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2BPR or not 2B

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Harmonia View Drop Down
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    Posted: 21 May 2010 at 4:23pm

Here's an interesting even that happened to me today:

CIC returned my application for sponsorship (was sponsoring my wife in under the spousal family class).  Outland application, but she is in Canada on a study permit.
 
Their reason:  their records indicate that my wife has already landed in Canada at a previous date.
 
They suggest that she apply for a travel document which will confirm or deny her PR status... and they go on to say that only after it's been denied should we re-apply for sponsorship.
 
What irks me is the fact that we clearly outlined in the sponsorship application that she had already landed in Canada, but that according to the CIC legislation - she did not meet the PR requirements.
 
So now we have to:
- pay (and wait) for a copy of her IMM1000B - which she never had, because she came to Canada in the early 70's with her mother.
- file for the travel document (which probably isn't free either)
- wait for the response, and when it's negative
- re-apply for sponsorship, which will also invovle a redo on the security checks and maybe the medical
 
All of that at great time loss and personal expense.  Wonderful.
 
 


Edited by Harmonia - 26 May 2010 at 2:36pm
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: 21 May 2010 at 6:33pm
Yeah, complicated. If she did in fact land as a PR and has never been adjudicated for removal or revocation of PR, she should indeed technically still be a PR. I am not sure what legislation you referred to that said she did not meet PR requirements . . . once a PR, PR until adjudicated otherwise.

Thus, moreover, yes, she could be in compliance with the residency requirement if she has been in Canada at least 730 days over the course of the last five years. If not yet at the 730 day threshold, how soon she will be may factor into how you approach this.

If she has not been in Canada 730 days in the last five years, while H&C grounds may give her a pass if she leaves and then seeks re-entry, I am not sure why you would want to make an issue of it and take the risk. If, at the POE, they issue the 44(1) Report followed by a removal order, that either stops the clock (putting her into limbo pending the outcome of an appeal), or results in an enforceable removal order which in itself could make things more complicated. Yeah, as in "cause undue hardship . . ."

If she is in Canada, the advice to apply for a Travel Document seems point blank wrong (a TD is specifically for a PR who is abroad), though I understand that that would, at least, generate a definite ruling on her status.

You might want to consult with an immigration lawyer about this. The complexity of the situation threatens the potential for falling into a Kafkaesque labyrinth that could take a lot of time to sort through, lost in limbo in one queue after another.

If she has been in Canada for 730 days, though, simply processing the paperwork to confirm status and obtain a PR card is one way to go.    

To do that I believe that she probably has to apply first for the Record of Landing/Confirmation of PR.
See http://www.cic.gc.ca/english/information/applications/certcopy.asp
for the proper application (if you have not done so already).

Then apply for the PR card.
http://www.cic.gc.ca/english/information/applications/prcard.asp

I can sense your frustration.

Good luck.

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: 22 May 2010 at 12:29pm
Made an appointment with an Immigration lawyer... and of course I've read most of IRPA (yuk)...
 
From what I can tell, she still has PR status... because to lose it, you need:
 
 46. (1) A person loses permanent resident status

(a) when they become a Canadian citizen;

(b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;

(c) when a removal order made against them comes into force; or

(d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection.

 
Neither a, b, c, or d has happened... so, am I correct in assuming she is still a PR? 
  
I can't wait  to hear what the lawyer says...  I am (cautiously) hopeful.


Edited by Harmonia - 26 May 2010 at 2:37pm
Citizenship App Sent: December 2012
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canvis2006 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote canvis2006 Quote  Post ReplyReply Direct Link To This Post Posted: 24 May 2010 at 12:58pm
Yeah she could just stay in Canada and accumulate 730 days and then apply for renewal of PR card/status.



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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: 06 Jul 2010 at 3:44pm
Update:
 
Staying in Canada until she gets 730 days, and then applying for a PR card after that will likely trigger an investigation -- you see, she has a study permit on file - which should never have been issued, but it was (in error). 
 
Although policy states 730 days in the last 5 years, the law  (IRPA section A28) states that you have to be in Canada for 730 days in any given 5-year period.
 
Sure she could try it, but it's risky...
 
Rather than wait until next year to find out, we have an appointment with an I/O next Monday to make the determination on her status.
 
