If PRTD application under H&C considerations is rejected

[abff08f4813c]

Just curious, why is the risk of being reported lower at land border vs airport?

I was comparing at land border vs applying for a PRTD. Airport not relevant* because those who need a PRTD cannot board a plane (that's why they need the PRTD). PRTD refusal rates seem MUCH higher than at land border.

*There is a case of those PRs who can fly even if no valid PR card: US citizen-PRs. For them the likelihood of being reported at airport is comparable to land border, as far as I'm aware. But I was focussing on the other PR case, those who need PR card to board a plane to come to Canada.

To add to that great response, I suspect the reason that PRTD refusal rates are higher is because it's done by desk officers at IRCC who specialize in looking at this and have an unlimited amount of time to make a decision after considering all factors.

When a CBSA officer makes the call at the border, it's done by someone who has other responsibilities at that port of entry, and you are held up at that port of entry until a decision is made either way - so they shouldn't be considered as having an unlimited amount of time to decide.

Also important is that the PRTD grants a somewhat stronger status - sometimes you can use it to re-enter multiple times and in support of renewing a PR card. On the other hand, the CBSA is just deciding whether or not to let you in the one time, and even if that does go your way, that wouldn't ever provide support for getting a PR card or re-entering in the future (short of you actually waiting and living in Canada until meeting RO again). So when the CBSA makes the call, one way to view it is that less may be at stake, at least from a bureaucratic point of view.

 

[armoured]

To add to that great response, I suspect the reason that PRTD refusal rates are higher is because it's done by desk officers at IRCC who specialize in looking at this...

Also important is that the PRTD grants a somewhat stronger status - sometimes you can use it to re-enter multiple times and in support of renewing a PR card. On the other hand, the CBSA is just deciding whether or not to let you in the one time, and even if that does go your way, that wouldn't ever provide support for getting a PR card

It's not just the officers (although I overall agree with your reasoning about the time they have to make such decisions) - under the immigration act, there is this text: "a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status."

I'll leave this for lawyers to argue about the details of the meaning, but IRCC seems to interpret this meaning to include not whether or not one has permanent resident status, but also that the presumption is that the person needs to demonstrate they are in compliance with the residency obligation (and if not, demonstrate they should be given H&C consideration).

PRs without PR cards who present at a port of entry are in Canada. Therefore they are not subject to this particular presumption.

Just a warning, we might roughly term this 'burden of proof', and that's probably close enough for non-lawyers, or presumption of [something like admissibility]; but those terms can have specific legal meanings that may not correspond to this colloquial usage. So the reasons for this different treatment are more extensive than just which type of officer involved - although I'm not even going to guess which of these factors is more important in that overall equation.

But overall point remains: chances of being refused for non-compliance when applying for a PRTD (that is, abroad) are considerably higher than at a port of entry (eg land border) where it's CBSA deciding and risk is lower. Whatever the 'cause' of this difference.

 

[abff08f4813c]

I overall agree with your reasoning about the time they have to make such decisions

But overall point remains: chances of being refused for non-compliance when applying for a PRTD (that is, abroad) are considerably higher than at a port of entry (eg land border) where it's CBSA deciding and risk is lower. Whatever the 'cause' of this difference.

I'll leave this for lawyers to argue about the details of the meaning

Agreed 100%. Folks who aren't wonks or interested in the super wonky details can probably stop reading here.

PRs without PR cards who present at a port of entry are in Canada. Therefore they are not subject to this particular presumption.

Interesting. I was under the impression that when presenting oneself at a POE, the legal fiction is that one is not yet in the country until actually admitted for entry.

But of course, I was thinking of the US's CBP searching US citizens without needing a warrant at a US POE. So this turns out to be wrong because (not only is it the wrong country) actually the US Supreme Court had a "border search exception" that allows warrantless searches at not just POEs but anywhere within 100 miles of a border (!!!).

under the immigration act, there is this text: "a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status."

Thinking it over, it's possible that we're both right. That is, being at a POE waiting to be admitted, is a weird state that's somehow both not inside of Canada yet, but also no longer outside of Canada. Meaning that the legal fiction of not yet being in Canada at the POE doesn't prevent one from falling out of the status of being "a person who is outside of Canada".

Just a warning, we might roughly term this 'burden of proof', and that's probably close enough for non-lawyers, or presumption of [something like admissibility]; but those terms can have specific legal meanings that may not correspond to this colloquial usage. So the reasons for this different treatment are more extensive than just which type of officer involved - although I'm not even going to guess which of these factors is more important in that overall equation.

