Thanks a lot for your thoughts! This is really appreciated.
The regulations are quite specific on the issuance of a one-year PR card.
- 54 (1) Subject to subsection (2), a permanent resident card is valid for five years from the date of issue.
- Marginal note:Exception
(2) A permanent resident card is valid for one year from the date of issue if, at the time of issue, the permanent resident
- (a) is subject to the process set out in paragraph 46(1)(b) of the Act;
- (b) is the subject of a report prepared under subsection 44(1) of the Act;
- (c) is subject to a removal order made by the Minister under subsection 44(2) of the Act and the period for filing an appeal from the decision has not expired or, if an appeal is filed, there has been no final determination of the appeal; or
- (d) is the subject of a report referred to the Immigration Division under subsection 44(2) of the Act and the period for filing an appeal from the decision of the Immigration Division has not expired or, if an appeal is filed, there has been no final determination of the appeal.
At the scheduling conference the Minster's Council emphasized that my son was not subject to any of those procedures. Could you indicate any source that gives immigration officers discretion to issue a one-year card in cases other than specified in the Regulations?
My impression is that the IRCC's decision was for purposes of saving their time and effort rather then giving a chance to comply with RO. I think they tied my son's application to my appeal and intend to decide on his application in accordance with the outcome of my appeal which may have positive or negative effect on his application. More negative as H&C are more frequently dismissed than allowed. If what they did is an indication of giving a chance to comply with RO, then the failure to open a case for my son within three months after mailing the application is also and indication of a second chance. The longer they do not process the application the better from such perspective. However, from the same perspective, the most logical would be not to process the application for full two years and see if the PR takes this chance.
Assuming your son is not an independent adult, I agree it is quite likely the decision regarding his PR card was "tied" to your case and appeal. That makes sense.
That said, I do not read Regulation 54 as a mandate to issue a five year card or one year card ONLY in the prescribed circumstances. Regulation 54 does not mandate (does not use terms like "shall") the issuance of five or one year cards, and in effect outlines the term of time for which IRCC
MAY isssue PR cards; NOT what IRCC
must isssue.
That is, I do not read Regulation 54 to support the view that issuing a one-year card was illegal or as you have framed it, was without legal grounds. As I previously noted, IRCC has very wide discretion in these matters . . . and even despite Regulation 59, which does employ the term "shall" and mandates the issuance of a PR card upon application, it is not uncommon to see PR card applications "in process" without any decision, without issuing any PR card, for many months and sometimes longer than a year, even a year plus a lot. (And in unusual cases, for years.)
In following PR obligation and PR card cases for a long while now, I can recall just a couple cases in which a Federal Court has granted mandamus, ordering CIC (both were before the name change to IRCC in late 2015) to provide PR cards . . . in at least one of those cases, however, the order was to "Deliver" an already issued card (which had been withheld from the PR following a counter interview). The circumstances in those cases were highly unusual and it was apparent that CIC (this was during the Harper and Kenney/Alexander period) had
unreasonably deliberately stalled processing or
unreasonably declined to deliver a new card (my recall is not clear enough to cite them again or state what was unreasonable, but clear enough to be confident the circumstances bore no semblance to your son's situation).
In contrast, the way IRCC has approached this for your son has actually been to his benefit. Not unreasonable let alone contrary to law.
It is readily apparent you pushed IRCC to make a decision on the PR card application. It was foolish to make the PR card applications in the first instance. It was doubly foolish to push IRCC to make a decision. I should have noted, in making this particular observation, that the reason for that aspect of my observation was mostly for the benefit of other PRs who peruse these discussions for information that might help them make decisions in their own situations -- to emphasize, for them, what the conventional wisdom in this forum oft reiterates: if a PR in breach of the RO is allowed into Canada without being issued a 44(1) Report,
BEST TO NOT APPLY FOR A NEW PR CARD UNTIL IN FULL COMPLIANCE WITH THE RO. Best to not leave Canada. Best to not apply to sponsor a family member. Best to simply NOT engage in any transaction (like applying for a new PR card) which will compel a RO determination, or which (like a sponsorship application) might trigger a RO determination.
To the extent there is a "mess" that is a mess made by you and your son. Not IRCC. And here too
I do not make this observation to criticize or chastise, but to emphasize the instructional significance of your experience. To emphasize the take-away: once in Canada with no inadmissibility report, do not apply for a new card even if the H&C case is very strong (there are exceptions, where a PR may need more clarity about his or her status in order to make other compelling decisions, and waiting is not an option, and thus a situation in which a PR might elect to RISK making the H&C case).
In any event, it can NOT be emphasized enough that the very, very best H&C case is no where near as good as being in compliance with the RO.
ALL THAT SAID . . . you are right to in effect question whether my understanding of the law and regulations, and the procedure, may be flawed. I am NO expert.
Perhaps IRCC has indeed not just tied the decision to issue the one-year card but, perhaps, has definitively tied your son's case to yours and if you lose the appeal, IRCC might interpret that to mean your son's PR is likewise terminated. I very much DO NOT KNOW the particular details. A qualified lawyer might be able to unravel more details about the internal process and better clarify precisely what your son's status is . . . that is, perhaps IRCC considers your son to be "the subject of a report prepared under subsection 44(1) of the Act," and that was the explicit basis for issuing a one-year card (per Reg 54(2)(b) IRPA Regulations) and thus, also, not someone who is entitled to credit toward the RO for the time he is currently staying in Canada.
Also note, after all, the term for which a PR card is issued has NO bearing on how long an individual remains a PR. A PR issued a brand new five year card can be reported for a RO breach the next time the PR enters Canada (if in fact the PR is short of meeting the RO upon arrival, based on the PR's lack of presence during the five years preceding that day). A PR issued and delivered a new PR card could have PR status terminated (for any of the applicable statutory grounds) the next month.
Overall it is my impression that your son benefited from a decision to NOT make a RO determination on his PR card application. Whether that was intentional or not, I cannot know with confidence. Indeed, I am far from certain that is your son's status. It is just my impression. As noted, IRCC's records may have him designated as "the subject of a report prepared under subsection 44(1) of the Act."
That is, it may be a gift best not challenged. But, perhaps, it is a situation which still poses some or even much risk.
ALSO NOTE: I cannot second guess the import of the Minister's Counsel's comments. Obviously, if your son's case is not definitively tied to yours, its status would be totally irrelevant in a status conference for your case.
If you have a lawyer, which you probably should, best to ask the lawyer.
Otherwise, frankly, it is likely both you and your son are in situations dependent on the exercise of FAVOURABLE discretion . . . situations in which it is better to look for ways to persuade IRCC you should be allowed to keep status based on positive reasons, based on a positive impression about you, RATHER than challenging IRCC decisions. IRCC can be remarkably lenient. The IAD can be remarkably lenient. But they do NOT have to be lenient.
