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H&C reasons

dpenabill

VIP Member
Apr 2, 2010
6,314
3,071
. . . . seems the only thing I can do is to "rest in peace" and wait, as mentioned in web form response
Precisely!

Note: at this stage you want things to take LONGER. @zardoz is wrong about time in Canada after applying for the PR card. Your days in Canada now do count. Unfortunately, however, you still do not have enough days in Canada to be in compliance. So you want IRCC to take longer . . . if you stay and they do not schedule a formal examination of your RO compliance until after November, and by then you meet the RO, you would not even be subject to losing PR status at all.

BUT if they decide to proceed with RO enforcement, there will be an interview scheduled before November. And even though you get credit for days in Canada in the meantime, you will still be short.

As others have said in the vein of shoulda and coulda . . . as in not make the PR card application . . . but that is history now.

For now, about all you can do is WAIT. Be sure that IRCC has valid current contact information. Be sure to watch for and follow-up with any and every communication you get from IRCC. Contrary to what others suggest, be sure to be prepared to fully and honestly explain YOUR actual reasons for why you delayed coming to Canada. No point in worrying about how good your reasons are. They will for sure be considered. Whether an IRCC officer will think you deserve to keep PR status now is a decision for them to make. Your commitment in coming here and staying the last year and a half should help.

Very difficult to forecast how this will go. If you are called for an interview, be sure to go. If you can afford a lawyer, good idea to consult with a lawyer before then. In either event, if you are issued a 44(1) Report following an interview, you can appeal. You remain a PR pending the appeal. You can get a one-year PR card pending the appeal.

There are two promising/hopeful signs:
-- CBSA let you through without Reporting you EVEN when there was some focus on your failure to meet the RO, and​
-- IRCC has not aggressively proceeded to take action on your falling short of the RO​

In conjunction with you being in Canada most of the last year and a half, these offer some real hope that IRCC will be lenient if not generous. Your explanation as to why it took so long to move here may indeed be a significant part of this.

The less hopeful sign is that your PR card application has been referred to the local office. This is the specific procedure for conducting the formal adjudication of RO compliance. Someone at CPC-Sydney has already concluded you are in breach of the RO, triggering a referral to the local office for an investigation. All you can do now is work with the system, and if asked, when asked, make your best case, your honest case about why you delayed the move to Canada, and honestly state your plans for a future life in Canada.

Some further observations:

Hi, does anyone know how the H&C reasons could be attached to a case? I now have two cases waiting but without any further progress...

Case 1: Sponsor my wife and children (now 2 years old). I submitted the case in Nov 2018, and received acknowledgement in Feb 2019. Then nothing up to now...
Case 2: Renew of my PR card. I submitted this case in Oct 2019, and received acknowledgement in Nov 2019. Then what I know is it has been transferred to local office.

My story is:
I got my PR and soft landed in Sept 2013, stayed in Canada for just a few weeks. I went back to my home country, and got married in Dec 2013. My wife is not a PR nor a Citizen of Canada. We realized in 2015 that for some reason we have to go through the assisted fertilization process so to have baby. We decided to tried, failed, tried, failed... finally in 2017 my wife got pregnant, and our baby were born in March 2018. I still don't want to give up my status in Canada, so I returned in Oct 2018 on myself (my wife and baby are still in my home country), right a week before my PR card was getting expired. I got no issue entering Canada. I prepared every document before I came, and submitted Case 1 right after I entered Canada.
I started a stable job from Mar 2019. I returned to my home country in Sept 2019 for 3 weeks to see my family, without a PR card, I went through Buffalo. When I came back to Canada, I was questioned by the boarder officer, and I explained to her why I missed RO. She let me in and showed compassionate after knowing my story, and encouraged me to apply to renew my PR card. So I submitted case 2.

I have attached letters about my story, attached my employment documents to my cases through the web form. However I never get a valid response.
Does anyone has similar situation (the reason of H&C could be different) but has successfully went through a case application? How long do I still need to wait...

Thanks
There have been sporadic reports, in this forum, of successfully sponsoring family PR visa applications from PRs who were short of Residency Obligation compliance when they made the sponsorship application. About as many of these reports as the number reporting the sponsorship application triggering a RO compliance examination.

