dkiyua said:
Thanks for the feedback , I made the decision to leave for an opportunity that I could not get in Canada after getting rejections from multiple schools. Canada has 8 dental schools with only 6 that speak english and most of them only accept about 35 students a year while the US has over 50 schools with many accepting way over 100 students. I had the choice to stay in Canada and work a job I hated going nowhere and wishing I could be a dentist or accept the position with a scholarship in the US. I just didn't realize that I was not meeting my PR obligation especially because I have been back and forth btw US and Canada with no issue.
I am looking for more information especially from anyone that has been in the same situation, anyone that left to go to school and then returned and is going through the appeal process.
Again, but importantly, depending on many other factors and circumstances, you may have a good case with fairly good prospects of successfully appealing the Removal Order, based on your reasons for being abroad, extent of your establishment in Canada, frequency and duration of time spent in Canada during the last five years, and the circumstances of your employment in Canada while the appeal is pending. But the details matter. And an experienced lawyer's assistance in both assessing your case and, assuming you can afford it, representing you in the appeal process, is a far better approach than making decisions based on anonymous internet posts (including better than relying on my posts).
How much you continued to go back and forth between the U.S. and Canada, and including especially the nature and duration of your time in Canada, is at least as significant as the reasons for being abroad.
If, for example, in the five years prior to the date you were reported for inadmissibility (due to non-compliance with the PR RO) you were in Canada for most of the longer breaks between classes, most of the time you did not otherwise actually need to be attending classes, that would help your case considerably.
In contrast, minimal continued time/experience in Canada is likely to weigh negatively, and depending on how minimal this was, it is a factor which could make it difficult for your reasons to suffice.
But many other factors can have an impact.
Again, all the relevant circumstances matter! Context matters.
Not even the most obvious factors, positive or negative, are considered in isolation but rather are weighed in context, in consideration of all the other relevant facts and circumstances.
Because of this, you cannot rely on how things turned out in this or that individual case for someone else who fell short of compliance with the PR RO and was issued a Removal Order, and who appealed based on H&C reasons largely related to attending an advanced education program unavailable to that individual in Canada. The particular facts and other circumstances for that individual will have had too much influence to support any general conclusions as to what weight is given the reasons for remaining abroad to attend a particular school program.
That is, there is no general rule that your reasons for remaining abroad will be considered sufficient for you to retain PR status based on H&C considerations; indeed, you have already received an adjudicated decision that your reasons are not sufficient, and that is what you are appealing.
But neither is there a general rule that your reasons are insufficient to allow you to retain PR status based on H&C considerations . . . to the extent that
Leon's observation (
"Choosing to study outside Canada is not generally considered to be H&C grounds.") suggests otherwise, I disagree with that.
There are actual cases of course. They are not easy to research unless you are willing to wade through a large number of relatively non-relevant decisions (or perhaps you are a better researcher than I am and can better tailor your search query for IAD decisions). The actual facts in each case will vary a lot and are likely to differ from yours by a quite a lot. But many of the cases even only a little relevant can be rather illuminating as to the range of factors considered and their influence, and how they in turn influence one another, as to the nature of what is considered.
see http://www.canlii.org/en/ca/irb/ to research
actual cases heard and decided by the IAD.
Also see the operational manual ENF 23 Loss of permanent resident status here:
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
See discussion about "Humanitarian and compassionate determinations" in section 7.7, beginning on page 26, in particular.
What is "generally considered" to be H&C grounds:
It is relatively easy to find a wide range of particular factors or H&C "considerations" as articulated by the Immigration Appeal Division (IAD) in official decisions regarding appeals, including from both denied PR Travel Document applications and Removal Orders arising from PoE examinations. While many probably have little relevance to your situation, many address some of the factors which are likely to be relevant for you and at least illuminate some aspect about how this or that factor is considered.
Some examples of key ones which come up in case after case and which may be relevant to your situation (note that some of these overlap, and again that in many respects the various factors are interwoven):
-- Degree to which the appellant failed to meet the residency obligation
-- Length of time the appellant spent in Canada and his degree of establishment (including employment and training)
-- Reasons the appellant continued to live abroad and the dates of trips to Canada
-- Appellant’s attempts and efforts to return to Canada at the first available opportunity
-- the appellant's future plans
-- other circumstances, such as actually finding employment in Canada
-- the appellant's credibility (including sincerity)
-- combined effect of all the factors
The above are all factors
quoted from official decisions in actual cases.
