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730 Day Fulfilment in Re-entering Canada

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Post Options Post Options   Thanks (0) Thanks(0)   Quote pmm Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 2:13pm
Hi

Originally posted by timbit_TO timbit_TO wrote:


Originally posted by dpenabill dpenabill wrote:


First, one of the most common questions by the PIL officer, whose screening duties include customs as well as immigration, is "how long have you been out of the country?" To refuse to answer this question is, indeed, I suspect, a virtual guarantee of a referral to secondary and, perhaps, a trigger for questioning significantly more intrusive and expansive than even a residency examination.
I completely agree.  If the most recent continuous absence is greater than 1,095 days, there's not much one can do, other than plead for mercy and hope for lenience, perhaps with the help of an attorney with some experience in H&C applications.In other situations, when the residency examination is conducted based on a hunch or suspicion that a series of absences may add up to more than 1,095 days, it remains open to the PR whether or not to participate in such an exercise.  Again, I would defer to a professional attorney with a full grasp of the individual's circumstances to advise on the best course of action.And finally, it may be appropriate to reflect on the importance of playing by the rules, or following the instructions.  A difference of 3 months would have made this a non-issue, as the OP is only coming up about 80 days short.


1. You should note that a lawyer is NOT allowed at an examination and if the officer suspects that a person is not meeting their residency obligation and refuses to co-operate or answer questions, then it is quite possible for the office to decide that person is "unable to be examined" under 40(1) of the regulations.

Direction to leave

40. (1) Except in the case of protected persons within the meaning of subsection 95(2) of the Act and refugee protection claimants, an officer who is unable to examine a person who is seeking to enter Canada at a port of entry shall, in writing, direct the person to leave Canada.

Service

(2) A copy of the direction shall be served on the person as well as on the owner or person in control of the means of transportation, if any, that brought the person to Canada.

Ceasing to have effect

(3) The direction ceases to have effect when the person appears again at a port of entry and an officer proceeds to examine the person.

From the Act

Obligation — answer truthfully

16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 3:24pm
Originally posted by pmm pmm wrote:


1. You should note that a lawyer is NOT allowed at an examination and if the officer suspects that a person is not meeting their residency obligation and refuses to co-operate or answer questions, then it is quite possible for the office to decide that person is "unable to be examined" under 40(1) of the regulations.


I believe that the right to counsel is triggered if the person is detained for the purposes of an examination.  In any case I doubt that the OP was contemplating having a lawyer meet him at the POE.

Secondly, I think that what we are discussing here is not what is contemplated in the "unable to be examined" category:

The decision to direct a person to leave is applicable in cases where a person cannot be properly examined due to circumstances within their control (such as physical impairment due to alcohol or drugs).

Thirdly,
Originally posted by pmm pmm wrote:


From the Act

Obligation — answer truthfully

16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.


Several CIC memoranda that have been cited here before clearly state that a PR cannot be compelled to answer questions regarding their absences.  I will concede that it does seem to be at least somewhat at odds with the IRPA as quoted above; for a comprehensive legal explanation of how CIC squared that circle I'll defer to the lawyers, but my guess would be that questions regarding the duration of one's absences need not be answered by the PR without their consent as they are not relevant to whether or not they have that status, and, as PRs they can enter Canada by right, notwithstanding any grounds for inadmissibility, until and unless there's a final determination that the status is lost;  and moreover, the burden to make the case of inadmissibility is the Minister's.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 6:29pm

Regarding the not particularly relevant aside from PMM:

Generally, CBSA must allow entry to a PR once the PR's identity and status are determined. However, CBSA also has discretion related to both customs and security in general, and that discretion is expansive.

In particular, relative to entry into Canada (apart from customs or security issues) a PR is obligated to respond to any questions that are relevant to establishing identity or status. Responding to such questions are required. (And the obligation is always to answer questions truthfully.)

Of course what falls within the scope of relevant to identity is itself expansive, since an officer can make inquiry into related information in a legitimate effort to corroborate the individual's identity (ranging from questions about employment to living arrangements, recent activities, immigration history, and more -- questions which may corroborate that the individual is who the individual claims to be, or which may expose incongruities indicating the person is not who he or she claims to be).

For the overwhelming vast majority of PRs carring a currently valid PR card, this is an issue quickly resolved and not really a problem. That is why PMM's interjection is irrelevant to the present discussion and a distraction: no one is here was discussing a situation in which a PR appears at the POE and refuses to be examined as to identity or status.

