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H&C application

Akash20071986

Star Member
Feb 17, 2020
127
11
My name is Akash and I stay in Delhi, India.

I am having Canadian PR.. Which I got in Feb 2015...I visited Canada later on 26th September 2015 for short landing and came back to India on 02nd October 2015, therefore, my Canadian stay was only for 6 days..

I could not come to Canada after 2nd October 2015..my mother is having stomach infection issues.. But to be honest not very serious or life threating.. I m having my elder sister and my younger brother who stays with me only..

Can anyone please advise whether I can appeal under H&C ground and if yes which disease can be shown.. I can try to make medical history but not sure which disease they consider for H&C application?

I am having PR card which is valid till May 2021...

My stay in Canada till date is Only 6 days.

Regards,
Akash
 

k.h.p.

VIP Member
Mar 1, 2019
8,810
2,248
Canada
Why did you not return to India? Was it just your mother's stomach infection or were there other reasons?

If the illness was not serious or life threatening, it's not necessarily a good claim to H&C.
 

Copingwithlife

VIP Member
Jul 29, 2018
3,864
1,866
Earth
My name is Akash and I stay in Delhi, India.

I am having Canadian PR.. Which I got in Feb 2015...I visited Canada later on 26th September 2015 for short landing and came back to India on 02nd October 2015, therefore, my Canadian stay was only for 6 days..

I could not come to Canada after 2nd October 2015..my mother is having stomach infection issues.. But to be honest not very serious or life threating.. I m having my elder sister and my younger brother who stays with me only..

Can anyone please advise whether I can appeal under H&C ground and if yes which disease can be shown.. I can try to make medical history but not sure which disease they consider for H&C application?

I am having PR card which is valid till May 2021...

My stay in Canada till date is Only 6 days.

Regards,
Akash
Then have your mother ask her Doctor what was the medical term for her ailment. Now is not the time to try to tailor an ailment to fit your case
As mentioned, if it wasn’t serious, you don’t have a H&C case
This isn’t a case of “The dog ate my homework “, you tell the truth
 

Akash20071986

Star Member
Feb 17, 2020
127
11
Why did you not return to India? Was it just your mother's stomach infection or were there other reasons?

If the illness was not serious or life threatening, it's not necessarily a good claim to H&C.
She had stomach infection.. But not life threating or very serious.. I could try to make back date medical history... Which disease is covered or permissible under H&C reasons.. Can you pls advise??
 

Akash20071986

Star Member
Feb 17, 2020
127
11
Then have your mother ask her Doctor what was the medical term for her ailment. Now is not the time to try to tailor an ailment to fit your case
As mentioned, if it wasn’t serious, you don’t have a H&C case
This isn’t a case of “The dog ate my homework “, you tell the truth
The risk of telling truth would led to two scenarios, 1) they report and I don't have H&C reasons, I will be deported from Canada in this case nor I have Canada PR and neither my India job.. 2) they dnt report me and I stay there for 2 years in one go and renew my PR status... Most likely scenario as per you?
 

dpenabill

VIP Member
Apr 2, 2010
6,252
3,018
The risk of telling truth would led to two scenarios, 1) they report and I don't have H&C reasons, I will be deported from Canada in this case nor I have Canada PR and neither my India job.. 2) they dnt report me and I stay there for 2 years in one go and renew my PR status... Most likely scenario as per you?
I have been drafting a more extensive response to your query and will post that soon after I post this.

But let's be clear: the BEST chance of keeping PR status is to be fully HONEST. There is still a RISK, and indeed a real and significant risk, that "telling truth" will not save your status. BUT the risk of losing PR status goes up dramatically if you are not fully honest. Indeed, if you even appear to be evasive or otherwise not forthcoming with the truth, that will HURT your chances.

If you come to Canada within the next couple months, AND are truthful, there are indeed two likely outcomes at the PoE when you arrive:
-- you are not questioned much about RO compliance and allowed into Canada without being Reported, or​
-- you are questioned at length about RO compliance and issued a 44(1) Report and Departure Order​

If the first, if you are in effect waived into Canada without being Reported, yes, you can stay for two years, and that will cure the breach of the RO. There is no renewing PR status. If you wait two years, though, you will be eligible for a new PR card.

If you are Reported, that is a little more complicated. But you will still be allowed into Canada. You can appeal. You are still a PR pending the appeal. If you come sooner rather than later, given you are still within the first four years since landing, if you STAY and work in Canada pending the appeal, you may have a decent chance of winning the appeal and keeping PR status. No guarantees. Indeed, most appeals are NOT successful. But the sooner you come, and more settled you get in Canada while the appeal is pending, the better chance you have. That's the best anyone can offer.

