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best plan to avoid being reported / cbsa records?

Discussion in 'Permanent Residency Obligations' started by ghlzbob, Jul 9, 2019.

  1. hi
    my pr card will expire in two month and i have only been 250 days in canada in the past 5 years.
    i plan to move permanently to Canada in a month
    1. Whats the best plan to avoid being reported ?
    2. does cbsa have records of all the exit dates? if they do, why in many court cases( as i found in https://www.canlii.org/en/ca/fct/doc/2018/2018fc361/2018fc361.html?) , the only acceptable document is passport stamps? and there are missing records for exits from canada in cbsa ??
     
  2. 1. There is no best plan. A lot of it comes down to luck (who is the CBSA officer you talk to when you try to re-enter).
    2. Not by default. It is possible for them to get some of that information if the pursue it hard enough.
     
  3. Well hopefully when the Entry/Exit Initiative is fully enforced, the days of people squeaking thru without being reported will be a thing of the past
    https://www.canada.ca/en/border-services-agency/news/2018/12/entryexit-initiative.html

    -Verify whether applicants for permanent residency or citizenship have complied with residency requirements

    Then everyone will be treated the same, there will be no grey area. You either have complied or not
     
    BenLinus6 likes this.
    1. Best plan is to be compliant with the RO
    2. CBSA/IRCC don't necessarily disclose all the records that are available to them through manifests, US immigration and other countries. If your residency is questioned or reported, it's your responsibility to prove you were in Canada during those periods. It's not up to them to prove you weren't in Canada. Its a matter of proving you weren't somewhere else/ Passport stamps are the most common method of proving where you were. Other can be pay stubs, banking transactions, employment records, etc.
     
  4. If you are a relatively new PR, less than five years since you landed, and you are in breach of the RO because you simply failed to make the move to settle in Canada sooner, the best you can do is (1) be totally honest in responding to questions at the PoE, and hope you are NOT referred to Secondary. If referred to Secondary (which seems likely), (2) continue to be totally honest in responding to questions, and (3) be prepared to fully explain your REAL REASONS for not coming and settling in Canada sooner, and HONESTLY explain your "plan" to settle in Canada permanently. And hope for leniency.

    Odds are probably NOT great, or even good, but Canada is NOT out to punish PRs just because they run into some difficulty making the move to settle in Canada. In regards to PRs, in particular, Canada (including CBSA and IRCC) are NOT about GOTCHA GAMES. Seems likely you are past the H&C leniency range but you can give it your best shot . . . and your best shot is about being totally upfront, honest, and giving a genuine explanation for why it has taken so long for you to come to Canada to settle.

    IF IN CONTRAST you landed and became a PR longer ago, before 2014 say, my sense is that the extent of the breach of the RO offers you VERY LITTLE chance of saving your PR status.



    THE LONGER EXPLANATION:

    I largely concur in the previous posts above . . .

    . . . except I doubt that the Entry/Exit initiative will entirely eliminate any so-called "grey area" in PoE screening of PR-travelers, especially as to PIL inspections. Which is a tangent I'll skip for now.

    Foremost there is NO guarantee your "plan" (to move to Canada permanently) can succeed. You are in breach of the PR Residency Obligation, and thus "inadmissible," and given the extent of the breach the odds are likely you will lose PR status (absent compelling H&C reasons justifying a waiver of the breach).

    The "best plan to avoid being reported" is NOT available in your scenario. The best plan to avoid being reported is easy (but must precede being in breach of the RO): spend at least 730 days IN Canada within any and EVERY five year time period after the day of landing.

    The second best plan also appears to NOT be available, and that is to have established IN FACT residence in Canada and maintain that residence even if spending considerable time outside Canada to the extent there is a breach of the RO. (There is no guarantee this plan will succeed, since any breach of the RO entails a risk of losing PR status, but PRs who actually have established long-term residence in Canada may have a fair shot persuading CBSA or IRCC officers they deserve an opportunity to keep their PR status.)

    Of course I recognize your question is mostly about how to present yourself upon arrival at a PoE so that you will be allowed to enter Canada without being issued a 44(1) Report for inadmissibility due to the failure to comply with the PR RO, DESPITE the fact you are in breach of the RO. However, given the extent to which you have not complied with the RO there is NO real plan for accomplishing this . . . although the sooner you arrive, the better (caveat: probably not a whole lot better, given the already big breach of the RO).

