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Appealing a Negative PR Status Decision

25/8/2017

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Over the last few weeks I have written about the legal obligations of PRs and maintaining your PR status. However, what are your appeal rights if a negative decision is made with regards to your PR status, either in Canada or at a Visa office abroad?


When and How to Appeal a Negative Decision
If a negative decision is made with regards to your PR Card renewal application and you are in Canada, you will be issued with an order to leave Canada. You have 30 days after you receive the negative decision to file an appeal with the Immigration Appeal Division (“IAD”). You cannot be removed from Canada during these 30 days and if you file an appeal you cannot be removed until a decision is made with respect to your appeal.


If a negative decision is made outside of Canada by a visa officer that you have lost your PR status, you have 60 days to appeal the decision to the IAD. If you would like to attend your hearing at the IAD, you may be able to apply for a travel document from the IAD. The IAD has the power to order that you be allowed to return to Canada to attend your hearing if you prove that it is necessary.


Filing an Appeal & Preparing for your Hearing
While it is possible to represent yourself in your appeal, this is a complicated legal process and the consequence of the final decision is that you may lose your PR status and be removed from Canada. Filling the form to register your appeal is a simple step but preparing your appeal and defending yourself at your hearing is anything but simple. I often meet appellants who come to me after their appeal has been refused, but at that point it is very difficult for us to change the decision. Therefore if you have an appeal you should ensure that you work with your counsel to make the strongest case possible and present all your evidence at your appeal hearing.


Depending on where you are, current wait times from receiving a hearing date range from 12 to 18 months. It is important to know that your ultimate chance of being successful in your appeal depends in part on what you do after your appeal is filed. Do you remain in Canada and become more established and committed to making Canada your permanent home? For example if you were not in Canada 730 days, remaining in Canada from the time you file your appeal up to your hearing date, and taking steps to become established, will assist you in proving that there are adequate Humanitarian and Compassionate grounds in your case.


It is crucial that you are well prepared for your hearing and file all documents you intend to rely upon within the set deadlines of the IAD. In some cases there are relevant witnesses that we want to bring to the hearing to support your appeal. Your appeal is your chance to present all your evidence to the IAD but it is also your last chance to present evidence. After your hearing you will not be able to present any new documents or information and your appeal will be decided based on the existing evidence.


Residency obligation appeals involve two parties: you and the Minister of Immigration’s counsel. You will be able to present all the relevant evidence and the Minister's counsel will have a chance to cross-examine you. You should also be prepared for the Minister's counsel to fight against your case and argue why you should not be allowed to remain a PR of Canada.


Possible Outcomes
Once your hearing has taken place you are faced with two possible outcomes. The IAD may grant your appeal based on legal grounds (for example the calculation of the number of days you were in Canada was incorrect), or on humanitarian and compassionate grounds (these grounds were discussed in depth in my article last week). Or if the IAD does not agree with your appeal they may hand down a decision where you lose your PR status and a departure order is issued against you. A decision of the IAD may be appealed to the Federal Court of Canada (by either party).


If you end up losing your PR status you will need to apply for a visa before travelling to Canada. Should you wish to become a PR again, you will need to qualify under one of the existing programs and submit a new application and start all over again.
​
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Humanitarian & Compassionate Factors in Retaining Permanent Residents Status

19/8/2017

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Last week I wrote about the residency obligation of Permanent Residents (“PRs”) to retain their status in Canada. What if there were special circumstances that prevented you from being able to meet your residency obligation? You may still be able to retain your PR status as the Immigration and Refugee Protection Act (“Act”) provides flexibility to officers to consider r humanitarian and compassionate (“H&C”) considerations related to your personal circumstances and in exceptional cases allow you to retain your PR status.

When making a PR Card or PR Travel Document application based on H&C grounds, you must be able to explain and prove the extenuating circumstances that prevented you from fulfilling the physical residence requirements. You may be allowed to maintain your PR status if the officer is satisfied that you have sufficient H&C grounds to justify your absences from Canada.

What are “Humanitarian & Compassionate” Considerations?
H&C grounds are factors that demonstrate why you have a compelling reason for not being able to remain in Canada for 2 out of 5 years needed to maintain your PR status. The Act does not provide an exhaustive list of H&C grounds and each application is assessed based on your unique circumstances. The following are some of the factors that may be reviewed when considering H&C grounds:
  1. Extent of your non-compliance with the residency obligation: How many have you been physically in Canada during the past 5 years? Did you or a close family member have a medical condition that required attention outside Canada and why could the medical condition not be treated in Canada?
  2. Circumstances beyond your control for not coming to Canada: Were there compelling circumstances, outside of your control, that led to you remaining outside of Canada? Did you return to Canada at the earliest possible opportunity? Did you leave Canada as a child while accompanying your parents?
  3. Your establishment in and outside Canada: Are you a permanent resident or citizen of a country other than Canada? What steps have you taken to establish in Canada permanently? What steps have you taken to sever ties with your country of origin? What linkages and ties have you maintained in Canada?
  4. Your current presence and the degree of consequential hardship if you lose your PR status: If you lose your PR Status will you have to voluntarily leave or be removed from Canada? What hardship will you or close family members face if you lose your PR status?

