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dosvog2002 View Drop Down
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    Posted: 15 May 2014 at 10:07pm
Hello members,

I find myself on this forum possibly a bit too late.   It was only because of the situation below that I've come to read and appreciate this community and I wish I'd discovered it earlier before I callously applied for a travel document to enter Canada.

All was going according to plan for our return to Canada.  My wife and I had both been accepted into our first choice universities, we'd found a great school for our son to go to, and had found a place to live.   
Then the bomb hit!

First, a bit of background info followed by some questions toward the end of this post. Please bear with me.
I'm a British citizen and my wife is a Canadian citizen.  We were married in Canada 14 years ago, but have subsequently lived abroad for most of the time.  I became a PR in Dec 2008 during a time that we intended to live in Canada, but a family responsibility lured us away until recently.  

I have been denied issuance of a PR Travel Document because it was judged that I failed to meet the residency obligation under subsection 28(2) of section A28 of the Immigration and Refugee Protection Act

My attempt to prove residency was based on being outside Canada accompanying a Canadian citizen who is my spouse for at least 730 days in the last five years.

So, I can conclude that I have failed to either:

a) prove that the Canadian citizen I'm accompanying is my spouse, or

b) prove that I've been accompanying my spouse during that five year period, or

c) prove that my spouse is a Canadian citizen

d) ???? please provide input


I, and the staff at the visa office, feel that my documented evidence of the last five years was complete and accurate according to the application guidelines.



Having read some other people's experiences with applying for a travel document, maybe I should have presented some H and C in the application.  However, I didn't present any compassionate considerations in my application because I considered I'd qualify for the Travel Document under subsection 28(2) of section A28 of the Immigration and Refugee Protection Act. However, my family's personal circumstances are laden with compassionate reasons for:

a) our absence from Canada during the last five years

b) our needs to return to Canada

c) our intentions to live and remain in Canada


Please allow me to elaborate on the points above:

a) Firstly, I have been absent from Canada in the last five years because my wife and I have been taking care of my wife's grandmother in Taiwan. No other close relative has been able to fulfil this role, so we took the responsibility to return to Taiwan to care for her. She passed away on March 8th 2014, so our responsibility in Taiwan is finished and we'd like to return to Canada to continue our lives.

We can provide evidence of my wife and I living with my wife's grandmother via household registration documents, my wife's grandmother's death certificate, and countless family photographs.


b) Secondly, my wife and I need to return to Canada to spend time with my wife's father who has late-stage COPD, a lung disorder that is incurable. He could pass away at any time and is actually in intensive care in hospital in Canada as I write this. The decision to deny me this travel document would prevent my wife and I from living in Canada and deny her the opportunity to spend precious time with her father. If under Canadian regulations, medical records are allowed to be disclosed to third parties, we can provide evidence of his medical condition.


c)And lastly

My wife and I have both been accepted to study for an Ontario Teacher's Licence at Trent University, Peterborough starting in late August 2014, and are very eager to return to build our lives in Canada again after making the sacrifice to take care of an elderly relative abroad.


Obviously, I now feel like an idiot for not including this information in my application, but that begs my first question that I'd appreciate some input on.


Am I allowed to reapply for a PRTD after having one refused?


I'm going to leave anymore questions for now so as to get some clarification on the above question.

I don't think I'll go through the appeal process because of the lengthy appeal process.   If all else fails, I'll reapply for a PR card once the dust has settled on this one.  However, the clock is ticking, primarily because of my father-in-law's medical condition and because our University courses are due to start on August 25th of this year. 

I'll stop talking now.

Thanks for your time, consideration and input on this matter.


Phil



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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 16 May 2014 at 6:04am
No, your options do not include submitting another application for a PR Travel Document.

If you do not appeal the PR Travel Document refusal, your PR status is terminated. Thus, once the time within which you can file a timely appeal has passed, and no appeal has been filed, you will no longer have PR status. Obviously, without PR status there is no chance to obtain a PR Travel Document.



Observations based on reason for denying PR TD was breach of PR residency obligation

If you submitted a copy of your marriage certificate and your spouse's Canadian passport, and documentation to show that the two of you have been living together (technically for at least two of the last five years, but practically of course more is better), that should have sufficed to show you have been in compliance with the PR residency obligation. In particular, if you submitted that documentation, you should appeal. That would be more expeditious and simpler than going through the PR sponsorship process again.