Agreed. There's actually a potentially simpler solution to my imaginary conflict above as well - perhaps the "outside" is for some reason meant to be read as "physically outside of Canada" which is not true for someone who is actually within a POE, but which would make the "not yet in Canada until admitted" fiction bit irrelevant to the equation.

IRCC seems to interpret this meaning to include not whether or not one has permanent resident status, but also that the presumption is that the person needs to demonstrate they are in compliance with the residency obligation (and if not, demonstrate they should be given H&C consideration).

That's interesting. I wonder if there are any scenarios where a CBSA official (as opposed to an IRCC official) has to deal with that presumption and vice versa.

 

[armoured]

Interesting. I was under the impression that when presenting oneself at a POE, the legal fiction is that one is not yet in the country until actually admitted for entry.
Thinking it over, it's possible that we're both right. That is, being at a POE waiting to be admitted, is a weird state that's somehow both not inside of Canada yet, but also no longer outside of Canada. Meaning that the legal fiction of not yet being in Canada at the POE doesn't prevent one from falling out of the status of being "a person who is outside of Canada".

I don't think that's a 'fiction' that Canadian law supports or even suggests, but is just something that people say - a colloquial understanding not backed by law.

My re-phrasing of what I understand of the actual legislation (caveat: not an expert) is that a POE is a designated place for entry and examination, and that Canadian law requires those wanting to enter Canada to present for examination (at authorized/designated places). Or in simple terms: while the port of entry is in Canada, you're not legally admitted until you're [legally allowed to] exit the port of entry. Still in Canada - but not yet legally admitted.

I use those [brackets] to wave away the complicated language and exceptions I think underlies it (to cover all possible opportunities) - for the most part this just means you've appeared and presented yourself at a functioning port of entry, been examined in however minimal or maximal way an officer wishes, and permitted to and have physically left the designated area (I don't know the exact delineation, but presumably up to leaving customs). (Non-normal cases and language for things like boat entries, closed ports of entry, etc., etc).

Agreed. There's actually a potentially simpler solution to my imaginary conflict above as well - perhaps the "outside" is for some reason meant to be read as "physically outside of Canada" which is not true for someone who is actually within a POE, but which would make the "not yet in Canada until admitted" fiction bit irrelevant to the equation.

I think the outside means actually physically outside Canada. Inside Canada but not yet admitted is just that. But beyond that, it's a legal argument I don't have much time or interest for.

That's interesting. I wonder if there are any scenarios where a CBSA official (as opposed to an IRCC official) has to deal with that presumption and vice versa.

I do not know. To be clear, I don't know if this specific 'inside/outside' presumption thing applies to foreign nationals (i.e. not PRs, as PRs are not foreign nationals under the act). I'm speaking only about the PR part.

In other words, it's possible that this specific issue doesn't apply to foreign nationals at all, and hence the POE question you're asking/referring to isn't relevant in this particular context. Don't know.

 

[abff08f4813c]

I don't think that's a 'fiction' that Canadian law supports or even suggests, but is just something that people say - a colloquial understanding not backed by law.

Agree with your post. Just wanted to explain on this point a bit.

After doing some digging, I realized that my confusion comes from the Matter of T-, 6 I&N Dec. 638 (BIA 1955) - which I can't find a copy of right now but as explained on page 5 of https://www.cliniclegal.org/file-download/download/public/67840 it is a bit of US case law that establishes the legal fiction that someone who tries to leave the US but is never accepted into any other country has actually never left the United States. ("Rather, as a quirk of the law, the alien had effectively never left the United States")

Now, this isn't the US, it's Canada. As you say it's quite likely that this isn't something that Canadian law supports or suggests.

However, I'd add one data point here. Back during Covid, in 2021, I had an occasion to try to enter the US. I was denied (as under covid rules my reason wasn't acceptable as I could only enter if I was permanently returning to the US). At the Canadian POE on my way back I was asked if I had actually entered the US or not (edit: and I said I wasn't sure but described the entire interaction on the US side to the person I was talking to at the Canadian POE).

Later, I confirmed from my eCoPR that my last recorded entry was back in 2019. The 2021 attempt didn't count - it seems Canada saw me as having never left because the US refused to accept me, similarly to how things went with the Matter of T-...

