2/5 rule not met. How to proceed ? Risks ?

Hello

 

My family and I , we landed in Ontario on Jan-2009. Stayed for a week only and left Canada until now. We obtained our PR.

Now that we are ready to move to Canada and settle down (after more than 3 years), we might face problem with the immigration officer because of the 730 days rule not met (as only 16 months will be left before PR expiry).

My son (still minor 17 year) has been accepted in a Quebec university and my other son 15 yr in a secondary school.

 

My wife will be entering Canada with my 2 sons. I'll be joining them couple of days after to minimize risks.

 

Q1: With a renewed passport, shall we take the risk to fill the questionnaire form as if we were spending 2 weeks vacation ?

      What will be the consequences if we get caught ? Worst case, , we couldn't even hope for a PR renewal even with

      hiring a lawyer ? In other words, what's the price for a lie "excuse the expression".

 

Q2: is a freshly renewed passport, may be an additional factor to send us to immigration officer or it's better ?

  

Q3: Would it better to be honest and say the truth (reasons: I couldn't find a job in Canada to support my family and also kids studies following french system , so we had to wait until high school). In this case, the officer (even if he tries to be nice) is he obliged to report us as not meet the 730 days rule.

 

Q4: Statistically speaking, what are the chances to lose a PR when not meeting the 730 days rule ?

 

Q5: In which cases , the officer decides to give 30 days’ notice to leave the country ?

 

Thank you

I should have explained why I said it depends on what you mean by "report" . . . if the CBSA officer discerns some question about your compliance with the residency obligation, the officer is probably obligated to report it in some sense, but that might just be entering a flag or note into your FOSS records . . . or, I outlined the other alternatives in my previous post.

One more thing please about Q2:

The case of Mohammad Sarfarza specifically illustrates a caution that I have given on multiple occasions: a PR absent from Canada for an extended period of time and not in compliance with the PR residency obligation, who has, nonetheless, been allowed to enter Canada with no removal order issued at the POE, but then foolishly applies for a renewal of the PR card, triggering a residency examination and eventually the issuance of a Departur/Deportation Order. This PR lost the IAD review and lost again on appeal to the Federal Court.

The timeline for Mohammad Sarfarza is interesting. I do not know how representative it is of these sorts of cases, but I at least anticipate that it represents how it goes much of the time . . . I just cannot discern to what extent, and thus cannot reach any firm conclusions as to what the odds are that another PR in a similar situation might be processed, toward issuing a Removal Order, more aggressively.

The IAD decision can be be found here.

The salient, take-away facts of Mohammad Sarfarza's case are these:

A PR who left Canada, definitively, on August 6, 2005 and did not return to Canada until June 20, 2008, so was absent, as of June 20, for at least 1048 days in the immediately preceding five years. There is minimal evidence of his presence in Canada for the period June 2003 to June 2005, adding up to minimal evidence of much presence between June 2003 and the date of return to Canada June 2008. He was, nonetheless, allowed to enter Canada, no 44(1) report being issued. Note: That was four years ago. This is consistent with many reports we've seen here of POE officials being lenient with returning PRs at the POE. Probably less lenient today, but there are still reports of relative leniency, especially for those PRs still within the first five years of initially landing. Thus, it is my impression that POE officers are still relatively lenient, but probably not nearly so lenient as the officer was with Mohammad Sarfarza. However, a FOSS entry was made at that time indicating: "that the applicant should be more closely examined as to his residency obligations." Mohammad Sarfarza made an application for a new PR card just ten days after returning to Canada, on June 30, 2008. That triggered a residency examination, but the interview did not take place until May 14, 2009, and the 44(1) report was not issued until June 5, 2009.

Now, if Mohammad Sarfarza had come to this forum for advice around the time of returning to Canada, even then the consensus would have resoundingly affirmed: in Canada with no 44(1) Report issued, no Removal Order issued, just stay in Canada and wait until you are well in the clear regarding the PR residency obligation before you leave Canada again or make any application to CIC (as in, an application for a new PR card, or an application to sponsor someone in the family class).

In contrast, again, Mohammad Sarfarza made an application for a new PR card just ten days after returning to Canada, on June 30, 2008. And that is what triggered the eventual residency examination, the determination that he was in breach of the PR residency obligation, the issuance of a 44(1) Report followed by the issuance of . . . well it is referred to as a "deportation order" (a Removal Order is a type of deportation order).

For those PRs who have breached the PR residency obligation but not nearly by so much as Mohammad Sarfarza, who seek re-entry to Canada and are allowed to enter with no 44(1) immediately issued, but rather just a flag noted in FOSS, this timeline should offer some comfort: it appears to indicate that CIC is not likely to pursue an investigation regarding the residency obligation unless the PR does something more to trigger it (for example, Mohammad Sarfarza made an application for a new PR card) and even if something triggers an examination, the timeline is long enough for most PRs to add substantially to their credit for time present. Mohammad Sarfarza had virtually no credit for time present to add to, so this was of no help to him, but for many others it appears there is time to accumulate more days of presence before action is likely. In this case for Mohammad Sarfarza, for example, if he had waited until August 2009 to apply for the PR card and CIC similarly took nearly a year to hold a residency examination interview and decide whether or not to issue a 44(1) report, he would have been OK. That is, if the interview took place any time after June 20, 2010, he would have accumulated the necessary 730 days of presence in the meantime.

This case is a little dated already, since it appears this government has escalated efforts to more diligently and strictly enforce IRPA regulations including, in particular, the PR residency obligation. But we still get reports here, and indeed there was one in just the last month, of PRs in breach of the Residency Obligation but who still have a valid PR card encountering relatively lenient POE officers allowing entry with no more (it appears) than a FOSS note/flag.

Final note regarding Mohammad Sarfarza: it probably did not help that he had come to Canada as a refugee, claiming the need for protection, that because of the dangers he faced in his home country he should be allowed to stay in Canada and not be forced to return to his home country. And then, very soon after obtaining PR status in Canada: he voluntarily returns to stay for an extended time in his home country. That sort of dichotomy in a person's history remains salient for a long, long time, and will almost undoubtedly affect assessments of their credibility in future proceedings.