I have not previously responded to the following query because it really asks for personal advice, and I try to steer clear of offering personal advice.
jssandhu said:
thanks all for quick reply .
Pls tell me i am staying in my home country due to my mother illness from June 2014 to till date and i was engaged in my mother treatment when i came back from canada on dated 09/08/2014 and now within 20 days ,my mother treatment will be complete and feels well now and i am planning for return to canada on 14/01/2015 ,but i will be approximately 03 months short to fullfill RO conditions.so suggest me what documents i can bring to show at airport if officers demands for considering on H & C basis.we have a hospital card with every vising date to hospital for doctor check up are mentioned on card as well as medicines to be used details for treatments also mentioned on card .I should be reuired to bring hospital /treatment card originals or photocopies or statement /detail / history of illness on letter pad by document engaged in my mother treatment is required to show CBSA as well as CIC at time of PR renewal card application time.
Thanks & Regards
Reminder:
dpenabill said:
Any PR who is even close to breaching the PR residency obligation, let alone who falls short, should be prepared to make their best H&C case to the examining CBSA officers upon arrival at the POE. Be sure to have all supporting documentation in hand, in carry-on, not in checked baggage. (For example, if the H&C argument is based on delayed returned due to medical issues, either for the PR or an immediate family member, have supporting medical records in hand when approaching the POE.)
The above quote, from a previous post of mine in this topic above, is about as much in the vein of advice as I am wont to give. I try to steer well clear of offering personal advice or specific advice on what to do in a particular case. This is largely because I am no expert and am not qualified to offer personal advice. But it is also because a forum like this is not an appropriate venue for sharing the extent of detail necessary for even an expert to offer anything more than general advice.
Your query is seeking an analysis of a particular case and advice about how to proceed in this particular case; that is, it is a query seeking personal advice.
Again, I am not qualified to offer personal advice. And again, moreover, while forums like this are good resources for obtaining information, insights, and reports of personal experience, they are not a good venue for obtaining personal advice.
The most detailed and comprehensive source of information about CIC's approach to assessing compliance with the PR Residency Obligation, including consideration of H&C grounds for excusing or waiving the failure to be "in Canada" for the minimum required number of days (730 in five years), is the Operational Manual ENF 23 "Loss of Permanent Resident Status." See section 7.7 for information about H&C determinations in particular.
This manual, ENF 23 (this is a link) is still available online at the CIC website.
Note: CIC is migrating to another format for sharing this kind of information, and frankly the new versions are way, way less informative; this one could disappear any day, so anyone interested in a detailed and comprehensive outline of CIC's practices and policies regarding assessing PR compliance with the PR Residency Obligation may want to save a copy of this. It is already outdated in some respects, and will be more so once it is replaced by the new format, but in many respects it will continue to offer a lot of insight into what is important and how various factors are determined, what evidence is relevant, and so on. Its specific details, in particular, will become outdated, but again it will continue to offer insight into what are important factors and how they are assessed.
Again, see Section 7.7 beginning on page 19 for Humanitarian and compassionate determinations.
How to approach this given your particular circumstances is, again, in the vein of offering personal advice. I am not qualified to do that.
Yes, it is a good idea to have specific documentation to show a parent's medical condition (letter from physician outlining condition, letter from parent perhaps outlining need for assistance, and such, some of the other items you refer to, can be relevant and help to make your case), in your
hands (not in checked baggage) as you arrive at the Canadian POE. But I cannot begin to offer much advice about how to approach this beyond that.
H&C grounds and proof of H&C grounds:
Again, see
the operational manual, ENF 23 (this is a link), section 7.7 (beginning on page 19) for specific information about the approach CIC and CBSA take in assessing H&C grounds in determining PR compliance with the Residency Obligation.
As I have often said, H&C cases can be, often are,
tricky. There are many reasons why H&C cases can be particularly tricky, but at the core of this is the role what I would refer to as "
equity" plays. This sort of
equity is a hard thing to define. On one hand it has to do with the specific merits of a case, but also on amorphous elements like whether or not the individual, in effect,
deserves relief from the specific rules.
