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Renewal of PR card after H&C approval at border suggestions?

Discussion in 'Permanent Residency Obligations' started by jack grover, Jun 20, 2019.

  1. I need advice on renewal of PR card after H&C approval at border. My H&C was approved and compliance period has been reset. I was sent a PR determination letter by the superintendent at the border (minister's delegate)

    I was also asked to apply for new PR card.

    In case of PRTD, even if it is approved one time, second time PRTD can be denied. here it is not PRTD but direct entry into Canada via USA.

    My question is will they do a RO test again when applying for PR card? Should I wait for 2 years and then apply?

    What docs need to be sent along with PR application? PR determination letter and any other utility bills, employment letter, etc.

    PS: H&C case - RO issue due to taking care of dependant parent.
     
  2. I have a similar kind of problem. Just wanted to see if you could please answer some questions for me.
    1. how long had your PR had been expired from when you entered Canada again.
    2. Did you enter via US and also did you have a lawyer present there while H&C grounds were being considered.

    Thank you
     
  3. it does not matter number of years expiry or how many years before PR was valid. main thing is it is expired, which means no travel to canada directly. applying for prtd is riskier compared to traveling to canada via usa.

    i had advice from lawyer. i also read the forums to gain understanding of the situation. no lawyer present.

    Main question is what is your goal? Do you want to settle in canada or wind up affairs in canada and return to your home country?
     
  4. @jack grover: I am in the exact same situation. Could not fulfill the residency requirements as I was the only person taking care of my mother in the home country. I have kept all the records, repots, doctor's recommendations at various intervals and letters related to my mother's illness. I have also resigned from the company I was working. I have also got the letter from my employer mentioning the reason of my resignation. I was just wondering would it be sufficient to prove my long absence from Canada. Please share your experience at the border? Where did you cross? What kinda questions did they ask? Is it a good idea to put down my statement on a piece of paper before hand, in case, they don't have enough time to listen to my story? I have plans to move in August.
     
  5. Honestly you ended up with a lucky CBSA agent. Normally given the length of time, the fact that you were able to work full-time, complete an MBA, get married and have 2 children should have lead to a denial. We have seen people get refused for much less. Normally your primary role needs to be caregiver for you to be approved.
     
  6. Do not mix up PRTD approved because of additional H&C reasons and you not being reported on borders.

    In case of successful PRTD you can enter Canada no questions asked (about your RO breach) and get your PR card can be renewed.

    However in second case you were just lucky. You cannot renew your PR card until you meet RO again and any travel abroad before meeting RO can trigger being reported.

    Also it is not recommended to travel abroad even in case of approved PRTD until you meet RO requirements.
     
  7. As long as you have maintained ties to Canada & have a solid H&C case, you are all fine. The main thing is to be ready to show proofs of all the answers given.
     
  8. Wait 2 years. IRCC is not CBSA. Despite the fact CBSA accepted your H&C, should you decide to apply for a new PR card, IRCC will assess your residency in the last 5 years. The ministers delegate at the Poe used his discretionary powers at the time. You may not get the same break with IRCC.
     
  9. As long as you have not left Canada since the PoE event resulting in a formal H&C decision by a Minister's Delegate, it should be OK to apply for the new PR card. No need to wait a full two years.

    This is contrary to what some others commonly suggest in this forum, including here. For example . . .
    That is not how it works. See, for example, Kuksov v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101471 (CA IRB), http://canlii.ca/t/gj87j in which the IAD ruled that a PoE immigration officer's H&C determination (evidenced in FOSS notes) precluded a second CIC officer from issuing a departure order attendant the PR's application for a new PR Card.

    I will address this more in a second post below. Including citations, quotes, and links to official sources, which interpret and apply the relevant statutory provision subsection 28(2)(c), which underlies why a FORMAL positive H&C decision by the Minister's Delegate effectively "overcomes any breach of the residency obligation prior to the determination." (Again, this is from subsection 28(2)(c) IRPA; see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-274598 .) However, a CAUTION is warranted in that this does NOT entirely close the door and restart the clock. In particular, it does NOT fully restart the clock.

