Hi Members,
I want to understand the process in case PR is reported at Point of Entry and then given chance to appeal and then in case appeal is accepted then the process.
Please note family is already settled in Canada, kids going to school as well. I am outside canada to take care of my mother who is dependent on me. I need to understand the process for the same starting from reporting till appeal and in this process, I had to return back home as can't leave mother alone for more than 10 days or so.
Experts please your views and guidance.
I am NOT an expert. Others and I have outlined and discussed the procedures, oft times in more or less extensive detail, in numerous other topics here. So you could learn a good deal by doing some homework, reading back pages in this forum. In addition to learning about the process in the abstract, those discussions are probably worth the time and effort given they typically address the process in context, relative to various particular facts and circumstances, which helps to illuminate how the process actually works in practice.
I do not intend to revisit in detail what has been discussed before (again, better for you to dig through the back pages and read more about this for yourself) but I can offer the following general outline:
If a PR is "reported," at a PoE upon returning to Canada, for failing to comply with the PR Residency Obligation, the PR is issued a formal, written 44(1) Report for Inadmissibility and ordinarily the matter is immediately referred to another officer (there at the PoE, but sometimes telephonically, and sometimes but less often at a later time), who is deemed the Minister's Delegate, who decides whether to also issue the PR a Departure or Removal Order. This Order is NOT immediately enforceable, so the PR is then allowed to enter Canada.
If the Minister's Delegate decides to NOT issue a Departure or Removal Order (different names for same thing), the PR continues to have PR status.
If the PR is issued a Departure or Removal Order, again this Order is NOT immediately enforceable, so the PR is then allowed to enter Canada. If the PR does NOT appeal, the Order will become enforceable (in 30 days as I recall), and PR status is lost.
If the PR timely makes an appeal (which, again as I recall, must be within 30 days), the PR continues to have PR status pending the appeal. If the appeal is dropped or the PR loses the appeal, the Departure or Removal Order becomes enforceable, and the individual is NO longer a PR. If the PR wins the appeal, status is retained.
Best opportunity to make a persuasive H&C case is at the PoE.
But, a PR also gets to make a H&C case in the appeal. Almost all PR RO H&C cases are TRICKY and most are
difficult unless the circumstances are compelling AND the extent of the breach is relatively small (lot easier to win the H&C case if the PR was IN Canada periodically adding up to ALMOST meeting the RO, falling just weeks or a month short for example, than it is if the PR's presence in Canada is many months short, let alone more than a year short).
Appeals are heard by the IAD (Immigration Appeal Division), presided over and decided by one individual referred to as the "IAD Panel." There is a hearing. It is essentially a
de novo hearing, meaning the Panel reviews the evidence and information anew. Thus new information and evidence can be presented.
Based on published IAD decisions it appears MOST PRs obtain and are represented by a LAWYER in this process. AND that is what I would recommend (one of the few recommendations I will make):
LAWYER-UP as soon as possible after being issued a 44(1) Report and Removal Order. Again, H&C cases are, at best, TRICKY, while most are DIFFICULT to win.
The IAD hearing can happen within just a few months after being Reported, but in a lot of cases it has taken a year, and sometimes well over a year. My impression is that the timeline now is significantly faster than it was during the last few years, but I am NOT sure about this.
NOTE: there is not much point in pursuing an appeal based on H&C grounds, even with a fairly strong case, UNLESS the PR STAYS in CANADA in the meantime, at least MOSTLY stays pending the appeal, and actually PERSONALLY establishes himself or herself in Canada,
to LIVE PERMANENTLY in Canada.
Established family in Canada helps, but not so much if the individual himself or herself fails to at least establish his or her own life in Canada
BEFORE the IAD hearing (well before the hearing . . . takes the passage of real time to demonstrably show establishment in Canada). This is more about the weight NOT settling in Canada has as a NEGATIVE factor . . . not settling in Canada in combination with much of a breach generally tends to force a NEGATIVE outcome in the appeal. For what should be obvious reasons, given that the purpose of having PR status is so the individual can LIVE PERMANENTLY in Canada.
A married PR (or PR in common-law relationship) with a Canadian (either a Canadian citizen or Canadian PR) can be sponsored for PR again as long as the spouse is eligible to sponsor (not on welfare, no domestic violence convictions, no previous sponsorship within a certain period of time).
NO POINT in doing this UNTIL the individual is ready to actually settle and stay in Canada.
PR Travel Document application denial: The other procedure which is similar, and these days more common (since nearly all PRs abroad need a PR card to travel to Canada, or a PR TD otherwise, those abroad for extended periods tend to eventually need to apply for a PR TD), is a PR abroad and in breach of the PR RO needs to apply for a PR TD and it is denied. The appeal process is similar, the appeal needing to be made (as I recall) within 60 days of the decision to deny the PR TD, and it likewise goes to the IAD and there is likewise a
de novo hearing. Thus, reading about PR TD denial appeals in the back pages here will also shed light on the process and how it goes in various factual scenarios.