Once you file the appeal (should be done as soon as practical, and definitely within the time limit allowed, which should be specified in the refusal), you can apply for and obtain a restricted Travel Document if you have been physically in Canada within . . . I think it is the last year . . . which would allow you to come to Canada while the appeal is pending.

Alternatively, if you have not been in Canada recently enough to qualify for the special Travel Document, as a holder of a British passport (thus visa exempt), I would think you would be allowed to book a flight to Canada and allowed to board the flight. If the appeal has been filed, then you are still a PR, and once you physicaly arrive at a POE in Canada, you are entitled to enter Canada, subject, of course, to the outcome of the appeal. (Note, there may be a bit of a hassle at the POE, a difficult examination, but all you have to do is be calm, answer questions truthfully, and be patient; eventually you should be allowed to proceed, into Canada.)

Another alternative (if you will not be allowed to board a direct flight to Canada using your British passport), you could fly to the U.S. (again, on your British passport), and travel by car to the U.S./Canada border, and again once you are physically at a Canadian POE, and as long as you filed the appeal, you should be allowed to enter Canada.

Once in Canada, in addition to following through with the appeal, and in particular if the appeal is not successful, there are a number of approaches you can take to at least live in Canada pending another sponsored PR application.

Note: Probably best to at least consult (somehow) with a competent, reputable Canadian immigration lawyer soon. Also note, I have not been staying current with things lately and I am not sure of many of the details, like what the time limit is for filing the appeal, or whether the appeal is de novo (if it is, you can present additional evidence in support of your claim to having been compliant with the PR residency obligation, and also present H&C evidence), or if you can otherwise submit information and evidence not submitted with the original PR TD application.

If indeed the reason for the refusal was the failure to comply with the PR residency obligation, and you submitted, as I noted above, a copy of your spouse's Canadian passport, a copy of your marriage certificate, and some documentation to prove cohabitation for more than two of the last five years, the appeal should be successful.

If you failed to submit one or more of these forms of proof, the question is whether additional information and documentation can be submitted for purposes of the appeal. I do not recall the procedure. If you can submit additional information and documentation, then it should go well and be successful.

First thing to do is to be sure to timely file the appeal. And then focus on following through. The assistance of legal counsel would be a very good idea.



There is, I should note, a possible wrinkle.

With proof of spouse's Canadian citizenship, proof of the relationship, and proof of cohabitation, the appeal should be successful . . . EXCEPT . . .

. . . except for the possibility that CIC's decision is related to how it interprets what "accompanying" means in the particular circumstance where the PR never really lived in Canada and . . .


Almost every case and source of information available tends to equate "living together" and "accompanying." That is, generally proof of actually cohabitating is sufficient proof of "accompanying."

But not absolutely so in all cases.

This gets complicated. The odds an exception applies to your situation are probably low.

Not zero, but low.

Not zero because of this:
Originally posted by dosvog2002 dosvog2002 wrote:

We were married in Canada 14 years ago, but have subsequently lived abroad for most of the time. I became a PR in Dec 2008 during a time that we intended to live in Canada, but a family responsibility lured us away until recently.

It appears to me you never really lived in Canada after obtaining PR status.

There are not many indications, and so far no overt decisions I am aware of, which have applied a more strict interpretation of "accompanying" in this situation, but I believe you are the third person within the last year or so to report, in this forum, encountering a problem with obtaining a PR TD in similar circumstances. No updates have been posted in the forum (that I have seen anyway) by the other two. In response to at least one of them (but probably both -- I have posted so much though I lose track) I offered similar observations as to what I am offering here: the possibility that CIC has perceived the likelihood of misrepresentation in the original PR application regarding intent to live in Canada (sponsored PR app while sponsor abroad, asserting intent to live in Canada, but couple never actually lives in Canada following grant of PR status) and is applying a strict interpretation of "accompanying" based on the idea that the PR could not have accompanied the citizen going abroad because the PR never lived in Canada to begin with.

Caveat: I do not really know this is an issue, let alone an issue in your particular situation.

And again, the other two did not return and inform the forum about how things went (not that I saw anyway).

You appear to emphasize that there was a change in circumstances which led to a change in plans. And if the denial of the PR TD was predicated on inadmissibility for misrepresentation (in the original PR application, again as to intent to live in Canada), that would be a fair defense. But the denial is based on a failure to comply with the residency obligation.

The question is, if you submitted a copy of the marriage certificate, copy of the citizen's passport, and copy of documentation showing cohabitation, why did the visa office conclude you had not met the residency obligation by accompanying a Canadian citizen spouse?




