In other words: even with a PR card, and with all the right of Permanent Residency, admission to Canada is highly subjective and is based at the discretion of the CBSA agent.
Does the "reasons-to-question-presence" reflect a set protocol or rules, or is it also highly discretionary?
NO, for a PR it is
NOT the case that "
admission to Canada is highly subjective and is based at the discretion of the CBSA agent."
In contrast,
a PR is statutorily ENTITLED to entry. When a PoE officer has sufficiently established the identity of a traveler AND determined that traveler is a Canadian Permanent Resident, the traveler MUST BE ALLOWED to ENTER Canada.
That does NOT preclude an examination as to Residency Obligation compliance, and potential process for PRs determined to NOT be in compliance with the RO. But even if examining CBSA officer AND the Minister's Delegate (typically just another designated CBSA officer) concludes the PR is inadmissible, the PR is still entitled to enter Canada. 44(1) Reports and Removal Orders based on a breach of the RO are discussed at-length and in-depth in many other topics here.
Reasons-to-question-presence:
The phrase "
reasons-to-question-presence" is DESCRIPTIVE not a formal IRCC term. My use of this phrase derives from the actual language used in older operational manuals and bulletins. Until 2012, for example, the operational manual "CP - 5 Residence" prescribed guidelines for assessing residency in citizenship application processing, in which the appendix specifically referred to a number of enumerated "reasons to question residency." For another example, IRCC information referencing a similar process implemented to replace "CP - 5 Residence" listed particular "triage criteria" and while I forget the precise words used, in effect also referred to these as reasons to question or suspect the applicant's residency. Another example, operational bulletins regarding procedures such as "counter-referral" interviews (conducted when a PR is required to pick up a new PR card in person rather than having it mailed to the PR) similarly describe criteria, factors, or reasons, for making a counter-referral for further processing, due to concerns about the PR's residency or presence, rather than delivering the new PR card.
Overall, it is clear that in various forms and language, CIC/IRCC and CBSA have used more or less general and particular criteria to screen individuals as to their accounting of residency or presence in Canada, where residency or presence are relevant. At times the criteria has been remarkably broad and swept scores and scores of PRs and citizenship applicants into non-routine processing related to questioning the individual's residency or presence.
It has been awhile since I pursued, through the ATI procedure, obtaining internal CIC/IRCC information regarding residency related matters. So I am not personally acquainted with the particular criteria now used to screen PRs. It is highly likely, however, the current criteria is very similar to that used in the past (since it has mostly been about factors which rather obviously relate to the credibility and accuracy of the PR's information). How much flexibility or discretion is employed in the screening process is particularly difficult to discern. For citizenship applications it is apparent that the criteria is NOT employed anywhere near so strictly or narrowly as it was when Harper was the PM . . . and especially so compared to the screening done in the 2011 to 2013 period (when the criteria was so narrowly and strictly applied a very high percentage of citizenship applicants ended up with RQ and a process that took well over two years, and three to four years for many).
In my personal observations about residency/presence issues, I also consider what I have learned from IAD and Federal Court cases as to the factual background in cases where a PR's residency or presence is at issue. In some of the official decisions the tribunal recounts factors and circumstances which raises concerns or suspicions about the PR's accounting of dates present or absent. Here too, this discussion has been revisited often, at-length, and in-depth in numerous other topics here.
To What Extent Are Residency/Presence Determinations Discretionary?
Yes, these determinations are to some extent discretionary. There is a primary fact-finding function involved. This is a well-worn process consistent with similar fact-finding processes in many contexts, for which the applicable "
reasonable" standards are widely and particularly specified. Due to what I perceive to be some particular Canadian rules governing decision-making by tribunals conducting a review of a lower tribunal's decision, the Federal Court decisions tend to go into remarkable depth about the standard of review despite the fact the applicable standard has, as I said, been oft stated and is very well known.
To some extent, decision-making that involves findings of fact inherently includes some subjective elements. After all, the assessment of a person's credibility inevitably involves some subjectivity.
BUT basic principles of reasoning are NOT subjective. The observation of mine which you quote refers to a very simple principle of reasoning: if there is a question about where a person was during a particular period of time, it is REASONABLE to infer the individual was where he or she was most of the time.
In other words, if a decision-maker is not sure where a person was, say, in the summer of 2017 (such as because the individual has not provided persuasive evidence of where he was living or working during that summer), it would be REASONABLE for the decision-maker to infer that person was where he was during most of the time between January 2014 and January 2019. Thus, if the PR reports being present in Canada for 850 days between January 2014 and January 2019, that means the PR was OUTSIDE Canada MOST of the time between January 2014 and January 2019 (at least 975 days). Thus, if the decision-maker has doubts about where the PR was in the summer of 2017, absent evidence to show ACTUAL presence during that summer it would be REASONABLE to infer the PR was outside Canada . . . EVEN IF the PR had reported an entry date into Canada before that summer and the PR's next REPORTED exit date was after the summer.
That is, even though the PR reports presence in Canada between an entry date in the spring of 2017 and an exit date in the fall of that year, in the absence of corroborating evidence showing actual presence during that period, IRCC can REASONABLY conclude the PR has failed to prove presence during that time, and if that appears to exceed 120 days, thus reducing actual presence to less than 730 (850 minus 120+).
That would be a determination the PR breached the RO. And is thus inadmissible. PR status lost.
And more than a few PRs will scratch their heads and consider this subjective and unreasonable, believing that their proof of an entry in the spring of 2017 and no reported exit date until the fall should suffice to show they were present in Canada for the time period in-between that entry date and exit date.
BUT IRCC does NOT need to prove there was some exit during that time period. It is the PR's burden to prove actual presence. Most PRs benefit from an inference they were in fact present between a known date of entry and the next known or reported date of exit. BUT this is where
reasons-to-question-presence can raise doubt about whether the PR was in fact present that whole time. And this is where factors, like the PR having been outside Canada MORE than in Canada, can mean the PR needs to have more proof of actual presence. Like proof of actual activity in Canada (like documentation to show the PR worked at a job site in Canada during that time).
CONTEXT:
The vast majority of PRs in actual compliance with the RO have little reason to worry much about this. Even those who were
cutting-it-close, even very close. There is NO indication that IRCC approaches PRs with severe skepticism unless there are indeed factual circumstances which would invite virtually anyone to have questions. And even when IRCC is questioning the PR's accounting of days present, the consequence is most often merely non-routine processing, such that it takes a lot longer for the PR to be issued a new PR card.
PRs who face more risk tend to be those who in addition to
cutting-it-close are NOT currently (during PRC processing) settled and living in Canada and who cannot provide objective evidence of actual presence . . . recognizing that a PR living in Canada will ordinarily, quite easily, have at least some objective evidence to document his or her presence while living in Canada. In contrast, for example, a PR who attempts to patch together periods of time merely visiting Canada, sufficient to add up to meeting the minimum RO, sure that PR has a higher risk of failing to sufficiently PROVE actual presence . . . with little sympathy from the government since the purpose of granting PR status is so the individual can settle and PERMANENTLY live in Canada.
As a further note about context: the analysis above is mostly mine, based on years of following residency and presence issues related to citizenship qualification and the PR RO. There are no discussions in IAD and Federal Court cases which explicitly address the inference of presence between a known date of entry and next known date of exit, for example. Let alone specifically describing when IRCC will NOT employ such an inference.
