Will CIC not mail in PR Card to ur address if they know you have left Canada ?

[rbrar14]

Thank u so much for your response, implanning on coming to canada coming june 2017. When should i apply for prtd ?? Brothers ilnness proof and what else should i include with it ????

 

[rbrar14]

Advice ??

 

[dpenabill]

You are asking for definitive answers to questions dogged by variables and contingencies, many involving some degree of uncertainty, and subject to discretionary decision-making which can be uncertain and thus unpredictable.

Technically you are in breach of the PR Residency Obligation, which means if the law is enforced, you will lose PR status. There are variable paths to that outcome. One is applying for a PR Travel Document and that being denied. There are other paths to this outcome.

Since your spouse is a Canadian PR, once you have lost PR status your spouse could sponsor a family class application for you. This is dependent on your spouse being eligible to sponsor, including the basic eligibility elements: a PR who is in compliance with the PR RO, and who is in a qualified relationship with you, and who is living in Canada, and who is not on public welfare. There are additional eligibility requirements (such as not having any domestic violence charges).

In any event, the most definitive answer available is that being in breach of the PR RO, you are subject to losing PR status, and thus would need to be sponsored for PR by your spouse in order to live in Canada as a PR in the future. But, since Canada tends to be rather lenient toward PRs, if not generous, there are other possibilities for potentially keeping your current PR status. These possibilities are, again, dogged by variables and contingencies, many involving some degree of uncertainty, and subject to discretionary decision-making which can be uncertain.

My guess, based on the superficial amount of information about your situation posted in this forum, is that the odds of successfully making the H&C case are not good. But you should NOT rely on my guess.

My sense (and again, this is for informational purposes and you should not rely on my sense) leans toward the efficacy of making the PR Travel Document application, making this as soon as you reasonably, practically can, including in that the best H&C case you can make, and if a PR TD is granted, you would be good to go, you could use it to return to Canada and you would then be able to continue to live in Canada as a PR. If the application for a PR TD is denied (my guess is this is more likely, but it could go either way depending on how strong you make the H&C case), rather than appeal, perhaps best to go the route of having your spouse in Canada sponsor you . . . assuming, again, your spouse is eligible to sponsor you.

As I have responded previously, at least consulting with a Canadian immigration lawyer would be a good idea. Your spouse in Canada could, perhaps, do this on your behalf.



Making the H&C case:

What to include in the application for a PR TD to make the H&C case?

IRCC information does not offer much help for this. H&C cases vary widely. H&C cases are very much specific to the particular individual. The H&C case, after all, is about whether or not IRCC should, in effect, waive the breach of the PR RO and allow the PR to retain PR status. In some sense it is about who deserves a break, who deserves a chance to keep their PR status.

A lawyer's help would, well, help.

You could get a better idea about what IRCC considers if you look at the part of Operational Manual ENF 23 "Loss of permanent resident status" about making "Humanitarian and compassionate determinations."

See http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf

In particular, see Section 7.7 beginning on page 26.

You could do a lot more homework, a lot more research than that, such as looking at IAD and Federal Court decisions which involve H&C determinations in PR breach of the PR RO cases. Better approach, though, is to obtain the help of a Canadian immigration lawyer.

Otherwise, it comes down to simply including an explanation of your situation, and with that documentation to in effect prove the particular elements of your situation. That is, you explain the nature and extent to which you have been in Canada, have established ties in Canada, have ongoing ties in Canada, and explain why you have not returned to Canada sooner or why it is you have been absent as much as you have.

 

[747-captain]

You are asking for definitive answers to questions dogged by variables and contingencies, many involving some degree of uncertainty, and subject to discretionary decision-making which can be uncertain and thus unpredictable.

Technically you are in breach of the PR Residency Obligation, which means if the law is enforced, you will lose PR status. There are variable paths to that outcome. One is applying for a PR Travel Document and that being denied. There are other paths to this outcome.

Since your spouse is a Canadian PR, once you have lost PR status your spouse could sponsor a family class application for you. This is dependent on your spouse being eligible to sponsor, including the basic eligibility elements: a PR who is in compliance with the PR RO, and who is in a qualified relationship with you, and who is living in Canada, and who is not on public welfare. There are additional eligibility requirements (such as not having any domestic violence charges).

In any event, the most definitive answer available is that being in breach of the PR RO, you are subject to losing PR status, and thus would need to be sponsored for PR by your spouse in order to live in Canada as a PR in the future. But, since Canada tends to be rather lenient toward PRs, if not generous, there are other possibilities for potentially keeping your current PR status. These possibilities are, again, dogged by variables and contingencies, many involving some degree of uncertainty, and subject to discretionary decision-making which can be uncertain.

My guess, based on the superficial amount of information about your situation posted in this forum, is that the odds of successfully making the H&C case are not good. But you should NOT rely on my guess.

