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2BPR or not 2B

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Harmonia View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 09 Jul 2010 at 3:47pm
I'm sure the I/O is going to go through the stand set of q's regarding H&C.
We're luck in the fact that my wife has done a lot of the things mentioned in the operations manuals that contribute to making an H&C determination --- and did so without ever knowing that they would be important (i.e. she's on several Canadian committees, has been asked by Fed Gov't departments to represent Canada on international comittees, has taken language training to improve her skills in English - her native language is French, she's got friends here, bills in her name, owns no property in other countries = is more established in Canada than anywhere else)
 
Wish us luck...
Citizenship App Sent: December 2012
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 10 Jul 2010 at 2:13am
I do not know what the meeting with the IO is really about (procedurally), that is, I am really not sure what authority an I/O has at this stage, what sort of decision is pending?

I do wish you luck in it. (And I do think they lean toward helping if there is a basis to do so, and equities are favorable, notwithstanding the occasional horror story.)

This I do know: the following is not true:

Quote Waiting the 730 days will add to the H&C case, but considering there's still the exact same risk at the end of it, we're choosing to do it now.


No. Staying 730 days is not iffy. The "any given five years" is an "as of this date" measure. Once past 730 days, and of course past 730 days from then on, whatever other issues a PR might run into (problems with having made previous misrepresentations say), there is no problem with the residency obligation. There is case law, as in real law on this.

In the meantime, yes, indeed, good luck. It does sound like the equities are favorable . . . though of course how close to the 730 day mark she is, is one of the major factors they are supposed to consider.
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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Harmonia View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jul 2010 at 10:53am

dpen -- in our case, even waiting the 730 days would be 'iffy' largely due to the issuance of her study permit (which although it was issued in error, it is still on file).  This triggers an investigation (or so says 3 out of 4 lawyers), and that's when they look at the law as opposed to the policy. 

I don't think today will go badly - but I'm wondering what degree of success we're going to have.
We are meeting with an Officer who's job is to make the PRD's (Permanent Residency Determination).  I believe that the officer has the power to forgive / waive the residency obligation on H&C grounds.
 
In 3 hours and a bit we'll be sitting in her office and will know for sure :)
 
All I hope for is that she makes the best possible decision.  My wife only has 1 year in Canada so far.  If they decide to remove her status, we will appeal the decision (and have supporting case law to identify that the Crown generally sides with keeping status based on H&C grounds).
 
On reviewing all of the H&C policy - my wife has pretty much covered most of the bases, even without knowing that the things she was doing in the past year would help to buid her case.
 
I'll provide an update tonight / tomorrow with the new status (or, if we're lucky, her OLD status LOL)
 
Thanks everyone for providing your support and insights... they have been extremely valuable.
Citizenship App Sent: December 2012
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jul 2010 at 5:13am

I am hoping all has gone well.

In reading some cases again, it seem leniency dominates (unless there is some negative insinuation in the subtext . . . suspected gang members, for example, don't appear to benefit from leniency, and fifty days short, for them, is good enough to say no with emphasis . . . but most of the cases suggest a lot of leniency), so I'm believing things will be all right for you.

In the meantime, though, at the risk of beating this to excess, perhaps I have failed to make it clear that I have been talking about the law not mere policy."

The applicable provision in Section 28 is cited in almost every appealed case, emphasizing that a residency evaluation is done with respect to the five-year period immediately preceding the date of examination, and there are indeed many cases in which the person subject of the case spent virtually no time or very very little time in Canada for many years, but the focus of the inquiry was still on the five year period immediately preceding the date of the examination.