    Note, in case there is some temptation lurking in the back ground, since changes adopted during the Harper administration, misrepresentations made during the course of PoE examinations by returning PRs can now be grounds for terminating PR status (based on inadmissibility for misrepresentations made in the course of obtaining entry into Canada), with NO time limit. And are punishable criminally (though the latter does not happen often).

    Which leads to your second question:

    2. does cbsa have records of all the exit dates?

    This question raises an important preliminary question and requires some preliminary observations.

    WHY is this question being asked?

    If it is about trying to quantify the risk of a referral to Secondary and there examined about RO compliance, other factors will have far more influence in how it goes at the PIL (Primary Inspection Line) . . . and as others suggest more than I do, this can involve a measure of LUCK.

    Overall, presenting a valid PR card tends to lower the risk a PIL officer will make a referral to Secondary for RO compliance questions. But in most cases where there is a substantial breach of the RO (as there is in your instance), there is enough information on the screen to alert the PIL officer to trigger a referral (even if sometimes they don't). As already noted, however, the odds are PROBABLY (we do not really know, as there are no statistics to illuminate the probabilities) NOT favourable; the odds PROBABLY lean well toward there being a referral to Secondary, and in Secondary you will very likely be asked questions about RO compliance.

    Let's be clear, in a PoE examination the traveler is required, by law (punishable criminally as well as subject to punitive consequences under IRPA), to TRUTHFULLY answer any and all questions. So it does NOT really matter if CBSA has easily accessed records which will fully reveal all a PR's travel dates. The PR MUST truthfully answer any and all questions about travel dates. You were there, each and every time, so of course you are the one person in the whole world who has for-sure access to all that information, all those dates. Whether or not the examining officer has access to ALL your travel history, the officer has enough access to enough history, especially in conjunction with other information, the odds are high that any substantial misrepresentations (including by omission) will be caught or at least suspected enough to steer the process in a direction that will NOT bode well.

    So the biggest factor in how it goes is whether or not you are questioned about RO compliance. There is some possibility that upon presentation of a valid PR card (either at a kiosk or to a PIL officer) you will be waived through the PoE and thus NOT questioned, let alone challenged, about compliance with the RO. But as noted, the odds tend to suggest you will be referred to Secondary and in Secondary questioned about information related to RO compliance, perhaps required to complete a written questionnaire about relevant information (travel history, work or school history, address history, and such). And if that happens, you will most likely be issued a 44(1) Report for Inadmissibility.

    It warrants repeating: Since you were personally there each and every time you exited Canada, and you were personally there each and every time you entered Canada, YOU ARE THE ONE PERSON IN THE WHOLE WORLD WHO CAN HAVE FOR-SURE ACCURATE INFORMATION ABOUT THOSE DATES. And you are required to honestly, that is truthfully, respond to any questions about your travel history. If the PR fails to provide this information (that is, if CBSA officers discern the PR cannot be relied upon to truthfully and completely provide this information), things tend to go badly. REMEMBER: burden of proving compliance with the RO is always on the PR.


    Which leads to the second part of your second question:

    2. [if CBSA has complete exit data], why in many court cases( as i found in https://www.canlii.org/en/ca/fct/doc/2018/2018fc361/2018fc361.html?) , the only acceptable document is passport stamps? and there are missing records for exits from canada in cbsa ??

    It appears you misunderstand Justice Barnes' decision. Justice Barnes emphasizes there are OTHER sources of information which MUST be taken into account when calculating a PR's account of days present in Canada. Officers CANNOT rely on passport stamps alone. For Morelly, in particular, Justice Barnes ruled a Citizenship Judge could not ignore, for example, the evidence of Morelly's MSI records (billing dates for Nova Scotia medical services), as evidence tending to show Morelly was in fact present in Canada during those periods of time.

    To be clear, this goes BOTH ways. Which is why residency related questions, attendant citizenship applications OR PR RO compliance inquiries, require the PR to declare address history and work history as well as travel history. The ABSENCE of information corroborating presence can weigh as heavily against the PR as Justice Barnes was stating that the presence of evidence corroborating presence (like seeing a doctor in Nova Scotia) can weigh in favour of the PR.

