Bs65 said:
a CBSA officer as far as I know and others can correct me cannot either revoke or offer to renounce PR at the POE. An officer can only initiate the process or not for failing to meet RO by reporting an individual. As a PR despite failing RO an individual is still entitled to enter as a PR not as a visitor to await due process for being reported as failing PR.
Summary of procedure at PoE if a returning PR is identified to be in breach of the PR RO during the PoE examination:
If upon arriving in Canada a PR is identified, during the examination in the PoE, as being in breach of the PR Residency Obligation, the examining officer issues a 44(1) Report of Inadmissibility to the PR. That is then referred to another officer, one qualified to act as the Minister's Delegate, who interviews the PR (in person or by telephone), and if that officer determines the 44(1) Report is valid in law and there are not sufficient H&C reasons to, in effect, waive the breach, that officer issues a Departure Order. While that Order alone is sufficient to terminate the PR's status, it does not have that effect immediately, thus the PR is
then (once the examination is "completed") entitled to enter Canada and has a period of time within which to make an appeal. If the PR does not appeal, the Departure Order becomes enforceable and terminates the individual's PR status. If the PR appeals and loses, that terminates PR status.
Longer explanation:
It would be misleading to characterize, as "only" initiating the process, the authority officers have to issue a 44(1) Inadmissibility Report
AND Departure Order, during a PoE examination, to a PR identified as in breach of the PR Residency Obligation. Indeed, once a Departure Order is issued, even though the PR is then still entitled to enter Canada, PR status is lost, terminated,
unless the PR affirmatively takes action to appeal the Departure Order (I believe this takes effect after thirty days, but it may be sixty days, following the date the Departure Order is issued).
Thus, make no mistake: PRs who, during the course of a PoE examination, are identified to be in breach of the PR RO, can be issued a Departure Order before then being allowed to enter Canada, and unless there are good H&C reasons to not do so, will indeed ordinarily be issued a Departure Order if it is determined they are in breach of the PR RO. This will terminate PR status unless the PR takes affirmative action to appeal and wins the appeal.
In the meantime, the scope of discretion border officers have in conducting Secondary Examinations at a PoE is very, very broad. There is explicit authority for CBSA officers to ask a wide, wide range of questions, and the action taken can depend on the extent to which the PR cooperates or fails to cooperate.
Policy allows PRs to surrender PR status at a PoE, and anecdotal reports reflect that PoE officers will indeed sometimes
inform PRs, or suggest or explain, that an inadmissible PR has the
option of surrendering their PR status, and if they do so they can then apply for (and likely be given) visitor status. Known reports of this tend to be PRs who have been absent from Canada for long periods of time and are more or less obviously in breach, many who thought they no longer had PR status until the PoE screening identified them as such (this should occur less now that eTA requirements are screening travelers prior to arrival in Canada, and such PRs are informed, in response to the application for eTA, the response denying eTA because they have PR status, that surrendering PR status is an option).
For a partial explanation of the guidelines for examining PRs at a PoE, see section 11 in "ENF 4 Port of entry examinations," including in particular section 11.4 regarding investigating PRs for inadmissibility, and section 11.12 regarding examination of PRs relative to the Residency Obligation, and 11.13 regarding issuance of removal orders (often labeled or referred to as a "Departure Order;" reminder: PRs issued a removal order maintain their right of entry until the appeal period has elapsed).
I say that "ENF 4 Port of entry examinations" provides only a
partial explanation because there are several other sources which also provide guidance and otherwise illuminate important aspects of the PoE examination, particularly if and when a breach of the PR RO is suspected and the examination leads to a 44(1) Report followed by an interview or hearing with another officer during which a Departure Order may be issued if it is determined the PR is in breach of the PR RO. Further below I will reference additional sources.
In any event, while the scope of the examination itself can be very broad, in contrast the scope of actions a CBSA examining officer can take regarding an individual positively identified as a Canadian, either a Canadian citizen or Canadian Permanent Resident, is fairly narrow.
But there is no question, the examining officer can issue a 44(1) Report
to the PR if the officer determines there are grounds for believing the PR is inadmissible, including in particular grounds based on the breach of the PR Residency Obligation.
