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H&C Appeal

dpenabill

VIP Member
Apr 2, 2010
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As for my mother she told the CBSA agents that she has been out of country for 9 years. Did not lie or refuse to answer any question, simply stated the facts.

The CBSA agent mentioned she has "added notes" in my mother's profile and given my mother a determination. I understand that border agents have to write a report 44(1) and send it to internal IRCC office or MD to start official process and if they only add notes that means they are not writing a report, however I may be wrong. I think my mother happened to come across a CBSA agent who did not want to put an old woman in a difficult situation.

Another thing to consider is that if CBSA don't ask you to present your self for a follow up interview then "your PoE examination" has concluded. Furthermore, if they don't issue a formal 44(1) report then you can start counting the time that you are now spending in Canada towards PR renewal.

I also understand that its not simply black and white and legally IRCC has the right to investigate her anytime. But going by the standard protocol - if a PR not in compliance of RO - makes it through the PoE without being asked to appear in follow up interview or without being issued a 44(1) report then its more likely that he/she can establish their PR and apply for PR card renewal after two years. But its not a 100% until the two years pass and they meet their RO obligation.
The important thing is to be sure the PR's contact information was properly provided. Beyond that there is not much more that can be done but to wait, stay and wait.

My guess, emphasis on GUESS (which is not worth much at all), there was a H&C determination. But given the length of time abroad, assuming the PR can get by without obtaining a new PR card for two plus years, the SAFE approach will be to wait, to stay and wait.

There is a possibility a 44(1) Report was written but NOT yet reviewed. (Your impression otherwise noted. And this seems less likely than other outcomes, but it is more than a remote possibility, rather it remains a significant possibility. If this happened, the PR probably should learn of it within the near future, however, so long as the PR properly provided valid contact information.)

There is a possibility the "notes" to the file constitute a referral to a local, inland IRCC office, which can (and sometimes does) follow-up, and which can lead to proceedings in which a Report and Removal Order will be issued. Likewise, this is a real possibility.

There is a possibility (which to my view seems among the fairly likely) a 44(1) Report was prepared/written and reviewed, resulting in a favourable H&C determination, and thus the Report was not issued to the PR.

That is, based on not-knowing some key facts, my guess, again emphasis on GUESS, it appears there may actually have been a formal determination based on H&C reasons. This comes with strong caveats. Nonetheless, even though it is extremely difficult to know with confidence what precisely occurred or what the outcome was at the PoE, and there are many variables and a wide range of possibilities, if there was a "determination" made, and it was clear the PR was outside Canada for more than the last three years (which necessarily means a breach of the Residency Obligation), the possible "determinations" are limited:
-- inadmissible for a failure to comply with the RO OR​
-- there are sufficient H&C reasons to allow the PR to keep status despite the RO breach.​

After all, relative to the breach of the RO, this is NOT anywhere near a close case. We see many indications of border officials being lenient relative to enforcing the RO, but NOT that lenient. Maybe, but again it appears, as you describe things, there was a formal "determination." And that makes sense.

Some further clarifying observations:

While it is probably true that " 'writing notes' is recommended when an agent does not want to initiate a report," "writing notes" can refer to much more than that; "writing notes" describes entering information about the traveler and case into the system (used to be FOSS, which was merged into GCMS, but whatever the current nomenclature, it becomes part of the client's electronic immigration file), which covers a lot of situations . . . possibly INCLUDING the outcome of a formal decision in reviewing a 44(1) Report for Inadmissibility. Note, for example, it is clear that many times border officials enter notes without informing the traveler about them.

Warrants noting, if a PR-traveler is examined in Secondary for immigration purposes, it would be extremely unusual if the officer did not write notes to the client's file. Just the reason for the referral for immigration purposes would ordinarily be entered into the system.

Notes to the file can be, essentially, to make a record ("for the record" one might say), but they can also constitute a referral, such as a referral to IRCC, which will trigger further action on the file. If referred to a local IRCC office, for example, a processing agent or officer in the local office will likely be alerted to review the file, in which event the agent or officer can elect to take no further action for the time being or to initiate further inquiries or to take some affirmative action.

Regarding delivery of a 44(1) Report to PR-traveler:
What we know with some confidence is that IF the PR is issued a 44(1) Report AND Removal (Departure) Order, respective documents will be physically delivered to the PR. Thus, for example, if the PR is allowed to proceed into Canada without being given such documents, at least until something more happens the PR has not been issued, and is not "under" a 44(1) Report, and thus days in Canada after that still count toward meeting the RO. The difference may come in distinguishing a *written* or *prepared* but NOT issued Report, meaning a Report that has not yet been formally reviewed, or if reviewed one that has been set aside by the Minister's Delegate.

