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