PR obligation not met - help needed!

[dorking]

Hi!

I've lost my PR card which would be expired in 2023, and I have an oath ceremony as the final part of my citizenship application in order to become a citizen.
Submitted a PRTD. The officer was not satisfied that I've met the residency obligation. I've submitted an appeal but that process might take over a year!

(btw As part of my PRTD I've submitted a CBSA document from 2021 proving that I landed in 2016 and 2019.
The officer accepted banking documents proving that I was in Canada at the end of 2017 and the end of 2020, but didn't give me any credit for the CBSA document.
Given that CBSA records all entries to Canada, meaning that I couldn't enter Canada between those dates, how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates? The IRCC officer gave no explanation. For example, if I landed in Feb 2016 according to CBSA with no other entry and proved (banking document) that I was in Canada in OCT 2017, shouldn't I be credited for the entire Feb-2016-OCT-2017 period? Also, the officer wrote that a rent agreement by my landlord isn't proof [even though it's on the shortlist of accepted documents for PRTD] and didn't provide any explanation!!).

Citizenship oath is only valid if sworn on Canadian soil. I wasn't in Canada for 1 year and 2 weeks (which is over one year) when submitting the PRTD so I cannot apply for a temporary PRTD to enter Canada until the hearing. What are my options now?

 

[dpenabill]

Hi!

I've lost my PR card which would be expired in 2023, and I have an oath ceremony as the final part of my citizenship application in order to become a citizen.
Submitted a PRTD. The officer was not satisfied that I've met the residency obligation. I've submitted an appeal but that process might take over a year!

(btw As part of my PRTD I've submitted a CBSA document from 2021 proving that I landed in 2016 and 2019.
The officer accepted banking documents proving that I was in Canada at the end of 2017 and the end of 2020, but didn't give me any credit for the CBSA document.
Given that CBSA records all entries to Canada, meaning that I couldn't enter Canada between those dates, how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates? The IRCC officer gave no explanation. For example, if I landed in Feb 2016 according to CBSA with no other entry and proved (banking document) that I was in Canada in OCT 2017, shouldn't I be credited for the entire Feb-2016-OCT-2017 period? Also, the officer wrote that a rent agreement by my landlord isn't proof [even though it's on the shortlist of accepted documents for PRTD] and didn't provide any explanation!!).

Citizenship oath is only valid if sworn on Canadian soil. I wasn't in Canada for 1 year and 2 weeks (which is over one year) when submitting the PRTD so I cannot apply for a temporary PRTD to enter Canada until the hearing. What are my options now?

I do not have good news. Sorry.

Overall:

Given the decision that terminates your PR status (the denial of the application for a PR Travel Document), there is very little prospect of taking the oath and being granted citizenship EVEN IF you could make it to Canada sometime soon. Basically you need to win the appeal to be eligible for taking the oath and to become a citizen.

Moreover, you need to win the appeal to save PR status. So, if keeping status in Canada is important for you, your priority needs to focus on winning the appeal (or convincing the Minister to otherwise set aside the decision denying the PR TD) so you can keep PR status.

Time to lawyer-up if you can afford and arrange it (from abroad).

Further Observations and Explanation (the long read):

I hesitate to get into the details regarding the facts (but I will, at least some, in a separate post). Assuming your version of the facts is accurate does not change the current status of your case.

In particular, whether the decision to deny the PR TD is valid in law, supported by the facts, is for the IAD to consider and determine in the appeal. As you are aware, that is likely to take many months, at the least, and potentially a year or more. A favourable outcome will save your PR status but probably not come in time to save your citizenship application (although IRCC could suspend the citizenship application pending the outcome of your appeal, and if you win the appeal IRCC might proceed to complete the process in which you take the oath and are granted citizenship).

Errors in adjudication (judicial or, as in your situation, administrative) occur. That is why there is a right of appeal. So everyone has an opportunity to get wrong decisions fixed.