Just to make it clear, the law itself says, in Section 28 of the IRPA , in 28(2)(b):
Quote
it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination


The second part of that is the key for anyone who was outside Canada for a long period prior to returning to Canada, and who has then spent 730 days in Canada (without a removal order being issued against them) and that language is cited again and again both by IAD panels hearing appeals as well as in Federal Court decisions:

So, to be absolutely clear: relative to the residency obligation (section 28 IRPA) it is sufficient for a permanent resident to demonstrate at examination . . . that they have met the residency obligation in respect of the five-year period immediately before the examination

This is important because once back in Canada, without a removal order having been issued, the PR who has otherwise breached the residency obligation can in essence rehabilitate their residency -- BUT if anything triggers an examination in the meantime, before getting the 730 days in, well once the examination is triggered, that becomes the relevant date, then if a report is issued time in Canada after that does not count . . . saw one case where a PR who had been out of Canada for fifteen years or so (but for very brief visits) came to Canada on a visitor visa, not good for long though, and applied for refugee status, and at the interview the officer noted the individual's previous PR status and the residency obligation breach, did a residency examination, and issued the report leading to the removal order. All that person had to do was stay in Canada for two years and . . . but of course he had no SIN, no way of obtaining a SIN, no way of getting a decent job without a SIN, and if he had applied for a PR card in the meantime the same thing would have happened: triggering an examiation, report, and removal order.

Other triggering events include criminal charges as well as leaving and attempting to re-enter Canada. I suppose anything that could induce interaction with CIC or CBSA could trigger an examination.

Another note: I really have not been commenting on the likelihood or not of an "investigation," and in particular I am not sure what would be "investigated" -- the process for assessing whether a PR is in compliance with the residency requirement is an "examination," and procedurally, as well as substantively I think, that is not the same thing as an investigation. Such an examination is, again, date sensitive (the whole "immediately preceding . . . "). Reference to "investigation" in most CIC information seems to be either generic (in the "look into" sense, as in if there is something odd about a passport, an officer should "investigate" further, which means check the databases, compare to other documents), or it is more formal and then usually relative to crime-like investigations, though it is also used in this more formal sense relative to misrepresentation cases as well.
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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Harmonia View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jul 2010 at 12:51pm
UPDATE:
(dpen - you'll like this LOL)
 
Interesting meeting yesterday.  The Officer was an awesome lady.  She started us off on the PRD process, in which we were to start writing up our case for H&C grounds (to retain my wife's status even though she had not lived up to the full 730 days of the residency obligation).
 
About 1/2 hour into writing out our H&C claim, she came back into the room and said "You're not going to like me - but CIC NHQ just called and we can't proceed with handling your case like this.  Because they returned your application for PR, there is technically no application in progress, so we cannot follow this process flow for the PRD". 
 
She then laid out all of our options.  She remained impartial the entire time, and mentioned specifically that she wasn't able to counsel us on what action would be the most likely to succeed. 
 
I asked a series of questions - all pertaining to the various options - and it would seem that we have a few:
 
1. Apply for a PR Card today.  That would invovled the inclusion of the H&C case.  If we go through the normal stream, it will take about 8 months for them to open the application (that's her 'realistic' timeline, regardless of what the website says).  If we want it sooner, we can apply for it under the 'urgent' processing stream.
 
2. Wait until my wife meets the 730 days, and apply for a PR card.  Regardless of what is in her file, she is still a PR, and this method would get her the card without the need for the H&C claim.  Essentially it's 'going around the system' - but it will work.  The problem: she can't travel until then.
 
The takeaways from the meeting are:
1. 730 days in Canada in the last 5 years = PR card with no problems.
2. The closer you are to the 730 days, the better (in regards to an H&C application)
3. To get urgent PR card processing you need proof of travel (an e-ticket / iteinerary)
4. The clock on your 'PR' time in Canada does not stop when you mail the application, but when the I/O actually opens the file (in other words, if my wife sends in her app at this time, there will be an additional 8 months of time in Canada to be added on to her total - making the H&C case stronger)
5. CIC Paris Visa office issued the original study permit in error
6. The I/O put notes on my wifes' file to indicate the error made on the part of Paris re: study permit
7. We are entitled to a full refund from CIC for the sponsorship, PR app, and RPRF
 
So - the bottom line:  my wife is a permanent resident (as we knew).  She is entitled to a SIN card, and is entitled to an OHIP card.   How we choose to get the PR card is up to us (do we wait, or do we submit the H&C case).
 
The nice part is that we now have a way for her to keep her old PR status.
 