 

[armoured]

Now, this isn't the US, it's Canada. As you say it's quite likely that this isn't something that Canadian law supports or suggests.
...
The 2021 attempt didn't count - it seems Canada saw me as having never left because the US refused to accept me, similarly to how things went with the Matter of T-...

Here I think that the legal fiction that a database /IS/ a record of reality is yet another level of abstraction (let's call that reality-prime), and the meshing of all of these different gears means that the reality we think of is going to be violently treated between the hard place of the law and the rock of reality-prime the database.

In all seriousness, I do not know how all these concepts mesh together; I suspect there is a fair amount of 'hack' record-keeping where the (perceived) necessity to have records that correspond to the US entry-exit systems. And ideally to do so in a way that the records reflect - somehow or another - things the users of those databases think important. And often it's not going to fit the category or thinking that the legislation and legal structures/fictions initially foresaw.

Or in your specific case: my speculation is that CBSA wanted to make sure their entry/exits to/from USA tallied with the US CBP records. They wanted to know if USA recorded an entry + an exit or [no entry - null record or 'refoulement/no entry/no exit'? IDK], so that they could have matching records; after all if they had you exiting-re-entering, then [by construction if not reality] the USA had to show you exiting, right? Or at minimum - some exit.

And hence reality is bent to resemble the database.

 

[Technogarchy]

I became a Canadian PR at the end of October 2019. However, I couldn’t stay in Canada. I left after about two months and made only one trip for another month last year. So, it’s now been over five years, and I clearly haven’t fulfilled the residency obligation. My PR card has expired, and I’ve only spent a total of three months in Canada.

To be honest, I’m okay with letting the residency go—I don’t mind losing it. But I haven’t officially renounced it yet. That’s something I’m considering now. At the same time, I’m wondering if I should take a chance and apply for a PRTD (Permanent Resident Travel Document) under Humanitarian and Compassionate (H&C) considerations.

I don’t have any strong documentation to support an H&C claim—it’s just that “life happened.” But I’m curious to see what they say. I’m willing to pay the fee and apply, even if it’s just to try. If they reject it, I’m fine with that.

Because I found that when I visited last year for a month, there was no problem for me at immigration even though I was already irrevocably in breach of residency obligation by that point. (Why didnt I stay for two years then? because I am stupid and not a risk taker and listened to friends and family who said its going to be expensive and a struggle and what if I dont find a job etc.)

Here are the questions I need clarity on:

1. If my H&C-based PRTD application is rejected, can I still go ahead and renounce my PR status officially from outside Canada? Or do I have to wait for them to issue a formal report or decision, which might complicate things or take it out of my hands?
2. If the PRTD is somehow approved and I travel to Canada, could I still be reported at immigration for not meeting the residency obligation? And face the same fate as above?
3. If I enter Canada and am not reported, and I decide to stay and fulfill the two-year residency requirement to maintain my PR, I should still be able to at the end of two years, without complications, correct?
4. But what happens if I try to renew my PR card after being let in? Does the fact that I received a PRTD while I was still in breach of RO automatically grant me card renewal or will it still be taken up to another round of HC assesment? Which I could contest if rejected/reported and stay on until order is passed etc. (I dont want it to come to this, of course, but just examining scenarios)
5. Overall, is it even worth going through this process? I don’t mind being rejected, I’m just trying to understand the different outcomes clearly. If it doesn’t work out, I’m happy to simply renounce the PR status officially.

In short: I want to weigh the pros and cons of taking a chance with a PRTD vs. directly renouncing my status. I’m looking for an honest understanding of the possible outcomes.

OP here! I wanted to come back and provide an update on my situation.

So I decided to give it a go and apply for a PRTD under the circumstances described above and see what happens (knowing fully well that it might be rejected and I was okay with that). I made an application online clearly indicating that I do not meet RO and attached an H&C letter explaining my situation.

However, instead of a straight rejection, I have received a PFL giving me 30 days to explain or provide more documentation. To be honest, I have nothing else to say apart from what I already said in my original letter - basically life happened. So how do I respond to this?

The PFL begins by saying "Based on the information you provided, I am not satisfied that you have fulfilled your residency obligation as a permanent resident of Canada. Specifically, you have not demonstrated having been physically present in Canada for a minimum of 730 days within the past five years, or otherwise complied with the residency obligation outlined in section 28 of the Immigration and Refugee Protection Act." I find this strange because I was very clear and transparent right from the outset that I had indeed NOT met the RO and hence my application under H&C. So what do I make of this?

