Clarification/reminder as to procedure:
The decision to deny a PR Travel Document application does not merely start the process to revoke PR status. It is an official decision which DOES terminate PR status.
The PR whose PR TD application is denied/rejected has a right of appeal. But make no mistake, unless the PR timely and successfully prosecutes an appeal, the decision denying the PR TD terminates PR status.
Similarly if at a PoE a PR is issued a 44(1) Report for inadmissibility based on a breach of the PR Residency Obligation, the usual procedure in such cases is for another officer (technically a "Minister's Delegate" but practically just another officer at the PoE) to review the report and interview the PR, then and there (although sometimes the reviewing officer is at another PoE, and the interview is done telephonically), at the PoE, and if the report is determined to be valid in law and there are not sufficient H&C reasons to justify retaining PR status, the reviewing officer will issue a Departure Order (sometimes labeled a Removal Order). Again, this usually happens then and there, at the PoE, before the PR is allowed to proceed into Canada. And again, the Departure Order is an official decision terminating PR status. It does not merely start the process to revoke status. It is the decision which terminates status.
Here too, the PR has a right of appeal, and the Departure Order is NOT immediately enforceable. So the PR will be allowed to proceed into Canada. But again, make no mistake, the decision terminating PR status has been made. Only if the PR can get that decision set aside will the PR save his or her PR status. That is, here too, unless the PR timely and successfully prosecutes an appeal, the decision to issue a Departure Order terminates PR status.
Process and decision-making if there is an appeal:
Assuming the PR takes affirmative action to timely commence an appeal, whether it is an appeal of a denied PR TD or an appeal of a Departure Order, the appeal is heard and decided by the Immigration Appellate Division, the IAD. The decision-maker is typically referred to as a "panel" but in practice is one person.
The appeal is essentially what is called a "de novo" hearing, meaning the decision-maker, the "panel," examines and weighs the evidence and makes a decision based on the evidence before the panel. Thus, while the decision will ordinarily conclude whether the PR TD denial or the 44(1) Report was valid in law, that decision is not so much a review of the original decision but a new decision. This means the PR can submit additional information and evidence to the IAD. It is, nonetheless, the PR's burden to prove compliance with the PR Residency Obligation, and if the IAD concludes the original decision was valid in law, and that there are not sufficient H&C reasons to justify allowing the individual to keep PR status, again it is the original decision which terminates the PR's status. There is no further right of appeal, but one can make an application to the Federal Court seeking leave for judicial review; it is unclear whether these applications are rarely granted or whether few make such applications, but in any event there are very few cases in which the Federal Court reviews these IAD decisions compared to the scores and scores of such decisions being made.
A key element to remember about the appeal, about what the IAD considers: the decision is based on whether the PR submits sufficient information and evidence to prove he or she was in compliance with the PR RO as of the day the PR TD application was made, or the day the 44(1) Report for Inadmissibility (due to a breach of the PR RO) was issued.
Thus, for example, the PR gets no credit toward compliance with the PR RO for any time spent in Canada while the appeal is pending.
Thus, for example, if the PR was short of meeting the 730 day obligation as of the day reported, time in Canada after that day does not count . . . no matter how much the PR is in Canada after that day, even if the appeal takes two years and the PR stays in Canada all those two years, the PR was short, not in compliance, the original decision is valid in law.
That noted, when the IAD is assessing H&C factors, it can and typically will consider time in Canada while the appeal has been pending to be a positive H&C factor. Alone it falls way short of justifying H&C relief. But in conjunction with other positive H&C factors it can make a difference in the outcome. Conversely, the more the individual continues to be abroad during the wait for the appeal, the more likely that will be a negative factor in the H&C assessment. Thus, any PR with an appeal pending who wants to maximize the chances of saving PR status, will want to stay in Canada during that time. Again, alone this will not save PR status, but in conjunction with other positive H&C factors it can make a big difference.
Which leads to PRs with family settled and living permanently in Canada. This too can have a big positive influence in the H&C assessment. All ties in Canada should have some positive influence. Thus, for example, individuals with existing ties in Canada, such as immediate family members already settled in Canad, who for this or that reason could not make the transition to fully settling and living in Canada, tend to have better odds of saving PR status (getting H&C relief), depending on:
-- nonetheless coming to Canada as soon as reasonably possible
-- staying in Canada upon arrival, including
-- -- establishing a more or less permanent life in Canada, establishing a household in Canada and preferably including obtaining permanent employment in Canada
-- having, from the beginning of PR, the intent to settle permanently in Canada even though actually doing so was frustrated and delayed by practical realities
In regards to the latter, the practical realities which led to a delay in coming to Canada to permanently settle in Canada:
Continuing to attend school or work abroad, for example, is not, in itself, a strong positive factor supporting H&C relief. It can be, and often is a negative factor if obviously doing so was mostly a matter of convenience, a personal choice. Nonetheless, in many contexts it can be a positive factor, such as where it fits into a broad (and honest) explanation of the reasons why following through with the plan to permanently settle in Canada was delayed . . . this is why it is so, so wrong to say that factors like continuing to work abroad do not count, they can, they often do, but as always, always, IT DEPENDS on the circumstances (including how long this delayed the actual move to Canada), the context, the underlying reasons why.
PR TD or travel to Canada through the U.S. (to arrive at Canada by land):
As noted, coming to and staying in Canada while an appeal is pending can be a big factor in the H&C assessment. PRs who do not have a valid PR card but who can travel via the U.S. have an advantage in this regard. Unless the PR has been physically present in Canada within the year preceding the date the PR TD application is made, the PR may not be able to come to Canada at all pending the appeal, that is unless the PR can travel to the U.S. and then on to the Canadian border.
And, even for those PRs who would be entitled to a special PR TD (those who have been in Canada within the preceding year), so they can travel to Canada pending the appeal, the sooner the individual is physically in Canada the better. Thus those who are aware they will most likely be denied a PR TD, who have status allowing travel via the U.S., probably want to do this rather than apply for a PR TD. They will be in Canada sooner and, assuming they come and stay, longer overall when the appeal is heard.
In contrast, for a PR in breach of the PR RO who is confident he or she has a good H&C case, it can be prudent to make the PR TD application, making sure to make the H&C case in that application. If the PR TD is then granted, this will usually cure the PR RO breach, taking a lot of the pressure off having to come and stay in Canada with no travel abroad for a full two years, and making it possible for the PR to immediately apply for a new PR card upon arrival in Canada. The caveat is that H&C cases are tricky and difficult to successfully make. The PR RO is considered to be very liberal, allowing PRs a great deal of flexibility so as to accommodate emergencies and contingencies in life. Moreover, a PR abroad without a valid PR card is statutorily presumed to NOT have valid PR status. In this regard, it is important to recognize, again, the decision to deny a PR Travel Document application does not merely start the process to revoke PR status. It is an official decision which DOES terminate PR status.