    BUT, generally, the formal Minister's Delegate determination will be honored by IRCC . . . SO LONG AS THERE IS NO SUBSEQUENT MATERIAL CHANGE IN CIRCUMSTANCES. (This mostly means best to avoid leaving Canada for at least a good long while, even if not necessarily for two full years.)


    WHAT TO INCLUDE IN PR CARD APPLICATION:

    As for what to include in the PR card application, without revisiting the application form personally I am NOT sure how to include information about relying on the H&C decision. IRCC will almost certainly see the decision by the Minister's Delegate in your GCMS. Mostly be sure to follow the instructions. A copy of the determination letter may make sure that decision is not overlooked (it is NOT likely to be overlooked, but if you want to be sure, inclusion of minimal extra information or documents, beyond what the instructions and checklist prescribe, like a copy of the determination letter, should be OK).


    See next post about the influence one H&C decision has on a subsequent RO compliance determination.
     
  10. #11 dpenabill, Jul 6, 2019 at 6:55 AM
    Last edited: Jul 6, 2019
    MORE IN PARTICULAR REGARDING THE EFFECT A FAVOURABLE H&C DECISION HAS WHEN RO COMPLIANCE IS AN ISSUE IN A SEPARATE MATTER AFTER THAT DECISION


    First, an important distinction: The fact that PoE officers, including PoE immigration officers, allow a PR to enter Canada, does NOT constitute a decision that is binding on any other CBSA or IRCC officer conducting a RO compliance examination for a different date, even if there is not much time difference in the respective dates. Even presuming that the PoE decision included a RO compliance determination, it is NOT binding. It has NO res judicata effect. The Federal Court decision which most directly articulates this is Sarfaraz v. Canada (Public Safety and Emergency Preparedness), 2012 FC 735 (CanLII), http://canlii.ca/t/fs042

    That case clearly distinguishes a PoE decision in which a PR is allowed entry without a Departure Order specifically based on H&C reasons (see paragraph 17 in the decision). This distinction is emphasized in the Kuksov IAD decision which I cite, link, and discuss more below.

    Sarfaraz is, however, a decision which most clearly states the principles underlying the forum's conventional wisdom about a PR in breach nonetheless allowed into Canada without being Reported, emphasizing the need to avoid any transaction with IRCC UNTIL the PR has cured the breach (been in Canada long enough to be in compliance with the RO). Sarfarz applied for a new PR card just ten days after arrival . . . and ended up losing PR status.

    HERE, IN CONTRAST, this is about the situation in which there was a FORMAL PoE determination that the PR is allowed to retain status for H&C reasons. @jack grover was in fact issued a 44(1) Report at the PoE but then the Minister's Delegate determined there were sufficient H&C reasons to allow the PR to keep status. This is evidenced by a written notice (letter).

    Relative to queries posed by @jack grover regarding this situation, I previously observed that as long as the PR has not left Canada since the PoE event resulting in a formal H&C decision by a Minister's Delegate, it should be OK to apply for the new PR card. No need to wait the full two years.

    AS LONG AS there is a FORMAL H&C determination. Then YES. @Rob_TO correctly stated (in the post linked) that if there is a formal assessment of RO done at the border with a Ministers Delegate, and they accept H&C reasons for not meeting RO, this will be noted on the PR's file and the PR can enter Canada and immediately apply to renew the PR card.

    As long as the PR is settled and staying in Canada, there should be no problem. It is very likely there will be NO problem. NO NEED to WAIT two years.

    BUT it is NOT an absolute guarantee. IT is definitely NO guarantee if the PR soon travels abroad again. And even after receiving a new PR card it will be better to AVOID travel abroad for as long as practically feasible until the PR is in compliance with the RO based on actual presence in Canada (which for many takes two years). Any extended absence would be particularly risky.