Background information regarding meaning of "accompanying"

The following is probably more detailed, and in-depth, than you are interested in, and again, there is only a slight chance this issue is even relevant to why your application for a PR TD was denied.

If you apprehend, though, that this issue is relevant to your case, the following may illuminate the particulars and nuances, and give you some insight into how CIC might approach things.

As I noted above, almost every case and source of information available tends to equate "living together" and "accompanying." That is, generally proof of actually cohabitating is sufficient proof of "accompanying."

There were a few old cases, however, in which this was not true, CIC applying the term "accompanying" more strictly, some focusing on a "to go with" meaning for "accompanying," and thus looking at the particulars of who was, in essence, going with whom, as in requiring the PR to show, in effect, the citizen spouse was the one traveling and living abroad, and in essence the PR followed, as in accompanied the citizen abroad. This strict interpretation appears to have been an unusual if not rare approach, and it had not resurfaced in the cases for many years, at least as of about a year ago (about a year ago I stopped reading, at least consistently so, IAD decisions regarding PR inadmissibility and loss of PR status). And the regulation cited in the operational manual defines accompanying in terms of "ordinarily residing with . . ."

In contrast, both generally (in so far as what is reflected in most cases over the course of many years), and in the applicable operational manual (ENF 23 Loss of Permanent Resident Status), "accompanying" essentially means "ordinarily residing with."

In particular, the applicable Enforcement operational manual, ENF 23, states:
Quote R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.


Among the exceptions I have come across in the cases (I do not purport, however, to have perused all the cases, so there could be more, and again I have not consistently been reading the PR cases for about the last year), the PR did not have any significant ties to Canada for a very long time, if ever. In one case, the PR prevailed on appeal based on H&C grounds. In the others, in which the PR was not successful, the PRs had compromised credibility and generalized appearance which, one might say, as not deserving a favourable ruling.

In one, in particular, there were significant concerns about credibility as well as concerns about the genuineness of the relationship, in addition to some doubt about the account of time the couple spent actually living together. In another, a PR who had been living abroad for a long time (decades), during which there was no tie to Canada at all, married a Canadian citizen, and then after living together for more than two years applied for the PR TD; in this case too (as best I can recall) there were credibility issues, at least some hints leaning toward doubt about the genuiness of the relationship, but mostly there was the blatantly obvious situation where the PR had no ties to Canada for a very long time. I have previously cited and linked both these cases somewhere in this forum, more than once I believe, but that was probably years ago, and the search function here tends to be rather useless.

Those cases are not like your situation in many respects, except possibly the long-term absence from Canada.

What is more like your situation was reflected, as I indicated above, by reports in this forum by two others, other PRs who likewise had been sponsored by Canadian citizen spouses while abroad, with plans to live in Canada, but never did really come to Canada to live. But we do not know the outcome of those two cases, as those individuals did not return and update the forum as to how it went. There was not, even, any confirmation that the fact of how PR was obtained without the couple ever truly settling in Canada, was a relevant let alone significant part of why they ran into a negative TD application result.

So, hopefully, you will inform the forum about how things go for you and what you learn.



Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dosvog2002 Quote  Post ReplyReply Direct Link To This Post Posted: 16 May 2014 at 10:21am
Thank you dpenabill for your in-depth reply to my post.  
I'll try my best to provide the forum with some useful information regarding my situation so as to better our understanding of the current rules and flavours of the CIC.  However, compared to members like dpenabill, I'm really out of my depth in terms of understanding the system that I find my family's future so dependent on.

Within hours of receiving the notice of refusal, I sent a query to the Hong Kong CIC requesting some specifics of my refusal.  Today, I was surprised to receive a prompt answer from them within two days of my query being sent.

CIC Hong Kong wrote:

Quote In your application for a travel document, you did not satisfy the officer that you had cohabitated with a Canadian citizen during the period of assessment.

There was a period, during the first six months of the five year period where we couldn't comprehensively prove cohabitation.  I feel that for the rest of the five-year period, we provided enough evidence of cohabitation.
My thoughts are that our fate was sealed by this vague 6 month period plus the fact that we haven't really lived in Canada for the past five years.  