I read online that PFL is sent when they suspect misrepresentation but no such thing happened in this case.

So, do I just craft a response reiterating my original letter? and let the process go through and end in rejection and revocation of status? If so, are there any negative consequences for me in the future should I decide to apply for a tourist or work or resident visa again? That was it was rejected after a PFL?

Or should/can I withdraw my application now and voluntarily renounce instead?

 

[Technogarchy]

OP here! I wanted to come back and provide an update on my situation.

So I decided to give it a go and apply for a PRTD under the circumstances described above and see what happens (knowing fully well that it might be rejected and I was okay with that). I made an application online clearly indicating that I do not meet RO and attached an H&C letter explaining my situation.

However, instead of a straight rejection, I have received a PFL giving me 30 days to explain or provide more documentation. To be honest, I have nothing else to say apart from what I already said in my original letter - basically life happened. So how do I respond to this?

The PFL begins by saying "Based on the information you provided, I am not satisfied that you have fulfilled your residency obligation as a permanent resident of Canada. Specifically, you have not demonstrated having been physically present in Canada for a minimum of 730 days within the past five years, or otherwise complied with the residency obligation outlined in section 28 of the Immigration and Refugee Protection Act." I find this strange because I was very clear and transparent right from the outset that I had indeed NOT met the RO and hence my application under H&C. So what do I make of this?

I read online that PFL is sent when they suspect misrepresentation but no such thing happened in this case.

So, do I just craft a response reiterating my original letter? and let the process go through and end in rejection and revocation of status? If so, are there any negative consequences for me in the future should I decide to apply for a tourist or work or resident visa again? That was it was rejected after a PFL?

Or should/can I withdraw my application now and voluntarily renounce instead?

Here is the full email if it is useful:
This refers to your application for a Permanent Resident Travel Document (PRTD).

Based on the information you provided, I am not satisfied that you have fulfilled your residency obligation as a permanent resident of Canada. Specifically, you have not demonstrated having been physically present in Canada for a minimum of 730 days within the past five years, or otherwise complied with the residency obligation outlined in section 28 of the Immigration and Refugee Protection Act.

Before making a final decision, I am giving you the opportunity to submit additional information and/or documentation that would allay my concerns. You may also submit new or additional information pertaining to humanitarian and compassionate considerations explaining your situation. Please explain what the consequences would be if you were to lose your permanent resident status and, if applicable, include information pertaining to the best interest of any minor child.

Please note that an invitation to take the Oath of Citizenship or an appointment to pick up a permanent resident card are not considered evidence of having complied with the residency obligation for permanent residents.

Please provide the information requested along with new and/or additional information and supporting documentation within 30 days from the date of this message. Any individual attachment can be a maximum of 5 MB; however, the email must be under 20 MB total. The preferred format is PDF, although JPEG, TIFF, DOC, and DOCX formats are also accepted.

Please keep the same subject line when replying to this message (e.g. RE: PRTD application / «Given_Name» «Family_Name» «Application_Num» - Procedural fairness letter) and send your response to IRCC.RROCPRTD-CORRTVRP.IRCC@cic.gc.ca. You may submit scanned copies by email.

Note: All documents must be accompanied by English or French translations. Please also include this message in your submission.
If you do not respond to this message or if your submission does not allay my concerns, your application may be refused.

 

[armoured]

OP here! I wanted to come back and provide an update on my situation.

So I decided to give it a go and apply for a PRTD under the circumstances described above and see what happens (knowing fully well that it might be rejected and I was okay with that). I made an application online clearly indicating that I do not meet RO and attached an H&C letter explaining my situation.

However, instead of a straight rejection, I have received a PFL giving me 30 days to explain or provide more documentation. To be honest, I have nothing else to say apart from what I already said in my original letter - basically life happened. So how do I respond to this?

The PFL begins by saying "Based on the information you provided, I am not satisfied that you have fulfilled your residency obligation as a permanent resident of Canada. Specifically, you have not demonstrated having been physically present in Canada for a minimum of 730 days within the past five years, or otherwise complied with the residency obligation outlined in section 28 of the Immigration and Refugee Protection Act." I find this strange because I was very clear and transparent right from the outset that I had indeed NOT met the RO and hence my application under H&C. So what do I make of this?

