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Breach residency obligation. Need advice pls

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seeta View Drop Down
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    Posted: 13 Aug 2012 at 10:35am
I am in pocession of a valid PR card but it expires in sept 2013 . I have not spend anytime in Canada except for 3 weeks when I did my landing in 2008. I had planned to return to Canada in 2011 to meet my residency obligation but my mother developed severe dementia. As she was unable to manage her financial , property and all other matters I had to apply for court to be her legal guardian. This casued my delay and the process has only been completed recently. Since I am the only child and my father has passed away there is no other relative to manage this matter. Pls advise if the immigration officer will take this reason into consideration at the Vancouver Airport . Really really appreciate any advice or comments.
 
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 13 Aug 2012 at 2:28pm

Quote seeta:
Quote I am in pocession of a valid PR card but it expires in sept 2013 . I have not spend anytime in Canada except for 3 weeks when I did my landing in 2008. I had planned to return to Canada in 2011 to meet my residency obligation but my mother developed severe dementia. As she was unable to manage her financial , property and all other matters I had to apply for court to be her legal guardian. This casued my delay and the process has only been completed recently. Since I am the only child and my father has passed away there is no other relative to manage this matter. Pls advise if the immigration officer will take this reason into consideration at the Vancouver Airport . Really really appreciate any advice or comments.


Correct: you are clearly in breach of the PR Residency Obligation.

Yes, the officers at the POE will take into consideration various factors including in particular the reason you have not returned to Canada sooner, as well as others such as whether or not you have made an effort to return to Canada at the earliest opportunity to do so.

They will take these things into consideration. That does not, however, necessarily mean they will allow you into Canada without issuing a 44(1) report for inadmissibility due to a breach of the Residency Obligation. They have considerable discretion in this regard.

The POE officers are, however, so far as reports have indicated, the PR's best hope, the most lenient link in the process (or so it seems).

And, more than a few PRs have had success in this, persuading the POE officers to be lenient, not issue the report, even though they failed to meet the residency obligation.

That said: the current Minister of CIC seems to be pushing for more strict enforcement of the residency obligation, so . . . well, you can and should make your best case, but no one can confidently predict at this point how it will go (the sooner you arrive, the better your odds).

You would be wise to at least review section 7.7 of ENF 23 "Loss of Permanent Resident Status (http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf), which discusses "Humanitarian and compassionate determinations" in assessing whether a PR should be issued a Removal Order for breaching the residency obligation. On page 20 it discusses, in particular, the "Factors for consideration."

If you are comfortable reading and feel competent about understanding this kind of documentation, you may also want to look at Section 11 in ENF 4 Port of Entry Examinations (http://www.cic.gc.ca/english/resources/manuals/enf/enf04-eng.pdf), beginning on page 35 of that operational manual, which talks about examining permanent residents at ports of entry.

The more important of these to look at, by far, is ENF 23 regarding loss of PR status, and its discussion of factors to be considered.

I have no idea what your odds are. No idea at all. We have seen reports go both ways. The longer you wait, of course, the worse your odds.

If you are allowed into Canada without being issued a Removal Order:
If they allow you to enter Canada without issuing a 44(1) Report, with no Removal Order being given to you, it is important that you
-- stay in Canada for the next two years minimum (to some extent an H&C determination at the POE may allow a PR to exit and return so long as they are in possession of a valid PR card, but this is very risky and a trip abroad of any significant duration would make it very risky . . . and once your current PR card has expired, obtaining a Travel Document while abroad will be very difficult)
-- Do NOT apply for a new PR card until you have been in Canada more than 730 days. In fact, do not make any sort of application to CIC for at least two years. Mistake some make is they attempt to sponsor a partner, which automatically triggers an examination into the status of the sponsor, and if they have not been present in Canada 730+ days within the immediately preceding five years (as of that date), a residency examination is likely and the issuance of a Removal Order possible. Again: wait to apply for a new PR card until after being in Canada 730+ days. (You do not need to have a currently valid PR card in possession while in Canada. Just be sure to get drivers license, SIN, health care coverage, all taken care of while your current PR card is still valid.)
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 seeta Quote  Post ReplyReply Direct Link To This Post Posted: 13 Aug 2012 at 9:23pm
Thank you very much for your detailed reply and really grateful that you provided all the links.  I have already booked my flight and will arrive on 5 Sept. I understand the positive implications if I am not issued a removal order so will be keeping my fingers cross.
 