    Leading to the official interpretation and application of the statutory provision which governs this:


    The statutory provision governing the effect of a favourable H&C decision is subsection 28(2)(c) IRPA (see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-7.html#h-274598 ) which states:

    ". . . a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident . . . justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination."

    Multiple decisions by both the Federal Court and IAD panels have definitively ruled this does NOT entirely restart the clock. It does not have what is called "res judicata" effect.

    But short of that, its impact mostly depends on the extent to which it can be said there has been a change in circumstances since the favourable H&C determination . . . though to some extent, the validity of the decision can sometimes be questioned by an officer in a subsequent examination (the latter is likely UNUSUAL unless there are rather obvious reasons strongly indicating an erroneous decision, such as the appearance of misrepresentations).

    I do not have time to revisit previous in-depth coverage of this issue, but I and others have indeed addressed this in-depth more than once. Bottom-line, though, is that the conventional wisdom in this forum is that a PR who has been allowed to keep PR status based on a formal H&C determination should nonetheless AVOID travel abroad for a long while . . . maybe not the full two years it takes to establish full RO compliance, but at least long enough to have clearly established long-term in fact residence in Canada. And, for sure to NOT remain abroad for very long UNLESS or UNTIL full compliance with the RO (based on actual presence in Canada) is established.

    As noted, however, as long as the PR remains in Canada, the formal H&C decision protects the PR's status. So it should be OK to apply for a new PR card sooner rather than having to wait.

    BUT when a PR triggers a subsequent RO compliance determination, which most often involves a PoE examination upon returning to Canada or a PR TD application from abroad, but which also includes making a PR card application, any change in circumstances can result in a reassessment of the relevant factors FROM a PERSPECTIVE BASED ON THE FACTS AS OF THE DATE OF THE LATER DETERMINATION. The most obvious change in circumstances which tends to occur is that the PR has spent some additional time abroad.

    As I have oft emphasized, the FIRST and FOREMOST factor is the extent of the breach . . . the amount of time the PR has been OUTSIDE Canada. More time outside Canada can change the balance of factors in the H&C analysis. An adequate "reason" for remaining outside Canada as of the first determination does NOT necessarily mean that reason is still adequate if the PR has spent additional time outside Canada. And the reason for the additional time outside Canada, itself, can be considered and could add negative weight to the equation.

    The above is based on following this issue in many contexts for years. But I can cite and link some decisions which illustrate the above observations.


    Wan v. Canada (Citizenship and Immigration), 2008 CanLII 43707 (CA IRB), http://canlii.ca/t/20k99

    A particularly informative IAD decision, which is cited by the Federal Court in the Sarfaraz decision, is Wan v. Canada (Citizenship and Immigration), 2008 CanLII 43707 (CA IRB), http://canlii.ca/t/20k99 . . . while this decision is more than a decade old, it directly addresses the situation in which there is a positive H&C decision and then, a number of months later, there is another RO compliance assessment and a negative H&C decision. This case involved a young PR who traveled abroad shortly after coming to Canada on a PR TD granted for H&C reasons, whose second PR TD application was denied.

    The second decision denying the PR TD was determined to be "valid in law." Even though there was only a few months difference in the relevant five year time periods assessed, the second decision was based on a different five year period. That is, the Visa Office was not bound to treat the earlier decision as "res judicata" or otherwise a definitive restarting of the clock. Nonetheless, this PR was granted H&C relief by the IAD.


    Kuksov v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 101471 (CA IRB), http://canlii.ca/t/gj87j

    In the Kuksov case, the IAD also ruled that a PoE determination does NOT have res judicata effect (is not binding) . . . but the IAD panel gave the first positive H&C decision a lot more weight in any subsequent determination. In particular, this case involved a PR who was examined at a PoE, determined to be in breach of the RO BUT allowed to retain PR status based on H&C reasons, who was later issued a Report and Departure Order attendant an interview in processing his PR Card application. The IAD ruled that the CIC officer was precluded from making that decision by the operation of subsection 28(2)(c) IRPA given the CBSA immigration officer's earlier H&C determination.


