Travel Document Refusal

Hello members,

Thank you dpenabill for your in-depth reply to my post.  

Summary

Foremost: appealing the denial of the PR TD application appears to be, by far, your best option. Document your case well and it should go OK. I address this more below.

If you want to travel to Canada in the meantime, see my previous post about traveling on your British passport. In this scenario, you cannot enter Canada as a visitor but must enter as a PR, a PR with an appeal pending regarding a determination, in the PR TD application process, that you are inadmissible due to a failure to comply with the PR residency obligation. Once in Canada, you continue to have the rights and privileges of a PR, subject to the outcome of the appeal.

As ski suggests: it is imperative that you be truthful in all your interactions with CIC and CBSA (the latter is who you deal with at the POE). Any misrepresentation is a separate ground for revoking PR status, and the current Minister appears to be engaged in campaign to enforce this.

There is no point in making an application for a new PR card once in Canada. While previously some individuals have had such applications processed, it was largely due to an oversight and the outcome of the appeal determines status regardless. Currently the GCMS and FOSS systems will almost certainly result in the PR card application being, at best, put on hold pending the outcome of the appeal. In any event, even those who previously, somehow, were issued and actually delivered a new PR card, the denial of the PR TD trumps and if it becomes enforceable (appeal lost or not timely made), PR is lost and the new PR card is not valid. (PR cards are documentation evidencing status, not determinative of status.)

The denial of the PR TD application is an adjudication of your status. It is now controlling. It is not enforceable so long as an appeal is possible or pending, but your future status definitively depends on whether the negative decision is set aside or not.

By the way, the appeal is your remedy for having made a mistake in the original PR TD application. You may not have made a mistake, but rather the mistake may be that of the officer in the visa office who denied the application (this actually appears to be what happened). The appeal is your remedy for that as well.    



More in-depth discussion:

dosvog2002 wrote: a) Submit an appeal thus retaining my PR status until the appeal hearing, and enter Canada on a visitor visa using my British Passport.

A PR cannot enter Canada on a visitor visa. Moreover, British passport holders are visa exempt, so ordinarily there is no process for a British passport holder to apply, in advance, for a visitor visa.

dosvog2002 wrote: My big question here is do I have any PR rights (i.e. work, study) if I enter Canada on a visitor visa? I feel that the answer is no.

You are correct, if you enter Canada as a visitor, which you can only do if your PR status is definitively terminated, you would only have the rights and privileges of a Foreign National (FN) visitor (your status will be that of a FN once PR status is definitively terminated). No status to work or study.

If you were to travel to Canada, on your British passport, prior to the time for filing an appeal expires, you can affirm your surrender of PR status at the POE and request permission to be allowed to enter Canada as a visitor.

Note: if you appeal, as previously indicated you can still enter Canada as a PR. This assumes you can reach a Canadian POE - the main purpose of the PR TD is to present to commercial transportation, usually an airline, in order to board transportation destined for Canada; the PR TD is a Travel Document authorizing travel to Canada, but you carry a visa exempt passport so, in one way or the other (as outlined in my previous post) you should be able to make your way to Canada and present yourself at a POE, seeking entry into Canada as a PR.

As a PR you will continue to have the rights and privileges of a PR pending, and subject to the outcome of, the appeal.

You should have no problem working in Canada, then, so long as you previously obtained a Canadian SIN. If you did not already obtain a SIN, not sure how you go about obtaining one in your situation, given current rules about necessary proof for obtaining a SIN. At the least, you can legally work. But the problem is getting employment without a valid SIN.   



Entering Canada As a Visitor:
If you do not appeal, and the time for filing an appeal is passed, and thus you are no longer a PR, then you have authorization (as the holder of a visa exempt passport) to enter Canada as a visitor. You must, however, still obtain actual permission to enter Canada at the POE. To do that you must qualify as a visitor: coming to Canada temporarily, and to visit, not to study, not to work, not to live in Canada indefinitely. Obviously, a big factor in what the officers at a POE may consider is the strength of ties to a permanent residence outside Canada (usually in home country, but not necessarily) and ongoing employment outside Canada.