If only we'd known all of this when she first came here  - LOL.
Citizenship App Sent: December 2012
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cutemwafrika View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote cutemwafrika Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jul 2010 at 1:32pm
Congratulations Harmonia. How do you proceed to get a SIN and OHIP without the relevant documentation for proof of PR?
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Harmonia View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jul 2010 at 1:43pm
Using the original IMM1000 or COPR documents issued from long ago.
 
Note: even though some gov't departments ask for the PR card, that's POLICY - not LAW.
 
It's not yet law for permanent residents to hold a PR card while in Canada... though the I/O claims that they are going to try to push that through eventually.
 
That being said - it's a damn good idea to have one, because it's the easiest proof of permanent residency to obtain, and it is widely recognized.
 
We will follow up with news on getting the SIN and OHIP cards... and if they were easy to difficult (or even impossible) to get with the IMM1000.
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jul 2010 at 5:35pm
Good news but not great news . . . but perhaps better news than it could have been.

Relief anyway, though of course there is the whole in limbo for a long while scene to deal with.

Better than possible news because (I learned this during my last night obsession with researching the law . . . which is what I do all day to earn a living, but that is Am. law) technically the officer you were meeting with probably had the authority to initiate the "residency examination" which could have resulted in a removal order (though the leniency I mentioned before weighs heavily toward taking no action in a case like this, which is essentially what happened it sounds like).

By the way, you said I will "like" this result. Not really. I have no personal feelings, one way or another, about how residency obligation examinations are conducted. I was emphatic because I knew what the law is, and I try to focus on being sure information is accurate (otherwise, which I often do, I couch what I say in terms of "it appears," or "it seems," or "I think," or even "my best guess" and so on). Of course the overriding problem is that few cases fit neatly into any one category, and so there are often multiple provisions of law involved, multiple policies involved, variable facts subject to varying interpretations involved, with potentially conflicting elements, so knowing the law does not translate into knowing for certain the outcome of any given case on any given occasion.

For the SIN, my understanding (another code for, "I think, but am not sure") is that you need the equivalent of the Record of Landing AND the original visa with stamp in the passport. Not sure how it goes when it is an old one though. OHIP is a bit different. It may require more effort to get them to recognize status. In any event, though, one way or another she should qualify for both, so at worst it may involve some kind of administrative appeal (which should not be a big deal, just time consuming) to obtain both the SIN and the OHIP membership.

Re longer down the road, time to apply for PR card stuff:
If she obtains both, I would not count on them taking 8 months to open the PR card application (online timeline currently says 172 days), and I would not count on H & C grounds . . . probable result is favorable BUT this is simply inviting a much longer processing time . . . though of course it can depend on what is imperative, travel to visit an ill parent for example, to take care of necessary business abroad, or such, which would compel one to make the application sooner. I assume you have examined the PR card application and of course it requires the applicant to provide the same information as is inquired into for a residency examination, and less than 730 days in the last five years will undoubtedly take the app out of the routine queue (but not until it has sat the full time in that queue), and into a residency obligation evaluation queue (which inherently includes an assessment of H&C grounds, which is the third part of 28(2) I did not quote above), which could mean a lot longer, overall, than if you just waited to meet the required in-Canada time to begin with. And while I do not doubt the officer's observation that the time between sending in the app and the day it is looked at will "count" it will not necessarily count "automatically" since there is nothing there in the file to show you have been in-Canada during that time . . . so again, that is likely to push the processing into a queue resulting in a request for more information (along the lines of a residency questionnaire).
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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Intel View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Intel Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jul 2010 at 12:33am
As dpenabill said, it is good news but not great news. The great news when your wife gets her PR card. Since you are have the study permit issue taken care of, I think you should now wait until she meets 730-days rule before applying for PR card.
 
Anyway, congratulations on the meeting outcome. Smile
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Harmonia View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Harmonia Quote  Post ReplyReply Direct Link To This Post Posted: 14 Jul 2010 at 1:58pm
Just spoke to the OHIP and SIN people
 
They still accept the IMM1000 - and do not require passport confirmation (but they do need a provincal drivers' license).....
 
Will let you know if we're able to obtain either card... or both.
Citizenship App Sent: December 2012
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