aiman.b said:
A lawyer told me that I have a good reason to apply for renewing my pr card under the H&C and would take from 1 year to 1 and a half year to process the application.
As others have noted, if possible, if you are able to travel to Canada and are allowed to enter Canada without being reported, and you then live in Canada for two years, staying in Canada without leaving and without making any application to
Immigration, Refugees, and Citizenship, your PR status will be secure. That said, these days I think the possibility of doing this, traveling to Canada and being admitted into Canada without being reported, is a
big IF. How much so depends on many factors. I'll leave that aspect of things to others.
Regarding making the H&C case to retain PR status:
To better understand the procedure, the underlying issues, and the substantive elements relative to the respective issues involved when a PR is subject to a Residency Determination, and in particular when the PR has not been in Canada at least 730 days within the preceding five years and is relying on H&C grounds to retain status, 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.
Regarding H&C grounds in PR RO cases:
There is a lot of misinformation about H&C determinations, in the PR RO case, in this forum, and in other forums.
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 insufficient grounds for H&C relief, or obvious there is a strong H&C case).
Other than consulting with a licensed Canadian immigration lawyer, for the PR who is competent to do the research 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 in the manuals, 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.
Again, 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.
Beyond that,
Leon highlighted some of the key factors which appear, in your case, to provide a basis pursuant to which you may, indeed, as the lawyer suggested, have a sufficient H&C case. The only thing I quibble with is
Leon's statement:
"You chose to study outside Canada and that is not considered to be H&C grounds." My understanding, as noted above, is that studying abroad can be a significant factor tending to support a favourable H&C decision, but the actual outcome in the particular case will depend on additional factors and circumstances. It is not as if time studying abroad will be counted toward compliance with the PR RO. That will not happen. But depending on the circumstances, time studying abroad may be a positive factor in how CIC or
Immigration, Refugees, and Citizenship assesses the totality of H&C reasons.