In particular, a currently valid PR card bearing a photograph of the individual bearing that card is prima facie evidence of both identity and status unless there is some overt factor indicating that the person bearing the card is not the person named on the card, or there is some articulable reason to suspect the card is fraudulent.

It is my understanding that declining to respond to any further questioning, as to whether or not the PR meets the residency obligation for example, does not, will not, and may not constitute grounds for finding the PR unable to be examined.

Not that I would recommend testing this. Like ... well some ... many CBSA officers have a more or less FAQ approach to key information and are not well informed about the nuances, so even apart from the foolishness of not cooperating at the POE (again, I see no advantage in doing anything other than answering the questions), one would be risking unpleasant consequences (of at least a temporary nature) by not being openly (and of course honestly) responsive.

For example, if a CBSA border officer asks you "when did you stop having sex with a parrot?" you do not have to answer, and no, the officer cannot deem you "unable to be examined" for doing so. Likewise for irrelevant questions generally.



That said:

As I said in my earlier post, however and in particular, refusing to answer such questions is bound to trigger an examination for more than mere residency obligation issues. And the inevitable consequence is an extended delay in less than comfortable circumstances concurrent with hard questioning, which one may continue to decline to answer -- and again it is my understanding that so long as the issue is not identity or status, doing so will not, cannot constitute grounds for deeming the individual "unable to be examined," but it will most likely result in a much longer, more intense, involving some verbally coercive if not outright intimidating language in the course of continuing a security check. As I said, this is likely to be more than anyone would choose to endure.

Moreover, as I said in the previous post, as a general prnciple I cannot imagine how it would be to a PR's advantage to decline to answer questions at the POE.

I thought the reasons for this would be obvious:
--a PR in compliance is going to get through the process a whole lot easier and faster by cooperating.
--a PR not in compliance is probably going to make things go much more difficult than necessary by failing to cooperate; in particular, I believe CBSA officers at the POE tend to be far more lenient, about the residency obligation, toward PRs carrying a valid PR card than other officials in the system. Best time to make a H&C case is then and there, and that is about persuading the officer.    



But again, that is all largely if not entirely beside the point to the discussion here; the OP's latest query, after all, was as follows:
(I have no idea how or why PMM thought his post was at all responsive to this.)

Quote We plan to enter Canada for three weeks this summer before entering for the final time at the end of the month. There should therefore be only 4 months between our final entry and our last visit. Based on what you have both said, I am assuming that that may be of help to us?

Are there any other things I should do in my visit this summer that could help my case (i.e. things to show we are committed to being in Canada)?


Yes, I do think that even a brief visit sooner rather than later would help. Help your odds mostly, though it will not much affect the overall calculation. Does not guarantee that you will not be asked questions or otherwise looked at relative to the residency obligation. Again, all we can really address here are the odds, the probabilities, the possibilities. And yes, travel into Canada sooner will better your odds.

While it is true, as timbit_TO says, that it "is not necessary for you to show that you are committed to Canada" and that the bottomline consideration is the number of days you are in-Canada, again, the overall circumstances and appearances do affect your odds at the POE on any given occasion. Another common, early question by the PIL officer is "where do you live?" and of course an address from outside Canada has certain implications and an address in Canada has other implications. Again, honesty is paramount (no moral reasons necessary; as a practical matter honesty works best most, and the consquences for being dishonest can be, well, confining). But to have an actual address in Canada, a job in Canada, or such, are the sorts of ties that can improve the odds. If CBSA officers at the POE recognize you as likely to be in breach of the residency obligation, sure, all those odds are for naught, but again a PR who presents a currently valid PR card has a very good chance of not being pressed about how long they have been outside Canada.

I have not seen one person in this forum, for example, report being issued a removal order for failing to meet the residency obligation following an attempt to enter Canada with a valid PR card. In contrast, one sees a great many residency obligation cases reported for PRs abroad seeking a Travel Document authorizing travel to Canada.



Edited by dpenabill - 18 May 2011 at 6:30pm
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BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote pmm Quote  Post ReplyReply Direct Link To This Post Posted: 18 May 2011 at 6:39pm
Hi

Originally posted by dpenabill dpenabill wrote:


Regarding the not particularly relevant aside from PMM:

Generally, CBSA must allow entry to a PR once the PR's identity and status are determined. However, CBSA also has discretion related to both customs and security in general, and that discretion is expansive.

In particular, relative to entry into Canada (apart from customs or security issues) a PR is obligated to respond to any questions that are relevant to establishing identity or status. Responding to such questions are required. (And the obligation is always to answer questions truthfully.)