Indeed, reports of running into RO compliance enforcement proceedings triggered by an application to sponsor family class PR visas have been too sporadic to support any conclusion other than there is a RISK of the sponsorship application triggering RO enforcement.

In particular, reports of either sort are too sporadic to discern much about how IRCC typically deals with these situations, except there enough reports to recognize that at least SOMETIMES the sponsorship application triggers RO compliance examinations with the potential for being Reported and issued a Departure Order (this is an internal IRCC local office procedure, the Report issued by the ID and similar to CBSA issued Reports then reviewed by a Minister's Delegate).

And it appears it did not directly trigger RO enforcement action here either, given that it has been well over year since that application was made and that has so far not triggered an ID hearing as to RO compliance. There should have been, by now, a decision about eligibility to sponsor, so I am not at all clear about what might be happening there (I do not follow PR applications much anymore so I am not much acquainted with the current process or processing times).

In any event, in the meantime, a PR card application has been made and that has triggered a referral to the local office . . . so that is clearly now the proceeding where RO compliance is at issue.

Leading to . . .

Yes. It's assessed at the moment that the application is received. Days that you add after that application are not retrospectively taken into consideration.
You could easily lose your PR status at this point in time.
Yes, RO compliance can be assessed by IRCC based on the date of the PR card application (not the date it is received by IRCC but the date the application is made), and it will be for the purpose of determining whether to refer the application for further processing as to RO compliance itself.

HOWEVER, time in Canada after making the PR card application does count toward RO compliance IF and WHEN there is a formal determination made. As a matter of law, days in Canada count. They only do not count AFTER a 44(1) Report or Removal/Departure Order has been issued, or after an application for a PR TD has been denied.

PR status cannot be adjudicated as lost based on number of days in Canada on the date the PR card application was made (with some practical exceptions, such as where the PR has left Canada and is abroad), but must be made based on days in Canada within five years of the date of a formal RO compliance examination.

Unfortunately for the OP here, if the local office decides to promptly proceed with a formal interview regarding RO compliance that could be scheduled and take place well before the OP has enough days in Canada to meet the RO. So the fact that days in Canada after making the PR card application count does not get the OP into RO compliance.
 

canuck78

VIP Member
Jun 18, 2017
53,213
12,844
Thank you Canuck78, seems the only thing I can do is to "rest in peace" and wait, as mentioned in web form response :)

just don't know for how long...
There is no exact time period for these things. You will have to wait and should limit time out of Canada.
 

tjkdl

Star Member
Feb 14, 2020
87
10
Precisely!

Note: at this stage you want things to take LONGER. @zardoz is wrong about time in Canada after applying for the PR card. Your days in Canada now do count. Unfortunately, however, you still do not have enough days in Canada to be in compliance. So you want IRCC to take longer . . . if you stay and they do not schedule a formal examination of your RO compliance until after November, and by then you meet the RO, you would not even be subject to losing PR status at all.

BUT if they decide to proceed with RO enforcement, there will be an interview scheduled before November. And even though you get credit for days in Canada in the meantime, you will still be short.

As others have said in the vein of shoulda and coulda . . . as in not make the PR card application . . . but that is history now.

For now, about all you can do is WAIT. Be sure that IRCC has valid current contact information. Be sure to watch for and follow-up with any and every communication you get from IRCC. Contrary to what others suggest, be sure to be prepared to fully and honestly explain YOUR actual reasons for why you delayed coming to Canada. No point in worrying about how good your reasons are. They will for sure be considered. Whether an IRCC officer will think you deserve to keep PR status now is a decision for them to make. Your commitment in coming here and staying the last year and a half should help.

Very difficult to forecast how this will go. If you are called for an interview, be sure to go. If you can afford a lawyer, good idea to consult with a lawyer before then. In either event, if you are issued a 44(1) Report following an interview, you can appeal. You remain a PR pending the appeal. You can get a one-year PR card pending the appeal.

There are two promising/hopeful signs:
-- CBSA let you through without Reporting you EVEN when there was some focus on your failure to meet the RO, and​
-- IRCC has not aggressively proceeded to take action on your falling short of the RO​

In conjunction with you being in Canada most of the last year and a half, these offer some real hope that IRCC will be lenient if not generous. Your explanation as to why it took so long to move here may indeed be a significant part of this.