The immigration authorities will also consider the best interests of any child affected by the decision as being a potential H&C factor. For example, in the case of a father who has not met his residency obligation but his dependent children live in Canada the best interests of his children will be considered if they will be deprived of a relationship with him if he loses his PR status.


When can you introduce H&C grounds?
If you believe that there are sufficient H&C grounds in your case, you will have to provide explanations and documents to demonstrate these grounds as part of your PR Card renewal or PR Travel Document application. You can also provide evidence of H&C grounds if you are required to complete a residency questionnaire or are invited to an interview.

Officers are required to consider all the information and documents that you present in your application. However, they do not have an obligation to ask you for additional information and so the onus is on you to prove your case. Overall, your application must prove that (i) there are compelling H&C factors in your individual circumstances that justify retention of your PR status, (ii) why you were not able to comply with the residency obligation, and (iii) the extent of any hardship that the loss of PR status will cause you and your family members directly affected by the decision.

When an officer determines that H&C considerations relating to a permanent resident justify the retention of permanent resident status, this determination will overcome any breach you have of the residency obligation and you can retain your PR status.

Discretion of officers
If you do not meet the residency obligation and do not fall into one of the exceptions, there is no guarantee that the H&C grounds will be sufficient for you to retain your PR status. There are many cases where PRs have travelled to work overseas because they were not able to find suitable employment in Canada, but unfortunately this is not a sufficient ground for the exercise of this discretion. A positive decision on H&C grounds is an exceptional response to a particular set of circumstances.

Ultimately, a positive decision in such circumstances turns on the discretion of the officer and it is your responsibility to ensure that you are fully informed about the law and your situation and present the most complete and compelling case possible.

Coming Next: Right to Appeal
Next week I will be exploring the your appeal options in case of a negative decisions with regards to your PR status in Canada. ​
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Understanding Your “Permanent Residence” Status in Canada

14/8/2017

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Up to 300,000 people come to Canada as “immigrants” each year. When immigrants enter Canada for the first time, or “land” in Canada, they are processed and their information is taken to issue them with a permanent resident card. What is the legal status of immigrants and what are their legal rights and obligations as residents allowed to live permanently in Canada? No matter how welcoming the immigration officer at the airport or border is, there is no time for him or her to explain the intricacies of the immigration system to each new immigrant.

So what is your status as a permanent resident in Canada? In an effort to help you to better understand your status, below is a summary of the key points that immigrants must understand about their legal status in Canada, their rights and what they must do to maintain their status.

Legal Status
Immigrants to Canada are granted “permanent resident” or “PR” status when they land in Canada. However, they remain citizens of other countries.

Court cases over the past thirty years have established that PRs of Canada are protected under under the Charter of Rights and Freedoms, and are granted most of the same rights and freedoms, such as the right to life, liberty and security, equal treatment under the law, and so on. This means being free to choose where you want to live and what you do with your life in Canada. PRs also have the right to get most social benefits that Canadian citizens receive, including health care (e.g. OHIP coverage when you meet the provincial requirements). And once you meet the conditions, as a PR you may apply to become a Canadian citizen.

There are also a few critical limitations on PRs in terms of engagement in civic life in Canada. Only Canadian citizens are permitted to vote or run for public office, and in hold certain jobs that require a high-level security clearance. In return for the rights and privileges that you enjoy as a PR, you are required to respect all Canadian laws (federal, provincial and municipal). And unlike citizens, whose status as citizens is protected unless in cases where the citizenship was obtained by fraud, PRs can more easily lose their permanent residence status. For example, not meeting the residency obligation or being convicted for a serious criminal offence may result in you losing your PR status

Proof of Legal Status and Losing your PR Status
One of the biggest misconceptions is that when your PR Card expires you lose your PR status in Canada. PRs of Canada are issued with PR Cards and must carry their valid PR Card (or a PR Travel Document) when travelling to Canada by air or any other commercial carrier. However, a valid PR Card, or lack thereof, is not determinative of your status as a PR in Canada.

You can only lose your PR status if you go through an official process. For example if you apply to renew your PR card or apply for a PR Travel Document but do not meet the conditions, an adjudicator can determine that you are no longer a PR after an inquiry or appeal. Even if you did not meet the residency obligation for maintaining your PR status, you are still a PR until an official decision is made with regards to your status. Alternatively, you may renounce your PR status and no longer want to be a PR. And finally, once you become a citizen your legal status changes from PR to citizen.

Your Role in Maintaining your Legal Status
It is up to you to know your legal status and make efforts to maintain it. Being unfamiliar with the law or acting on incorrect information gathered from family or friends, or even unqualified representatives, is not an acceptance defence to not adhering to the law. The consequence of losing your status can result in you being removed from Canada. All the more reason for you to be proactive in maintaining your legal status in Canada.

Coming Next...
In the coming weeks I will explore the issues surrounding permanent residence including conditions and requirements when applying to renew PR cards, understanding residency obligations and what to do if you face a negative decision with regards to your PR status in Canada.  
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    Authors: 
    Zeynab Ziaie 
    Zahra Ziaie 

    Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case. 

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