It is completely logical to expect the burden of proof to be on the applicant- that is something I am not contesting. All I am concerned about is the ambiguous wording used in two different places under the pretext of a "rebuttal presumption. The "eligibility" to apply for a PRTD requires the absence of a valid PR card, while at the same time the mere absence of a valid PR card might constitute a violation of the RO under the present regulations. These two statements are antithetical to me.
Further, what more is needed than a water tight documentation of the travel dates ?. The instruction guide and the document check list do not list any other supporting documents that might be warranted for a routine application. Surely, the VO would have access to the CBSA records and likely that would be sufficient to make a determination in most cases I believe
Still not following what is seen as "antithetical," but there is no need to let this divert what matters. What matters is the substantive law and the applicable procedure.
Substantively:
To be clear, the mere absence of a valid PR card does NOT constitute a violation, and in particular does NOT constitute a violation of the PR Residency Obligation. Moreover, in particular, a PR's status does not depend on possession of a valid PR card. A PR remains a PR even if he has no status card, no "PR card."
This is roughly similar to a passport. Canadian citizenship does not depend on possession of a valid Canadian passport. When a Canadian citizen loses his passport, or his passport expires, that has NO effect on his status as a Citizen. Likewise when a Canadian PR loses his PR card, or his PR card expires, that has NO effect on his status as a Canadian PR.
Moreover, even a gross breach of the PR RO does not constitute a "violation" as such, and it is NOT self-executing. A PR in breach of the PR RO nonetheless retains valid PR status UNLESS and UNTIL there is a formal adjudication concluding the PR is inadmissible due to the breach.
Procedure:
But neither a Canadian citizen nor a Canadian PR can (with certain exceptions) board an international flight bound for Canada without either a valid Canadian passport, PR card, or specially issued Travel Document (I am not sure what an application for a citizen's Travel Document requires).
A PR abroad without a valid PR card must, then, apply for a PR Travel Document. The rebuttable presumption that such a PR does NOT have valid PR status squarely puts the burden of PRESENTING sufficient information and evidence to PROVE valid status.
The PR TD application requires more information than just travel dates. Address and employment history must also be declared. These have no direct relationship to PR status or eligibility for a PR TD. They constitute, rather, corroborating information, both as to verifying identity (which is the most crucial element to establish, and which itself will typically establish PR status) and as to making a determination whether the PR is in compliance with the PR RO.
The context for this discussion has been primarily about making a H&C case. A focus here on H&C cases makes sense because generally it would be misrepresentation, a foolish misrepresentation, to claim credit for time in Canada the PR was not in Canada. Moreover, for purposes of illuminating how the process actually works, it only makes sense to approach this based on actual facts not misrepresentations.
But your reference to potential questioning of the PR's declarations of presence versus absence is an issue which, of course, can and sometimes does arise. Unfortunately, the IAD decisions rarely go into a sufficient level of procedural detail to illuminate how, as a practical matter, this is addressed by the Visa Office in actual cases. And anecdotal reports in this and other forums about this are notoriously sketchy and thus have been even less revealing. Perhaps this is the sort of issue which might, indeed, trigger a request the PR TD applicant submit further information or documentation (as I have noted, there are some anecdotal reports of this happening, but in the H&C scenario, in which the PR effectively discloses a breach of the PR RO, there is little or no indication of this -- if the PR fails to submit sufficient proof to document H&C reasons justifying the retention of status, the PR TD application is, at least ordinarily, denied, no request or opportunity to supplement the application further).
Proof of presence when IRCC or CBSA questions the accuracy or completeness of a PR's declarations is itself a huge topic, which of course arises in multiple situations such as citizenship applications, PoE examinations, PR card renewal applications, and appeals from both PoE issued Removal Orders and from denied PR TD applications. This is perhaps the topic I have focused on more than any other for many years now, albeit as much in the context of proving presence in a citizenship application as in determinations of compliance with the PR RO.