It is required so that we can move forward one way or the other.
 
 
Citizenship App Sent: December 2012
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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: 06 Jul 2010 at 7:15pm
Hi Harmonia,
 
I wish you a positive result from your PR determination interview. Even with the breach of residency obligation, there is still a hope that IO retains her PR status based on her existance in Canada and some H&C factors such as ties to you (http://www.cic.gc.ca/english/resources/manuals/ip/ip05-eng.pdf).  Have every supporting documents to help you achieve that.
 
Good luck and keep us informed.
 
Intel
 
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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: 07 Jul 2010 at 3:47pm
We have a THICK file to support keeping her here, however any advice for what might constitute "reasonable H&C grounds" is more than welcome :)
 
Thanks!!!
Citizenship App Sent: December 2012
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 07 Jul 2010 at 4:47pm
I am quite confident that so long as there has been no formal removal or revocation of PR status (including no final relinquishment), and no removal order pending, 730 days in Canada during the last five years qualifies as meeting the PR residency requirement NOTWITHSTANDING ANY PREVIOUS ABSENCES, even if for more than three years, even if there was a five year period with no presence in Canada.

While the applicable enforcement manual repeatedly refers to the "any given five year period" it also refers to an "examination" as to the residency obligation as addressing "the previous five-year period immediately preceding examination" and, in particular

(see: http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf)

the relevant Enf Manual (enf23) states:

Quote The most direct way a permanent resident can show that they have fulfilled their residency obligation under IRPA is to demonstrate that they were physically present in Canada for the specified minimum number of days (that is, 730 days within the previous five-year period immediately preceding examination) pursuant to A28(2)(a)(i).


H & C grounds are also discussed in ENF23 beginning at page 23.


Saw recent report by someone who had left Canada a long time ago (as a minor I believe) who recently qualified as residing in Canada for the requisite period and did indeed receive a PR card upon application.

So even if an investigation is "triggered," the subject of the investigation should not be a breach of the residency obligation (or, if it is, all you need is documentation of the 730 days spent in Canada or, even, in deemed residence such as living with a spouse who is a Canadian citizen); of course not being in breach of the residency requirement does not resolve any other admissibility issues an investigation might identify.
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: 09 Jul 2010 at 11:22am
The problem is that you are referring to the policy manual, not the law... and although there is a chance that she'd retain her PR if she simply applied for a card, the fact that she was issued a study permit (albeit in error) would raise red flags and trigger an investigation.  This has been confirmed by sources at both CIC and IRB - stating that they would issue a removal order at that point, and would revoke her status -- which we would have to appeal (and we'd likely win, at great expense and a few years of ongoing legal crap). 
 
Our H&C case is well documented, and our interview is on Monday.  We're going in now, because we can't move forward without a decision on her current status.  She doesn't have 730 days yet - but she's also not entitled to get the SIN -- because of the study permit in her passport, which indicates that she's not a PR, but is a TR... 
 
So - we need her status determined in order to make any progress.  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.
 
Wish us luck :)
Citizenship App Sent: December 2012
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shaz View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote shaz Quote  Post ReplyReply Direct Link To This Post Posted: 09 Jul 2010 at 2:49pm
Originally posted by Harmonia Harmonia wrote:

The problem is that you are referring to the policy manual, not the law... and although there is a chance that she'd retain her PR if she simply applied for a card, the fact that she was issued a study permit (albeit in error) would raise red flags and trigger an investigation.  This has been confirmed by sources at both CIC and IRB - stating that they would issue a removal order at that point, and would revoke her status -- which we would have to appeal (and we'd likely win, at great expense and a few years of ongoing legal crap). 
 
Our H&C case is well documented, and our interview is on Monday.  We're going in now, because we can't move forward without a decision on her current status.  She doesn't have 730 days yet - but she's also not entitled to get the SIN -- because of the study permit in her passport, which indicates that she's not a PR, but is a TR... 
 
So - we need her status determined in order to make any progress.  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.
 
Wish us luck :)
All the best for yr interview, harmonia, let us know what questions the I/O asks for PR determination, thanks Smile
shaz
App Rec'd July 17/09; Started Processing Mar 18/10; Transferred to Calgary Apr 30/10;Test-waiting; Oath- waiting;
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