For clarity: That is a completely different kind of H&C case, involving an application by a Foreign National (FN) seeking a grant of PR status, in contrast to how H&C factors are considered in cases involving Canadians seeking discretionary relief from Residency Obligation enforcement. That case offers very little insight into how H&C relief for a breach of the RO is determined.
This case, Shah v. Canada, 2019 FC 1153, is also found here:
https://canlii.ca/t/j2bqn
There are many similar factors that can be involved in both types of H&C cases (best interests of minor children looming large), but there are some major differences that make the way such cases are decided very different, including the weight the H&C factors carry respectively, and the fact that the threshold for making a successful H&C case resulting in relief for a breach of the RO is considerably lower than what is needed to make the H&C case for a FN to be granted PR status.
The Long Read Re Situation For OP's Queries; Tricky H&C Illustrated:
I'm looking at H&C option to see if it's a possibility in prep for any unexpected situation that may occur and they have to leave before they fulfill the RO, which is likely to happen since my grandma is already not feeling well, and my dad is overdue for his cancer checkup.
I fully concur in the cautionary observations posted by others. If they are here, in Canada, and they want to keep their PR status, the safe approach is to STAY, and they do not need new PR cards for that.
And, to be clear, even if they were to be issued NEW PR cards based on H&C relief, that would
NOT necessarily protect their PR status if they leave for a significant period of time without complying with the RO. (Reminder: the RO clock does NOT restart with new PR cards.)
I understand how compelling the reasons are for returning to their home country. Such situations can be tough, really tough, really hard, forcing difficult decisions.
If and when they feel compelled to leave, however, they should be aware of what is at stake, and aware that even the best H&C case is a GAMBLE, and that the numbers can make a big difference. Leading to the case you cited . . .
I do not purport to know, not even a good guess, whether a PR card application relying on H&C will trigger a 44(1) Report potentially resulting in a Removal Order and loss of PR status. The risk of that, to be clear, is real and substantial. However, it is nearly impossible to quantify the probabilities, the odds, beyond broad generalities.
We can say, for example, that the longer they are present in Canada before making a PR card application, the better the odds of keeping PR status, and the better the odds they might not even be subject to inadmissibility proceedings. But a fool's guess to try quantifying the odds beyond that broad generalization.
Similarly, as to how things will turn out if they leave without meeting the PR RO (even if they apply for and are issued new PR cards). Forecasting odds in H&C cases is a fools errand. (While the odds are better at the Port-of-Entry, when returning to Canada, if the PR has a recently issued PR card, but again if there is an extended absence a new PR card will NOT necessarily protect the PR from inadmissibility proceedings if upon their arrival at the PoE they are not complying with the RO, as of that day.)
But there is no doubt, H&C cases are tricky and most often very tricky, and almost always a big gamble, even with strong H&C reasons in regards to why the PR did not return to Canada sooner.
Situation Described NOT All That Similar to Chen v Canada, 2023 CanLII 66394 Case:
The numbers played a very big role in the IAD decision you reference, the decision in Chen v Canada, 2023 CanLII 66394, which is also here:
https://canlii.ca/t/jzb2f
Mr. Chen and Ms. Liu were IN Canada around two hundred more days than you say your parents have been. Given how much weight the numbers carry,
the cases are not actually all that similar. Note, in particular, in Chen the IAD stated that only "
some" H&C reasons were needed "
to overcome the smaller shortfall."
There are other significant differences that increase the risk of a negative outcome and warrant giving emphasis to the cautions expressed here by seasoned participants in these sorts of discussions,
@scylla,
@YVR123,
@armoured, and
@canuck78 . . . and overall, enough to emphasize, again, that if and when your parents feel compelled to leave they should be aware of what is at stake, that even the best H&C case is a gamble, and yes that could force them to make very difficult choices depending on their priorities.
While the numbers alone loom especially large, it is worth considering in detail some of the additional ways in which your parents' case is not as similar to the Chen case as you might hope.
Covid:
The positive influence of Covid as a reason for failing to return to Canada sooner, for example, has diminished considerably, undoubtedly carrying not just less positive weight now than it did two years ago (when Chens made PR TD application), but probably a lot less now. While the Chen decision does not clearly articulate the weight given the Covid factor, they almost certainly benefitted more than what any PRs might expect going forward. There still may be some variation in assessing the impact of Covid depending on the individual situation involved, but generally it is likely that Covid now has only a minimal positive influence AT BEST. This would be especially true if your parents were to leave Canada again before getting into RO compliance (again, even if they have new PR cards).
Settlement In Canada:
This is one of those factors which it is safe to say it is very likely it can have a big influence, but to what extent it is nearly impossible to say. This factor is of course closely related to the numbers. More time in Canada generally implies the PR is more settled in Canada.
Moreover, it is not a static or linear factor. For the Chen case, the fact they had been complying with the RO prior to the lengthy absence appears to have been given significant positive weight. In contrast, the longer your parents stay here, in Canada, before doing something triggering a RO compliance determination (either a PR card application or leaving and being examined at the PoE upon their return here), the stronger that makes their case.
For now, this factor distinguishes your parents case from the Chen case, the Chens having that history of RO compliance weighing in their favour. If your parents stay here, then a year from now, or perhaps even sometime sooner, they will have a stronger case taking this factor into consideration. I am not suggesting this could be enough to safely proceed to make the PR card application before meeting the RO. But if forced to make a difficult decision, it might tip the scales in terms of whether to take the risk.
Familial Ties In Canada; Grandchildren:
In the Chen case, the IAD approached unification of the family in Canada as
a neutral factor, including the grandparents' role in providing child care, but then referenced the relationship with the grandchild in a manner indicating that was considered a positive factor. This illustrates how variable assessment of factors can be. Another decision-maker could easily give this more positive weight. But probably not a lot. What is
inconvenient does not rise to the level of being a
hardship. Another way of saying what I think
@YVR123 said.
While the point made by
@armoured, as to the impact on the minor child, is valid, emphasizing that what weight will be given such circumstances (such as grandparent providing child care for a grandchild) can depend on the particular factual situation, absent special circumstances, it is difficult to see that a grandparent/grandchild relationship is likely to carry anywhere near enough weight to tip the scales one direction or the other. That is, if the decision-maker has concluded the H&C case falls short of giving relief, this factor is not likely to change that outcome.
Otherwise:
H&C is certainly my last resort.
This goes back to the initial observations by
@scylla, (1) best to stay and wait to make PR card application, and (2) if, however, compelled to leave, better to wait to make H&C case when "
they return [to Canada]
or once they are ready to return." I concur.
