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

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kiwi1959 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote kiwi1959 Quote  Post ReplyReply Direct Link To This Post Topic: 2/5 rule not met. How to proceed ? Risks ?
    Posted: 17 Jun 2012 at 5:57am

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 ?

 
Q6: With a new passport (assuming the previous one lost). Does the immigration officer have access to the worldwide historical traveling details of the subject ?
 

Thank you

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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 17 Jun 2012 at 9:21pm

Technically you are, as you perceive, in breach of the residency obligation. This makes you "inadmissible" and subject to being issued a removal order, and losing your PR status.

I do not know the odds in your case. The sooner you arrive the better. Given how much over three years you have been absent, that hurts your odds . . . but at least until the last year or so, there have been many indications that CBSA is relatively easy on PRs in this situation: still well within their first five year period, valid PR cards in possession. How it is this year, with the overall increased enforcement of the law, rules, and regs by this government, it is hard to say.

Note: yes, of course, if a PR is given a residency examination, yes, the immigration officer does have access to the worldwide traveling details for the PR -- because the PR is obligated to truthfully disclose this information if asked. One of the fastest ways to see an interview go from routine to strict is to give any hint of deception or deliberate concealment of information, and one of the most certain ways to definitely be deemed inadmissible, and lose PR status, is to be caught making a misrepresentation to CBSA or CIC, including misrepresentation by omission.

Your best bet is to be upfront, honest, accurate, and present yourselves as ready to fully settle in Canada. The other way works for some. The other way goes very badly for more than a few.

Regarding whether or not the CBSA border officer is "obligated" to "report" a returning PR discerned to be in breach of the residency obligation: depends on what you mean by "report." They have broad discretion to allow returning PRs with valid status into Canda without even making inquiries as to whether they are in compliance with the residency obligation.

But, if they discern facts or circumstances suggesting a breach of the residency obligation they can:
-- allow entry without taking any action, usually based on H & C grounds
-- allow entry and take no action but submit a something like a "report" (I forget the precise language, "report" or "letter" or "referral") which goes to a local CIC office, which would then decide whether or not to conduct further inquiry or an investigation

The above two things leave the PR in a pretty good position. Time they are in Canada following this entry will count toward meeting the PR residency obligation, and even if the second of these occurs, a referral to the local office, it seems likely that in the long-run things will work out OK, no hard to push to remove such PRs, particularly those in situations like yours where it took a little longer just to be able to make the real move.

-- or they can issue the 44(1) report which will be followed almost immediately, usually, by the issuance of a removal order -- even with this, they must allow the PR to enter, and the PR has the right of appeal. Appeals do not appear to be going well for most, though. Best to get a lawyer if one really wants to fight to stay a PR in Canada.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 17 Jun 2012 at 9:24pm
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.
Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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kiwi1959 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote kiwi1959 Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 2012 at 1:44am
Thank you dpenabill.
As usual, accurate answers Smile
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kiwi1959 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote kiwi1959 Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 2012 at 3:33am
One more thing please about Q2:
 

a - is a freshly renewed passport (assuming the last one lost), considered a trigger for doubt and will probably lead to immigration officer for further investigation ?

 
b- Assuming a renewed passport while carrying the cancelled previous one (not lost this time).
When presenting the new passport at the passport police, odds are that this last will also ask for the previous one ? Am I right ?
 
K. Rgrds
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 18 Jun 2012 at 7:15am
There are no "passport police." CBSA personnel are the border officers/officials who conduct examinations at the POE.

There are two levels of screening at the POE, the PIL (primary line inspection) and Secondary (immigration and/or customs). With a valid PR card in possession, and its expiration date well over a year away, there is some chance that the PIL officer will allow the returning PR to pass, to enter Canada without any further secondary examination with immigration.

I am not certain, but it is my sense that these days (unlike not all that long ago) for most returning PRs they can immediately see, right there on their monitor when your client number pulls your record up in the system, indicators that will pretty much illuminate how long you have been outside Canada. I don't think there is much fudging around with this . . . which is why, I think, that being evasive or deceptive will more likely send things down the more strict and harsh path, or, that is, have poor odds of succeeding.   

I have not returned to Canada by commercial flight since I became a PR, so I do not have personal experience at airport POEs as a PR. At a land POE I only display my PR card to Canadian border officers and in nearly four years time I have never been asked to also show my passport. But I cross the border fairly frequently, so they readily see that I have been in Canada to live, and so I have never been questioned beyond the PIL routine queries: where do you live, how long have you been outside Canada, what are you bringing back to Canada.

The only reason for Canadian POE officers to ask to see a passport in addition to the PR card is, usually, I think, to confirm identity. The PR card is an adequate travel document for travel to and entering Canada. (Technically it is a valid travel document only for this purpose, but I have seen some people report that it is recognized by some other countries when presented in conjunction with a passport . . . but that has to do, I think, with whether or not a formal visa must be obtained prior to going to such countries).

A long way of saying I do not really know how one's passport might affect how it goes at the POE upon arrival in Canada. I suspect what you are talking about is to what extent such circumstances might trigger a heightened degree of scrutiny, leading to the referral to immigration in secondary and questioning related to the residency obligation. I don't know.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 12 Jul 2012 at 9:27pm

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:
Quote 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.
Quote 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.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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canvis2006 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote canvis2006 Quote  Post ReplyReply Direct Link To This Post Posted: 13 Jul 2012 at 4:20pm
Do not lie. If you get caught with misrepresentation, you will definately lose your PR status, then CIC will have no mercy.

Be honest, even if you get written up at the border, you can enter and file an appeal, then use all your reasoning to convince the appeal board for PR status.

Since there are still 16 months left, just be extra nice/polite, and insist you're moving to Canada permanently after winding up everything abroad. That's what I would say and request the officer to allow entry without writing u up.

Good luck and let us know how it goes.
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