CIC Hong  Kong continued:

Quote We cannot counsel you on how to prepare your appeal; however, any humanitarian and compassionate reasons for your return to Canada should be included in your appeal.

dpendabill wrote:
Quote Also note, I have not been staying current with things lately and I am not sure of many of the details, like what the time limit is for filing the appeal, or whether the appeal is de novo (if it is, you can present additional evidence in support of your claim to having been compliant with the PR residency obligation, and also present H&C evidence), or if you can otherwise submit information and evidence not submitted with the original PR TD application. 
If indeed the reason for the refusal was the failure to comply with the PR residency obligation, and you submitted, as I noted above, a copy of your spouse's Canadian passport, a copy of your marriage certificate, and some documentation to prove cohabitation for more than two of the last five years, the appeal should be successful.

If you failed to submit one or more of these forms of proof, the question is whether additional information and documentation can be submitted for purposes of the appeal. I do not recall the procedure. If you can submit additional information and documentation, then it should go well and be successful.

It appears from CIC Hong Kong's reply that they do suggest additional information be presented during the appeal process.


dpendabill wrote:
Quote No, your options do not include submitting another application for a PR Travel Document.

It's a brutal system.  Make one mistake, or leave one aspect of your application open to question, and you don't have rights to make amends within a reasonable time frame?  I understand that the CIC offices can't be flooded with multiple attempts from an applicant to be granted a PRTD, but at least give applicants one chance to rectify any mistakes.
As I understand it, the appeal process takes at least a year?  For myself, and I'm sure many others that have been refused a PRTD on an honest mistake or an honest omission of sufficient information, one year is just too long

Hey! I'm just feeling bitter and resentful.  I'm sure there are good reasons for restricting applicants to just one chance.

Without the option to rectify my mistakes, I see that I have a few other options, and I'd really appreciate some input on each scenario.  Please bear in mind my intentions to study in Canada commencing August 25th 2014.

a) Submit an appeal thus retaining my PR status until the appeal hearing, and enter Canada on a visitor visa using my British Passport.
My big question here is do I have any PR rights (i.e. work, study) if I enter Canada on a visitor visa?    I feel that the answer is no.

b) Not appeal, enter Canada on a Study Visa, and submit another sponsored PR application whilst in Canada.  The sting here is having to pay international study fees which are 19500CAD compared to 6700CAD for home students.  

c) Not appeal, enter Canada on a visitor visa and submit another sponsored PR application.  The downside of this is that I'll forfeit my study for a year. 

d) (long shot here!)   Appeal and thus retain my PR status, enter Canada on my British passport, apply to renew my expired PR card.    
I'm sure that this scenario will throw up red flags as I'll have an appeal pending and be renewing an expired card at the same time.


I'm not asking anyone to make any life choices for me here, rather I ask if you can spot any technicalities in any of the above scenarios that could cause problems.   As dpendabill noted, I might come across problems at the POE.  

OK that's enough for now

Thank you all

Phil












 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ski Quote  Post ReplyReply Direct Link To This Post Posted: 16 May 2014 at 1:45pm
Hello Phil,

Just a quick comment on your options.

If I understand correctly, your PR status has not been officially revoked.

So you are still a PR. Therefore, you cannot get a visitor visa or enter Canada as a visitor.

What dpenabill suggests is filing an appeal on time (should be your first priority)! and then traveling to Canada just on your passport, as you are lucky to hold a passport from a visa-free country, but still declaring yourself as a PR at the border, explaining the status of your case.
I recommend that you hold on to your old PR card as well as it contains your client number, which may be important.

You will most likely be referred to secondary and have to answer questions, but as long as you have a proof that you had filed your appeal on time and the appeal is still in review, CBSA will see
you in their system as a PR, and you will be let into the country.

Since you will remain a PR, you will have all rights (employment etc.).

Trying to sneak into the country as a visitor is not a good idea because if CBSA determines at the border that you are a PR (which they can likely auto-match when scanning your passport), but you declare yourself as a visitor, then you may be found materially misrepresenting and that may cause consequences you do not want.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 16 May 2014 at 6:08pm

Summary


Foremost: appealing the denial of the PR TD application appears to be, by far, your best option. Document your case well and it should go OK. I address this more below.

If you want to travel to Canada in the meantime, see my previous post about traveling on your British passport. In this scenario, you cannot enter Canada as a visitor but must enter as a PR, a PR with an appeal pending regarding a determination, in the PR TD application process, that you are inadmissible due to a failure to comply with the PR residency obligation. Once in Canada, you continue to have the rights and privileges of a PR, subject to the outcome of the appeal.

As ski suggests: it is imperative that you be truthful in all your interactions with CIC and CBSA (the latter is who you deal with at the POE). Any misrepresentation is a separate ground for revoking PR status, and the current Minister appears to be engaged in campaign to enforce this.