I will still post the more in-depth response soon after posting this. But to be clear, the best chance to keep status depends on your total honesty when dealing with Canadian officials.
 

dpenabill

VIP Member
Apr 2, 2010
6,252
3,018
My name is Akash and I stay in Delhi, India.

I am having Canadian PR.. Which I got in Feb 2015...I visited Canada later on 26th September 2015 for short landing and came back to India on 02nd October 2015, therefore, my Canadian stay was only for 6 days..

I could not come to Canada after 2nd October 2015..my mother is having stomach infection issues.. But to be honest not very serious or life threating.. I m having my elder sister and my younger brother who stays with me only..

Can anyone please advise whether I can appeal under H&C ground and if yes which disease can be shown.. I can try to make medical history but not sure which disease they consider for H&C application?

I am having PR card which is valid till May 2021...

My stay in Canada till date is Only 6 days.

Regards,
Akash
Somewhat SHORT RESPONSE:

The sooner you come to Canada to STAY the better chance you have of keeping your PR status.

When you come, be prepared to HONESTLY explain your actual reasons for not coming sooner, and to some extent bring documents (carry in your hands, not in baggage) which support the factual background for those reasons. Nothing to be gained by guessing how much influence your reasons will have. Just be prepared to openly and honestly discuss your situation, and explain your plans.

You are already "significantly" in breach of the Residency Obligation. So there is a real RISK you will be Reported at the PoE when you arrive. This might not happen. You might be allowed into Canada without being Reported. If you are not Reported, you are good to stay. Stay for two years BEFORE leaving again and BEFORE making an application for a new PR card.

If you are Reported, yes, you can appeal. You can stay in Canada pending the appeal. And yes, you will be given an opportunity to present a full explanation of all the reasons why you did not comply with the RO. You can hire a lawyer to help you in the appeal.

There is no mechanism for getting a decision in advance. No way to get any guarantee about how things will go.


LONGER EXPLANATION:

No way around the obvious: you are in breach of the PR Residency Obligation, and it is already what IRB officials describe as a "significant" breach. Some describe any breach as "significant" and then distinguish a bigger breach, what they refer to as a "significantly negative factor," in comparison to a somewhat smaller breach that other IRB officials call a "moderate" breach, which can be up to 60 or so days short of the 730 minimum. You are already well past a "moderate" breach, into what is called a "significant" breach or otherwise considered a "significantly negative factor" in weighing whether there should be H&C relief.

Thus, there is a real RISK you will be examined about RO compliance at the PoE when you next arrive in Canada, and if that happens, then and there determined to be in breach of the RO, and then and there issued a 44(1) Report and a Departure Order. You would still be allowed to enter Canada and you can then appeal the Report. If retaining PR status in Canada is a priority for you, you can do this, come and even if reported then appeal and STAY pending the outcome of the appeal.

Either way, the SOONER you come to Canada, the better chance you have of NOT being Reported when you arrive, and the better chance you have of a successful appeal in the event you are Reported. This is the single biggest factor you can still control. The sooner you come, the better chance you have to save your PR status.

But NO guarantees. You are already in breach. A "significant" breach.

RISK SUMMARY:
-- There is a real RISK you will be questioned about RO compliance when you next arrive in Canada. That RISK gets bigger the longer it takes for you to get here.​
-- There is a real RISK that if questioned about RO compliance, you will be Reported. Again, that RISK also gets bigger the longer it takes for you to get here.​
-- IF Reported you can appeal, but the odds of a successful appeal are NOT good. Nonetheless, the sooner you get here the better chance you have of a successful appeal and keeping PR status; best to STAY in Canada pending the appeal.​


Impossible to Quantify the Risk: The sooner you come, the better chance you have that a brief explanation of your circumstances will get you a pass into Canada without being Reported. We do not know ANY statistics that will illuminate what the probabilities are. We cannot quantify the risk other than to say the longer you wait to come the greater the risk it goes badly. We see anecdotal reports and references in official IAD decisions indicating some PRs are indeed waived into Canada without being questioned let alone Reported despite being in breach of the RO. But we also see anecdotal reports and many references in official IAD decisions illustrating that PRs in breach of the RO are being Reported even when they present a valid PR card. That is, it is clear it can go either way.