This is not merely filing a report which is referred to a local IRCC office for further review and action. The examining officer at the border can do that, alternatively, rather than proceed to issue the formal 44(1) Report for Inadmissibility. And many times those sorts of
reports merely flag the PR, with no follow-up unless and until the PR engages in another transaction with CBSA or IRCC.
But in the context of discussions about being "reported" at the PoE, being "reported" is usually in reference to the issuance, to the PR, of a 44(1) Inadmissibility Report. The difference is huge, since the 44(1) Report has immediate consequences, including (typically) an immediate referral to another officer who decides whether to issue a Departure Order.
In particular, the typical procedure is for the 44(1) Report to be immediately (that is, while the PR is still in Secondary at the PoE) reviewed by the Minister's Delegate. The Minister's Delegate is often, if not usually, the examining officer's superior (although the Minister's Delegate can be simply another officer); sometimes this review, which is in effect a
hearing, is done by telephone if there is not a qualified (as a Minister's Delegate) alternative officer available at that particular PoE. While this is a
hearing, like many immigration related "hearings" it is more or less an interview. The PR is given an opportunity to present information and evidence, which can be to assert there is no breach of the PR RO, or that there are H&C reasons why the PR should be allowed to retain PR status. That officer (the Minister's Delegate) will determine if a Departure Order (sometimes called a Removal Order) is issued, and if the decision is that there is a breach of the PR RO, and there are not sufficient H&C reasons to justify allowing the PR to keep PR status, then a Departure Order is issued and delivered to the PR.
When issued a Departure Order at the PoE, the PR continues to be a Permanent Resident unless the Departure Order becomes
enforceable. Once issued the Departure Order, that should mean the examination is completed and the PR will be allowed to enter Canada. Must be allowed to enter Canada.
In particular, the Departure Order is
NOT enforceable for at least thirty days (could be longer . . . I forget the time period within which the PR can make an appeal), and if the PR appeals, the Departure Order continues to
NOT be enforceable for as long as the appeal is pending.
Sources:
The primary guidelines for PoE Examinations are set out in the Operational Manual for enforcement, "ENF 4 Port of entry examinations." see the manual by going to links for the Operation Manuals at http://www.cic.gc.ca/english/resources/manuals/index.asp
Again, the nature and scope of such examinations can be very, very broad.
Generally, and relative to PRs in particular, there are additional guidelines and "Program Delivery Instructions" which further illuminate certain aspects of an examination which goes beyond the routine PIL questioning and presentation of documents. For example, as to the writing of 44(1) Reports in particular, there is the Operational Manual for enforcement titled "ENF 5 Writing 44(1) Reports" (again, go to links for these manuals at http://www.cic.gc.ca/english/resources/manuals/index.asp
Moreover, to understand the procedures outlined in these Operational Manuals, it helps to have some familiarity with ENF 1 Inadmissibility and ENF 23 Loss of Permanent Resident Status.
Some familiarity with ENF 02/OP 18 Evaluating Inadmissibility can also be helpful, even though this manual is more about assessing the inadmissibility of FNs (Foreign Nationals), and more focused on inadmissibility for criminality, security, misrepresentation, or medical reasons. Sections 11.8 through 11.10 do address PRs and A44(1) grounds for reporting a PR's inadmissibility, including for breach of IRPA Section 28 (the statutory provision prescribing the PR Residency Obligation). I do not find this Manual to be as easily accessed or linked as most, and I do not have a link at my fingertips.
There is, apparently, another relevant manual, ENF 6 Review of reports under A44(1), which I have not accessed and cannot easily find.
Caution: the Operational Manuals continue to be sporadically updated at best, and many are badly out-of-date.
In addition to the manuals, there are many references to the procedures in IAD decisions, and in a few Federal Court decisions, which illustrate the official interpretation and application of the applicable statutory provisions, the governing regulations, and the issuance and review of 44(1) Reports
in actual cases. While a number of anecdotal reports by participants in this and other forums has also helped fill in some of the grey areas in how things go in practice, these tend to be fuzzy when it comes to procedural details and, of course, some are not particularly credible.