There is no point in making an application for a new PR card once in Canada. While previously some individuals have had such applications processed, it was largely due to an oversight and the outcome of the appeal determines status regardless. Currently the GCMS and FOSS systems will almost certainly result in the PR card application being, at best, put on hold pending the outcome of the appeal. In any event, even those who previously, somehow, were issued and actually delivered a new PR card, the denial of the PR TD trumps and if it becomes enforceable (appeal lost or not timely made), PR is lost and the new PR card is not valid. (PR cards are documentation evidencing status, not determinative of status.)

The denial of the PR TD application is an adjudication of your status. It is now controlling. It is not enforceable so long as an appeal is possible or pending, but your future status definitively depends on whether the negative decision is set aside or not.

By the way, the appeal is your remedy for having made a mistake in the original PR TD application. You may not have made a mistake, but rather the mistake may be that of the officer in the visa office who denied the application (this actually appears to be what happened). The appeal is your remedy for that as well.    



More in-depth discussion:

Originally posted by dosvog2002 dosvog2002 wrote:

a) Submit an appeal thus retaining my PR status until the appeal hearing, and enter Canada on a visitor visa using my British Passport.

A PR cannot enter Canada on a visitor visa. Moreover, British passport holders are visa exempt, so ordinarily there is no process for a British passport holder to apply, in advance, for a visitor visa.

Originally posted by dosvog2002 dosvog2002 wrote:

My big question here is do I have any PR rights (i.e. work, study) if I enter Canada on a visitor visa? I feel that the answer is no.

You are correct, if you enter Canada as a visitor, which you can only do if your PR status is definitively terminated, you would only have the rights and privileges of a Foreign National (FN) visitor (your status will be that of a FN once PR status is definitively terminated). No status to work or study.

If you were to travel to Canada, on your British passport, prior to the time for filing an appeal expires, you can affirm your surrender of PR status at the POE and request permission to be allowed to enter Canada as a visitor.

Note: if you appeal, as previously indicated you can still enter Canada as a PR. This assumes you can reach a Canadian POE - the main purpose of the PR TD is to present to commercial transportation, usually an airline, in order to board transportation destined for Canada; the PR TD is a Travel Document authorizing travel to Canada, but you carry a visa exempt passport so, in one way or the other (as outlined in my previous post) you should be able to make your way to Canada and present yourself at a POE, seeking entry into Canada as a PR.

As a PR you will continue to have the rights and privileges of a PR pending, and subject to the outcome of, the appeal.

You should have no problem working in Canada, then, so long as you previously obtained a Canadian SIN. If you did not already obtain a SIN, not sure how you go about obtaining one in your situation, given current rules about necessary proof for obtaining a SIN. At the least, you can legally work. But the problem is getting employment without a valid SIN.   



Entering Canada As a Visitor:

If you do not appeal, and the time for filing an appeal is passed, and thus you are no longer a PR, then you have authorization (as the holder of a visa exempt passport) to enter Canada as a visitor. You must, however, still obtain actual permission to enter Canada at the POE. To do that you must qualify as a visitor: coming to Canada temporarily, and to visit, not to study, not to work, not to live in Canada indefinitely. Obviously, a big factor in what the officers at a POE may consider is the strength of ties to a permanent residence outside Canada (usually in home country, but not necessarily) and ongoing employment outside Canada.

Foreign Nationals (FNs), which again is what your status would be if your PR status is adjudicated as terminated (which it would be if you do not appeal on time, or the appeal is lost, or you confirm surrender of PR status at a POE), from visa-exempt countries accompanying a Canadian citizen spouse are often treated leniently at the POE in this regard. But there are no guarantees. This is a decision made by an immigration officer with CBSA at the POE, not by CIC. Strength of ties to home outside Canada is one of the key factors, along with the officer's impression as to your intentions, whether it is perceived you have the proper intent to be a visitor.

Most British passport holders have virtually no problems being allowed to enter Canada as a visitor. But most are coming to Canada in circumstances where it is obvious the intent is to be a visitor and to return home in due course. Just being the partner of a Canadian citizen is enough to trigger questions about intent beyond those asked of most ordinary British visitors to Canada. Which is to say, you are not really in the same shoes as an ordinary visitor to Canada.



Entering Canada as a PR after filing appeal

Foremost, it appears you should appeal, and that indeed you have a strong case and should prevail on the appeal.

That said, it also appears that you submitted substantial, credible documentary evidence of cohabiting for more than 730 days during the previous five years, so it seems your application for the PR TD should have been granted.

