Hello, I recently appealed my PRTD refusal from 2021 based on HNC and was successful in end January 2023. IRCC Abu Dhabi told me to sit tight and that they’ll process my old application once they receive notice from the IAD back in early February. Now upon inquiring through the MPs office, they stated that the PRTD is still under review. Do they just mean that it’s being processed, or is there something still left for them to decide? From my understanding, once a PR appeal has been allowed and the PRTD refusal of the overseas officer has been set aside, they have to issue a PRTD right? Or is there a chance they can still refuse it?
Thank you
". . . I recently appealed my PRTD refusal from 2021 based on HNC and was successful in end January 2023. . . . . Now upon inquiring through the MPs office, they stated that the PRTD is still under review. Do they just mean . . . "
Assuming you are correct, that the IAD has in fact allowed the appeal, it is NOT at all likely the matter has been returned to the visa office to be re-determined or reassessed.
As I previously responded, I do not know how these things go in actual practice following the IAD's decision.
I do not know anywhere near for sure, but I believe that how quickly a positive IAD decision results in a PR TD being issued can depend a lot on how the Minister responds. That is, the Minister can readily facilitate faster processing or effect some delay. And the Minister can seek further review.
In particular, I know of multiple possible delays and even potential hurdles that can be encountered. I made no mention of these in previous discussions about your case because these involve post-hearing actions by the Minister to delay or set aside the IAD decision,
which are not common, but rather are the exception. That is, this is about what can happen but is not what most would expect to happen.
It is NOT clear to me that "
the PRTD is still under review" means the Minister is pursuing some post-hearing action to contest the IAD's decision, but it could mean that. It could also mean that the status of the case is still within a window of time during which the Minister has options to contest the decision.
For example, the Minister/IRCC can seek leave to appeal the IAD decision to the Federal Court. This does not appear to be common, but IRCC does seek Federal Court review in some of these cases.
It also warrants noting that there is often a delay in the IAD officially publishing the decision following the hearing. It is common to see the date of decision being two to four months AFTER the date of the hearing, and I believe this happens even though the IAD has announced what decision it is making (which could have been at or soon after the hearing).
The window in time during which IRCC can appeal to the Federal Court does not begin until the official decision. So, unless the Minister has indicated otherwise, it might not be known or established that the IAD decision stands, is not being further appealed, for at least 30 days AFTER the IAD officially publishes a decision.
Moreover, between the date of the hearing and the IAD announcing what its decision will be, up to the date the official decision is published, the Minister may also be allowed to ask the IAD to reconsider or seek other recourse potentially delaying or, if for example the Minister succeeds, reversing the outcome. This is NOT common. Generally, usually, there is no cause to apprehend this will happen. But it can. It sometimes does.
I thought that a successful appeal sets aside the decision by the original officer and returns the application to a different officer to review and make a new decision. But maybe I'm wrong about that second part.
Also believe that your PRTD is only being reassessed by a new officer and hasn’t been approved yet.
For visa office decisions denying a PR TD based on a breach of the RO, a successful appeal based on H&C relief will not be returned to the visa office to be re-determined or reassessed. This is in contrast to other kinds of decisions on appeal, allowing the appeal and remitting the matter to be re-determined (usually by a different officer or decision-maker).
Explanation:
The IAD decides appeals of PR TD denials "
de novo," meaning it is in effect a new trial, and (with exceptions, usually related to procedural quirks) the decision either upholds the visa office decision (and thus the individual is no longer a PR) or it determines the individual has not lost PR status. Generally the decision to allow the appeal of a PR TD denial based on H&C reasons does
NOT involve the matter being remitted to the visa office for redetermination. The typical IAD decision in an appeal of PR TD denial by a visa office, resulting in the appeal being allowed for H&C reasons, looks like this:
The appeal is allowed. The decision of the officer made outside Canada on the appellant’s residency obligation is set aside. The Immigration Appeal Division finds that the appellant has not lost her permanent resident status.
Thus, when such a decision is made there is no legitimate reason or grounds for a visa office to deny a PR TD.
In contrast, where in an appeal the IAD sets aside a decision by the RPD, for example, it is common for the matter to be returned to the RPD for redetermination, typically (almost always) by a different officer (different panel). Examples of such decisions are:
The appeal is allowed. Pursuant to [statutory citation], I refer this matter to the RPD for redetermination by a differently constituted panel.
The appeal is allowed. Pursuant to [statutory citation], I send this matter back to the RPD to be redetermined.
For examples of the language in a decision allowing appeal of a PR TD denial, which I quote above, see:
If the IAD has in fact allowed the appeal, and the Minister does not pursue further review, however long the process now takes, for the OP the next step should be getting the PR TD. This will not go back to the visa office to be re-determined.
That said . . . as I commented in response to the OP's query, there remains the possibility that the Minister objects to the IAD's decision and the matter is still in a window in time during which the Minister is deciding whether to seek further review, or perhaps the process has already been initiated to pursue further review.