If you have compelling evidence documenting your presence and showing that this decision was an egregious abuse of discretion constituting a flagrant injustice, it may be possible to plead your case directly to the Minister, petitioning for extraordinary, discretionary relief. I have no idea how that is done but have seen media reports of something like that in at least one case. A Canadian lawyer would be a far better source of information and advice about that than this forum.

Frankly, however, that is probably the longest of long shots. Upside is that could save your citizenship application and allow you to proceed to take the oath upon returning to Canada. Downside, yep, is that is the longest of long shots, meaning the probability is this is not likely to work for you. Probably not close. Sorry.

Which leads back to saving PR status. Which is about winning the appeal. Which may depend on the strength of the evidence documenting your actual presence in Canada. It may also depend on the procedural fairness of the visa office decision.

Before getting into that, there is the matter of returning to Canada.

Returning to Canada in the meantime: If you are able to travel to the U.S., you could do that and travel to a land border crossing into Canada, where you MUST be allowed to enter Canada as long as your appeal is still pending. You are still a PR, even though you are "inadmissible" for failing to comply with the PR Residency Obligation (as adjudicated by a visa office abroad), you are still a PR entitled to enter Canada.

If you can do this, get to Canada via the U.S., it is not likely you would then be allowed you to take the oath and become a citizen. But it could be important for multiple reasons. It may make the difference between the citizenship application getting dismissed as abandoned versus suspending it pending the outcome of the appeal (this is getting into details about the procedure that is difficult to forecast), so you could possibly still take the oath later without having to start the citizenship application over again.

Perhaps the more important thing about being back in Canada, if possible, is that it could help make the case that you deserve to keep PR status based on H&C grounds IF the appeal fails to convince the IAD the visa office decision was not valid in law.



Back To Winning the Appeal of the Decision Denying a PR TD:

There are basically three ways to win the appeal to the IAD, and thereby save your PR status:

-- show the IAD that the decision by the visa office was not valid in law, either because​

-- -- it was wrong on the facts, or​

-- -- it was procedurally unfair or otherwise improper​

-- persuade the IAD that you should be allowed to keep PR status for H&C reasons​

Since your position is that the decision was wrong on the facts, I will set the H&C case aside. It warrants noting, however and with some emphasis, that very few IAD appeals are won based on a finding that the visa office decision was not valid in law (they tend to know what they are doing); the vast majority of successful appeals are based on H&C relief.

The procedural unfairness basis for allowing the appeal does not depend on you showing that the facts show you were actually in compliance with the PR Residency Obligation. If, as you appear to be suggesting, the visa office's decision was inconsistent with its own determinations of fact, that would be procedurally unfair and a sufficient ground for setting aside the decision denying you a PR TD, allowing you to keep PR status. That noted, I will not attempt to unravel the visa office's decision-making. That would be digging into details better for lawyers or at least experts. I am NOT an expert. The claim the decision was procedurally unfair does not succeed very often, in significant part because, as I noted, they usually know what they are doing, better than a lot of people give them credit.

That leaves us with the question about what the facts are. The IAD will consider evidence and make a decision "de novo," meaning a new decision based on the evidence before the IAD. If your evidence was not sufficient to persuade the visa office you were, actually, in Canada for at least 730 days within the previous five years, as of the day you applied for the PR TD, you will have the opportunity to present additional evidence to prove that fact.

Which leads this back to the facts. I was reluctant to get into the facts. For lots of reasons. At this juncture, for you, there are other more pressing matters and getting into the facts is likely to be a distraction. For you, digging into the facts is probably something you need to do with a qualified lawyer.

But I will make some observations about the facts, to be addressed in a separate post.

 

[scylla]

Hi!

I've lost my PR card which would be expired in 2023, and I have an oath ceremony as the final part of my citizenship application in order to become a citizen.
Submitted a PRTD. The officer was not satisfied that I've met the residency obligation. I've submitted an appeal but that process might take over a year!