Foreign Nationals (FNs), which again is what your status would be if your PR status is adjudicated as terminated (which it would be if you do not appeal on time, or the appeal is lost, or you confirm surrender of PR status at a POE), from visa-exempt countries accompanying a Canadian citizen spouse are often treated leniently at the POE in this regard. But there are no guarantees. This is a decision made by an immigration officer with CBSA at the POE, not by CIC. Strength of ties to home outside Canada is one of the key factors, along with the officer's impression as to your intentions, whether it is perceived you have the proper intent to be a visitor.

Most British passport holders have virtually no problems being allowed to enter Canada as a visitor. But most are coming to Canada in circumstances where it is obvious the intent is to be a visitor and to return home in due course. Just being the partner of a Canadian citizen is enough to trigger questions about intent beyond those asked of most ordinary British visitors to Canada. Which is to say, you are not really in the same shoes as an ordinary visitor to Canada.



Entering Canada as a PR after filing appeal
Foremost, it appears you should appeal, and that indeed you have a strong case and should prevail on the appeal.

That said, it also appears that you submitted substantial, credible documentary evidence of cohabiting for more than 730 days during the previous five years, so it seems your application for the PR TD should have been granted.

What would concern me, in your situation, is why this happened. But you may never know, so your best option is to make sure to document your case as well as, as strongly as you can. Remember, quality evidence is far better than quantity, so focus on the best, most direct, most reliable/credible evidence you can to show the key elements.

Thus, in particular, in the appeal be sure to include the best documentation you can to show the key elements of residency credit based on accompanying a Canadian citizen spouse:
-- copy of Canadian citizen's passport
-- copy of marriage certificate
-- documentation consisting of direct, reliable/credible evidence of cohabitation
-- statement or affidavit from spouse confirming all this and further documenting the continuing marital relationship as well as details regarding cohabitation (including specific dates and addresses) and reasons for living abroad (latter not necessary technically, but should help considerably relative to any unspoken undercurrent as to who is accompanying whom, as well as general equitable considerations)

In the latter regard, a formal affidavit (sworn statement, made in presence of and affirmed as such by a proper authority equivalent to notary or judge) is the strongest and best form of statement your spouse can submit on your behalf. In particular, it should help to include a strong affidavit from your spouse affirming all of the above, including statement as to Canadian citizenship, marriage, and specific details about cohabitation, specific dates and addresses.

Add to this, if possible, affidavits from reputable persons who know both of you, know your relationship, know where the two of you have been living for (whatever time period they can truthfully testify to as personally knowing where the two of you were living together).

You indicated in your first post that you can provide (suggesting that you did not already submit this evidence with the original PR TD application):

. . . evidence of my wife and I living with my wife's grandmother via household registration documents, my wife's grandmother's death certificate, and countless family photographs.

This sort of evidence should help considerably. And particularly if your spouse explains, in her affidavit or statement, why the two of you were living where you were living.

Note regarding covering potentially unspoken issues:
This information, about why the two of you were living abroad, could be very important information to include, as it should dispel any unspoken weight given to any who-is-going-with-whom undercurrent in the assessment of "accompanying." And this information should be further emphasized in presenting the H&C argument. See the operational manual I previously linked for detailed information about making the H&C argument.

Frankly, from the information you have provided, I have doubts that the H&C argument will carry much weight, as H&C grounds for essentially waiving compliance with the residency obligation, particularly since obviously much of the argument would be based on the same evidence as what would prove compliance with the residency obligation in the first place (so if that evidence is not sufficiently persuasive to prevail on the compliance with the residency obligation issue, it is not likely to be persuasive as documenting H&C grounds).

BUT it is still important to make the H&C argument. This is true for many reasons, but two in particular: it gives the IAD an avenue to grant the appeal and issue a PR TD (or otherwise set aside the denial if you are already in Canada and a PR TD is no longer needed) even if the panel is not certain about some of the facts; but more importantly it is in large part an argument based on the equities, an argument that you deserve to keep your PR status. Technically there is no applicable who-deserves-to-keep-PR-status consideration, let alone standard. But such things are almost always underlying how a decision maker assesses the facts, in most official decision making procedures. Making the H&C argument is your way of showing how much you deserve to be allowed to keep your PR status. I know, this is crap, should not be of much influence. This should not be significant let alone important (the decision should be based on an application of the formal rules to the facts). But such unspoken influences are pervasive in many, many aspects of life, and that includes this one. A good H&C argument should dispel any lingering negative influence of this sort.      



