PR card renewal/passprt copies/exit/entry record

Hi

hfxresident wrote: <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2"> Thank you guys.  <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2"> <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2">People working in the CIC are humans just like ourselves thinking with reasons. Therefore, I wanted to get your feed back as to how you would feel about the case, if you were the person, say, approving the case, considering all other docs and checks were positive. What I think would be considered biased by most, as I feel, my father should be given another chance.  <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2"> <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2">But I see some hope in this esp, when you said, "<span ="apple-style-span"="" style=": rgb251, 251, 253; ">Having strong ties and particular having children whose lives are established and centralized in Canada, are H & C factors that, I think, loom much larger." I believe he has strong ties to Canada as his children are working & living in Canada right now. </span>A few points that may clear some misunderstandings. All his dependents were living in NS for five years since they all landed together, going to universities here and leading a normal immigrant-Canadian life. And to bear their expenses of getting educated and living here, the head of the family had no choice, but give less priority to his own permanent resident status and rather give more priority to his dependents' education and their resident status, who all now meet the residency requirement because of him. I mean, of course, they could work in a restaurant or something & not go to school and get a degree, but I trust and believe the Government would not have supported that idea. At least, I hope not. <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2"> <font ="apple-style-span"="" face="'Times New Roman', Times, serif" size="2">Yes, I understand and agree about having a licensed lawyer, I want my immigration lawyer to have at least a SOLID 10 years of experience, before I proceed with him. So, I was just trying to be vague regarding the 'representative' on this forum. But my father is working with a well-reputed, licensed lawyer.

If you go to http://www.canlii.org/en/ca/irb/index.html and search with text Residency Obligation, you will find that a high proportion of the appellants have spouses and children residing in Canada, and they are being refused, no H.& C.

Hi hfxresident,
on one side "Sung Chan CHOI" case is different, because of the PR card issues, but on the other side he could have worked, even without the PR card. He did not know that, but I am not sure if this was the #1 reason for the appeal. But also the motivation to support the family is a good argument and the amount of time being short.

From reading manuals of enforcement and overseas procedures, I got the impression, that it is way more difficult to get a TD abroad, than entering Canada over land via US. (OP10 - see 8.4) It is mentioned as a legal option to enter Canada without proper documentation (expired PR card).

To obtain a TD in an Embassy, you need to prove that you complied the residency obligations or have reasons on H&C grounds. Without TD you cannot board a commercial carrier.

On a land border the situation is different. BSO only have to determine the PR status. If you can proof the status, even if you are not in compliance with the RO, you have to be granted entry. (read 11.4 carefully) If the officer has doubts about the RO, the only thing they can do is to inform a local office for further investigations (which still could result in removal order). But they have to allow you to enter.
(ENF04 - see 11 especially 11.4)

If travelling to a land border via the US is an option, maybe this is the way to go and hope, that the inspection on the border is not looking into the ROs (in many cases I heard, that expired PR cards only triggered, that the officer reminded to apply for a renewal - yet no guaranty). Once in Canada, you can try to stay long enough to fully comply the 730 days rule before reapplication.

This procedure is mentioned in manuals, actually recommended in cases, when you cannot get the TD.

Depending on the days present, it could mean that your father cannot leave the country for 2 years.

I am no expert, and this is not my decision, but I would look into this scenario. IMHO the worst case, that could happen ist that you have to present the case on H&C. But it contains a good chance to enter without going through that.

I will go through that procedure in a few weeks, but I am in a different situation. I am in full compliance with RO. I just rather discuss the situation on Canadian soil at a POE, than overseas, with a chance of being denied the TD and therefor be refused to board a plane destined to Canada.

H & C considerations in PR RO decisions

Foremost, while many decisions by the IAD and the Federal Courts have articulated a number of H & C grounds relevant to a PR's application for special relief notwithstanding a breach of the residency obligation, it is worth emphasizing that in making a determination as to whether or not a PR should be denied a Travel Document or issued a removal order due to a RO breach, the statute itself requires H & C grounds to be taken into account; in particular, in 28(c) it states:

a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.

H & C grounds must be considered, and in particular, the best interests of a child directly affected by the determination must be considered.

While they do not state just how or why or to what extent the Residency Obligation was breached, the Karim BENABID case seems typical of those in which H & C grounds based on the best interests of a child have strong sway in allowing a PR to retain PR status despite the breach of the RO.