Thus, it is possible for a Report to be written or prepared but NOT delivered to the PR. It is without any effect unless and until reviewed.

BUT . . . BUT . . . REMEMBER . . . actual practices vary. You use the term "protocol," by which I am not sure if you mean practices, or policy, or both; while policies are subject to change, they remain relatively constant; practices are prescribed in instructions, such as PDIs or Program Delivery Instructions, or Operational Manuals, but these are just guidelines, and actual practices can and do vary, and sometimes considerably so.

Moreover, it can be very difficult for a PR-traveler to know what precisely happened during the PoE procedures since officers do not formally announce or describe the procedure as such. They ask questions, make decisions, offer some information and observations, rarely couching these in reference to formal procedures UNLESS and UNTIL the PR-traveler is subject to a formal outcome, like physically delivered the documents attendant the issuance of a 44(1) Report TOGETHER with a Departure (Removal) Order.

Ever been advised "your application for entry into Canada has been approved" during a PoE examination? Many if not most travelers are NOT aware that just showing up at the PIL at a PoE constitutes making "a formal application to enter Canada," but that is precisely the process. And "you're OK," or "you can go," or such, as everyone understands these, mean it is OK to proceed on into Canada, even though technically it means "your application for entry into Canada has been approved" and thus you can proceed.
 

ExpiredPR2013

Member
May 5, 2021
13
1
There is a possibility (which to my view seems among the fairly likely) a 44(1) Report was prepared/written and reviewed, resulting in a favourable H&C determination, and thus the Report was not issued to the PR.
You make some excellent points, and yes it is possible that H&C determination was made, as she told them about passing away of her husband. My father passed away ten days before she entered Canada and she told CBSA that she was attending to him and came to Canada at the first opportunity (I guess ten days qualifies for that). CBSA didn't ask for any evidence of this and she didn't ask for any H&C consideration. But I wonder if that was the case then do they normally not inform the PR?

One other observation, which may be important, she was examined by a male CBSA officer for secondary review. However, the officer who gave my mother a determination was a "female" CBSA officer. I know this because she came out and returned the passport/landing papers and explained she (not "us/we" but she said "I") had given her a determination and entered notes.

So it may be that male officer prepared/wrote notes/report. Then female officer who was his supervisor made the determination. Now what she wrote in there is anyone's guess. But time may tell what the CBSA agent actually wrote :)
 
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dpenabill

VIP Member
Apr 2, 2010
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You make some excellent points, and yes it is possible that H&C determination was made, as she told them about passing away of her husband. My father passed away ten days before she entered Canada and she told CBSA that she was attending to him and came to Canada at the first opportunity (I guess ten days qualifies for that). CBSA didn't ask for any evidence of this and she didn't ask for any H&C consideration. But I wonder if that was the case then do they normally not inform the PR?

One other observation, which may be important, she was examined by a male CBSA officer for secondary review. However, the officer who gave my mother a determination was a "female" CBSA officer. I know this because she came out and returned the passport/landing papers and explained she (not "us/we" but she said "I") had given her a determination and entered notes.

So it may be that male officer prepared/wrote notes/report. Then female officer who was his supervisor made the determination. Now what she wrote in there is anyone's guess. But time may tell what the CBSA agent actually wrote :)
Additional detail strengthens the GUESS . . . but it remains a GUESS, just a GUESS.

It is extremely difficult to fully understand what an individual was informed of in the context of a transaction like you describe. My "guess" gives a lot of weight to the PR being informed there was a "determination." To me it sounds like she was "informed." In regards to which, again, the additional detail tends to support the guess, suggesting that the second officer was acting as a Minister's Delegate.

BUT sure, the devil, they say, is in the details, and a lot of details are missing here, and given the length of time abroad, this is probably not worth playing any odds other than the very safest odds, which is to WAIT, stay and wait.

I do not delve into it often here, other than just a generic suggestion for PRs to tell-your-story, your-true-story, because I make a concerted effort to minimize giving "advice." For many, many, many reasons. But as a general proposition, my sense is that for the vast majority of PRs who have failed to meet the Residency Obligation, just telling the true story, in their own words, is about as good as they can do. If that does not do the trick, so to say, a highly polished presentation is not likely to make the difference. Always a good idea to have some documents to back up certain parts of the story, medical letters or such for reasons based on an individual's medical condition, something to show address or employment in Canada for days spent in Canada, and such.