Other Questions You Raise

dosvog2002 wrote: b) Not appeal, enter Canada on a Study Visa, and submit another sponsored PR application whilst in Canada. The sting here is having to pay international study fees which are 19500CAD compared to 6700CAD for home students.

The other sting is that there is no guarantee you will be granted a study visa. These are even less automatic than being allowed to enter Canada as a visitor.

And you can only apply for a Study Visa if you are a FN, not a PR, so to do this you would have to surrender PR status (not appeal or surrender it at a POE).

dosvog2002 wrote: c) Not appeal, enter Canada on a visitor visa and submit another sponsored PR application. The downside of this is that I'll forfeit my study for a year.

Correct. Subject to what I discussed above about being allowed to enter Canada as a visitor.

Also note: given the history, your spouse will most likely have to be residing in Canada when making a PR sponsored application, and mostly continuing to do so while it is pending. Asserting a "plan" to return to Canada to live when this was done before, and not followed through, would probably encounter serious skepticism. So, if you are not allowed to come to Canada to stay, you would face the prospect of having to live separately, maintaining two households in separate countries, a major inconvenience.

Moreover, given the history, the denial of the PR TD may, in effect, amount to an adjudication you were not cohabiting for even 730 days of the previous five years. That indicates a very substantial period of separation. That could, potentially, raise questions about the ongoing validity of the marital relationship, which could entail further questions given the possibility your spouse will have to again be separated from you to make the application, if you are not allowed to enter and remain long in Canada as a visitor. It should be relatively easy to overcome these issues, but this is, at the least, a potentially complicating factor that could significantly delay the processing of the new sponsored PR application.

Again, ppealing with strong evidence and prevailing on the appeal is by far the more expeditious route. Assuming, of course, you have the documentation and can indeed win the appeal.

dosvog2002 wrote: d) (long shot here!)   Appeal and thus retain my PR status, enter Canada on my British passport, apply to renew my expired PR card.     I'm sure that this scenario will throw up red flags as I'll have an appeal pending and be renewing an expired card at the same time.

Well, I do not think the appeal route is generally a long shot. Unless there is something else at play, it appears that the visa office made the mistake, and that an appeal should be almost easily successful . . . but of course you will want to make the best case possible in the appeal to make sure that is how it goes.

As I noted above, though, there is no long shot option to apply for a new PR card while your appeal of the PR TD is pending. The odds of successfully doing that are not a mere long shot, but infinitesimally small. And, again, even if somehow your PR card application slipped through a crack, the outcome of the PR TD appeal will still be controlling and the new PR card would be invalid.


Note regarding coming across problems at the POE, if you arrive in Canada and seek entry as a PR with the appeal pending: While a referral to secondary is almost guaranteed, as long as your identity is not in question (no reason it should be) and there are no other admissibility issues lurking (no indication there are), the secondary exam may be a hassle but it should not be particularly problematic. Worse case scenario is a difficult CBSA officer who is pushy and a bit confrontational. Again, all you have to do is be calm, answer all questions accurately, truthfully, and be patient. No need to elaborate much or explain. Be cooperative, but focus on giving simple, direct, honest answers. No need to elaborate. No need to argue or advocate. Acknowledge the denial of the PR TD application, and that an appeal is pending. Be clear that you are coming to Canada to stay pending the outcome of the appeal, which you fully expect will be successful and do not be pressured into surrendering PR status and asking for entry as a visitor.

There is NO credit toward compliance with the PR residency requirement for a PR physically in Canada after a PR TD application has been denied (or similarly, once a Removal Order is issued), pending the appeal.

The appeal will literally, definitively, determine this OP's status.

Lose the appeal, PR status is lost (possibly subject to obtaining leave for further judicial review -- however, I do not recall to what extent, if any, or when, leave for further review might be available in this process).

A favourable decision, a win, in the appeal (subject to further judicial review if sought by the Minister) will constitute an adjudication that the PR is admissible, PR status preserved.

I can't thank you enough for your assistance on this matter because it means everything to my wife to be with her father at the moment.