    Many IAD and Federal Court decisions explicitly state that decision-makers cannot rely ONLY on what is shown by passport stamps. Other evidence is relevant and must be considered. And again, this goes both ways. For the PR who has other types of information tending to show presence in Canada, that will weigh in the PR's favour. BUT the PR who has a dearth of evidence corroborating presence in Canada tends to NOT be believed if the PR otherwise claims to have been IN Canada.
     
    trebus and ghlzbob like this.
  5. thanks for the replies
    here is what happened
    my pr expired at 3rd Sep
    i arrived at Toronto Pearson at evening of 1st Sep, not a busy time
    i went to automatic kiosks
    i had two YES on my form (+10000C$ and restricted food)
    first officer sent me to second officer without asking much
    second officer asked some questions about my money, its amount/source . made me sign some papers about it.
    then he asked when was the last time you were in Canada?
    i answered +3 years ago,
    he asked do you know anything about RO?
    i said yes but i have family situation.

    he said thanks for your honesty

    then he just said BE CAREFUL.
    and that was it all !!!!

    i think i was lucky that day !
     
  6. It is always so reassuring to know that the CBSA once again is on the ball doing their job
     
    canuck78 likes this.
  7. I concur, it is indeed likely you were lucky.

    But as I oft observed before, the Canadian immigration system allows for some rather lenient flexibility and for PRs this is particularly the case, especially IF and WHEN IT APPEARS THE PR IS MAKING A DILIGENT EFFORT TO ACTUALLY COME TO CANADA TO LIVE. As I further observed about this particular situation: the way in which Canada enforces the PR Residency Obligation is NOT about GOTCHA GAMES.

    In particular, I previously observed:

    Contrary to what some believe the policy should be, once Canada has approved an individual for permanent residence, the actual practical policy is to be flexible in allowing the immigrant an opportunity to make the move. This is reflected in the rules themselves, allowing new immigrants to effectively delay settling in Canada for up to THREE YEARS without ANY QUESTIONS, NONE at ALL, as to why it has taken so long to come to Canada to stay.

    If it takes longer than three years, the officers charged with enforcing the laws and rules nonetheless still have very broad discretion to be lenient and still allow a new PR an opportunity to keep PR status and settle in Canada permanently.

    The actual amount of discretion employed for someone who is clearly in breach of the RO varies widely. There is NOTHING wrong about this so long as those exercising such discretion do not engage in prohibited discrimination.

    Of course the range of discretion actually exercised varies so widely it is very, very difficult for those in breach of the RO to predict how things will go. But there is little doubt: once in breach, there is a real risk of being reported. The more in breach, the greater the risk. The reasons for the breach, however, can also be a big factor, especially for relatively new (less than five years or thereabouts) PRs.

    And of course the personal inclinations of the officer encountered can have a big impact. This falls under the rubric, so to say, of what is lucky or unlucky (recognizing that some PRs just a few weeks in breach are reported, while others much, much more in breach are given a pass).

    There are real reasons why there are extensive discussions in this forum about what to do if and when a PR in breach is allowed to enter Canada without being reported. Because this is indeed a common scenario. But no one in breach is guaranteed entry without being reported. And this particular situation appeared to be on the very-poor-odds side of the equation. But as this report illustrates, it happens.

    MOREOVER, however, THERE IS RATHER LOW RISK allowing such a PR into Canada without being reported poses any serious undermining of the Canadian immigration system. I cannot begin to second guess the Border Officer's reasons. I cannot read the Border Officer's mind. BUT it is easy to recognize some salient factors which could influence the decision. AFTER ALL, there is very little chance @ghlzbob can proceed to abuse the system to keep PR. AFTER ALL, @ghlzbob's options going forward are VERY limited. There is little or no chance @ghlzbob can apply for and obtain a PR card without first settling and STAYING here for at least the next year and a half (and it would be unwise to apply for a new PR card without first staying a full two years) UNLESS there are compelling H&C reasons justifying the retention of PR status. And if @ghlzbob does NOT settle and stay long enough to get a new PR card, @ghlzbob will need to apply for and obtain a PR Travel Document to board a flight to Canada, which will necessarily result in a formal determination as to compliance with the Residency Obligation and it will do so in circumstances further reducing the odds of a favourable decision (unless in the meantime @ghlzbob has settled and remained in Canada a significant period of time). Or, if @ghlzbob leaves Canada and is able to travel back to Canada via the U.S., that is without applying for a PR TD, if there is another PoE examination that one will be without a valid PR card and again the odds of a favourable decision (again, unless in the meantime @ghlzbob has settled and remained in Canada a significant period of time) will be considerably worse.

