gaurav1974 said:
Hi we landed in Canada in Nov 2011 ,left Canada in may 2012 for some litigation regarding ancestral property in India .Now we plan to return in September,since we have overshot our stay by 3 months will we have problem at Toronto airport.Our PR valid till Dec 2016.I have few questions.
1.Will we be asked for how long we were out of Canada if yes should we tell them the truth.
2.What are the chances of getting away unnoticed?
3.Will it help to show litigation papers for the last 3 years which kept us out ?along with the property valuation that i got in my name(which is around 1 million).
4.Is better to enter through US by road.
5.Should we use automated service at airport?
The consequences for misrepresentation now are more serious, and the degree of scrutiny
appears to have increased as well. There really is no option other than to truthfully answer questions.
Whatever the risk is that you will be subject to a residency interview, or might be waived into Canada without a close examination regarding residency, those odds are essentially irrelevant: if you have been outside Canada more than 1095 days since you landed, and particularly if your absence itself was more than 1095 days, you are in breach of the PR Residency Obligation and thus at risk for not just a residency examination but the issuance of a 44(1) Report and Removal Order. If this happens, you will still be allowed to enter Canada and you have 30 days in which to make an appeal.
Thus, you should be prepared for a residency examination, and might as well expect one, and if instead you are waived into Canada without a problem, smile and go about the business of making a life for yourselves in Canada.
Factors considered:
I disagree with the view that financial or economic reasons for not returning to Canada sooner are not considered. In fact, the operational manual
requires the consideration of ALL reasons presented by the PR. See
ENF 23 "Loss of permanent resident status," section 7.7 beginning on page 26.
Of course, some reasons carry more weight than others, and some reasons carry relatively little weight. Medical conditions tend to weigh a lot more than economic factors for example.
Quote from
ENF 23 "Loss of permanent resident status:"
"The range of factors to be considered can not be restricted by these guidelines. Officers are obliged to consider all the information presented by a permanent resident.
Humanitarian and compassionate factors must be reviewed on a case by case basis. Permanent residents are free to make submissions on any aspect of their personal circumstances that they feel would warrant retention of their permanent resident status."
This is followed by a lengthy list of factors which is
not exhaustive. That is, what you can present is not limited by those factors listed.
The sooner the return to Canada the better. (Extent of breach, extent of in-Canada time, extent of absence, are significant factors.)
What to do:
Note: I am
NOT an expert and I am
not qualified to give personal advice. Nonetheless, for PRs in similar situations, PRs still within the first five years of landing and making the effort to really accomplish immigrating to Canada, the following outlines what seems to be a reasonably prudent approach:
Return as soon as possible. Organize your arguments as to
why you deserve to retain PR status, emphasizing the extent to which you pursued actually settling in Canada and the reasons why you were compelled to leave and remain away for the time you were gone, and your plans to complete the process of settling in Canada and remaining in Canada permanently. Back all this up with supporting documentation, ranging from some documents showing where you were living when in Canada before, and especially relevant documents which establish the facts relevant to the reasons for not returning to Canada sooner (including key parts of the litigation documents for example).
Be sure to be carrying the documentation in your hands upon arrival. Definitely do not put the documentation in checked baggage (you may not have access to contents of baggage during the interview).
Note: there is indeed a fair chance of being waived into Canada without a secondary examination, or even if there is a secondary examination, without much of a residency examination. PRs in possession of a still valid PR card, and still well within the first five years after landing, appear to be treated liberally if not leniently, perhaps even generously. But, being in breach, you are nonetheless at risk, and two factors elevate the risk of a more thorough examination:
-- duration of absence itself more than 1095 days (thus making breach blatantly obvious)
-- significantly less than two years remaining to fifth year anniversary of landing (making it obvious there is a limited amount of time left to come into compliance with the PR RO in the first five years)
What NOT to do:
You appear to be close enough and to have reasons which have a fair chance of being persuasive, it would be foolish to play games or be evasive or to fudge any answers to questions. Be upfront, cooperative, polite, responsive, honest, and
prepared.
I cannot say whether to attempt the kiosk entry process or not. I suspect that for PRs with valid PR cards, the routine approach is to use the kiosk even though in your situation it may kick you into a person-to-person interview. But I did not travel by air back into Canada while I was still a PR, so I have little personal context for how this goes. Just do not play games.
Many PRs in breach of the PR RO do attempt to enter Canada via U.S. land crossing, by private transportation. However, that is usually about those who do not have a valid PR card or a visa-exempt passport, and thus cannot fly directly to Canada. In contrast, what actually happens at the POE itself varies extensively not just from POE to POE, but relative to a wide range of factors, not the least of which is who the examining officer is and what frame of mind that officer is on that given day. Might as well go betting on the roulette wheel at the nearest casino as try to find an advantage in choosing one POE over another.
After getting into Canada:
If reported: if you are issued a 44(1) Report, make sure to file an appeal on time and it is best to see a lawyer as soon as possible.
Assuming
no 44(1) Report, no Removal Order: You will not be sufficiently in compliance with the PR Residency Obligation to make an application for a new PR card before your current PR card expires.
WAIT, wait until you are fully in compliance with the PR RO
before you apply for new PR cards. This will take awhile beyond the expiration date of your current PR cards because the time you were in Canada right after landing will begin to fall outside the five years that count (as of November 2016). Thus, you will essentially have to wait until you have been
in Canada at least a full two years after your return this year before you will be eligible for new PR cards. Again, wait until then to apply for the new PR cards.
It is
NO problem living in Canada without a valid PR card. There is no requirement to have a currently valid PR card. Do not leave Canada, of course, and make no other applications (such as to sponsor a family member) during this time. Be sure to have gotten or renewed drivers licenses, health care cards, and so on, before your current PR cards expire (some provinces allow expired PR cards to suffice as proof of status, but apparently some do not and this is always subject to change in those that currently do).
