Any suggestions we should re enter before a decision is made or should we wait for a decision?
Has any one had the same experiance ?
In addition to the observations by
@scylla: presence in Canada can be a big factor in what chance there is of a successful appeal.
Explanation:
One day in breach is a breach. That will result in the IAD concluding the 44(1) Report was valid in law.
The only hope of an appeal succeeding when the Report is valid in law is that there are sufficient H&C reasons to justify the retaining of PR status.
The nature, duration, and other aspects of extent to which the PR is settled in Canada, has established a life in Canada, can be a very big factor in the H&C assessment. In a close case, the PR actually living and present in Canada has far better odds of making a successful H&C case than does the PR outside Canada. The more in Canada, the better the odds.
Thus, while the fact of living and being present in Canada pending the appeal will NOT itself win the H&C case, it can make a big difference AND the contrary, being outside Canada pending the appeal, can easily tip the H&C calculation to the negative.
Longer Explanation:
This H&C assessment is very different from other kinds of H&C cases.
Some of the same elements apply. For example, if losing PR status means minor children will be separated from a parent, or the PR will be compelled to return to a country where the individual would face severe hardship, these weigh heavily in favour of H&C relief . . . in almost any H&C case, including PR breach of PR Residency Obligation cases.
But the scope of H&C consideration is broader and more lenient in the PR breach of PR Residency Obligation case. In large part because a Canadian PR is legally a Canadian, and of course Canadian immigration law is more flexible and lenient in dealing with Canadians than it is in dealing with Foreign Nationals.
HOWEVER, this only goes so far. This has real limitations. And its limitations are in many respects more or less strictly applied given how lenient and flexible the PR RO itself is.
CONTEXT MATTERS. One contextual factor looms particularly large: how big the breach of the PR RO is. Being short by 45 days during the FIRST five years after landing is, probably, on the less serious end of the spectrum. Indeed, many PRs returning to Canada during the first five years after landing but who have been outside Canada a total of 1095 or more days since landing, are NOT reported at a PoE if it is not blatantly obvious they are short . . . such as a PR who landed in August 2015 returning to Canada in October 2018 and being 30 or 40 days short of compliance.
BUT as many of us repeatedly emphasize in this forum, if the PR is in fact in breach, there is a RISK of being reported upon arrival at the PoE.
And, as noted above, even if the breach is only by ONE day, that is a breach, and a 44(1) Report in such a case will be upheld as
Valid in Law. Which is not the end of the story, since the IAD MUST CONSIDER ANY and ALL REASONS which might weigh in favour of allowing the PR to retain status. That is, "H&C" considerations.
Overall, the smaller the breach and the more well established and settled the PR is in Canada (including right up to the time of the IAD hearing), the better the PR's chances of a lenient decision allowing the PR to keep status.
Other factors play a role, of course, not the least of which are the specific reasons why the PR was abroad so long (contrary to popular opinion here, even self-serving reasons, like staying at a well paying job, can have some positive influence in this assessment, albeit again with some real limitations). But for a small breach during the first five years, if the PR proceeds to establish a life in Canada, and live and remain present in Canada pending the appeal, that will significantly improve the odds of a successful appeal. After all,
what IRCC is concerned about is the purpose of the grant of PR status: so that the individual can settle and live PERMANENTLY in Canada, and the PR who proceeds to do just that will ordinarily NOT be penalized for a minor, technical breach. Sure, there remains the
does-the-PR-deserve-to-keep-PR-status element. There is NO "deserves" requirement, as such, but obviously it can play a huge role in what IRCC and the IAD decide.