Of course what falls within the scope of relevant to identity is itself expansive, since an officer can make inquiry into related information in a legitimate effort to corroborate the individual's identity (ranging from questions about employment to living arrangements, recent activities, immigration history, and more -- questions which may corroborate that the individual is who the individual claims to be, or which may expose incongruities indicating the person is not who he or she claims to be).

For the overwhelming vast majority of PRs carring a currently valid PR card, this is an issue quickly resolved and not really a problem. That is why PMM's interjection is irrelevant to the present discussion and a distraction: no one is here was discussing a situation in which a PR appears at the POE and refuses to be examined as to identity or status.

In particular, a currently valid PR card bearing a photograph of the individual bearing that card is prima facie evidence of both identity and status unless there is some overt factor indicating that the person bearing the card is not the person named on the card, or there is some articulable reason to suspect the card is fraudulent.

It is my understanding that declining to respond to any further questioning, as to whether or not the PR meets the residency obligation for example, does not, will not, and may not constitute grounds for finding the PR unable to be examined.

Not that I would recommend testing this. Like ... well some ... many CBSA officers have a more or less FAQ approach to key information and are not well informed about the nuances, so even apart from the foolishness of not cooperating at the POE (again, I see no advantage in doing anything other than answering the questions), one would be risking unpleasant consequences (of at least a temporary nature) by not being openly (and of course honestly) responsive.

For example, if a CBSA border officer asks you "when did you stop having sex with a parrot?" you do not have to answer, and no, the officer cannot deem you "unable to be examined" for doing so. Likewise for irrelevant questions generally.



That said:

As I said in my earlier post, however and in particular, refusing to answer such questions is bound to trigger an examination for more than mere residency obligation issues. And the inevitable consequence is an extended delay in less than comfortable circumstances concurrent with hard questioning, which one may continue to decline to answer -- and again it is my understanding that so long as the issue is not identity or status, doing so will not, cannot constitute grounds for deeming the individual "unable to be examined," but it will most likely result in a much longer, more intense, involving some verbally coercive if not outright intimidating language in the course of continuing a security check. As I said, this is likely to be more than anyone would choose to endure.

Moreover, as I said in the previous post, as a general prnciple I cannot imagine how it would be to a PR's advantage to decline to answer questions at the POE.

I thought the reasons for this would be obvious:
--a PR in compliance is going to get through the process a whole lot easier and faster by cooperating.
--a PR not in compliance is probably going to make things go much more difficult than necessary by failing to cooperate; in particular, I believe CBSA officers at the POE tend to be far more lenient, about the residency obligation, toward PRs carrying a valid PR card than other officials in the system. Best time to make a H&C case is then and there, and that is about persuading the officer.    



But again, that is all largely if not entirely beside the point to the discussion here; the OP's latest query, after all, was as follows:
(I have no idea how or why PMM thought his post was at all responsive to this.)

Quote We plan to enter Canada for three weeks this summer before entering for the final time at the end of the month. There should therefore be only 4 months between our final entry and our last visit. Based on what you have both said, I am assuming that that may be of help to us?

Are there any other things I should do in my visit this summer that could help my case (i.e. things to show we are committed to being in Canada)?


Yes, I do think that even a brief visit sooner rather than later would help. Help your odds mostly, though it will not much affect the overall calculation. Does not guarantee that you will not be asked questions or otherwise looked at relative to the residency obligation. Again, all we can really address here are the odds, the probabilities, the possibilities. And yes, travel into Canada sooner will better your odds.

While it is true, as timbit_TO says, that it "is not necessary for you to show that you are committed to Canada" and that the bottomline consideration is the number of days you are in-Canada, again, the overall circumstances and appearances do affect your odds at the POE on any given occasion. Another common, early question by the PIL officer is "where do you live?" and of course an address from outside Canada has certain implications and an address in Canada has other implications. Again, honesty is paramount (no moral reasons necessary; as a practical matter honesty works best most, and the consquences for being dishonest can be, well, confining). But to have an actual address in Canada, a job in Canada, or such, are the sorts of ties that can improve the odds. If CBSA officers at the POE recognize you as likely to be in breach of the residency obligation, sure, all those odds are for naught, but again a PR who presents a currently valid PR card has a very good chance of not being pressed about how long they have been outside Canada.

I have not seen one person in this forum, for example, report being issued a removal order for failing to meet the residency obligation following an attempt to enter Canada with a valid PR card. In contrast, one sees a great many residency obligation cases reported for PRs abroad seeking a Travel Document authorizing travel to Canada.