The less hopeful sign is that your PR card application has been referred to the local office. This is the specific procedure for conducting the formal adjudication of RO compliance. Someone at CPC-Sydney has already concluded you are in breach of the RO, triggering a referral to the local office for an investigation. All you can do now is work with the system, and if asked, when asked, make your best case, your honest case about why you delayed the move to Canada, and honestly state your plans for a future life in Canada.

Some further observations:



There have been sporadic reports, in this forum, of successfully sponsoring family PR visa applications from PRs who were short of Residency Obligation compliance when they made the sponsorship application. About as many of these reports as the number reporting the sponsorship application triggering a RO compliance examination.

Indeed, reports of running into RO compliance enforcement proceedings triggered by an application to sponsor family class PR visas have been too sporadic to support any conclusion other than there is a RISK of the sponsorship application triggering RO enforcement.

In particular, reports of either sort are too sporadic to discern much about how IRCC typically deals with these situations, except there enough reports to recognize that at least SOMETIMES the sponsorship application triggers RO compliance examinations with the potential for being Reported and issued a Departure Order (this is an internal IRCC local office procedure, the Report issued by the ID and similar to CBSA issued Reports then reviewed by a Minister's Delegate).

And it appears it did not directly trigger RO enforcement action here either, given that it has been well over year since that application was made and that has so far not triggered an ID hearing as to RO compliance. There should have been, by now, a decision about eligibility to sponsor, so I am not at all clear about what might be happening there (I do not follow PR applications much anymore so I am not much acquainted with the current process or processing times).

In any event, in the meantime, a PR card application has been made and that has triggered a referral to the local office . . . so that is clearly now the proceeding where RO compliance is at issue.

Leading to . . .



Yes, RO compliance can be assessed by IRCC based on the date of the PR card application (not the date it is received by IRCC but the date the application is made), and it will be for the purpose of determining whether to refer the application for further processing as to RO compliance itself.

HOWEVER, time in Canada after making the PR card application does count toward RO compliance IF and WHEN there is a formal determination made. As a matter of law, days in Canada count. They only do not count AFTER a 44(1) Report or Removal/Departure Order has been issued, or after an application for a PR TD has been denied.

PR status cannot be adjudicated as lost based on number of days in Canada on the date the PR card application was made (with some practical exceptions, such as where the PR has left Canada and is abroad), but must be made based on days in Canada within five years of the date of a formal RO compliance examination.

Unfortunately for the OP here, if the local office decides to promptly proceed with a formal interview regarding RO compliance that could be scheduled and take place well before the OP has enough days in Canada to meet the RO. So the fact that days in Canada after making the PR card application count does not get the OP into RO compliance.
Thank you so much for your all these detailed information. They do help me to understand where I am regarding my cases.
"No news is good news!" this is for me at the moment!

Thank you again, and have a great weekend!
 
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scylla

VIP Member
Jun 8, 2010
93,545
20,853
Toronto
Category........
Visa Office......
Buffalo
Job Offer........
Pre-Assessed..
App. Filed.......
28-05-2010
AOR Received.
19-08-2010
File Transfer...
28-06-2010
Passport Req..
01-10-2010
VISA ISSUED...
05-10-2010
LANDED..........
05-10-2010
While waiting a year and half, I will meet RO in November this year, which is 9 months from now. Am I still get a chance that my PR status could be cancelled even after I am compliance with RO (after November 2020)?
Yes. The residency calculation is determined based on the day your application was submitted.
 
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dpenabill

VIP Member
Apr 2, 2010
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Yes. The residency calculation is determined based on the day your application was submitted.
At best this is misleading. To the extent it suggests IRCC will terminate a PR's status for a breach of the Residency Obligation based on non-compliance as of the date a PR card application was made, without counting days the PR is in Canada after applying but before there is a formal RO compliance determination, IT IS WRONG. (With what some might consider to be exceptions, but which are really different situations, most notably for PRs who are NOT in Canada after applying for a new PR card, or who otherwise fail to respond to IRCC requests, or fail to appear for an interview when scheduled.)