    Mohamed v Canada (Citizenship and Immigration), 2013 CanLII 104358 (CA IRB), http://canlii.ca/t/h5630

    In the Mohamed decision the IAD likewise rejected res judicata applied, this time in respect to an IAD grant of appeal resulting in the issuance of a PR TD but the PR was unable to travel within the time period provided so applied again for another PR TD. Minister nonetheless consented to allowing this appeal on H&C grounds as well.

    These decisions discuss and illustrate the relevant factors and considerations in determining the weight to be given the earlier positive H&C decision.
     
  11. OTHER QUERIES RELATED TO SIMILAR SCENARIOS:

    This is largely in response to queries posed by @iqss and @noman5000 --

    Referring to "Honestly you ended up with a lucky CBSA agent. Normally . . . should have lead to a denial." -- I put way, way less emphasis on the role of luck generally, but the gist of @canuck78's remark appropriately references the extent to which the odds are against obtaining a favourable H&C determination when there has been an extended breach of the PR Residency Obligation. The hurdle is high.

    Thus, while in a sense true, this misses the mark:
    What constitutes a "solid H&C case" is the BIG QUESTION, and to be clear, what might appear to be a very, very strong H&C case might not be so "solid" as one thinks in the context of the H&C analysis applicable when there is a breach of the Residency Obligation. Even the best H&C case can still be rather TRICKY and DIFFICULT to successfully make. How tricky, how difficult, should NOT be underestimated. Relying on H&C relief is essentially a last ditch effort.

    This observation is not intended to discourage anyone in breach of the RO from pursuing H&C relief. It is about recognizing how tricky and difficult it is. Thus the second half of the post by @jack grover warrants an emphatic concurrence: "The main thing is to be ready to show proofs of all the answers given." I would phrase it differently but the gist remains the same: be prepared to (1) explain, with detail, all the relevant information which could support H&C relief, and also be prepared to (2) present documents to PROVE key facts (like medical records and doctor's letters if there is a medical condition involved).


    REMINDER: H&C relief for a PR who has breached the PR Residency Obligation is an UNUSUAL REMEDY. These cases are almost always VERY TRICKY (making them very difficult to predict) and most often, by a big margin, DIFFICULT. Hence how often those who are successful are described to be "LUCKY."

    In this regard, it warrants noting that the biggest factor in how it goes at the PoE is whether the returning PR is referred to Secondary for an examination which includes questions about RO compliance. As other recent anecdotal posts in this forum illustrate, some PRs in breach of the RO are simply waived into Canada without being examined as to RO compliance. Some "luck" probably looms in this regard. But if there is no Secondary examination as to RO compliance, there is virtually NO risk of being reported. Except for PRs who are only a little in breach, a bit late on making the move to settle in Canada during their first five years, for whom it appears PoE officers, in Secondary, tend to be more lenient than Visa Officers (deciding PR TD applications), this probably accounts for the majority of instances underlying the view that travel via the U.S. States tends to be less risky than a PR TD application.

    Leading to this . . .

    Referring to "it does not matter number of years expiry or how many years before PR was valid. main thing is it is expired, which means no travel to canada directly. applying for prtd is riskier compared to traveling to canada via usa." -- I disagree some with this observation by @jack grover even though in a technical sense it is true. That is, once a PR card is expired, whether by a day or year or five years, yes it is correct the main import of that is the PR abroad is PRESUMED to NOT have valid PR status, and will need a PR TD or to travel via the States to return to Canada, and most indicators do suggest that Visa Officers approach RO compliance issues more strictly than CBSA PoE officers. Nonetheless HOW LONG the card has been expired is a factor which necessarily has context, and that context ordinarily includes HOW LONG the PR has been abroad, and HOW BIG a BREACH of the RO there is, and these are HUGE FACTORS in any H&C assessment.