IThe POE officers are, however, so far as reports have indicated, the PR's best hope, the most lenient link in the process
Just a question, are the POE officers given individual discretionary powers to decide ?
 
In the event if I am issued a removal order. Are the  H& C considerations for a removal order appeal different from the breach of PR? That is do they place more importance in the consideration process on the reasons why I was unable to meet the residency obligation as opposed to the consequences of losing my PR? Are the H&C factors in a removal order appeal process similar to that of a refugee claimant in that case I will surely lose the case as I have nothing to lose in terms of personal safety or wealth if I return to my home country.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 14 Aug 2012 at 12:28am

Quote seeta:
Quote Just a question, are the POE officers given individual discretionary powers to decide ?


Yes, the officers at the POE do have quite a lot of discretionary authority.

They cannot deny entry, but they can decide to issue the 44(1) report or not. If they issue a report, the "Minister's delegate" decides whether or not to issue a Removal Order, but that is, it seems, simply another officer at the facility, usually, and the process seems to be rather perfunctory . . . so if the POE officer issues the 44(1) report that means, essentially, a Removal Order will be issued as well . . . and the PR still gets to enter Canada and has (I think, I do not recall specifically) 30 days to appeal the Removal Order.

Note that even if they do not issue a 44(1) report, they are likely to at the very least flag you in FOSS and may also send a report of some sort to the local CIC office. From what we have seen, these do not result in further action unless the PR does something else (like apply to sponsor someone, apply for citizenship way too soon, or apply for a new PR card without meeting the residency obligation). The local office, however, could initiate an investigation and conduct a residency examination. But, my impression is they don't unless something else triggers that action.

In terms of how lenient they tend to be at the POE: it does appear (from a few reports by others . . . this is not something we see a lot of reporting about here) that PRs still within the first five years after landing are given some leniency. Again, though, I have no clue as to what the odds really are, especially as I also said, the current Minister appears intent on stricter enforcement.

Beyond that I really do not know that much more than what is set out in ENF 23, and a few decisions in the Federal Court, plus a few other resources but to a lesser extent. There is significantly more discussion about losing PR status for failing to comply with the residency obligation in a number of IAD decisions, but those are mostly about appeals from the denial of a TD and it is clear that overseas visa offices tend to be tougher, more strict, so those cases tend to paint a bleaker picture than what you might encounter.

As to how POE officers respond to different reasons or explanations or what are otherwise H & C grounds, I do not know. I suspect it varies considerably. Could depend on what kind of day the officer is having, or on what the officer's initial impression of the PR is, and so on. Very difficult to predict these things when there is that kind of discretion.

Note, in particular: if you are given a Removal Order, probably best to see an attorney right away (assuming you can afford one).

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 dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 14 Aug 2012 at 12:33am
I should emphasize: again, the most receptive decision-maker in the process is, usually, the POE officer, or so the reports strongly suggest. So you want to be prepared to make your best argument when you arrive. Be a good idea to have documentation to back up the more important facts: a doctor's statement about your parent's health for example, along with some documentation showing relevant dates (relevant to whether you make a diligent effort to return to Canada at the first opportunity to do so), and so on. Make sure to have everything you might want to present at the POE in your hands . . . not in checked bags, but in something you are personally, physically carrying, so it is for certain with you, in your hands.
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 seeta Quote  Post ReplyReply Direct Link To This Post Posted: 18 Aug 2012 at 8:49pm
Thank you dpenabill. I will do my homework and present my best case to the POE officer hopefully he/she is sympathetic to my situation. I will let you guys know the outcome
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