What would concern me, in your situation, is why this happened. But you may never know, so your best option is to make sure to document your case as well as, as strongly as you can. Remember, quality evidence is far better than quantity, so focus on the best, most direct, most reliable/credible evidence you can to show the key elements.

Thus, in particular, in the appeal be sure to include the best documentation you can to show the key elements of residency credit based on accompanying a Canadian citizen spouse:
-- copy of Canadian citizen's passport
-- copy of marriage certificate
-- documentation consisting of direct, reliable/credible evidence of cohabitation
-- statement or affidavit from spouse confirming all this and further documenting the continuing marital relationship as well as details regarding cohabitation (including specific dates and addresses) and reasons for living abroad (latter not necessary technically, but should help considerably relative to any unspoken undercurrent as to who is accompanying whom, as well as general equitable considerations)

In the latter regard, a formal affidavit (sworn statement, made in presence of and affirmed as such by a proper authority equivalent to notary or judge) is the strongest and best form of statement your spouse can submit on your behalf. In particular, it should help to include a strong affidavit from your spouse affirming all of the above, including statement as to Canadian citizenship, marriage, and specific details about cohabitation, specific dates and addresses.

Add to this, if possible, affidavits from reputable persons who know both of you, know your relationship, know where the two of you have been living for (whatever time period they can truthfully testify to as personally knowing where the two of you were living together).

You indicated in your first post that you can provide (suggesting that you did not already submit this evidence with the original PR TD application):
Quote . . . evidence of my wife and I living with my wife's grandmother via household registration documents, my wife's grandmother's death certificate, and countless family photographs.
This sort of evidence should help considerably. And particularly if your spouse explains, in her affidavit or statement, why the two of you were living where you were living.

Note regarding covering potentially unspoken issues:
This information, about why the two of you were living abroad, could be very important information to include, as it should dispel any unspoken weight given to any who-is-going-with-whom undercurrent in the assessment of "accompanying." And this information should be further emphasized in presenting the H&C argument. See the operational manual I previously linked for detailed information about making the H&C argument.

Frankly, from the information you have provided, I have doubts that the H&C argument will carry much weight, as H&C grounds for essentially waiving compliance with the residency obligation, particularly since obviously much of the argument would be based on the same evidence as what would prove compliance with the residency obligation in the first place (so if that evidence is not sufficiently persuasive to prevail on the compliance with the residency obligation issue, it is not likely to be persuasive as documenting H&C grounds).

BUT it is still important to make the H&C argument. This is true for many reasons, but two in particular: it gives the IAD an avenue to grant the appeal and issue a PR TD (or otherwise set aside the denial if you are already in Canada and a PR TD is no longer needed) even if the panel is not certain about some of the facts; but more importantly it is in large part an argument based on the equities, an argument that you deserve to keep your PR status. Technically there is no applicable who-deserves-to-keep-PR-status consideration, let alone standard. But such things are almost always underlying how a decision maker assesses the facts, in most official decision making procedures. Making the H&C argument is your way of showing how much you deserve to be allowed to keep your PR status. I know, this is crap, should not be of much influence. This should not be significant let alone important (the decision should be based on an application of the formal rules to the facts). But such unspoken influences are pervasive in many, many aspects of life, and that includes this one. A good H&C argument should dispel any lingering negative influence of this sort.      



Other Questions You Raise

Originally posted by dosvog2002 dosvog2002 wrote:

b) Not appeal, enter Canada on a Study Visa, and submit another sponsored PR application whilst in Canada. The sting here is having to pay international study fees which are 19500CAD compared to 6700CAD for home students.

The other sting is that there is no guarantee you will be granted a study visa. These are even less automatic than being allowed to enter Canada as a visitor.

And you can only apply for a Study Visa if you are a FN, not a PR, so to do this you would have to surrender PR status (not appeal or surrender it at a POE).


Originally posted by dosvog2002 dosvog2002 wrote:

c) Not appeal, enter Canada on a visitor visa and submit another sponsored PR application. The downside of this is that I'll forfeit my study for a year.

Correct. Subject to what I discussed above about being allowed to enter Canada as a visitor.

Also note: given the history, your spouse will most likely have to be residing in Canada when making a PR sponsored application, and mostly continuing to do so while it is pending. Asserting a "plan" to return to Canada to live when this was done before, and not followed through, would probably encounter serious skepticism. So, if you are not allowed to come to Canada to stay, you would face the prospect of having to live separately, maintaining two households in separate countries, a major inconvenience.