(btw As part of my PRTD I've submitted a CBSA document from 2021 proving that I landed in 2016 and 2019.
The officer accepted banking documents proving that I was in Canada at the end of 2017 and the end of 2020, but didn't give me any credit for the CBSA document.
Given that CBSA records all entries to Canada, meaning that I couldn't enter Canada between those dates, how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates? The IRCC officer gave no explanation. For example, if I landed in Feb 2016 according to CBSA with no other entry and proved (banking document) that I was in Canada in OCT 2017, shouldn't I be credited for the entire Feb-2016-OCT-2017 period? Also, the officer wrote that a rent agreement by my landlord isn't proof [even though it's on the shortlist of accepted documents for PRTD] and didn't provide any explanation!!).

Citizenship oath is only valid if sworn on Canadian soil. I wasn't in Canada for 1 year and 2 weeks (which is over one year) when submitting the PRTD so I cannot apply for a temporary PRTD to enter Canada until the hearing. What are my options now?

Generally speaking, the citizenship process is put on hold if there's a concern you don't meet RO.

Right now the only way for you to re-enter Canada would be to fly to the US and then re-enter through a US/Canadian land border using your COPR. (But again, even if you were allowed into Canada, I don't think the citizenship oath would happen. That process is now on hold.)

You need to focus on the PRTD appeal and proving residency.

Rental agreements on their own generally aren't accepted as proof someone was physically in Canada since it's very easy to rent a place but not actually live there. You want to supplement this with other evidence. Were you working in Canada during that time? Can you provide pay slips, T4s, NOAs, etc.? Were you attending school in Canada at that time? If so, can you get a letter from your school confirming this and that it was an in person program? Did you use provincial health care while in Canada during this time? If so, request those records. Did you just provide banking records or did you provide detailed credit card records that show individual transactions? Detailed credit card statements can be useful since they can show that you were using your card in Canada on specific days. Those are some of my suggestions.

 

[dpenabill]

Upfront disclaimer: I come to this part of the discussion with a bit of a bias, a bit of an agenda. I often seem to be a lone voice in this forum cautioning citizenship applicants that living abroad after applying increases the RISKS of running into problems. Meanwhile, I also seem to be swimming against the tide in cautioning both PRs and citizenship applicants that the inference of presence in Canada between a known date of entry and the next reported date of exit should NOT be taken for granted. Not everyone gets the benefit of that inference.

I enjoy trying to help people better understand how the system works, and illuminating what might help people better navigate their way through the process. But I have devoted some extra time and effort here, in particular, because the situation illustrates aspects of the process which can be so incredibly important:

-- recognizing the RISKS of living abroad while an application for citizenship is pending, and​

-- better understanding the burden of proof as to presence in Canada, for both PRs relative to documenting PR Residency Obligation compliance, as well as PRs applying for citizenship needing to prove actual physical presence​

Submitted a PRTD. The officer was not satisfied that I've met the residency obligation. I've submitted an appeal but that process might take over a year!

(btw As part of my PRTD I've submitted a CBSA document from 2021 proving that I landed in 2016 and 2019.
The officer accepted banking documents proving that I was in Canada at the end of 2017 and the end of 2020, but didn't give me any credit for the CBSA document.
Given that CBSA records all entries to Canada, meaning that I couldn't enter Canada between those dates, how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates? The IRCC officer gave no explanation. For example, if I landed in Feb 2016 according to CBSA with no other entry and proved (banking document) that I was in Canada in OCT 2017, shouldn't I be credited for the entire Feb-2016-OCT-2017 period? Also, the officer wrote that a rent agreement by my landlord isn't proof [even though it's on the shortlist of accepted documents for PRTD] and didn't provide any explanation!!).