Another decision illustrating the influential role the interests of a child will have can be found in the panel's decision in the PENG MING CHU case, where the PR was present in Canada merely 392 days in the assessed five year period, what the panel considered to be a "serious breach" of the RO weighing heavily against granting special relief.

That panel found, in deciding to set aside the removal order made against the PR:

The panel has taken into account the best interests of a child directly affected by its decision, has weighed the evidence, considered and balanced the many factors relevant to humanitarian and compassionate considerations for granting special relief in all of the circumstances of the case and applied the relevant jurisprudence accordingly. In the process, the panel has concluded that there are sufficient humanitarian and compassionate considerations to warrant the grant of special relief in all of the circumstances of the case.

Just to be clear, the most commonly expressed statement of issues in a PR Residency Obligation case is straight-forward, and two-fold:

1 -- did the PR meet the 730 day residency requirement (before IAD and on appeal this is phrased in terms of asking whether a decision to deny the Travel Document or enforce a removal order was "valid")

2 -- even if the PR did not meet the Residency Obligation, are there sufficient humanitarian and compassionate considerations such as would justify the retention of permanent resident status

See: Torsten Olov NENZEN , ANAHIT DILANYAN , Zhe LI among many, many others.


Some decisions explicitly couch part two above in terms of whether or not there are there

sufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the determination, such as would justify the retention of permanent resident status.

The latter is clearly based, directly, on the language of the statute itself.

Clearly, the best interests of affected children looms as perhaps the most significant H & C consideration in whether or not special relief should be given a PR who has breached the RO.

Thus, while I do not doubt the accuracy of PMM's statement that there have been many cases decided against PRs, based on the breach of the RO, despite the PR having children in Canada (I came across three or four that to one extent or another fit this), I do think it is misleading to the extent it may be taken to suggest that this ground is not a particularly persuasive or influential one. In contrast, it is, obviously, the one most significant issue weighing in favor of special relief. Indeed, in my perusal of decisions including those by an IAD panel, it is only in the more egregious cases that having children living in Canada has not been a deciding factor in favour of a PR who has breached the RO, and those are usually cases in which the child or children involved are either living separate and apart from the parent anyway or are really well-established in a life in another country. For example, in the CHUN MAN “VICTOR” POON case the children involved were mere visitors to Canada (actually this is one of those cases illustrating . . . cannot help but call it the stupidity of some people: they had been absent from Canada for many years and had children while abroad, in their home country, and then they came to Canada and obtained entry, a side story in itself, but in any event if they had not applied to sponsor their children for PR their breach of the RO would not have come to light . . . all they had to do was wait another year). Moreover, they were also deported for misrepresentation attendant their return to Canada (misrepresenting the amount of time they had been in Canada, obviously to avoid a residency examination and the issuance of a removal order -- in fact this was largely pursuant to advice they received from a consultant . . . maybe that stupidity attribution should have been directed at the consultant).

The HONG YU ZHOU case is, perhaps, typical of the sort of case in which a child in Canada has not saved the PR his or her status, but if one reads that decision it is clear why the child's interest did not save this PR's status, and actually there are multiple reasons. A key reason, though, is that the pattern of absence had already been a large part of the relationship with the child, and so the best interests of the child in Canada did not require the [PR] to stay in Canada.

In contrast, again, see the decisions in the Karim BENABID case and in the PENG MING CHU case, which seem (in my brief review of such cases) to be more typical of the way in which the interests of children may warrant special relief based on H & C grounds.


strict liability

In the meantime ANAHIT DILANYAN is notable because the applicants were only 20 days short of the PR RO. They lost, they lost PR status.

Indeed, the panel stated:

The appellants are, therefore, 20 days short of meeting the residency obligation. As the residency obligation imposes a strict liability on the appellants, the panel finds the refusal to issue the appellants a travel document valid in law.

"Strict liability" is a strong term in law. Usually it means no excuses. H & C grounds are, in many ways, about excuses. What I think this panel was articulating is that a PR who does not meet the 730 day requirement is in breach. Excuses do not change that. What H & C grounds do is allow "special relief" and thus, despite a breach, in cases where warranted due to H & C grounds, the individual may be allowed to retain PR status, again, despite the breach. In other words, persuasive H & C grounds do not change the fact that a breach has occurred. H & C grounds may, however, provide relief from the consequences of a breach that has occurred.

Just being close to the 730 day requirement is not enough. In particular, without real H & C grounds, being close is not enough.