I will post further observations about making the H&C case in yet another post.
 

dpenabill

VIP Member
Apr 2, 2010
6,252
3,018
I could not come to Canada after 2nd October 2015..my mother is having stomach infection issues.. But to be honest not very serious or life threating.. I m having my elder sister and my younger brother who stays with me only..

Can anyone please advise whether I can appeal under H&C ground and if yes which disease can be shown.. I can try to make medical history but not sure which disease they consider for H&C application?
The H&C Case:

This is a TRICKY subject.
It is tricky on multiple levels.

There are NO easy formulas for forecasting the outcome of a RO case dependent on H&C relief. Sure, there are some more or less likely outcomes in the more extreme cases. But the biggest factor is HOW LONG the PR has been abroad, HOW LONG it has taken the PR to get to Canada. So as already noted, the one thing you can control which is likely to have the most impact is how soon you come to Canada. The sooner the better.

Otherwise I tend to disagree with H&C reason-scoring typically posted in this forum. In particular, I am confident that most assertions about this-is-a-valid H&C reason and this-is-not-a-valid H&C reason are at best off the mark if not outright misleading. Sometimes such scoring is simply wrong.

Whatever the reason was for not getting to Canada sooner, what influence that reason has will vary depending on context, depending on all the other circumstances. And here too, among the more important circumstances is how much in breach of the RO the PR is.

The same family medical situation can make a big positive difference for one PR and not have much influence at all for another. DEPENDS.

Which brings this discussion back to emphasizing that the H&C case is TRICKY. Moreover, making a successful H&C case warranting relief for a failure to comply with the PR Residency Obligation is almost always DIFFICULT. The presumption, after all, is that the RO is so lenient in itself that it should easily allow PRs the flexibility needed to accommodate the complex and variable demands of real life. Including economic, financial, or employment hurdles in making the move to Canada. Including family emergencies and medical issues. Including the logistics of actually uprooting oneself, and often one's family, and making the move to a new country far away. Canada recognizes that real life throws real hurdles in the path of many immigrants. So Canada essentially gives all new immigrants up to three years to make the move. No questions asked. No need to explain or justify. No need to balance priorities. New immigrants who feel they need to spend more time helping an elderly parent get things settled before they make the move, they can choose to do that, and in the view of the Canadian government, three years should be plenty of time to meet such needs.

That said, PoE officials and even the IRB's IAD appear to nonetheless exercise fairly lenient discretion for those PRs who do not manage to make the move in time to meet the minimum presence requirements of the Residency Obligation. At least SOMETIMES. For SOME PRs.

But make no mistake, the failure to comply with the RO is grounds for terminating a PR's status. Even for a PR with a suitcase full of excuses for not getting to and settling in Canada sooner, the risk of being Reported is real upon arrival in Canada, and if Reported, it appears that LESS than ten percent will succeed in saving status in an appeal.

Bottom line is that H&C reasons do NOT excuse a breach of the RO. The RO H&C case is more about balancing factors which weigh for or against allowing the PR leniency and an opportunity to settle and stay in Canada consistent with the purpose of granting PR status. It appears to depend a lot on whether the deciding officials are persuaded the PR *deserves* an opportunity to pursue a PERMANENTLY settled life in Canada, and it further seems this depends in significant part on whether the officials perceive the PR to genuinely plan to stay in Canada, to be settle PERMANENTLY in Canada. So credibility plays a big role (hard to make a successful H&C case if the officers do not believe the PR). And other than appearing to be honest, a big part of the credibility impression depends on how genuine the PR's explanation is for why the PR failed to meet the RO.

In any event, here is the most commonly stated, in OFFICIAL sources, list of factors considered:
-- the extent of the non-compliance with the residency obligation​
-- the reasons for the departure and stay abroad​
-- the degree of establishment in Canada​
-- family ties to Canada​
-- whether attempts to return to Canada were made at the first opportunity​
-- hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada​
-- hardship to the Appellant if removed from or refused admissions to Canada​
-- whether there are other unique or special circumstances that merit special relief​

The best you can do is to get to Canada as soon as possible and be prepared to HONESTLY explain your situation and reasons. No one can reliably forecast how it will go. There are no guarantees.

There are some indications that new immigrants, those who have not reached the fifth year since landing, are given at least a little more leniency. The following is an actual case illustrating such leniency. Probably an example of more leniency than is usual. There is NO guarantee you will be so leniently treated, and indeed most PRs should expect significantly LESS leeway than was given to Ayeb, but the case should give you some idea about the nature of the decision-making.