A big flaw in your premises is in regards to this:

"Given that CBSA records all entries to Canada, meaning that I couldn't enter Canada between those dates, how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates?"​

Canada is a very easy country to enter or exit without CBSA capturing a record of it. So no, there is no presumption that CBSA records "all entries" into Canada. It almost always captures a record for legal entries. But the border is woefully porous and there are far too many not-so-lawful means of manipulating the system. So, again, there is no presumption that CBSA records "all entries" into Canada.

On the flip side, whether in regards to showing presence in Canada for purposes of the PR RO or to qualify for a grant of citizenship, the burden of proof of actual presence is on the PR. An inference of presence has limited weight.

Most PRs benefit from an inference they were IN Canada between a known date of entry and the next known date of exit, or at least the next documented date they were in Canada. This inference is taken for granted by many.

But in terms of "proof," a CBSA record of a PR's entry on a given date only actually directly proves the PR was in Canada THAT DAY, NOT the next day, let alone the next week or month.

So, you ask "how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates?"

I cannot speak for the visa office. I will not try to second guess their reasoning. I can, however, caution that to persuade the IAD that you were IN Canada on the "dates between [your] entries to Canada and the banking documents dates" you may need additional evidence showing actual presence IN Canada during that time.

I will also caution that banking records tend to be relatively weak evidence unless corroborated by other direct evidence of actual presence IN Canada.

All of which is subject to what a lawyer advises. "Proof" can be tricky. If you have substantial other evidence to show you were actually IN Canada during those periods of time (say documentation from an employer in Canada showing you were working IN Canada during that time, or such) , and can present that to the IAD, that should make the difference, or at least really help to make the case. But absent direct proof of actual presence periodically during those periods of time, such as from February 2016 to October 2017, you probably need a lawyer to help you put the case together to present to the IAD. After all, what will probably matter most to the IAD is whether the amount of evidence presented meets the burden of proving you were actually IN Canada during those periods of time.

That said, of course what ultimately matters is whether you were in fact IN Canada during those periods of time. I do not mean to doubt you. But evidence is one thing. Inferences based on this or that evidence is another thing. Overall, nonetheless, you will need the evidence, and the availability and persuasiveness of the evidence will almost certainly depend on the actual facts.

 

[dorking]

Upfront disclaimer: I come to this part of the discussion with a bit of a bias, a bit of an agenda. I often seem to be a lone voice in this forum cautioning citizenship applicants that living abroad after applying increases the RISKS of running into problems. Meanwhile, I also seem to be swimming against the tide in cautioning both PRs and citizenship applicants that the inference of presence in Canada between a known date of entry and the next reported date of exit should NOT be taken for granted. Not everyone gets the benefit of that inference.

I enjoy trying to help people better understand how the system works, and illuminating what might help people better navigate their way through the process. But I have devoted some extra time and effort here, in particular, because the situation illustrates aspects of the process which can be so incredibly important:

-- recognizing the RISKS of living abroad while an application for citizenship is pending, and​

-- better understanding the burden of proof as to presence in Canada, for both PRs relative to documenting PR Residency Obligation compliance, as well as PRs applying for citizenship needing to prove actual physical presence​

A big flaw in your premises is in regards to this:

"Given that CBSA records all entries to Canada, meaning that I couldn't enter Canada between those dates, how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates?"​

Canada is a very easy country to enter or exit without CBSA capturing a record of it. So no, there is no presumption that CBSA records "all entries" into Canada. It almost always captures a record for legal entries. But the border is woefully porous and there are far too many not-so-lawful means of manipulating the system. So, again, there is no presumption that CBSA records "all entries" into Canada.

On the flip side, whether in regards to showing presence in Canada for purposes of the PR RO or to qualify for a grant of citizenship, the burden of proof of actual presence is on the PR. An inference of presence has limited weight.

Most PRs benefit from an inference they were IN Canada between a known date of entry and the next known date of exit, or at least the next documented date they were in Canada. This inference is taken for granted by many.

But in terms of "proof," a CBSA record of a PR's entry on a given date only actually directly proves the PR was in Canada THAT DAY, NOT the next day, let alone the next week or month.