H & C grounds to be considered

Many cases offer a clear statement of the H & C grounds to be considered, including, for example, the ANAHIT DILANYAN case in which the factors to be considered were enumerated:

--   the extent of the non-compliance and efforts to return to Canada, --   appellant’s initial and continuing degree of establishment in Canada, --   his or her reasons for departure from Canada, --   reasons for continued, or lengthy, stay abroad, --   ties to Canada in terms of family, --   whether reasonable attempts to return to Canada were made at the first opportunity --    whether in dismissing the appeal the appellant or his family, in Canada, would suffer any undue, undeserved or inordinate hardship, --   the best interests of a child directly affected by the decision, and, --   whether or not there are unique or special circumstances present in the case which establish sufficient grounds for “special relief.”

Another panel (Diz Lopez v. CIC ), articulated the H & C grounds to be considered this way:

--   the extent of the non-compliance with the residency obligation; --   the length of time spent in Canada and the degree to which the appellant is established here; -- the reasons for the appellant leaving and remaining outside of Canada; -- the best interests of a child or children directly affected by the decision; -- the degree of hardship that would be experienced by the appellant if he were not allowed to return to Canada as a permanent resident.

Yet another panel (HONG YU ZHOU) stated the H & C grounds to be considered this way:

in addition to the best interests of a child directly affected, the following factors are particularly relevant to residency obligation appeals: the extent of the non-compliance with the residency obligation; the reasons for the departure and stay abroad; the degree of establishment in Canada, initially and at the time of hearing; family ties to Canada; whether attempts to return to Canada were made at the first opportunity; hardship and dislocation to family members in Canada if the appellant is removed from or is refused admission to Canada; hardship to the appellant if removed from or refused admission to Canada; and whether there are other unique or special circumstances that merit special relief. These factors are not exhaustive and the weight given to each may vary depending on the circumstances of each individual case.

Similarly, H & C are grounds are specified in the Cheng-Hsin YAO case, including, for example, the degree of establishment of the [PR] outside Canada (presumably in contrast to) the continuing connections the appellant has to Canada, including connections to family members here and the hardship and dislocation to family members in Canada if the appellant ultimately ceases to be a permanent resident as a result of his or her non-compliance.

The Cheng-Hsin YAO case is also one of those cases in which there were children in Canada involved, but it did not save the PR; similar to the HONG YU ZHOU case; likewise, the pattern of absence indicted that not having status to stay in Canada would not be a hardship on the children.

In both these cases, Yao and Zhou, it should be noted that they both had spouses with status in Canada and that if their intentions were indeed to settle permanently in Canada, they could be sponsored for PR again.




side note:

I did not keep track while doing this research, but I was surprised by the number of cases that involved PRs during the first five years following landing. For one reason or another, this usually involved PRs who needed a Travel Document, who applied for a Travel Document, were denied, and appealed. For example, in the case of HONG YU ZHOU the PR card was lost.


By the way, the HONG YU ZHOU case is of interest, as well, because after his application for a TD had been denied, he entered Canada via Buffalo without informing the border officers that he had been found in breach of the RO and had been denied a TD. Thus the individual was found to have made a material misrepresentation. The panel referred to the "duty of candor" and found that this misrepresentation constituted a violation of the IRPA.

For a PR who does not have a currently valid PR card in possession, the huge advantage of entering Canada via a land crossing, as opposed to applying for a Travel Document, is that the level of scrutiny is, simply, a lot lower. Additionally, from most accounts, POE officers seem to be far more liberal in allowing entry even when they perceive a Residency Obligation problem, and, in particular, H & C grounds seem to do better at the POE.

Hint: once a removal order is issued, it gets a lot tougher. IAD tends to uphold the officer (who writes the report) and minister (minister's delegate who issues the removal order, both usually done at the POE) in these decisions. The Federal Courts are not sympathetic (many judges having expressed the view that the Residency Obligation is so liberal on its face that a failure to meet this minimal requirement does NOT deserve much sympathy unless there are solid grounds for special relief).

For someone who has breached the RO, appealing to the positive discretion officers have at a POE is the one best shot for gaining entry without a removal order being issued. The objective is simple: without deceit or ruse or evasiveness, convince the officer at the POE the person is a PR who is genuinely committed to living in Canada and deserves to be allowed entry even if there is a technical breach of the RO.