See Ayeb v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129178 (CA IRB), http://canlii.ca/t/j52xw
 
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Copingwithlife

VIP Member
Jul 29, 2018
3,864
1,866
Earth
I don’t give advice to individuals contemplating not telling the truth on applications
The RO is extremely generous
You chose to stay out of the country that long, and per you, the illness wasn’t an emergency, or life threatening
Good luck
 
Last edited:

Akash20071986

Star Member
Feb 17, 2020
127
11
You are asking for advice on how to commit fraud....
Agreed.. Risk of losing India job and PR status as they can report when I land at POE under section 44(1)..led to this situation.. Even though I dnt want to.. So might be I play straight forward and explain them the correct reason.. But it's depends on circumstances..
 

canuck_in_uk

VIP Member
May 4, 2012
31,558
7,195
Visa Office......
London
App. Filed.......
06/12
Agreed.. Risk of losing India job and PR status as they can report when I land at POE under section 44(1)..led to this situation.. Even though I dnt want to.. So might be I play straight forward and explain them the correct reason.. But it's depends on circumstances..
There is no "depends on circumstances" to commit immigration fraud.
 

canuck78

VIP Member
Jun 18, 2017
52,959
12,758
Agreed.. Risk of losing India job and PR status as they can report when I land at POE under section 44(1)..led to this situation.. Even though I dnt want to.. So might be I play straight forward and explain them the correct reason.. But it's depends on circumstances..
You do actually have to provide quite a bit of proof not just a doctors note. Hospital records. Proof you have no other family in the area, etc.
 

dpenabill

VIP Member
Apr 2, 2010
6,252
3,018
Agreed.. Risk of losing India job and PR status as they can report when I land at POE under section 44(1)..led to this situation.. Even though I dnt want to.. So might be I play straight forward and explain them the correct reason.. But it's depends on circumstances..
If keeping Canadian PR status is a priority, it makes NO sense to approach this any way other than to come to Canada as soon as you practically can, and come to STAY (even though there is a real risk you will lost PR status and eventually have to leave anyway). And be prepared to FULLY, HONESTLY explain your situation, any and all reasons for why it has taken so long to come to Canada, and if those reasons include family medical issues, some documentation to support that part of your explanation.

There is NO way to find out how this will go in advance. How much you are willing to gamble (giving up your home country employment and incurring the expense and difficulty of making this move) is a personal choice. A big consideration is how important it is, to you, to TRY to save your PR status.

Ignore the H&C-scoring. The most important H&C factor is still relatively in your favour (still within the fourth year since landing), BUT only if you come soon and come to stay. The best you can do to make this H&C factor more influential is to give a FULL and HONEST account of your situation.

In particular, you are still in a narrow window, a rapidly shrinking window of time, in which it appears there is a fairly decent chance that (1) you will be allowed to enter Canada without being Reported, or even if you are Reported, if you appeal and STAY pending the appeal, a decent chance that (2) the IAD will eventually allow you to keep PR status.

We cannot quantify the probabilities any more precisely than that. There are no guarantees.

We can reliably say that if you make misrepresentations at the PoE upon your arrival, that will probably INCREASE the risk of losing PR status. Sure, fraud still works for some. That number is clearly decreasing and appears to be dramatically decreasing. That approach tends to be a rather bad bet.

Again, I disagree with much of the H&C-scoring posted in this forum. The variables are way too many. Except there is one variable that has the most influence: how much in breach of the RO the PR is. That is the one factor you still have some control over. And the one factor which typically has the most influence. The sooner you get here, the better chance you have to keep status. The next biggest factor is your credibility.

Your situation is a common one. This forum is rife with queries and concerns and tales posted by many other PRs who, similarly, were not able to actually make the move to Canada in time to meet the PR Residency Obligation. More than a few have succeeded in saving their PR status. More than a few lose PR status.

SUMMARY: Your best chance to keep PR status is come to stay as soon as practically possible, and come prepared to FULLY and HONESTLY explain your situation, the what and why.

Whether the chance to save your PR status is important enough for you to gamble your current employment plus the expense and effort to come soon is for YOU to decide.



NOTE Re Supporting Proof of Medical Explanations:

Contrary to what others seem to believe about this, what really matters most is whether the PR himself or herself appears credible. Sure, it can be important to present documentation in effect proving the existence and nature of a particular medical situation for a particular individual, and this can be a significant factor in whether an official finds the PR's explanation credible. But this is a small element in the decision-making process, and particularly so attendant a PoE examination. A doctor's letter should suffice at the PoE where the far more important consideration is whether the PoE officials are persuaded this was a real reason among other genuine reasons for the delay in coming to Canada, which is far more about whether the PoE officials believe the PR's whole story.