How it actually works is NOT complicated: The five year time period for determining whether to issue a 44(1) Report for inadmissibility based on a breach of the Residency Obligation is ALWAYS the five years preceding the date of the "examination," which for RO cases triggered by a PR card application is the date of the interview with the PR attendant a local office determination of RO compliance. There are MANY IAD decisions illustrating this. Including several within the last two years. In addition to Rastgou v Canada, 2018 CanLII 129864 (CA IRB), http://canlii.ca/t/hx738 . . . I will cite and link several more below.

The explanation for how it actually works tends to be a little complicated, and is directly addressed only in rather few official sources. Perhaps the most direct explanation can be seen in what a Minister's representative explained to the IAD in the Rastgou decision and what the IAD Panel ruled in that case -- again, see Rastgou v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129864 (CA IRB), http://canlii.ca/t/hx738. Will quote below, but for clarity, the way it works is fairly straightforward:

IRCC first considers whether the PR met the RO based on the application date, and if so the PR is eligible to be issued a new PR card. If the PR did not meet the RO based on that five-year time period, IRCC THEN CONSIDERS whether the PR meets the RO as of the date of the examination (usually the date of an interview), and if the PR has the required number of days present during this "second window" time period, the PR is "found to comply and [will] not be written up in a 44 report."

That is, even though a PR is NOT in compliance with the RO on the date the PR makes a PR card application, days IN Canada after that will COUNT if there is a formal examination of RO compliance. As long as the PR has spent 730 or more days IN Canada during the five year time period preceding the DATE of the EXAMINATION (usually the date of the interview), NO 44(1) Report or Departure Order will be issued. This is IRCC policy and practice. And it is what IRCC is required to do pursuant to the applicable statutes and regulations.

For putting this into perspective, it may help to recognize that "the five-year residency requirement in section 28 of the Act is NOT a precondition to the grant of a permanent resident card." (emphasis added) See The v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 128376 (CA IRB), http://canlii.ca/t/j4wq7 Which is a corollary to the principle many of us reiterate often here: ". . . the issuance of a permanent resident card and the residency obligation are two distinct matters." (from same The case) Yes, I know that IRCC information about eligibility for a new PR card says that to be eligible the PR must "meet the residency requirement," but it also states the PR must "be physically present in Canada." Neither is correct even though they invoke procedural tangents in processing the application (such as, in some situations, resulting in a one-year card rather than a five-year card, or processing effectively suspended pending the PRs return to Canada, and such).

Regulation 59 in the IRPA Regulations (should link) states the eligibility requirements and MANDATES the issuance of a PR card if those requirements are met, which does not include either RO compliance or presence in Canada.

The latter is most often discussed in the context of RO enforcement at a PoE, reminding PRs that the fact they have a valid PR card is NOT relevant in calculating compliance with the RO. And likewise, accordingly, the date a PR card expires is NOT relevant when a PR's compliance with the RO is being assessed. No matter how new the PR card is. Since, again, as we often reiterate, ". . . the issuance of a permanent resident card and the residency obligation are two distinct matters." . . . and as the IAD panel further stated in the The decision: "the five-year residency requirement in section 28 of the Act is NOT a precondition to the grant of a permanent resident card."


SUMMARY: What the many, many ACTUAL cases illustrate is that as a matter of policy and practice, generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have in the meantime been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance.

I will post a list of OFFICIAL SOURCES describing ACTUAL cases in a follow-up post.
 

dpenabill

VIP Member
Apr 2, 2010
6,314
3,071
As noted above, the following is a list of OFFICIAL SOURCES recounting ACTUAL cases . . . which amply illustrate that as a matter of policy and practice, generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have in the meantime been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance.

OFFICIAL SOURCES
clearly showing that BEFORE issuing a 44(1) RO inadmissibility Report, IRCC does a RO calculation based on date of interview/examination, with credit for days IN Canada AFTER the date the PR card application was made:

Gamarachchi v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 37401 (CA IRB), http://canlii.ca/t/j01sx
PR card application made January 31, 2016. Examination date was July 10, 2017, based on five year period from July 11, 2012 to July 10, 2017.​
Chatterjee v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 127475 (CA IRB), http://canlii.ca/t/j4r1l
PR card application made August 31, 2015. 5 year period considered based on date of interview February 17, 2017, so time in Canada between Aug 31, 2015 (date of application) and Feb 17, 2017 was counted.​
Rastgou v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129864 (CA IRB), http://canlii.ca/t/hx738
December 12, 2015 PR card application.​
Period of consideration for the purpose of RO assessment is the five-year period preceding the 44 report, that is, from October 20, 2011 to October 19, 2016 (Oct 19, 2016 being the date of the interview)​
Hajar v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129235 (CA IRB), http://canlii.ca/t/j5361
. . . applied to renew his Permanent Resident card (PR card) in February 2016. The Departure Order was issued after the officer found that the appellant is inadmissible for failing to reside in Canada for at least 730 days (two years) out of the five year period ending May 10, 2017 (date ID officer prepared the Report)​
Ahmadipour v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 107705 (CA IRB), http://canlii.ca/t/hvrh0
PR card applications made September 23, 2016. Both PRs were given benefit for days in Canada between 17 Dec 2016 to 28 Jun 2017 (date of report).​
Saeidi v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129890 (CA IRB), http://canlii.ca/t/hx72g
PR card application September 9, 2015​
July 14, 2016 interview but report not issued until July 26, so the five year period for the calculation was from July 21, 2011 to July 21, 2016​
(IAD initially made calculation based on Oct 15, 2010 to Oct 15, 2015, based on first five years after landing, but in the decision explicitly stated this was "erroneous" and the Panel "accepted" the Minister's position "that the relevant time the relevant period is the five years prior to July 2016" (the date of the interview and report).​

Gilbert v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 77079 (CA IRB), http://canlii.ca/t/hnrt8
Calculation period based on date date of interview (this individual was actually given credit for the days after the interview up to the date the Departure Order was issued); there is not even any mention of the date the PR card application was made, just that the interview was attendant the PR card application; no hint there is any question about crediting days IN Canada after date of application up to the date of the interview​
Kuksov v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101471 (CA IRB), http://canlii.ca/t/gj87j
May 2008, he applied to renew his permanent resident card . . . . Period for RO compliance March 1, 2005 to March 1, 2010 (March 1, 2010 the date of the interview)​
Yedahalli v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101064 (CA IRB), http://canlii.ca/t/gh09t
Soon after returning to Canada in May 2009, PR applied to renew permanent resident card. The five year period considered was February 17, 2005 to February 17, 2010​
Wysozki v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 106167 (CA IRB), http://canlii.ca/t/j39hc
Application for a permanent resident card in November 2016. He was interviewed for the residency obligation on May 1, 2018. Accordingly, the officer assessed the period between May 1, 2013, and May 1, 2018.​

Also see the relevant statute and regulation: Section 28(2)(b)(ii) IRPA (should link) and Section 62(1) IRPA Regulations (should link).


AN OVERRIDING OBSERVATION: With only rare exceptions (again almost all falling under certain scenarios involving a failure to respond, appear, or otherwise being outside Canada anyway), consistent with all the above ACTUAL cases as OFFICIALLY reported in published decisions, in reviewing many other PR-card-application-triggered RO cases, it is readily apparent that PR card applications only trigger a decision to terminate PR status (that is, issue a 44(1) Report followed by the issuance of a Departure Order) IF THE PR IS SHORT OF RO COMPLIANCE ON THE DATE OF THE INTERVIEW, given credit for days in Canada after the PR card application is made up to the date of the interview. And again, there is no shortage in the number of cases consistent with this. Which is as it should be under the applicable statutes and regulations, which in particular include Section 28(2)(b)(ii) IRPA (should link) and Section 62(1) IRPA Regulations (should link).

Indeed, in researching this extensively (as illustrated in part by the list of decisions above) I have so far found only ONE case in which it appears that an IRCC ID official might have issued a 44(1) Report and explicitly did not give credit for days in Canada after making the PR card application and prior to the interview. This is Metallo v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129108 (CA IRB), http://canlii.ca/t/j52xd The date of the interview was nearly THREE YEARS after the date the PR card application was made, and it is apparent the 44(1) Report was prepared BEFORE that interview, suggesting there was something else going on in-between the date the application was made and the date of the interview. This individual, who had been absent from Canada for 27 years, was outside Canada after applying for the PR card but eventually returned to Canada and was in Canada for two years prior to the interview. Despite being represented by counsel, this individual did not contest that the calculation was valid in law, so the appropriateness of the calculation period is not questioned.