Quote from Timbit In other situations, when the residency examination is conducted based on a hunch or suspicion that a series of absences may add up to more than 1,095 days, it remains open to the PR whether or not to participate in such an exercise. Again, I would defer to a professional attorney with a full grasp of the individual's circumstances to advise on the best course of action.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 19 May 2011 at 1:27am

The statement quoted from timbit_TO is, I am quite sure, an accurate statement.

And, in particular, quite obviously actually, a PR who is concerned about whether or not they might face a residency examination upon return is indeed wise to consult with a licensed attorney who can fully assess their situation and offer more fully informed advice. Such a PR should, if possible, consult with an attorney prior to approaching a POE rather than waiting until having to file an appeal if a removal order has been issued.

There is no restriction that would prohibit a PR from consulting with an attorney about potential residency obligation issues. It is, frankly, ludicrous to suggest otherwise.

Nonetheless, as to how things may go down at the POE, pursuant to the governing statutory provisions and regulations, and as clearly articulated in the applicable operational manual, ENF 4 :

Quote BSOs must remain cognizant of the fact that the Act gives permanent residents of Canada the right to enter Canada at a POE once it is established that a person is a permanent resident, regardless of non-compliance with the residency obligation in A28 or the presence of other inadmissibilities.

BSOs can refuse entry to a permanent resident only when the person has already lost the status in accordance with the provisions of A46 (such as a final determination has been made that they have failed to comply with the residency obligations or when a removal order comes into effect). In other words, once a permanent resident’s status is established, the person may enter Canada by right and the immigration examination under IRPA concludes.


Just to be clear, again, once a PR's status is established during a POE examination, the person may enter Canada by right and the immigration examination under IRPA concludes.

The operational manual goes on to specifically discuss the options the BSO has if the PR does NOT choose to answer additional questions to determine whether concerns (about a PR's compliance with the residency obligation) are well founded or not, and explicitly details what the BSO may do if, depending on whether or not there is sufficient evidence to support an inadmissibility allegation, in a case where

Quote the permanent resident refuses to provide any further information and enters Canada


In this process there is NO OPTION to refuse a PR entry into Canada based on an inability to examine grounds merely because the PR declines to answer additional questions relative to the residency obligation.

It is that simple. As I previously said, I would not test this. Not worth it. There is no advantage in being uncooperative at a POE. The provision you previously cited, about the issuance of "direction to leave" if an officer is "unable to examine a person who is seeking to enter Canada" at a POE had NO relevance to the OP's inquiry or any of the discussion about the OP's questions.

To Canada Faith:

Sorry for this unnecessary distraction. See near the end my previous post for the part that is on topic here.

I should add, relative to my observation that POE officers are, it seems, likely to be the most lenient toward returning PRs with currently valid PR cards, that overall in fact the Canadian PR residency obligation is incredibly lenient -- after all, a PR does not have to live in Canada even half of the time and can nonetheless maintain their status as a permanent resident. It is hard to forecast any policy shifts generally, but with the first Conservative majority government in a long time, and given the various discussions going on about immigration over the past few years, I would not be at all surprised to see either (1) current regulations and policies more strictly enforced, or (2) changes in either the statutes or regulations toward more strict requirements in some aspects of immigration, almost certainly for sponsored partners (a provisional or even conditional period likely to be imposed in the near future) but perhaps also relative to citizenship eligibility requirements (especially residency) and perhaps even the PR residency obligation.

In other words, the residency requirement could get more strict in future . . . either more strictly enforced through standard enforcement procedures . . . or a more strict standard adopted.




Edited by dpenabill - 19 May 2011 at 1:31am
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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Post Options Post Options   Thanks (0) Thanks(0)   Quote timbit_TO Quote  Post ReplyReply Direct Link To This Post Posted: 19 May 2011 at 1:06pm
An interesting Federal Court appeal of a rather unsavory character dealing with various issues arising in the course of a POE residency examination.
Kainth v. MCI
Originally posted by dpenabill dpenabill wrote:


For example, if a CBSA border officer asks you "when did you stop having sex with a parrot?" you do not have to answer, and no, the officer cannot deem you "unable to be examined" for doing so. Likewise for irrelevant questions generally.

This is less of an exaggeration than one might think:
Are our customs officers traumatizing visitors?
Canada border guards' rudeness touches a nerve


Edited by timbit_TO - 19 May 2011 at 3:43pm
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