    Basically the PoE officer could easily conclude that either @ghlzbob will settle and remain in Canada, consistent with the purpose for which PR was granted, OR if not, that will be readily apparent and subject to examination the next time @ghlzbob attempts to return to Canada. THEREBY SATISFYING THE ESSENTIAL PURPOSE OF PR and THE RESIDENCY OBLIGATION. Therefore why not let this PR in and see how it goes?

    Of course there tends to be no shortage of anti-immigrant sentiment, even in a country as open-minded as Canada, so it is no surprise to see views expressing a preference for the strict application of rules which would result in precluding the settlement of this or that immigrant. This may even be an increasing trend. Some even advocate even stricter rules, not just stricter enforcement of the existing rules.
     
  8. Don’t feel like it is anti-immigrant sentiment to be outraged that many CBSA agents don’t enforce the very lenient RO. Why have rules if they are not enforced. Since they aren’t enforced more and more people aren’t worried about meeting their RO. Our RO and citizenship rules are very easy to meet. Is it too much to ask that people follow the rules? I am very far from being anti-immigrant. Canada needs immigrants and is a great country due to it’s diversity but it is bothersome to see people constantly not follow rules and CIC and CBSA rarely enforce them.
     
  9. The relevant policies and the way they are enforced are quite well known.

    The decision discussed here falls well within those parameters and does NOT indicate any exploitation or abuse of the system. As I noted, after all there is very little risk that @ghlzbob will succeed in exploiting or abusing the system in any way that is inconsistent with the purpose of either PR itself or the PR Residency Obligation (see previous post for explanation of this).

    The scope of flexibility, incorporating a wide range of possible leniency, is hard-wired into the law and policy. That is the current law. The outcome here is entirely consistent with that.

    I did not mean to label or describe anyone in particular as harbouring anti-immigrant sentiment. Not you. Not anyone else in particular.

    I specifically referred to "views expressing a preference for the strict application of rules which would result in precluding the settlement of this or that immigrant." I do not know how many immigrants one wants to preclude from settling in Canada it takes to constitute being anti-immigrant. Just one, by definition, is anti-that-one-immigrant. Advocating general policies that will preclude more immigrants from settling and remaining in Canada definitely smells like an anti-immigrant sentiment.

    But who in particular is anti-immigrant is not for me to judge (unless they are running to be elected to office in Canada).

    Obviously I tend to appreciate if not applaud Canada's general approach in favour of immigration. To the extent I have an ideology, it is one very much in favour of diversity. In the meantime I apprehend an escalating trend of sentiments to the contrary. I love this country and its values. Including its diversity. Thus, while generally I avoid engaging much in addressing what-the-law-should-be, or what-the-policy-should-be, it being more than enough to keep up with what the law and policy actually is, as best we can figure it out, I do occasionally make observations opposing anti-immigrant sentiments.

    This does not mean I condone, let alone encourage, an approach which allows individuals to exploit or abuse the Canadian immigration system. Quite the contrary.

    So far as I can discern, the PoE decision discussed here in no way undermines the appropriate enforcement of Canadian immigration law or policy. On the contrary, as I addressed in some depth above, it appears to be a decision fully within the scope of the law and its purposes.

    Criticism of that decision raises some question about why. Those who criticize the PoE decision on the basis that a more strict application of the rules would result in precluding this particular immigrant from settling and staying in Canada still leaves open the question about why should this particular immigrant, or others similarly situated, be precluded from a life in Canada.

    For certain, we know that Canada does NOT apply the rules in a strict-technical way. Some may prefer that. Still, why would they prefer a more strict, technical application of the rules? Why does the current approach, the current policy, fail to meet what should-be-the-rules?

    Those who disregard such questions during the upcoming Federal election will play into the hands of more than a few Conservatives who work hard to shroud their all-too-real anti-immigrant sentiments (if not their actual agenda) in carefully coded messaging. Obviously I will be advocating for the-other-guys (so to say, no gender intended).

    I say this acknowledging that of course there are more than a few who do exploit and abuse the Canadian immigration system. And I acknowledge that their efforts can benefit from a more thorough explication of how the rules actually work, enabling them to find and exploit loopholes and workarounds. To my view that does not warrant restricting the flow of information. As things are wont to be, sometimes the bad comes with the good.

    There is, however, no good reason to think the decision made by the PoE officer here discussed was a bad decision.
     

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