I would ordinarily refer to whether or not the individual
deserves relief from the
strict rules (rather than "specific" rules), in this case the strict rule being that a PR is obligated to be in-Canada at least 730 days in a five year time period. But, CIC and the Courts are so emphatic about the PR Residency Obligation being so
liberal or
lenient, referring to the RO rule as a "strict" rule, is probably misleading or at least risks inviting confusion.
To be clear: CIC, and the Federal Courts, do
not consider the PR Residency Obligation to be, in any sense, a strict requirement. The consensus is that the RO itself is so liberal as to, in effect, allow plenty of leeway for immigrants faced with unusual circumstances requiring them to be abroad for extended time periods.
A quote from the operational manual I link above, with some emphasis added to key terms, may illuminate the nature of the H&C inquiry:
[quote author=ENF 23 "Loss of PR Status"]
[Applicable section of IRPA] provides the flexibility for allowing the retention of permanent resident status, in
deserving cases, under circumstances that were not anticipated in the legislation.
A positive decision on retaining permanent resident status, based on H&C grounds, is an
exceptional response to a particular set of circumstances.
An examination of H&C factors includes an evaluation of reasons given and supporting evidence of events and circumstances that have occurred in the five-year period immediately preceding an examination.
The permanent resident bears the onus of satisfying the decision-maker that there are
compelling H&C factors in their individual circumstances that justify retention of permanent resident status.
The permanent resident also bears the onus of explaining why they were not able to comply with the residency obligation . . .
[/quote]
As you should be able to discern from even this small portion of what is involved in an H&C determination (better to look at the operational manual itself and read this in context, including the details offered in the manual regarding factors for consideration), there is a lot of discretionary judgment involved in which numerous factors are weighed and compared. What, after all, is a "deserving" case? How restrictive is the scope of what amounts to an "exceptional" response to "compelling" H&C factors?
There is no ready formula to guide a PR who is in this box, that is, the box created by failing to have actually settled and lived in Canada.
I will offer the following with a caveat, that caveat being this is merely my
non-expert opinion offered without knowing a lot of the other factors which may have influence:
-- length of recent stay in Canada, and strength of case for having actually, finally, settled in Canada, is probably a significant factor; the longer and the stronger, the better . . . and your case seems a bit weak on this one (barely two months spent in Canada in the last year, only significant stay was back in 2011)
-- fact of valid PR card in possession, recent time spent in Canada, having a place of residence in Canada, and a significant amount of time left prior to expiration date on the PR card (even though technically what counts is the five year period ending on the fifth year anniversary of landing), should help considerably . . . and perhaps you will not even be asked questions about compliance with the residency obligation
-- in contrast, the extent to which you fall short of the 730 days could loom large, and in particular, documenting why there were compelling reasons for being outside Canada August 2014 to January 2015 is
just part of the overall assessment, since that just explains
six months worth of absences, whereas overall you have been absent for
more than three years since you landed . . . and this is where it gets hard to predict what is, in such circumstances, considered to be a "deserving" case
Of course, all you can do is put together the best case you have, based on the real facts of your situation, and be prepared to make that case at the POE. My
guess, but it is just a
guess, is that your odds are fairly good. But I must emphasize
I do not really know. Your history of coming and going probably helps considerably, and what will really help is if that is enough that the preliminary line inspector, at the POE, does not identify any issue about compliance with the PR RO and in effect just waives you through. In other words, my guess is that you have good odds of being waived through, without having to answer detailed questions about compliance with the RO. If not, if you are, however, referred to Secondary for questioning about residency, then I do not know how it will go. If your most recent stay in Canada had been significantly longer, my
guess would be that even in a secondary examination, your odds would be very good. But, given barely two months time spent in Canada in the last two years, I cannot guess, let alone predict, how it will go if the POE examination gets into the details of compliance with the PR RO.