So, you ask "how is it possible that I wasn't credited for the dates between my entries to Canada and the banking documents dates?"

I cannot speak for the visa office. I will not try to second guess their reasoning. I can, however, caution that to persuade the IAD that you were IN Canada on the "dates between [your] entries to Canada and the banking documents dates" you may need additional evidence showing actual presence IN Canada during that time.

I will also caution that banking records tend to be relatively weak evidence unless corroborated by other direct evidence of actual presence IN Canada.

All of which is subject to what a lawyer advises. "Proof" can be tricky. If you have substantial other evidence to show you were actually IN Canada during those periods of time (say documentation from an employer in Canada showing you were working IN Canada during that time, or such) , and can present that to the IAD, that should make the difference, or at least really help to make the case. But absent direct proof of actual presence periodically during those periods of time, such as from February 2016 to October 2017, you probably need a lawyer to help you put the case together to present to the IAD. After all, what will probably matter most to the IAD is whether the amount of evidence presented meets the burden of proving you were actually IN Canada during those periods of time.

That said, of course what ultimately matters is whether you were in fact IN Canada during those periods of time. I do not mean to doubt you. But evidence is one thing. Inferences based on this or that evidence is another thing. Overall, nonetheless, you will need the evidence, and the availability and persuasiveness of the evidence will almost certainly depend on the actual facts.

First of all, thank you so much for taking your time and clarifying some things for me! I appreciate it.
I still find it weird that the officer didn't bother to clarify anything, especially since we are talking about life-changing decisions.

You said that IRCC officers know what they are doing, so...
Here is an interesting quote by the decision making officer:
"The CBSA document you provided is also useful but does not include departures dates and, as such, cannot be used in itself to meet the 730 threshold. We would accept its use in conjunction with other documents, such as banking, doctor’s letter, employment data, entry stamps in an old passport (or migration report from other countries), boarding passes, airline tickets, etc."

The interesting part? She wrote it while accepting a banking document, the one that I mentioned.
This sentence makes no sense to me given the context, eg while accepting a banking document, claiming that the CBSA document can be only accepted in conjunction with a banking document! Am I missing something here?

You mentioned that legal entries are usually recorded, which is consistent with https://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/pia-efvp/atip-aiprp/thr-rav-eng.html - "Traveller entry information is available for entries made on or after August 1, 2000 by all travellers entering Canada.".
So to my understanding, to not accept the inference of evidence as stated equals saying that I somehow made an illegal entry.
To my understanding, the constitution forbids accusing someone of illegal activity without a shred of evidence.
Innocent until proven otherwise applies to everyone, including total foreigners,PRs etc.
Or am I wrong, and within this process, I can be accused of such illegal behavior, found guilty, with a verdict that I'm no longer PR, all by the same person and without proof to an event that never happened?

By the way, yes I lived in Canada at those time periods, but cannot show employment records: I've studied toward a degree that I completed abroad, and then built an app (on which I'm still working btw). And with the 2023 PR card I also lost my passport...

You said that my oath will not happen until I'll win the appeal.
If you can expand on what makes you think so, it will be super helpful when it comes to what I do next.
Specifically, in a recent email from IRCC (after I clarified that I'm abroad, over a month after the PRTD story), here's what I got in an email:
"Please note that whereas your citizenship test can be completed from abroad, your citizenship oath is only valid if sworn on Canadian soil. This means that once you pass your citizenship test, we will await proof of your return to Canada before we schedule your citizenship ceremony."
So, it sounds like once they have proof that I'm in Canada, I will be able to participate in the online oath ceremony.
If this is wrong, I really need to know.

Finally, you said that I can enter Canada from the US border.
How can I do that? From CBSA's website, I understood that I need a valid travel document.
That would be the PRTD, right? and while applying for an Electronic Travel Authorization(as a tourist), I need to state that I applied for PR (which I am) and citizenship, the PRTD request will pop up, and the request will be denied.