With that solitary exception, the ACTUAL RO cases triggered by a PR card application are ALL H&C cases, cases in which the PR was still NOT in compliance by the time of the interview and was therefore seeking H&C relief. It is apparent, that when the PR has enough days to meet the RO at the time of the interview, counting days IN Canada after applying, with that solitary exception (and perhaps some rare additional exceptions that were not appealed) IRCC does NOT issue a 44(1) Report.

That is, again, what the many, many ACTUAL cases illustrate is that as a matter of policy and practice, generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have in the meantime been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance.
 

tjkdl

Star Member
Feb 14, 2020
87
10
As noted above, the following is a list of OFFICIAL SOURCES recounting ACTUAL cases . . . which amply illustrate that as a matter of policy and practice, generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have in the meantime been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance.

OFFICIAL SOURCES
clearly showing that BEFORE issuing a 44(1) RO inadmissibility Report, IRCC does a RO calculation based on date of interview/examination, with credit for days IN Canada AFTER the date the PR card application was made:

Gamarachchi v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 37401 (CA IRB), http://canlii.ca/t/j01sx
PR card application made January 31, 2016. Examination date was July 10, 2017, based on five year period from July 11, 2012 to July 10, 2017.​
Chatterjee v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 127475 (CA IRB), http://canlii.ca/t/j4r1l
PR card application made August 31, 2015. 5 year period considered based on date of interview February 17, 2017, so time in Canada between Aug 31, 2015 (date of application) and Feb 17, 2017 was counted.​
Rastgou v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129864 (CA IRB), http://canlii.ca/t/hx738
December 12, 2015 PR card application.​
Period of consideration for the purpose of RO assessment is the five-year period preceding the 44 report, that is, from October 20, 2011 to October 19, 2016 (Oct 19, 2016 being the date of the interview)​
Hajar v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129235 (CA IRB), http://canlii.ca/t/j5361
. . . applied to renew his Permanent Resident card (PR card) in February 2016. The Departure Order was issued after the officer found that the appellant is inadmissible for failing to reside in Canada for at least 730 days (two years) out of the five year period ending May 10, 2017 (date ID officer prepared the Report)​
Ahmadipour v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 107705 (CA IRB), http://canlii.ca/t/hvrh0
PR card applications made September 23, 2016. Both PRs were given benefit for days in Canada between 17 Dec 2016 to 28 Jun 2017 (date of report).​
Saeidi v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129890 (CA IRB), http://canlii.ca/t/hx72g
PR card application September 9, 2015​
July 14, 2016 interview but report not issued until July 26, so the five year period for the calculation was from July 21, 2011 to July 21, 2016​
(IAD initially made calculation based on Oct 15, 2010 to Oct 15, 2015, based on first five years after landing, but in the decision explicitly stated this was "erroneous" and the Panel "accepted" the Minister's position "that the relevant time the relevant period is the five years prior to July 2016" (the date of the interview and report).​

Gilbert v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 77079 (CA IRB), http://canlii.ca/t/hnrt8
Calculation period based on date date of interview (this individual was actually given credit for the days after the interview up to the date the Departure Order was issued); there is not even any mention of the date the PR card application was made, just that the interview was attendant the PR card application; no hint there is any question about crediting days IN Canada after date of application up to the date of the interview​
Kuksov v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101471 (CA IRB), http://canlii.ca/t/gj87j
May 2008, he applied to renew his permanent resident card . . . . Period for RO compliance March 1, 2005 to March 1, 2010 (March 1, 2010 the date of the interview)​
Yedahalli v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101064 (CA IRB), http://canlii.ca/t/gh09t
Soon after returning to Canada in May 2009, PR applied to renew permanent resident card. The five year period considered was February 17, 2005 to February 17, 2010​
Wysozki v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 106167 (CA IRB), http://canlii.ca/t/j39hc
Application for a permanent resident card in November 2016. He was interviewed for the residency obligation on May 1, 2018. Accordingly, the officer assessed the period between May 1, 2013, and May 1, 2018.​

Also see the relevant statute and regulation: Section 28(2)(b)(ii) IRPA (should link) and Section 62(1) IRPA Regulations (should link).