But for an aging PR with most of her primary family already living in Canada, for example, who was living outside Canada to be with a spouse who had her or his own reasons to not be in Canada, I can easily see a favourable H&C decision if that individual makes the move to Canada timely after the spouse's death. Lots of factors can influence how it goes. More family in Canada and less family abroad, and especially no immediate family abroad, would likely improve the odds of a favourable H&C decision . . . perhaps by a lot. And there is no way to approach this like a lawyer that would be as good, let alone any better, than the PR telling the story in her own words. As I often say, Canadian officials tend to get it a lot, lot better than many accuse in forums like this.

But I am still just GUESSING. And a PR card application before being in compliance could trigger an examination the border officials decided to defer . . . to see if she went back abroad again for example. And if there is no formal H&C determination in the file, the PR card application could trigger a RO examination with a different result. Not worth chancing it, assuming it is possible to get by without a PR card to use to get health care or a drivers license.

The just-tell-the story approach is for PoE examinations. If Reported, start the appeal and best to get a lawyer to help in the appeal. Usually a good idea to lawyer-up for formal proceedings, including even formal proceedings before quasi-judicial panels like the IAD.
 
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ExpiredPR2013

Member
May 5, 2021
13
1
But I am still just GUESSING. And a PR card application before being in compliance could trigger an examination the border officials decided to defer . . . to see if she went back abroad again for example. And if there is no formal H&C determination in the file, the PR card application could trigger a RO examination with a different result. Not worth chancing it, assuming it is possible to get by without a PR card to use to get health care or a drivers license.

The just-tell-the story approach is for PoE examinations. If Reported, start the appeal and best to get a lawyer to help in the appeal. Usually a good idea to lawyer-up for formal proceedings, including even formal proceedings before quasi-judicial panels like the IAD.
Yes, she does not intend to leave Canada as all but one of her children and already in Canada. Already got the Health Card renewed without any issue, and got Ontario Photo Card. So she has no issues to stay here for two years as long as IRCC does not start asking questions.

A follow up question to your earlier post where you mentioned that 44(1) report and removal order must be physically delivered to the PR. Does that mean a PR not in compliance of RO who does not receive such departure order can simply play dumb and say that they did not receive it. Does this not make it difficult for IRCC to "physically deliver" the 44(1) report to PR once they are waived in at the border.

And is there any one on this forum who received 44(1) report and departure order after being let in at the PoE? I did some searches and most people who didn't get such documents at PoE never got it.
 
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canuck78

VIP Member
Jun 18, 2017
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Yes, she does not intend to leave Canada as all but one of her children and already in Canada. Already got the Health Card renewed without any issue, and got Ontario Photo Card. So she has no issues to stay here for two years as long as IRCC does not start asking questions.

A follow up question to your earlier post where you mentioned that 44(1) report and removal order must be physically delivered to the PR. Does that mean a PR not in compliance of RO who does not receive such departure order can simply play dumb and say that they did not receive it. Does this not make it difficult for IRCC to "physically deliver" the 44(1) report to PR once they are waived in at the border.

And is there any one on this forum who received 44(1) report and departure order after being let in at the PoE? I did some searches and most people who didn't get such documents at PoE never got it.
How was she able to get an OHIP card?
 

ExpiredPR2013

Member
May 5, 2021
13
1
How was she able to get an OHIP card?
You don't need to show "valid PR Card" to get OHIP Renewed. Original landing paper is sufficient evidence for provincial government that you are a PR. Landing paper is listed as an acceptable document on OHIP website. All you need is:

1. Foreign Passport
2. Original Landing Paper
3. Bank Statement/tenancy agreement (I didn't have this so initially Service Ontario agent told me to come back after my mother has established her self in Ontario. I asked her to put it in writing as I didn't want my aging mother to be without health coverage. Then she issued her a paper health card after asking me to sign a form as guarantor that my mother is living with me).

She got paper OHIP proof right away and then received the card a few days ago. (valid until 2027 :) )
 
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scylla

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Yes, she does not intend to leave Canada as all but one of her children and already in Canada. Already got the Health Card renewed without any issue, and got Ontario Photo Card. So she has no issues to stay here for two years as long as IRCC does not start asking questions.