Moreover, given the history, the denial of the PR TD may, in effect, amount to an adjudication you were not cohabiting for even 730 days of the previous five years. That indicates a very substantial period of separation. That could, potentially, raise questions about the ongoing validity of the marital relationship, which could entail further questions given the possibility your spouse will have to again be separated from you to make the application, if you are not allowed to enter and remain long in Canada as a visitor. It should be relatively easy to overcome these issues, but this is, at the least, a potentially complicating factor that could significantly delay the processing of the new sponsored PR application.

Again, ppealing with strong evidence and prevailing on the appeal is by far the more expeditious route. Assuming, of course, you have the documentation and can indeed win the appeal.


Originally posted by dosvog2002 dosvog2002 wrote:

d) (long shot here!)   Appeal and thus retain my PR status, enter Canada on my British passport, apply to renew my expired PR card.    

I'm sure that this scenario will throw up red flags as I'll have an appeal pending and be renewing an expired card at the same time.

Well, I do not think the appeal route is generally a long shot. Unless there is something else at play, it appears that the visa office made the mistake, and that an appeal should be almost easily successful . . . but of course you will want to make the best case possible in the appeal to make sure that is how it goes.

As I noted above, though, there is no long shot option to apply for a new PR card while your appeal of the PR TD is pending. The odds of successfully doing that are not a mere long shot, but infinitesimally small. And, again, even if somehow your PR card application slipped through a crack, the outcome of the PR TD appeal will still be controlling and the new PR card would be invalid.


Note regarding coming across problems at the POE, if you arrive in Canada and seek entry as a PR with the appeal pending: While a referral to secondary is almost guaranteed, as long as your identity is not in question (no reason it should be) and there are no other admissibility issues lurking (no indication there are), the secondary exam may be a hassle but it should not be particularly problematic. Worse case scenario is a difficult CBSA officer who is pushy and a bit confrontational. Again, all you have to do is be calm, answer all questions accurately, truthfully, and be patient. No need to elaborate much or explain. Be cooperative, but focus on giving simple, direct, honest answers. No need to elaborate. No need to argue or advocate. Acknowledge the denial of the PR TD application, and that an appeal is pending. Be clear that you are coming to Canada to stay pending the outcome of the appeal, which you fully expect will be successful and do not be pressured into surrendering PR status and asking for entry as a visitor.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ski Quote  Post ReplyReply Direct Link To This Post Posted: 16 May 2014 at 11:24pm
I wonder what happens in the following scenario: Phil reenters Canada as a PR according to scenario above, and his appeal takes longer than 730 days from the date of his entry to be reviewed (don't know if that's possible in the first place, but this is a what-if question anyway).

It seems that in this case he would re-qualify as a PR via physical presence, and the result of appeal would not matter.

Any thoughts?

PS I think the discussion at the Canadian port of entry would go much smoother if Phil travels together with his Canadian spouse.


Edited by ski - 16 May 2014 at 11:25pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 17 May 2014 at 2:28am
There is NO credit toward compliance with the PR residency requirement for a PR physically in Canada after a PR TD application has been denied (or similarly, once a Removal Order is issued), pending the appeal.

The appeal will literally, definitively, determine this OP's status.

Lose the appeal, PR status is lost (possibly subject to obtaining leave for further judicial review -- however, I do not recall to what extent, if any, or when, leave for further review might be available in this process).

A favourable decision, a win, in the appeal (subject to further judicial review if sought by the Minister) will constitute an adjudication that the PR is admissible, PR status preserved.
Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote ski Quote  Post ReplyReply Direct Link To This Post Posted: 17 May 2014 at 12:02pm
Interesting interpretation by a lawyer:

Quote Where an overseas determination of a person's Section 28 residency obligation has been made, and that person seeks admission to Canada at a port of entry, the port of entry officer will determine whether the period for appealing the determination has expired or if an appeal has been filed. If the appeal period (60 days in travel document cases) has not expired, the port of entry officer should permit the person to enter Canada even if a notice of appeal has not yet been filed. The person should also be permitted to enter Canada if notice of appeal has been filed and an appeal is pending.

Summary: Phil should be able to travel to Canada even before filing the appeal, even though this does not preclude him from the need to file the appeal on time.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dosvog2002 Quote  Post ReplyReply Direct Link To This Post Posted: 17 May 2014 at 10:13pm
dpenabill and ski

I'm sorry, but it's difficult for me to add insightful substance to this topic, and I feel that I'm heavily leaning on you for advice on this matter.
I can't thank you enough for your assistance on this matter because it means everything to my wife to be with her father at the moment.  