    Reminder: as a practical matter, for the majority of PRs in breach, there are three key factors which carry the most weight when H&C reasons are considered in deciding whether a PR should be allowed to retain PR status despite the breach of the PR RO. These are:

    -- extent of the breach
    -- extent of ties in Canada, which includes the extent of establishment in Canada
    -- reason for the absence (what precluded the PR from returning to Canada sooner)

    There are other factors. Technically, for example, the best interests of a child directly affected by the determination is the dominant, if not an overriding factor, but as a practical matter this factor tends to be, at best, a neutral factor in the vast majority of these RO compliance H&C cases (this has been illuminated more extensively in other posts, other topics). Other technically important factors, like the amount of hardship the loss of PR will cause, also tend to be rendered relatively neutral given the context, the circumstances; for the hardship factor, for example, extent to which PR has been abroad tends to negate an argument that the PR would suffer hardship due to having to live outside Canada. Several other factors also tend to be relative to the three key factors, meaning that as a practical matter their influence in the H&C assessment will largely correspond to the key factors' influence (both quantitatively and as to whether they are positive or negative).

    These three factors are also interrelated. For example: the longer outside Canada, the less extent to which the PR is deemed to have ties in Canada (the less the PR is deemed to have established in fact residence in Canada).

    In any event, almost every H&C assessment begins with evaluating "the extent of the non-compliance with the residency obligation." (see Kabalan http://canlii.ca/t/j10c7 . . . noting, however, in this case the PR still had a valid PR card upon arrival at the PoE . . . and this PR also applied for a PR TD after the PoE Report and Departure Order, so was appealing both, the PoE Report and the later denial of a PR TD)


    AN IMPORTANT DISTINCTION:

    As I previously noted, which is also evidenced by anecdotal reports in this forum, some PRs in breach of the RO are simply waived into Canada without being examined as to RO compliance (which may involve some "luck"), and if there is no Secondary examination as to RO compliance, there is virtually NO risk of being reported. This is NOT the situation reported by @jack grover who, it appears, was issued a 44(1) Report at the PoE BUT then the Minister's Delegate determined @jack grover would be allowed to retain PR status based on H&C reasons.

    Some PoE officers are probably more lenient than other officers. Some more strict. Some may be influenced by their mood on a given day. Biases too can have an impact. So some element of "luck" may be said to have factored into this particular outcome. BUT MAKE NO MISTAKE, the decisions in these cases depends a lot, lot more on the particular facts and circumstances in the case, including the PR's history, the PR's circumstances, and all those factors which play a role in the H&C assessment, with a great deal of emphasis on the three KEY FACTORS I reference again and again. The fact that it is very, very difficult to forecast how these things will go for some other PR does not diminish the overriding fact that the FACTS MATTER, and they matter a great deal.

    Example: a PR who is the only child of a widowed parent, and who had initially come to Canada to settle and establish an in fact residence in Canada, but then that parent had a serious stroke so that the PR needed to return home to attend to the parent, and did so long enough to make arrangements for the long-term care of the parent, and then the PR attempts to return to Canada but is three weeks or perhaps even three months SHORT of complying with the RO, probably has a FAIR chance of not losing PR status for H&C reasons. In contrast, a PR who has not spent more than a few months in Canada at a time, who is in breach of the RO by more than a year, and there is another family member abroad who might be capable of attending to the ill parent, that PR has a rather POOR shot at keeping PR. With lots and lots of room for many variables in-between these two scenarios. AND NEITHER IS AT ALL EASILY PREDICTABLE, except to acknowledge the odds going down the longer the breach, the less settled in Canada the PR has been, and the less compelling the need to be abroad.
     

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