A follow up question to your earlier post where you mentioned that 44(1) report and removal order must be physically delivered to the PR. Does that mean a PR not in compliance of RO who does not receive such departure order can simply play dumb and say that they did not receive it. Does this not make it difficult for IRCC to "physically deliver" the 44(1) report to PR once they are waived in at the border.

And is there any one on this forum who received 44(1) report and departure order after being let in at the PoE? I did some searches and most people who didn't get such documents at PoE never got it.
If a report and removal order are issued, they will be mailed to the address provided. That meets the "physically delivered" requirement and is why it's important that a correct address is provided at the border.
 

ExpiredPR2013

Member
May 5, 2021
13
1
If a report and removal order are issued, they will be mailed to the address provided. That meets the "physically delivered" requirement and is why it's important that a correct address is provided at the border.
Thanks for clarifying that.

If a report is mailed is there any timeline or it can be done anytime before the 2 year mark. I am sure if ordinary PR can read these rules and loopholes, then IRCC agents definitely know better.
 

canuck78

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Jun 18, 2017
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You don't need to show "valid PR Card" to get OHIP Renewed. Original landing paper is sufficient evidence for provincial government that you are a PR. Landing paper is listed as an acceptable document on OHIP website. All you need is:

1. Foreign Passport
2. Original Landing Paper
3. Bank Statement/tenancy agreement (I didn't have this so initially Service Ontario agent told me to come back after my mother has established her self in Ontario. I asked her to put it in writing as I didn't want my aging mother to be without health coverage. Then she issued her a paper health card after asking me to sign a form as guarantor that my mother is living with me).

She got paper OHIP proof right away and then received the card a few days ago. (valid until 2027 :) )
You usually need to show that the person has been living in Canada if you don’t have a valid PR card or have landing papers. She got very lucky.
 

ExpiredPR2013

Member
May 5, 2021
13
1
You usually need to show that the person has been living in Canada if you don’t have a valid PR card or have landing papers. She got very lucky.
But landing paper does not have an expiry date and "every" PR has it. If they lose it they can get a certified copy from Ottawa (IRCC) for 50 odd bucks.

1. Foreign passport establishes your identity,
2. Landing paper (no matter how old) establishes your PR status - remember PR status is a federal jurisdiction and a Canadian PR remains a PR unless a Removal Order becomes effective. So I doubt Ontario government needs to check any further.
3. A proof that you are residing in Ontario (utility bill, bank statement, tenancy agreement etc.) but as you are covered from day one of arriving in Ontario (due to COVID) so how can they deny you OHIP coverage if you say I arrived today?

Once you get in, OHIP coverage is a PR's right and they dont have to be lucky to get it, just need to put some documents together.
 
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canuck78

VIP Member
Jun 18, 2017
52,969
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But landing paper does not have an expiry date and "every" PR has it. If they lose it they can get a certified copy from Ottawa (IRCC) for 50 odd bucks.

1. Foreign passport establishes your identity,
2. Landing paper (no matter how old) establishes your PR status - remember PR status is a federal jurisdiction and a Canadian PR remains a PR unless a Removal Order becomes effective. So I doubt Ontario government needs to check any further.
3. A proof that you are residing in Ontario (utility bill, bank statement, tenancy agreement etc.) but as you are covered from day one of arriving in Ontario (due to COVID) so how can they deny you OHIP coverage if you say I arrived today?

Once you get in, OHIP coverage is a PR's right and they dont have to be lucky to get it, just need to put some documents together.
If you haven't met RO and your PR card has been expired for over a year you usually have to prove that you have been living in Canada while letting your PR card expire. OHIP isn't a right for all PR holders, you still have to meet the RO for OHIP and usually have proof that you have been living in Canada if you don't have valid PR card. There are many people who have had to wait until they are compliant with their RO and have a valid PR card to get OHIP which is why I said your mother got lucky.
 

ExpiredPR2013

Member
May 5, 2021
13
1
If you haven't met RO and your PR card has been expired for over a year you usually have to prove that you have been living in Canada while letting your PR card expire. OHIP isn't a right for all PR holders, you still have to meet the RO for OHIP and usually have proof that you have been living in Canada if you don't have valid PR card. There are many people who have had to wait until they are compliant with their RO and have a valid PR card to get OHIP which is why I said your mother got lucky.
Oh ok.
I thought differently but you guys know more details. Appreciate the detailed responses. Been very helpful. Thanks!