AN OVERRIDING OBSERVATION: With only rare exceptions (again almost all falling under certain scenarios involving a failure to respond, appear, or otherwise being outside Canada anyway), consistent with all the above ACTUAL cases as OFFICIALLY reported in published decisions, in reviewing many other PR-card-application-triggered RO cases, it is readily apparent that PR card applications only trigger a decision to terminate PR status (that is, issue a 44(1) Report followed by the issuance of a Departure Order) IF THE PR IS SHORT OF RO COMPLIANCE ON THE DATE OF THE INTERVIEW, given credit for days in Canada after the PR card application is made up to the date of the interview. And again, there is no shortage in the number of cases consistent with this. Which is as it should be under the applicable statutes and regulations, which in particular include Section 28(2)(b)(ii) IRPA (should link) and Section 62(1) IRPA Regulations (should link).

Indeed, in researching this extensively (as illustrated in part by the list of decisions above) I have so far found only ONE case in which it appears that an IRCC ID official might have issued a 44(1) Report and explicitly did not give credit for days in Canada after making the PR card application and prior to the interview. This is Metallo v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129108 (CA IRB), http://canlii.ca/t/j52xd The date of the interview was nearly THREE YEARS after the date the PR card application was made, and it is apparent the 44(1) Report was prepared BEFORE that interview, suggesting there was something else going on in-between the date the application was made and the date of the interview. This individual, who had been absent from Canada for 27 years, was outside Canada after applying for the PR card but eventually returned to Canada and was in Canada for two years prior to the interview. Despite being represented by counsel, this individual did not contest that the calculation was valid in law, so the appropriateness of the calculation period is not questioned.

With that solitary exception, the ACTUAL RO cases triggered by a PR card application are ALL H&C cases, cases in which the PR was still NOT in compliance by the time of the interview and was therefore seeking H&C relief. It is apparent, that when the PR has enough days to meet the RO at the time of the interview, counting days IN Canada after applying, with that solitary exception (and perhaps some rare additional exceptions that were not appealed) IRCC does NOT issue a 44(1) Report.

That is, again, what the many, many ACTUAL cases illustrate is that as a matter of policy and practice, generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have in the meantime been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance.
Hi dpenabill,
My wife and children are now waiting in my home country. Due to the long wait (already 1.5years and not known how long more), I am thinking to bring them to Canada with their temporary visitors' VISA, so we don't need to suffer separated.

My case is sponsor family lives outside Canada. What could happen just in case my case finally could get approved? Do they have to go back to home country and perform the medical check, submit passport, and then landing again? Is it possible they can go to USA instead of the home country to go through all these remaining process(as "outside Canada")?

Or is that an option that I could change my case into Sponsor family who lives inside Canada? Through web form? If yes, is this to delay the case even longer, or increase the chance to be refused...

Thank you.
 

canuck78

VIP Member
Jun 18, 2017
53,213
12,844
Hi dpenabill,
My wife and children are now waiting in my home country. Due to the long wait (already 1.5years and not known how long more), I am thinking to bring them to Canada with their temporary visitors' VISA, so we don't need to suffer separated.

My case is sponsor family lives outside Canada. What could happen just in case my case finally could get approved? Do they have to go back to home country and perform the medical check, submit passport, and then landing again? Is it possible they can go to USA instead of the home country to go through all these remaining process(as "outside Canada")?

Or is that an option that I could change my case into Sponsor family who lives inside Canada? Through web form? If yes, is this to delay the case even longer, or increase the chance to be refused...

Thank you.
[

.

Do they actually have visas? You can certainly try but getting a visa is going to be extremely hard. Your wife would have to return for an interview if required. Getting a visa will be the huge obstacle especially in your case.
 

tjkdl

Star Member
Feb 14, 2020
87
10
Thank you Canuck78 for your reply.
Yes they do have VISAs, they got temporary visitors VISA before we apply the family sponsor case.
 

dpenabill

VIP Member
Apr 2, 2010
6,314
3,071
Hi dpenabill,
My wife and children are now waiting in my home country. Due to the long wait (already 1.5years and not known how long more), I am thinking to bring them to Canada with their temporary visitors' VISA, so we don't need to suffer separated.

