO until you win an appeal.

 

[Ranvir Moore]

Thanks Binabik and Buletruck!!

So from what I understand, upon arrival in Canada the officer, may or may not report us or issue a Deportation Order, even if its clear that we won’t be able to meet the RO in a 5 year term. It’s good know that if reported we could defend the case while in India (as it would be a short 45 day trip). Thanks for sharing the link. I found it quite informative. How does the visa officer outside Canada find out that a person has not met the RO?

Would like some clarity on the following:
“If you win your appeal you should consider moving to Canada sooner rather than later. I would not take the risk of a second hearing in 2020...”
If the appeal gets approved and I move back to Canada, would that be considered equivalent to PR renewal; where the RO re-start from scratch (physical presence for 730 days out of 5 years)?

On the following note:
“Personally, I wouldn’t attempt to return until you are prepared to settle.”
I like the idea. So what I understand if all goes well and we do not get reported, we are still bonafide Permanent Residents of Canada. And we request the Travel Document (upon expiry of PR card), only when we are ready to move to Canada for good. This might bring us to spotlight and we might have to deal with the IAD and appeal.


As per the following:
“Even if you receive new PR cards under appeal (they are only good for a year) leaving Canada and returning would probably result in you being reported again.”
Please shed some more light on this. Is this true? If so, how would one accumulate 730 days in a 5 year term? What would happen after expiry of this 1 year PR card?

Is there a way for me to maintain my PR (on H&C grounds) and still get a renewal for the next 5 years?

Thanks again for all your help.

Best,
Ranvir!!!

 

[spousalsponsee]

As per the following:
“Even if you receive new PR cards under appeal (they are only good for a year) leaving Canada and returning would probably result in you being reported again.”
Please shed some more light on this. Is this true? If so, how would one accumulate 730 days in a 5 year term? What would happen after expiry of this 1 year PR card?

You accumulate 730 days within 5 years by being in Canada, when your status is not in question. You only get a 1 year card if they're contemplating removing your status. At the end of that process, you will either be allowed to stay, or not. If you are, you get a regular 5 year card again, and your RO is calculated from that point. If you are not, you are no longer a PR and have no need (or likely ability) to accumulate 730 days in Canada in any period.

 

[Bs65]

You accumulate 730 days within 5 years by being in Canada, when your status is not in question. You only get a 1 year card if they're contemplating removing your status. At the end of that process, you will either be allowed to stay, or not. If you are, you get a regular 5 year card again, and your RO is calculated from that point. If you are not, you are no longer a PR and have no need (or likely ability) to accumulate 730 days in Canada in any period.

Where you say get a regular 5 year card and RO calculated from that point, you mean back to a rolling 5 years on each new entry to the country where need 730 days in that 5 year period ?

 

[Buletruck]

If the appeal gets approved and I move back to Canada, would that be considered equivalent to PR renewal; where the RO re-start from scratch (physical presence for 730 days out of 5 years)?

Winning an appeal does not reset the clock on RO. It simply means that they have accepted your reasons for not meeting the requirement when the report was issued. You must maintain the residency requirements at all times.

So what I understand if all goes well and we do not get reported, we are still bonafide Permanent Residents of Canada.

Until the government of Canada revokes your status or you renounce it, you are always a bonifide PR. No exceptions. Applying for a PRTD after your PR card has expired (without meeting RO) is probably the most likely scenario in which IRCC will start the process to revoke your status. It’s all documented on paper when and where you we’re in the past 5 years.

If so, how would one accumulate 730 days in a 5 year term? What would happen after expiry of this 1 year PR card

To accumulate 730 days in 5 years, the answer is obvious......stay in Canada. If you are still under appeal at the end of 1 year, they would issue another limited validity PR card, again for 1 year.

Should you manage to renew your PR card through H&C, you still have to meet RO. There is no free pass, even with H&C. All H&C provides is an exemption from having your status revoked if you don’t meet RO. It doesn’t guarantee further exemptions in the future.

 

[Buletruck]

If you are, you get a regular 5 year card again, and your RO is calculated from that point.

I disagree. RO doesn’t start over. After the first 5 years you are required to meet RO of 730 days in the previous 5 years. There is no exception to that just because you won an appeal. If you won, recieved a new pr card and left the country you would still be subject to the RO requirements for the past 5 years.

 

[Rob_TO]

Thanks Binabik and Buletruck!!

So from what I understand, upon arrival in Canada the officer, may or may not report us or issue a Deportation Order, even if its clear that we won’t be able to meet the RO in a 5 year term. It’s good know that if reported we could defend the case while in India (as it would be a short 45 day trip).

As mentioned if you're reported and decide to appeal, but then immediately live and continuing residing in India, you can probably count on your appeal being denied.

