How does the officer decide to report not meeting RO? Is that random? Can we request them not to do that?
Largely agree with the observations succinctly stated by
@Besram, but will more fully explain the procedure.
Some caveats: I am NOT an expert. I am not a Canadian lawyer. But the procedure is no mystery, no particular expertise necessary to outline how these things work.
Longer Explanation of Port-of-Entry Process Enforcing PR RO:
Overview of Process:
Generally a PR presenting a valid PR card at the Port-of-Entry is not examined much about their compliance with the Residency Obligation. The vast majority of returning PRs presenting a valid PR card are waived through the Primary Inspection Line (PIL), no examination as to their compliance with the RO.
However, as
@Besram stated, there are various factors which might lead the PIL officer to make a referral for further examination in Secondary. The scope of examination in Secondary will likewise depend on similar factors, and in typical law enforcement fashion it is a potentially telescoping interview; that is, the traveler's responses can either satisfy the examining officer or trigger additional questions, possibly leading to more probing questions, which can in turn trigger even more robust questioning and potentially lead to a more or less full examination of the PR's compliance with the RO.
If the examining officer in Secondary determines the returning Canadian PR is not in compliance with the PR RO, there is a multi-stage procedure that includes a review stage in which a second officer makes the decision whether (1) the inadmissibility "
report" (prepared by the examining officer) is valid in law, and if so (2) whether to issue a Removal Order or (3) waive the breach of RO and allow the PR to keep PR status despite failing to comply with the RO. Either way, the PR is then given permission to enter Canada. This procedure is often referred to as being "
reported," but that label glosses over detailed steps in the process.
Main thing is NOT whether there is a 44(1) Inadmissibility Report prepared, but whether the second, reviewing officer decides to issue a Removal Order based on that report.
If a Removal Order is issued, the PR has a right of appeal, and remains a PR pending the outcome of an appeal (this goes to the IAD). If not appealed, the Removal Order becomes enforceable 30 days after it was issued, terminating PR status. (This makes the individual, now a
former PR, a Foreign National, who must leave Canada or be subject to deportation proceedings.)
The reviewing officer (technically the Minister's Delegate) may decide to NOT issue a Removal Order if:
-- the reviewing officer concludes there are sufficient H&C reasons to allow the PR to keep their PR status despite the RO breach, or
-- the reviewing officer concludes the first officer's decision was not valid in law, which can happen but is uncommon (this is about whether the reviewing officer agrees that the PR has failed to comply with the RO; this is mostly about the numbers)
If the reviewing officer decides to not issue a Removal Order, the PR keeps their PR status and that is the end of the matter (unless or until another event triggers a Residency Determination, such as a PR card application or a subsequent PoE examination after again traveling outside Canada).
Can a PR in breach of the RO request border officials not "report" them?
Yes. Definitely. And this is the main reason for these further, longer comments.
The real question, after all, is HOW? How does a PR make the case to border officials that they should be allowed to keep PR status?
A PR in breach of the RO should be prepared to explain why they have not returned to Canada sooner, why they failed to comply with the RO, and to make the case they deserve the chance to keep their PR status. In particular, if the examining officer decides to "
prepare" a 44(1) Report for Inadmissibility due to a breach of the RO, the PR will be given an opportunity to do this in the interview with the reviewing officer (again, technically this is the Minister's Delegate, but in practice just another CBSA immigration officer). This is referred to as a consideration of "
H&C" factors, that is Humane and Compassionate reasons for waiving the breach of the RO, but the nature and scope of what constitutes H&C considerations in this context is broader and more flexible than in most other contexts where so-called H&C reasons are considered.
The biggest factor in most of these cases (nearly all) is the extent of the breach, the numbers. Just the facts. Beyond that, for most PRs in this situation during their first five years since landing, still in possession of a valid PR card, generally the best they can do is simply be prepared to tell their story, to honestly explain what has held up their coming to Canada to settle and live PERMANENTLY. If this includes specific reasons, like medical reasons, or needing to care for a parent, it can help to have some objective paperwork backing up the explanation (supporting documents, like a doctor's letter if there is a medical reason involved).
Main thing is to be honest and NOT evasive, let alone at all deceptive. It can come down to a relatively subjective judgment call by the reviewing officer based on whether the officer is persuaded the PR
DESERVES to keep PR status.
If the PR fails to persuade the reviewing officer they deserve to keep PR status, and a Removal Order is issued, the PR will get another chance to make their case before the IAD, so long as they appeal within 30 days. Best to get a lawyer's assistance in this.
The 44(1) Report for Inadmissibility Due to RO Breach:
This is the formal documentation more or less charging a PR with failing to comply with the RO. It is actually less a "
report" in the typical sense, and more like a decision. In particular, this Report is prepared when an examining officer determines the PR has failed to comply with the RO. In itself, the only direct impact of this Report is that it means the PR will not get credit for days in Canada after that day unless the Report is set aside.
In the context of this Report being prepared attendant a PoE examination (there are other situations in which these reports are prepared), it is almost always reviewed then and there, while the PR is still in the PoE, before the PR has been allowed to proceed into Canada. (I have more fully detailed, in other posts, the circumstances in which review is delayed, the PR allowed to proceed into Canada, review of the Report still pending.) As I outlined above, a second officer reviews the Report and decides whether or not to issue a Removal Order.
