PR renew on Compelling H&C grounds... hmm... shed some light plz?

[vvin732]

Hello everybody:

I am a Chinese, Canadian PR currently in Canada. My father,(a Canadian citizen) was sick a few days after I booked the ticket back to Canada, he had a heart attack along with some internal hemorrhaging, so I had to be beside him and delay my ticket for another week or so ... ... yes he is quite all-right now.
After I returned to Canada, I was going to renew my PR status, but I found out that I am 7 days away from fulfilling my residency obligation. All my missing days are sandwiched in between the 5 year period, so I cant just stay 7 more days to get it, I'd have to stay for another year to "roll over" the missing days, which isn't very preferable, because I can't stay for that long.

So, here are my questions:

1: Does this qualify as "Compelling H&C Reasons" ?
2: If yes, then what kind of material should I send as Proof?
3: Do I have to have the materials translated and notarized? in China? or in Canada? or doesn't matter.
4: Can the process still be expedited? and will I have troubles if I leave before a conclusion is made?

Any help is really, really appreciated ... Thanks!!!

PS:
5: I know this is the most cliche question of all, but... what are my chances?

 

[frege]

1: Does this qualify as "Compelling H&C Reasons" ?

Yes, probably.

2: If yes, then what kind of material should I send as Proof?
3: Do I have to have the materials translated and notarized? in China? or in Canada? or doesn't matter.

I don't know the answer to these questions, except that material in Chinese would almost certainly have to be translated.

I hope someone else can say what proof would be needed.

4: Can the process still be expedited? and will I have troubles if I leave before a conclusion is made?

Yes, urgent processing is possible:

http://www.cic.gc.ca/english/information/pr-card/apply-urgent-processing-already-submitted.asp

If you leave before receiving a PR card, you'll need to apply for a "permanent resident travel document" abroad in order to return to Canada, EXCEPT if you have a visa for the US and can make it to a land border crossing into Canada. This is probably preferable because I think it's easier to convince a border officer than a consular officer.

And I imagine your chances are pretty good.

Please read manual ENF 23, especially Section 7.7 on H&C determinations.

http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf

 

[vvin732]

Thanks frege, for your timely response!

Altho I m hoping to know what materials do I need as proof

 

[Msafiri]

All medical records pertaining to the heart attack. Details with evidence of available care to include where your other family members reside. I think your chances of success are not that good but that's just my opinion. Where were you for the other 'non heart attack' delay period that would be reviewed in the 5 year window for your application? What were you doing that was so important for you not to live in Canada?

 

[zardoz]

Also, the statement that "because I can't stay for that long" will not do you any favours. It will lead CIC to believe that you are not committed to doing whatever it takes to maintain your PR status. What would convince them to allow an H&C exemption when you are just going to leave again?

 

[vvin732]

ok... I admit i never thought like that ... that would definitely prove to be more complicated than I originally thought.

Anyways, thanks for the response guys, really appreciate it

 

[frege]

Say a person is very close to the two years of residence, and doesn't have any compelling reason for their, say, 2.95 years of absence. Then they have to leave for a few weeks for a good reason, and this puts them in non-compliance with the physical presence obligation.

It would seem natural to me that in these circumstances, the person would be eligible for H&C consideration. That's because the two years would almost be met, and the fact that you're close to the threshold is supposed to be an important factor.

 

[Leon]

I don't recall any posters having such a situation exactly but I tend to side with Msafiri that if you have been outside Canada for 3 years for no good reason and then have a H&C component for missing an extra week that you would not have a very strong case. In most cases where people have H&C reasons, they have them for an extended period of time like taking care of a sick relative for example for a couple of years. Although, I do not work for immigration so I do not know if there is a policy regarding such situations.

However, applying to renew the PR card based on H&C grounds will take forever and vvin732 has to leave again so I don't know if there is any point in even applying. When immigration finds that someone has applied to renew their PR card on H&C grounds and then left Canada again during their processing time, I think they will not be inclined to approve.

vvin732, does your spouse meet the residency requirements and is living in Canada? If yes, your spouse can always sponsor you if you lose your PR. If not, the safe bet for your PR is to change your plans and stay for another year until you meet the RO and only then apply to renew your PR card.

 

[Msafiri]

Say a person is very close to the two years of residence, and doesn't have any compelling reason for their, say, 2.95 years of absence. Then they have to leave for a few weeks for a good reason, and this puts them in non-compliance with the physical presence obligation.

It would seem natural to me that in these circumstances, the person would be eligible for H&C consideration. That's because the two years would almost be met, and the fact that you're close to the threshold is supposed to be an important factor.

Case law/ CIC operational policy on H&C reviews multiple factors one of which is the shortage of days. My take from the OPs approach and lack of response to reason for their other 3 year absence period indicates the heart attack issue is looking for the only viable option...he/she also seems to be submitting the renewal application on the way to the airport. We don't have enough info unless the OP details factors to include:

1. landing date
2. How PR obtained
3. Days absent
4. reason for non heart attack absence
5. ties to Canada
6. reason for returning to China
7. Family composition in Canada vs China
8. Age - may try the 'accompanying Canadian Citizen' if a minor/ removal as a minor angle

Its a weighted factor approach....it doesn't look good is what I'm seeing but as always its an open forum and its just my 2 cents!

 

[frege]

I've had a look at some appeal cases using the search terms "residency obligation" and "extent of non-compliance".

What it turns up is that for people who are 50-100 days short, it's really a mixed bag. I had assumed that when you were that close, the burden of proof would be reduced proportionally to the number of missing days. But even people in that range who have plausible arguments - including caring for an ill family member - have been turned down.

So Leon and Msafiri appear to be correct, in that it doesn't look as positive as I thought it would. On the other hand, it wouldn't be a lost cause either.

Vvin, I suggest you look at some of the jurisprudence to see how you would compare to the other cases.

Also, if you do decide that you need to leave despite the risk to your PR status, try to return to Canada via a land border with the US so that you don't need to apply for a travel document.

Here are some starting points:

http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Documents/RoaAmr03_e.pdf

http://www.cic.gc.ca/english/resources/manuals/ (particularly manuals ENF 23, ENF 27, OP 10)

http://www.canlii.org/eliisa/search.do?language=en&searchTitle=Search+all+CanLII+Databases&sortOrder=relevance&searchPage=eliisa%2FmainPageSearch.vm&text=%22residency+obligation%22+%22extent+of+non-compliance%22&id=&startDate=&endDate=&legislation=legislation&caselaw=courts&boardTribunal=tribunals