. How does the visa officer outside Canada find out that a person has not met the RO?

They can simply ask you how long you've been outside Canada, to which you'll need to answer truthfully.

Also right on the Declaration card you'll fill out, Part C is a question "Date left Canada". So it will be plainly obvious you don't meet RO.
https://www.cbsa-asfc.gc.ca/publications/forms-formulaires/e311-eng.pdf

 

[Rob_TO]

I disagree. RO doesn’t start over. After the first 5 years you are required to meet RO of 730 days in the previous 5 years. There is no exception to that just because you won an appeal. If you won, recieved a new pr card and left the country you would still be subject to the RO requirements for the past 5 years.

It's kind of a grey area. The exact wording is:
"When an officer determines that humanitarian and compassionate considerations relating to a permanent resident justify the retention of permanent resident status, then such a determination will overcome any breach of the residency obligation made before the H&C determination. "

IRCC would not grant one a H&C overcoming of RO, allow them to move back to Canada and get a new PR card, and then demand they stay within Canada 2 straight years and forbid them to leave. So on trips outside Canada for the first few years after the H&C approval, I think there is some leeway in being able to leave even though you don't actually meet the 2-in-5 years requirement. With the valid PR card it shouldn't really be an issue anyways, but obviously could be a problem if PR card is lost while traveling and a PR TD is required. In this case we have seen cases where the visa officer refused PR TD despite the recent H&C approval by another visa officer.

And of course if one immediately leaves Canada for an extended absence right after getting the H&C approval, that could also be an issue as it would make it seem like they abused the initial H&C reason.

 

[Ranvir Moore]

Hi Guys,

Many thanks for sharing all this insightful information.Based on the above 1 feel we have two options on hand.

#1:
Not to travel to Canada unless we are ready to settle.
What this means is that we let our PR Cards expire in December 2018 and continue to take care of family matters (sick father who is 90+ years old). And we apply for PRTD when we are psychologically and financially ready to wind up our affairs in India and relocate to Canada. And as long as we spend an extended period (majority) of time in Canada, we’ll be able to get a new PR with 5 year validity (after expiry of PR with 1 year validity).

#2:
We stick with our plans to fly down to Canada for a 45 day period in the summer months.
After landing we see the CBSA officer and based on our extended absence, and considering the fact that we cannot meet our RO by December 2018, we get reported for PR revocation proceedings. As we have to head back to India within the 45 days, we’ll file an appeal on H&C grounds to IAD after reaching India.
If denied, we’ll lose our Canadian Permanent Residence. If this happens, do we have an option to file another appeal to any other authority for reconsideration?
If accepted, I understand we’ll be granted a PRTD and a PR Card (I think) with 1-year validity. We’ll have to move back to Canada within this time frame (by 2019) and stay in Canada for an extended period. If we do that then we have more likelihood of getting a renewed PR Card with 5 year validity. Whereas, if we continue to stay in India for an extended term during this period, it would be next to impossible to retain our PR status.

Clearly option #1 seems to be more viable at this time as we are not ready to move back to Canada yet. I guess there is no other way to come down for a short summer trip without getting noticed by the Canadian Immigration authorities?

Please advise if I misstated something. Is there any official website which states all these details in addition to the one shared above (RO Appeal Process)?

Thanks again for all your help.

Ranvir

 

[Binabik]

There is a 3rd option (you may not like it but it is just for completeness): Renounce your PR status since you are not planning to settle anytime soon; travel freely in Canada as a tourist without having to worry about the appeal and a possible removal order; reapply for PR about one year before you plan to actually move to Canada for good.

 

[Ranvir Moore]

Thanks for sharing the 3rd option Binabik.

On what basis would I reapply for my PR? On what basis would I get reapproved? Is there such a provision which will entitle me to reapply and get the PR within 1 year (if I renounce the PR)?

Once again, thanks for reviewing my listed options ( my thoughts) and sharing the insightful details.

Best,
Ranvir

 

[Rob_TO]

Thanks for sharing the 3rd option Binabik.

On what basis would I reapply for my PR? On what basis would I get reapproved? Is there such a provision which will entitle me to reapply and get the PR within 1 year (if I renounce the PR)?

Once again, thanks for reviewing my listed options ( my thoughts) and sharing the insightful details.

Best,
Ranvir

If you renounce your PR status, you will need to qualify from scratch for one of the current immigration streams. For example if applying for express entry you'll need to submit a profile, calculate your points, and get selected to apply.

It will be as if you never had PR before.

 

[canuck78]

Your Option #1 seems simple bit it is not. You will need to apply for PRTD based on H&C reasons. That is a long process that does not take the same time as a normal PRTD. The acceptance rate is quite low.