For a PR still within the fourth year since landing, the PR's credibility is huge, and it can really come down to whether the officials BELIEVE the PR was making his or her best effort to come to Canada and is now coming to Canada to PERMANENTLY settle in Canada. A file folder full of medical records will NOT help. A letter consistent with the PR's story can help, but the key is the CREDIBILITY of the PR's story, in full.

The amount of formal documentation or "proof" the PR will want to present later in an appeal, if Reported, is a different matter. There will be time to gather such proof if need be, later, pending the appeal.
 
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canuck78

VIP Member
Jun 18, 2017
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If keeping Canadian PR status is a priority, it makes NO sense to approach this any way other than to come to Canada as soon as you practically can, and come to STAY (even though there is a real risk you will lost PR status and eventually have to leave anyway). And be prepared to FULLY, HONESTLY explain your situation, any and all reasons for why it has taken so long to come to Canada, and if those reasons include family medical issues, some documentation to support that part of your explanation.

There is NO way to find out how this will go in advance. How much you are willing to gamble (giving up your home country employment and incurring the expense and difficulty of making this move) is a personal choice. A big consideration is how important it is, to you, to TRY to save your PR status.

Ignore the H&C-scoring. The most important H&C factor is still relatively in your favour (still within the fourth year since landing), BUT only if you come soon and come to stay. The best you can do to make this H&C factor more influential is to give a FULL and HONEST account of your situation.

In particular, you are still in a narrow window, a rapidly shrinking window of time, in which it appears there is a fairly decent chance that (1) you will be allowed to enter Canada without being Reported, or even if you are Reported, if you appeal and STAY pending the appeal, a decent chance that (2) the IAD will eventually allow you to keep PR status.

We cannot quantify the probabilities any more precisely than that. There are no guarantees.

We can reliably say that if you make misrepresentations at the PoE upon your arrival, that will probably INCREASE the risk of losing PR status. Sure, fraud still works for some. That number is clearly decreasing and appears to be dramatically decreasing. That approach tends to be a rather bad bet.

Again, I disagree with much of the H&C-scoring posted in this forum. The variables are way too many. Except there is one variable that has the most influence: how much in breach of the RO the PR is. That is the one factor you still have some control over. And the one factor which typically has the most influence. The sooner you get here, the better chance you have to keep status. The next biggest factor is your credibility.

Your situation is a common one. This forum is rife with queries and concerns and tales posted by many other PRs who, similarly, were not able to actually make the move to Canada in time to meet the PR Residency Obligation. More than a few have succeeded in saving their PR status. More than a few lose PR status.

SUMMARY: Your best chance to keep PR status is come to stay as soon as practically possible, and come prepared to FULLY and HONESTLY explain your situation, the what and why.

Whether the chance to save your PR status is important enough for you to gamble your current employment plus the expense and effort to come soon is for YOU to decide.



NOTE Re Supporting Proof of Medical Explanations:

Contrary to what others seem to believe about this, what really matters most is whether the PR himself or herself appears credible. Sure, it can be important to present documentation in effect proving the existence and nature of a particular medical situation for a particular individual, and this can be a significant factor in whether an official finds the PR's explanation credible. But this is a small element in the decision-making process, and particularly so attendant a PoE examination. A doctor's letter should suffice at the PoE where the far more important consideration is whether the PoE officials are persuaded this was a real reason among other genuine reasons for the delay in coming to Canada, which is far more about whether the PoE officials believe the PR's whole story.

For a PR still within the fourth year since landing, the PR's credibility is huge, and it can really come down to whether the officials BELIEVE the PR was making his or her best effort to come to Canada and is now coming to Canada to PERMANENTLY settle in Canada. A file folder full of medical records will NOT help. A letter consistent with the PR's story can help, but the key is the CREDIBILITY of the PR's story, in full.

The amount of formal documentation or "proof" the PR will want to present later in an appeal, if Reported, is a different matter. There will be time to gather such proof if need be, later, pending the appeal.
Although I agree with you OP seems to be trying to create a favourable letter from a doctor that describes a serious illness to try and increase chances. If he is pulled into secondary having some more concrete proof that his mother actually has a serious issue would back up a doctor’s note that can easily be falsified by anyone.