Thanks for the detailed information, you seems to have detailed knowledge about it. Please help me and answer my query will be great of you.
I do not meet RO and flying next week to see if i get an entry or get notice 44.
My two questions are
Firstly,
Say if i get an entry without getting notice 44 will i be able to sponsor my wife or call her on visitor visa?
Secondly,
Say if i get notice 44 and appeal for a fight, how long is the average processing time for the appeal to be processed or to know that my appeal will be heard or not.
Please reply
To be clear: I AM
NOT AN EXPERT,
NOT BY A LONG SHOT.
It is one thing to follow certain issues and be aware of particular aspects of this and that process, to have done some homework and know the rules. Applying this information in a particular person's case is something ENTIRELY DIFFERENT.
Note, for example, I am NOT familiar with the procedures involved in applications for visitor visas when the prospective visitor has family in Canada, so I do not know, not at all, how your situation would factor into the prospect of a FN spouse obtaining a visitor visa.
One of the reasons my posts tend to go long is that I identify and elaborate the prospect of multiple possible procedures and outcomes, tending to emphasize the vagaries and variables.
And, very, very often, what can happen often varies widely from what will LIKELY happen.
In more than a few respects my observations tend to focus on what we do not know, and in particular emphasizing that observations purporting to state what will happen are, well, less than reliable.
And then there are (almost always) individual factors which loom large.
So, first question, after arriving at a Canadian PoE, assume you are allowed to enter without being issued a 44(1) Report, you ask: "
Say if i get an entry without getting notice 44 will i be able to sponsor my wife or call her on visitor visa?" Again, I know nothing about the prospect of a visitor visa in this scenario.
As for sponsoring your spouse for PR, there are a lot of other qualifying elements you will need to meet for the answer to this to be "yes."
Which is to say, "yes,"
IF and WHEN you meet the eligibility requirements. "WHEN" looms large. Not until your own PR status is good. As long as you are not in compliance with the PR Residency Obligation, you are subject to a determination of inadmissibility, inadmissible for being in breach of the PR RO. To sponsor a family member, the sponsor must establish his or her eligibility to sponsor. An inadmissible PR is not eligible to sponsor.
Will an application to sponsor a spouse by a PR who is living in Canada and who has not been reported for inadmissibility trigger inquiry into the PR's compliance with the PR RO? That wanders into the maybe or maybe not range, into
I do not know territory, because it could go either way.
To be clear, the sponsorship application for sure can trigger an inquiry into the sponsor's compliance with the PR RO. Reports indicate it has. Lots of depends factor are probably in play. If the PR is just a month shy of meeting the PR RO, fair chance there will not be a problem. But other circumstances can potentially loom and affect how it goes. Conventional wisdom clearly favours
WAITING until being in full PR RO compliance
BEFORE making an application to sponsor.
Then there is your second question: "
Say if i get notice 44 and appeal for a fight, how long is the average processing time for the appeal to be processed or to know that my appeal will be heard or not."
Not sure about the "for a fight" angle, since an appeal is just that, a formal procedure asking that the decision by the Minister's Delegate (usually just another officer at the PoE seconding the first officer's Report) be reconsidered by the IAD (Immigration Appeal Division), which a PR has a full right to do. This review is in effect a hearing
de novo, meaning that the IAD will review the evidence (including any additional evidence) and make its own decision. No real fight. Just submission of the facts and an individual, referred to as the IAD Panel, will decide what the facts are (if there are conflicting versions of the facts) and whether, one, the Report was valid in law (was the PR short of meeting the PR RO at the time the report was issued), and if the answer to that is yes, then the IAD Panel will determine if there are H&C reasons for allowing the PR to retain status despite the breach.
While there may be some adversarial elements involved, typically better to approach this process as an opportunity to persuade the IAD, based on equities as well the particular merits, AND NOT as an adversarial contest, or "fight." Most PRs in this situation will benefit from the assistance of a lawyer in this process.
As for appeal timelines, there is no reliable source of information about this. Averages are irrelevant. In these appeals, even the median timeline is not particularly informative because it appears that the lengthy timelines seen in the recent past are not so common now. Thus, while there are many cases in which the appeal has taken well over a year, and in many cases two years or even more, there are also a number of more recent cases in which it appears the IAD hearing was held within six months or otherwise in well less than a year.
Settling and staying in Canada while the appeal is pending can help improve the odds of making a successful H&C case, but this falls way short of being a sure thing. How much in breach is a huge factor. Why the delay in coming to Canada is huge. If there was a small breach with somewhat persuasive reasons explaining the delay (even if not the sort of reason typically thought of as supporting an H&C case, such as economically difficult to make the move sooner), settling and staying pending appeal can tip the scales in a favourable direction.
The appeal will "be heard." A PR has the right of appeal. To the IAD. This is an administrative appeal, quasi-judicial. The PR will have an opportunity to submit additional evidence to the IAD. I am not familiar with how the hearings are in fact conducted, but I believe the PR is usually entitled to attend the hearing in person and to make representations to the Panel in person.
Some IAD hearings allow the PR to participate by telephone. Other than the obvious situation, where the PR is abroad, I am not sure when or why the PR might participate through a telephone appearance rather than in person . . . again, almost all PRs in this situation would benefit from the assistance of counsel in navigating the appeal.
But in any event, the IAD will hear the case. It will accept evidence and representations and reasons (one might say "argument" but again the better approach is more about being persuasive than being argumentative). The IAD will weigh the evidence and consider the reasons, including any and all H&C reasons, and render a decision, and that decision will be either to allow the PR to retain PR status or upholding the report (denying the appeal) and thereby terminating the PR's status.
Whether a negative IAD decision can be further reviewed by the Federal Court, that is, whether a further appeal would "be heard" by a Federal Court, that requires an application for leave which can be (and it is my impression usually is) denied unless there is a rather clear ground for such further review.
If the IAD denies the appeal, that means PR status is adjudicated and the individual is no longer a PR.
A PR cannot sponsor a family member while the appeal is pending.