My case is sponsor family lives outside Canada. What could happen just in case my case finally could get approved? Do they have to go back to home country and perform the medical check, submit passport, and then landing again? Is it possible they can go to USA instead of the home country to go through all these remaining process(as "outside Canada")?

Or is that an option that I could change my case into Sponsor family who lives inside Canada? Through web form? If yes, is this to delay the case even longer, or increase the chance to be refused...

Thank you.
Sorry, I cannot offer much in this regard.

I am NOT an expert or immigration adviser. I am not qualified to give personal advice.

For a number of years my engagement in forums like this has been focused on a few narrow issues, which tend to be issues and situations more or less involving litigation or quasi-litigation related to residency or presence, either for citizenship or meeting the PR Residency Obligation. (Above observations an obvious example.)

Moreover, it is readily apparent there are complications in your situation. This forum is NOT a good resource for advice that is much, if any more complicated than FAQs (Frequently-Asked-Questions). Plenty of information here. A number of leads directing the way to find more information. A lot of experience and things to think about and be aware of.

But, despite how much advice is thrown about here, this is NOT a good place to get advice . . . except the obvious, like be honest, follow the instructions, do not apply for a new PR card unless and until in compliance with the RO, and so on.

For personal advice it is best to consult with a professional. Which tends to be expensive. And can be difficult since even they too often fall short or miss the mark. But professional advice is far more reliable than what a forum like this can offer, and very importantly, their advice can be offered based on a confidential relationship, so the client can openly share anything and everything that might be relevant. The trick is to find a lawyer who will actually do the homework -- few will know this stuff well enough without doing some case-specific research. After all, situations like yours are not among the common, how lawyers make their money cases.

As for your questions about sponsoring your family, for example, since you are not currently in compliance with the PR RO, you are at RISK for that application being rejected outright. So how to handle this going forward, at the very least, is TRICKY, if not RISKY. And you are far from out-of-the-woods in regards to saving your PR status. There is no shortage of examples in which PRs short just 50 or 70 days have lost status. How this is going to go is very difficult to forecast. As noted before, you mostly got it right, time to wait and watch and respond accordingly to any communications from IRCC, making sure they have your current contact information. Or see a lawyer.
 

canuck78

VIP Member
Jun 18, 2017
53,213
12,844
Sorry, I cannot offer much in this regard.

I am NOT an expert or immigration adviser. I am not qualified to give personal advice.

For a number of years my engagement in forums like this has been focused on a few narrow issues, which tend to be issues and situations more or less involving litigation or quasi-litigation related to residency or presence, either for citizenship or meeting the PR Residency Obligation. (Above observations an obvious example.)

Moreover, it is readily apparent there are complications in your situation. This forum is NOT a good resource for advice that is much, if any more complicated than FAQs (Frequently-Asked-Questions). Plenty of information here. A number of leads directing the way to find more information. A lot of experience and things to think about and be aware of.

But, despite how much advice is thrown about here, this is NOT a good place to get advice . . . except the obvious, like be honest, follow the instructions, do not apply for a new PR card unless and until in compliance with the RO, and so on.

For personal advice it is best to consult with a professional. Which tends to be expensive. And can be difficult since even they too often fall short or miss the mark. But professional advice is far more reliable than what a forum like this can offer, and very importantly, their advice can be offered based on a confidential relationship, so the client can openly share anything and everything that might be relevant. The trick is to find a lawyer who will actually do the homework -- few will know this stuff well enough without doing some case-specific research. After all, situations like yours are not among the common, how lawyers make their money cases.

As for your questions about sponsoring your family, for example, since you are not currently in compliance with the PR RO, you are at RISK for that application being rejected outright. So how to handle this going forward, at the very least, is TRICKY, if not RISKY. And you are far from out-of-the-woods in regards to saving your PR status. There is no shortage of examples in which PRs short just 50 or 70 days have lost status. How this is going to go is very difficult to forecast. As noted before, you mostly got it right, time to wait and watch and respond accordingly to any communications from IRCC, making sure they have your current contact information. Or see a lawyer.
@tjkdl has already started the sponsorship of his child and wife while not in compliance with his RO which is also one of the issues about his case. Also tried to renew PR card. Agree that once you hear about your case you need a lawyer.