I read online that PFL is sent when they suspect misrepresentation but no such thing happened in this case.

So, do I just craft a response reiterating my original letter? and let the process go through and end in rejection and revocation of status? If so, are there any negative consequences for me in the future should I decide to apply for a tourist or work or resident visa again? That was it was rejected after a PFL?

Or should/can I withdraw my application now and voluntarily renounce instead?

-The beginning language is boilerplate really. The "otherwise complied with..." refers to the other ways to 'meet' RO (eg be given leniency under H&C), so nothing strange, it's saying (somewhat legalese) that they don't think your H&C meets the standard.
-No implication specifically that misrepresentation that I know of.
-The rest is your choice. If you wish to try and retain it, getting outside advice (i.e. a lawyer) may be useful, just to have the best shot of phrasing your points to meet the known parts of the statutes (that's still not a guarantee though).
-In my view, if you're not actually planning to return to Canada permanently, it may not be worth it and better to just withdraw and renounce. But that's only an opinion.

There's no negative implication for work or PR applications, etc. It's possible a tourist visa will be a bit more difficult only because they believe you wish to live in Canada and may overstay - but it's far from the only factor so that's not to say it's predetermined.

 

[abff08f4813c]

Or should/can I withdraw my application now and voluntarily renounce instead?

Is this still an option? I don't think IRCC is obligated to honour a withdrawal request, instead they can still go ahead and deny.

Or even if they honour it, I think they can and may still decide to finish the process of revoking your PR.

I read online that PFL is sent when they suspect misrepresentation but no such thing happened in this case.

I've read that PFLs are issued for many other kinds of cases. E.g. one case happened where someone submitted bank statements in a non-Canadian currency and was requested to submit an official letter from the bank instead via a PFL. So basically you can get a PFL for almost anything - the "procedural fairness" is them giving you one last chance to explain things and fix up any mistakes before they make a decision.

However, instead of a straight rejection, I have received a PFL

In fact I suspect that rather than directly rejecting, sending out a PFL first is just standard procedure (particularly in cases where H&C can be relevant).

I find this strange because I was very clear and transparent right from the outset that I had indeed NOT met the RO and hence my application under H&C. So what do I make of this?

My guess is that the officer didn't find your H&C reasons good enough (which you expected) but is giving you one last chance to raise additional H&C reasons or something. Before the officer can accept H&C I guess the officer first has to formally find that the RO was not met, hence the language of the text, but as this was also expected it's nothing to worry about.

So, do I just craft a response reiterating my original letter?

Yes, probably.

are there any negative consequences for me in the future should I decide to apply for a tourist or work or resident visa again? That was it was rejected after a PFL?

I wouldn't think so. From what I understand they want to know that you'd return when this status expires instead of staying in Canada permanently without status. So something like a failed refugee claim would be seen more negatively, but losing PR after failing RO is much weaker evidence of that sort of pattern. (And receiving a PFL itself has no bearing.)

 

[scylla]

OP here! I wanted to come back and provide an update on my situation.

So I decided to give it a go and apply for a PRTD under the circumstances described above and see what happens (knowing fully well that it might be rejected and I was okay with that). I made an application online clearly indicating that I do not meet RO and attached an H&C letter explaining my situation.

However, instead of a straight rejection, I have received a PFL giving me 30 days to explain or provide more documentation. To be honest, I have nothing else to say apart from what I already said in my original letter - basically life happened. So how do I respond to this?

The PFL begins by saying "Based on the information you provided, I am not satisfied that you have fulfilled your residency obligation as a permanent resident of Canada. Specifically, you have not demonstrated having been physically present in Canada for a minimum of 730 days within the past five years, or otherwise complied with the residency obligation outlined in section 28 of the Immigration and Refugee Protection Act." I find this strange because I was very clear and transparent right from the outset that I had indeed NOT met the RO and hence my application under H&C. So what do I make of this?

I read online that PFL is sent when they suspect misrepresentation but no such thing happened in this case.

So, do I just craft a response reiterating my original letter? and let the process go through and end in rejection and revocation of status? If so, are there any negative consequences for me in the future should I decide to apply for a tourist or work or resident visa again? That was it was rejected after a PFL?

Or should/can I withdraw my application now and voluntarily renounce instead?

Once there's a PFL IRCC typically won't let you withdraw the application. Respond to the PFL as best you can and hope for the best.