nasd said:
I am a Immigrant and have appeal to IAD ,as i did not fulfill my residency obligation.I was In sri lanka when my PR card expire,so presently I am not in Canada.So Now IAD have sent me a letter to participate in conference at assignment court through phone.At conference I will be asked the following things.
1.Indicate the number of witnesses I want to call,and the reason for calling them.
2.Provide any documents or information which may Help IAD in deciding my appeal.
3.try to agree with facts which are relevant to the appeal.
4.Discuss the date and any other procedure in the appeal.
So I need help from how could I proceed wit this,what questions will they ask me.Please guide me to prepare for this conference on phone.
Foremost, while this and similar forums are an excellent resource for fielding questions about immigration, including preserving PR status, this is about general questions and general principles, about information related to rules and guidelines and general practices.
This is NOT an appropriate venue for obtaining personal advice in an individual case. While more than a few participants in forums like this may be willing to offer personal advice, oft times all-too-willing to offer personal advice, any such advice is inherently NOT trustworthy.
For personal advice, contact a licensed or authorized Canadian legal professional.
In any event, it appears that they quite clearly communicated what the conference will be about, which appears to come down to who you will want to participate as witnesses, what documents you will submit to support your case, what facts can be agreed to, and procedural matters such as date of hearing and so on.
Assuming there is no doubt about your current status as a Permanment Resident, the issues are fairly straight-forward:
-- how many days were you present in Canada during the five years preceding the date you made the PR Travel Document application (assuming that the appeal is about a denied application for a PR TD; otherwise the time period will be based on the five years preceding the date you were reported for being in breach of the PR RO)
-- how many days during that time period, and while abroad, were you accompanying a Canadian citizen spouse or on assignment as a full time employee for a Canadian business (I am guessing this is zero)
-- what are the reasons for not returning to Canada sooner and, in particular, what weight these should be afforded as H&C considerations
Thus, your witnesses and documents are those which will support your claims as to these issues.
The burden of proof is totally on YOU. You will not have to present the witnesses or submit the documents at the time of this conference, but will need to clearly communicate to
Immigration, Refugees, and Citizenship who the witnesses are, why they are witnesses (which essentially is about what testimony they will give to support your case), and what documents you will present to support your case.
To better understand the procedure, the underlying issues, and the substantive elements relative to the respective issues, see the following at the CIC or
Immigration, Refugees, and Citizenship website (the latter is the current formal name of what was before "CIC," but to date the website is still "CIC" or "
Citizenship and Immigration Canada"):
for
ENF 23 "Loss of permanent resident status" see
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
In this manual, see section 7.7 (beginning page 26) in particular for discussion of H & C considerations (section is titled "Humanitarian and compassionate determinations").
for
OP 10 Permanent Residency Status Determination see http://www.cic.gc.ca/english/resources/manuals/op/op10-eng.pdf
In this one, see section 5.4 beginning on page 14 for discussion of H &C grounds. In particular, also see sections 11 (beginning page 21) and 12 regarding procedure.
Regarding H&C grounds in PR RO cases:
There is a lot of misinformation about this in the forum, and in other forums. (See debunking myths below.)
In contrast, most of what is said in the respective manuals is fairly straight-forward, albeit how the general policies and practices apply to particular facts is not so readily discerned. Moreover, predicting the outcome of the H&C case is very, very difficult
unless it is an obvious case (as in obvious there are little grounds for H&C relief, or obvious there is a strong H&C case).
Depending on how competent you are to do your own research, other than consulting with a licensed Canadian immigration lawyer, the best source of information about how CIC has, in the past, approached these cases is best illustrated in appeal decisions, both those published by the IAD and the Federal Court. These can be researched at the
Can LII website (see http://www.canlii.org/en/ca/ )
Debunking myths:
-- there is no age limit for H & C grounds
--
all reasons for not returning to Canada sooner
must be considered (weight, or influence of particular reasons will vary considerably, from a lot to not much at all; but how much weight a particular reason carries depends largely on what it is, the context, the PR's circumstances and history, and other factors specific to the particular individual)
-- -- for example, remaining abroad for employment reasons
must be considered (but in most situations probably carries quite
little weight)
-- -- for example, remaining abroad to complete studies will definitely be considered (weight probably varies considerably, depending on PR's circumstances including age, nature of studies, and other factors)
See the cited and linked manuals for more thorough discussion of what reasons are specifically considered in H&C assessments. Those referenced, however, are
illustrative, not exhaustive, and again the PR can, and should, present any and all truthful explanations there are for remaining abroad, and those
must be considered.
Overall, the PR RO H&C case is very, very different from assessing H&C grounds in other contexts. In many PR RO cases it is far more about whether the PR
deserves the opportunity to retain PR status. Compelling H&C cases in other contexts, especially those involving extreme hardship (such as for obtaining PR status itself or for not being deported despite being inadmissible), will typically be enough. And the impact on minor children is a huge factor. But for the PR RO case, there is significantly broader discretion and generally a measure of flexibility if not leniency allowed. Thus, for example, some assert that those reasons rooted in a
choice, by the PR, precludes them from being considered as H&C reasons. But this is really more about the
weight given the reason. As noted,
ALL reasons offered by the PR, to explain why the PR remained abroad, MUST be considered.
The scope of allowed flexibility and even leniency, however, should not be construed to be a license, and there are probably just as many cases reflecting a relatively strict enforcement of the PR RO and little or no generosity in assessing H&C factors. This is why it is so difficult to predict the outcome of a PR RO determination depending on H&C factors. Several Federal Court justices in particular have expressed the view that the PR RO itself, allowing PRs to be abroad 3/5ths of the time, has sufficient flexibility built into it that little or no additional flexibility is intended.
Overall, there is very broad discretion, and thus ultimately widely varying outcomes. Except for the more obvious scenarios (dependents taken abroad while a minor; PRs who fall short of the RO by just a little and have compelling reasons, such as being the only living relative capable of caring for a terminally ill parent), any prediction of outcome is largely if not entirely a guess.