Yes, of course, the ideal scenario is approaching the POE and getting waived through. For a PR without a valid PR card in possession that is less and less likely these days. Presenting a passport from a visa-exempt country and not revealing one is a PR is, probably, misrepresentation (direct or indirect withholding of material information), though I believe this has been routinely, to some extent deliberately overlooked . . . but this is another aspect of things that, given the ever-increasing level of scrutiny at the borders, that may become more of an issue going forward.

In any event: There is NOT much of an advantage in being entitled to enter Canada once identity and status are ascertained. All it does is get the PR into Canada and then only after an examination. And, to be clear, while entitled to entry, that does not mean entitled to entry without being issued a removal order, and once a removal order has been issued . . . well, remember: Once a removal order is issued, time in Canada following that will NOT count toward meeting the Residency Obligation.

Thus, to stand on one's right to "conclude" the examination is, in essence, making the argument that the officer should interpret things in the most negative light feasible. That is likely to be a Report followed by a Removal Order, but even if it is just referred for investigation that investigation will most likely proceed rather quickly, and if compliance with the RO is not proven by the PR, a removal order will be issued, and, again, any time in Canada following that will NOT count toward meeting the RO (unless and until there is an adjudication in the PR's favour of course).

Moreover, as a practical matter, the way the questions go at the POE, a POE officer usually has asked a lot of the key questions before much of anything is established . . . indeed, many of the foundational questions are asked at the PIL, like "where do you live? where do you work? where have you been outside Canada? how long?" and variations of these.

In the meantime, a valid PR card is the only documentation that presumptively establishes that the person presenting it has PR status. Even at this, the POE officers are entitled to ask questions that will assist them in verifying that the individual presenting the PR card is the individual named on the card. Any significant doubts in the PIL officer's mind, there is a referral to secondary.

Not having a valid PR card in possession is, in most situations, an almost guaranteed referral to secondary (though I suspect many PRs present their passports and the PIL officer pulls up the "client" info on the screen and verifies status and sees no cause for a referral and waives the PR through).

Once sent to secondary some of the same questions will, oft times, be asked again. And again, the officer is entitled to ask sufficient questions to verify the identity and status of the person. The officers have a great deal of discretion in this.

At any point this exchange becomes adversarial, let alone confrontational, get out your patience cap because it could be a long, long while there at the POE. Even citizens are sometimes held up for hours at a time, under the rubric of a security check or customs check or . . . there are many reasons. But verifying identity is the key one.

And sure, a PR can present some essential documents and decline to answer questions related to a residency examination. And then wait while they do an exhaustive electronic database search for anything and everything related to confirming identity and checking security. And when that search does not give them reason to detain, the officer can:
-- allow the PR entry and simply make some notes in CAIPS
-- allow entry but refer the case for investigation (which I suspect will be done forthwith)
-- issue a Report and refer the matter to the Minister's delegate, usually but not always on site which in turn may:
-- -- result in a brief hearing of sorts, resulting in the issuance of a removal order or not (PR should make his best argument for H & C grounds in addition to any argument that there was no breach of the RO), or
-- -- if the minister's delegate is not on site and a telephonic review is not available, the PR will be allowed to enter while the Report will be put into process

Frankly, none of those works well for anyone who is technically, let alone significantly, in breach of the RO.

In other words: Just plain a very bad idea to get into an adverserial mode at the POE. Not going to go well, and it is especially is not going to go well for anyone who is not in strict compliance with the Residency Obligation.

The reports overwhelmingly suggest that persuasion as to deserving entry into Canada works the best by far, by a wide, wide margin, for anyone who is in any way in a questionable posture relative to admissibility (including inadmissibility due to a residency obligation breach).

Regarding misrepresentation at the POE: Make no mistake, the cases about misrepresentation by PRs emphasize the duty of candor and this means that no overt misrepresentation is necessary, that even if not asked a relevant question an inference of indirect misrepresentation via withholding material information can be deemed to be misrepresentation.

And the latter leads back to the deportment side of the POE encounter: there is a high risk that the inferences are going to go a lot more toward the extreme, and not a good extreme, if the encounter turns adversarial, let alone confrontational. Just plain not a good idea to go there.

(btw: timbit and I have had this conversation in some respects before in another thread here, timbit leaning more heavily on the PR being entitled to not engage in a Residency Examination at the border if the PR chooses not to. But, this really only works for someone who does not need to be so adversarial. For someone in breach of the RO, the POE officers are their best hope for leniency. Really. And the most practical approach is to be upfront with the CBSA officer at the POE and try to convince that officer of a genuine intent to make Canada home and otherwise deserving of retaining PR status.)