Some sample decisions:
Continuing education in home country; Garcia:
see http://canlii.ca/t/fm291 Garcia decision
In this case, the PR's decision to remain abroad for the purpose of continuing his education in his home country was not considered a compelling reason sufficient to warrant special relief. But the facts of this case are probably easily distinguished from yours.
Note: It is important to recognize that being short of 730 days in Canada is a breach of the PR RO, and that the H&C case is one in which the PR is seeking special relief from the law, so it is the PR's burden to prove special relief is warranted.
Examples of many other factors which weighed negatively, and some heavily so, in this decision:
-- minimal establishment in Canada; he left a few months after landing, and returned to Canada only for vacations from school
-- 109 days spent in Canada in the five years prior to date of PoE examine and issuance of 44(1) Report
-- reason for education in home country more or less a personal preference (see case for how this factor is actually addressed)
-- no property or assets in Canada
-- never attended school in Canada
-- minimal employment in Canada
-- future plans included spending two more years abroad to complete education
-- no indication there was an effort to accelerate education to return to Canada sooner; on the contrary, appeared to prolong the education
Appeal dismissed; PR status lost.
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Additionally, see another case in which the PR's election to pursue education abroad was a negative factor
see http://canlii.ca/t/gjpqm CHAUDHRY
Here too there are probably many aspects of this individual's situation clearly distinguishable from yours. Lack of initial establishment in Canada looms large. And no real establishment in Canada in the meantime. No special reason for continuing education abroad rather than in Canada. This individual's spouse was living and working abroad.
Appeal dismissed; PR status lost.
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Additionally, see case where time and activities in Canada after being reported
helped a PR's case considerably:
see http://canlii.ca/t/g8zv3 BENHARKAT
Note: time in Canada after being reported does not count toward the required 730 days, but as this case shows, fact of remaining in Canada after being reported, fact of establishing a life in Canada and pursuing establishment of a household and career, can make a big difference.
Appeal allowed. PR status retained.
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In contrast, see case where negative factors outweighed the appellant's time and activity in Canada after being reported for inadmissibility. The IAD specifically referred to the appellant's establishment in Canada as subsequent to the issuance of the removal order and thus while a
relevant consideration, it carries
less weight than establishment in Canada prior to the removal order.
See http://canlii.ca/t/gks6j Osman decision
Negative factors included compromised credibility, including misrepresentations made at the PoE as to her last presence in Canada (I think subsequent changes to the law would make what she did more problematic now than it did then, in 2013). The appellant left Canada barely three weeks after landing and did not establish herself in Canada until after being reported.
Appeal dismissed; PR status lost.
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Additionally, see case where the individual's credibility was compromised and this was a weighty negative factor, among many negative factors, including extent of ties to his home country (including education).
see http://canlii.ca/t/g7znn Zhang case
Appeal dismissed; PR status lost.
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Additionally, see case where effort to get established in Canada after Departure Order was diligent and extensive, and apparently was given a lot of positive weight; note, though, that impact on minor children may have been the key factor.
see http://canlii.ca/t/gj95c Odesa case
Appeal allowed. PR status retained.
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Tangential observations:
In doing the little bit of research reflected above I noticed some trends:
-- enforcement of PR RO at the PoE even against PRs showing a valid PR card and still during their first five years since landing (see http://canlii.ca/t/g8zv3 BENHARKAT for example; issued Removal Order following PoE exam more than a year and a half before the end of his first five years, PR card still valid for more than a year and a half more; on appeal IAD did allow him to retain PR status for H&C reasons -- and this was not exactly a recent case)
-- prosecution of PR for giving false information at PoE about time spent abroad (see http://canlii.ca/t/gm0jp Ghali case), and other cases in which misrepresentations as to last presence in Canada were identified and considered (difference is that Ghali's incident occurred after change in law broadening the scope of the criminal offence for misrepresentation), illustrating two salient things: extent to which CBSA is paying attention, and the extent to which CBSA has access to sources for verification of PR's representations