My sense (and again, this is for informational purposes and you should not rely on my sense) leans toward the efficacy of making the PR Travel Document application, making this as soon as you reasonably, practically can, including in that the best H&C case you can make, and if a PR TD is granted, you would be good to go, you could use it to return to Canada and you would then be able to continue to live in Canada as a PR. If the application for a PR TD is denied (my guess is this is more likely, but it could go either way depending on how strong you make the H&C case), rather than appeal, perhaps best to go the route of having your spouse in Canada sponsor you . . . assuming, again, your spouse is eligible to sponsor you.

As I have responded previously, at least consulting with a Canadian immigration lawyer would be a good idea. Your spouse in Canada could, perhaps, do this on your behalf.



Making the H&C case:

What to include in the application for a PR TD to make the H&C case?

IRCC information does not offer much help for this. H&C cases vary widely. H&C cases are very much specific to the particular individual. The H&C case, after all, is about whether or not IRCC should, in effect, waive the breach of the PR RO and allow the PR to retain PR status. In some sense it is about who deserves a break, who deserves a chance to keep their PR status.

A lawyer's help would, well, help.

You could get a better idea about what IRCC considers if you look at the part of Operational Manual ENF 23 "Loss of permanent resident status" about making "Humanitarian and compassionate determinations."

See http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf

In particular, see Section 7.7 beginning on page 26.

You could do a lot more homework, a lot more research than that, such as looking at IAD and Federal Court decisions which involve H&C determinations in PR breach of the PR RO cases. Better approach, though, is to obtain the help of a Canadian immigration lawyer.

Otherwise, it comes down to simply including an explanation of your situation, and with that documentation to in effect prove the particular elements of your situation. That is, you explain the nature and extent to which you have been in Canada, have established ties in Canada, have ongoing ties in Canada, and explain why you have not returned to Canada sooner or why it is you have been absent as much as you have.

Wow!! Read a substantial part of that manual and it was a good, but scary read! Some of it is definitely very very deeply disturbing! Section 7.1 (towards the middle) the NOTE says:

"A28(2)(b) and A31(3) provide that the onus rests with the permanent resident to provide information and evidence to satisfy an officer that the residency obligation has been/will be met"

Ordinarily, this by itself would not be a huge concern, although it is still a bit unnerving that the burden of proof rests with the PR, and that makes this sort of thing rife for abuse by an officer or other immigration authority should they wish to give someone a hard time. But what makes this situation truly and outright DANGEROUS for a PR, is when the above is combined with what follows in that same section (towards the end of the section):

"Put simply, this means that the permanent resident bears the full responsibility of demonstrating - with supporting documentation as considered necessary by an officer - that they were physically present in Canada for the required number of days or that they have otherwise met (or will be able to meet) the residency obligation as prescribed in the Act.
The permanent resident also bears the onus of presenting documentation that is credible, in the opinion of an officer, to support any assertion(s) made by the permanent resident, or that may have been made on behalf of that permanent resident. There is no one document that can categorically establish a permanent resident’s physical presence in Canada."

The parts that I've bolded and underlined are particularly disturbing! It essentially states that a random officer (say he does not like the way your name sounds) may, at his or her discretion, deem that you have NOT COMPLIED with the RO obligations, regardless of what evidence you may produce. You could literally have transcripts from colleges, credit card statements, utility and phone bills, rental agreements, perfectly filed tax returns, perfect records of entry/exits in your passport and proof of full-time employment at the Royal Bank of Canada. The officer could still turn around and say "I'm not convinced that you've lived here for the requisite number of days, because I say so", and according to that manual it would be perfectly within his discretion to do so! THAT is indeed scary!

I know people are going to say "Oh, but that is extremely unlikely to happen". Honestly, I don't care how likely it is. The fact still remains that a rogue officer could potentially do something like that, with no checks or balances and no consequences whatsoever!

Of course, in the above scenario the PR provided a mountain of evidence. What happens when someone does not even have that? Let's say the person did not obtain full time employment or did not attend college etc.? That makes it even easier for the officer to use negative discretion with zero consequences, leaving the PR (who may very well have lived every single day of those 5 years in Canada) completely and totally helpless!

And this is the same way it works with Citizenship applications as well. The burden of proof rests with the applicant and more importantly, the decisions are highly discretionary and highly inconsistent from one individual to another. But at least Citizenship is optional. One can still live and work in Canada without it. But what happens when an officer erroneously or intentionally decides that a PR has not met their RO obligations, based on a whim and fancy?

All of that said, there was a small ray of light at the end of that manual outlining the Supreme Court vs. Baker decision. This tells me that some sort of an appeals process does exist, whereby an impartial Judge can review these things for "abuse of discretion" Keep in mind I don't believe in administrative appeals bodies of immigration departments. One such body, the Board of Immigration Appeals, here in the US, is well known for "rubber stamping", 90% of the time, whatever decisions immigration officers make. In such cases justice is usually served when cases are then appealed to the impartial judiciary such as the Federal District Courts or the Federal Circuit courts of Appeal! From my reading of that case in the manual, it appears decisions can, in fact, be appealed for abuse of discretion to the Federal Courts in Canada.