There is quite a lot of information about this available by reading IAD decisions in actual cases, as to PR RO determinations, and more generally in Federal Court decisions as well. But as I mentioned, the IAD proceedings are effectively de novo so the focus is on the evidence presented to the IAD panel; as for what the Visa Office's decision was based on, typically only the Visa Office's conclusions (often with minimal detail) are referenced, with little or no analysis of the evidence (at that stage) itself.
So I do not know much about how it goes with the Visa Office itself, in particular, if the PR submits an application asserting dates present in Canada which the Visa Office questions or challenges . . . except in terms of those cases resulting in a negative outcome, as seen in IAD decisions. Where, again, the evidentiary analysis is focused on evidence presented to the IAD panel not what was before the Visa Office. In this regard, it warrants noting that the vast majority of IAD appeals involve cases in which the PR either concedes the denial of the PR TD was valid in law (PR concedes being short of complying with the PR RO), or the IAD panel nonetheless concludes the denial was valid in law. In other words, the large majority of these cases are mostly about whether there are H&C reasons for allowing the PR to keep status, and only a few are focused on challenges to a PR's claim to have met the PR RO.
It is worth noting that close call cases PROBABLY (always contingent on additional factors however) have good ODDS, the Visa Office likely to conclude there are sufficient H&C reasons for issuing the PR TD notwithstanding the possibility the PR fell a LITTLE short. While a Visa Office can explicitly make a H&C ruling and issue a PR TD which is coded as based on H&C reasons, in many cases a PR is not advised that the decision to issue the PR TD was not necessarily based on a conclusion there was no breach.
Almost all anecdotal reports and other indications suggest this is most likely true in PoE examinations. Scores of PRs have reported, over the years and up to quite recently, successfully entering Canada without being reported despite falling short of the 730 day minimum. I and others have discussed a wide range of factors which quite likely influence the individual PR's chances. While Visa Offices are notoriously known for being more strict than CBSA officers at a PoE, if there is anywhere near a sensible reason for the delay in coming to Canada and the PR is very close to meeting the PR RO, the odds of getting a PR TD are probably quite good. (Caveat: to be in breach, however, is to be AT RISK for losing PR status.)
This is to say, when it comes to whether or not the PR met the PR RO itself, if this is a contested or questioned matter, it is probably NOT a close call case.
NOTE ABOUT TRAVEL DATES and CALCULATING PRESENCE IN CANADA:
As noted, if it is a close call case, the odds probably favour the PR. Obviously, certain factors can radically change this: indications of deliberate misrepresentation for example. Otherwise, for purposes of PR TD applications, the common scenario is the PR is NOT in compliance with the PR RO and the issue is making a strong H&C case.
Generally, in PR TD applications and PR card applications and in citizenship applications, as long as IRCC is approaching the application as a ROUTINE application (not questioning the PR's accounting of travel dates for example), and collateral information is consistent (such as work and address history, or as you allude, CBSA travel history), IRCC appears to readily make the INFERENCE the PR was in fact IN CANADA days in-between a known date of entry and the next reported date of exit. If, however, IRCC has reason to perceive the possibility the PR was outside Canada any of such days, the PR may NOT get the full benefit of such an inference.
Many participants in this forum overlook the fact that dates of entry and dates of exit ONLY document those specific dates. When proof of actual presence becomes necessary, how things go can and often will depend on how strong the PR's evidence is of actual presence in Canada on the days between known dates of entry and next reported dates of exit. Again, this is a huge subject, with all sorts of tangents and nuances. BUT it can be important to recognize that if and when IRCC doubts the veracity or otherwise questions the accuracy of the PR's account, dates of entry and dates of exit may not prove much at all.
How this factors into, as a matter of practice, a Visa Office decision on a PR TD application, for a PR who declares meeting the PR RO in circumstances the Visa Office might have questions about, I do not know.