However, I also hope that this can serve as advice to others who might find themselves in this situation.



I'm going to take the option to appeal the CIC decision to the IAD and travel to a Canadian POE (airport) to explain my case to a CBSA officer.

Can you give any specific pointers in the Immigration and Refugee Protection Act that will assist me during questioning at the POE
So far I've identified the following:

58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that

  • (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);

I hope to be covering this by including the affidavits (specifically the points regarding the appeal process), providing the rental contracts, university acceptance letters, and simply that I have too much to lose by not appearing at my appeal.

Anymore ideas?




So far I've compiled a checklist of documentation to bring with me to support my case.

  1. Passport

  2. Expired PR card

  3. Copy of completed notice of appeal

  4. Receipt of Appeal application (if there is such a document and it arrives in time.)

  5. PRTD denial letter

  6. Three Affidavits (I'll ask a lawyer to improve the terms used below)

    1. One from my wife including the points

      1. That I am a Canadian citizen

      2. That I am married to (name) and have been since 15th July 2000

      3. That I have continuously cohabitated with (name) for the five-year period immediately before 04/28/2014 and the period from January 2000 – the present ...(add dates and addresses)

      4. That I intend to cohabit with (name) at (address) while in Canada

      5. That (name) was living in Taiwan with me while I took care of my Grandmother

      6. That my Grandmother passed away on March 8th 2014 and I no longer need to stay in Taiwan

      7. That my Father has a serious health condition and I need to return to Canada to help take care of him.

      8. That I have been accepted to study at university in Canada and wish to return to live in Canada with (name)

      9. That (name) has been accepted to study at university in Canada and wishes to return to live in Canada with me.

    2. One from a friend who is a reputable person. I have friends who work for the American government at the American embassy in Taiwan (or American Institute as it is called due to geopolitical reasons) and other friends who are teachers etc.   The Affidavit from this person will include points such as:

      1. that I personally have known (name) and (name) since September 2000

      2. that I personally know that (name) and (name) have been married since this time

      3. that I personally know that (name) and (name) have been cohabitating at (address) since September 2000

    3. One from myself including

      1. That I have been married to (name) since July 15th 2000

      2. That I have continuously cohabitated with (name) for the five-year period immediately before 04/28/2014 and the period from January 2000 – the present ...(add dates and addresses)

      3. That I intend to cohabit with (name) at (address) while in Canada

      4. That (name) was living in Taiwan with me while she took care of her Grandmother

      5. That (name) Grandmother passed away on March 8th 2014 and I no longer need to stay in Taiwan

      6. That my Father-in-law has a serious health condition and I need to return to Canada to help (name) take care of him.

      7. That I have been accepted to study at university in Canada and wish to return to live in Canada with (name)

      8. That (name) has been accepted to study at university in Canada and wishes to return to live in Canada with me.

      9. That I have never made any missrepresentation of information to any Canadian authority including the denied PRTD application

      10. that I failed to provide enough information to show compliance to the requirements of the residency obligation under subsection 28(2)(a)(ii) of the Immigration and Refugee Protection Act  (how do you write the references to the Acts correctly?)

      11. that I have the evidence to satisfy the requirements of subsection 28 (2)(a)(ii) of the Immigration and Refugee Protection Act

      12. that I have made an appeal under Section 63(4) of the Immigration and Refugee Protection Act

      13. that I'll attend all hearings and communicate fully with the Immigration and Appeals Division 

      14. that I'll notify the Immigration Appeals Division immediately of any changes to my circumstances including changes of address.

      15. that I'll comply with any removal order imposed on me under the Immigration and Refugee Protection Act, if my appeal to the Immigration Appeals Division is dismissed

  7. Proof of cohabitation (airline tickets, translation of Household registration, Joint bank account)

  8. Grandmother's death certificate

  9. Father-in-laws medical certificate

  10. Buy a refundable airline ticket showing exit from Canada within 6 months (more to cover boarding issues that might arise)

  11. Rental contract signed and dated for Canada

  12. University Acceptance Letter for Canada



That's all I can think of right now.    I have to go now and get some breakfast. 

Thanks again

Phil





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Post Options Post Options   Thanks (0) Thanks(0)   Quote dosvog2002 Quote  Post ReplyReply Direct Link To This Post Posted: 17 May 2014 at 10:15pm
Ski
I've just seen your last post.   Gimmie some time to digest it.
Thanks

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