Re-Entering Canada with Expired PR Card and without meeting the RO

[21Goose]

does the CBSA officer, secondary or Minsters delegate have the right to issue a RO at the PoE
if section 44 report different than a RO?

Yes, the CBSA officer can issue a Departure Order at the PoE. A Departure Order is one kind of Removal Order.

There are three kinds of Removal Orders, in increasing severity.

1. Departure Order - You have 30 days to leave
2. Exclusion Order - You cannot return to Canada for at least a year without a special Authorization To Return. Can be five years in cases of Misrep.
3. Deportation Order - You cannot ever return without an ARC.

For PRs not meeting RO, a Departure Order is the usual procedure as that also coincides with the 30 days to appeal.

 

[dpenabill]

thanks
there is a gentleman (@Bentham) who has indicated that he went through an appeal process of similar nature.
his experiences could clear up a lot of doubts and answer questions

Let's be clear: there is very little if any doubt about the procedure. It is as I describe above.

Beyond that, actually it appears there many differences between your situation and that reported by @Bentham but that is not particularly important since how things actually go can vary greatly and how it has gone for one person is NOT a good indicator about how it will go for someone else . . . it is only ONE example of how things might possibly go (based on the fact that is how it has gone for one person).

Moreover, the process reported in this forum by @Bentham, while it was not entirely clear initially (back in 2018), it is precisely the process I describe above: PoE examination resulted in 44(1) Report and Departure (Removal) Order for a breach of the PR Residency Obligation. She appealed. She continued to keep PR status pending the appeal.

The more recent report of a stay of the Departure Order (Removal Order), by @Bentham, is a new and interesting detail. But that is part of the procedure in the appeal and not about the process that takes place when there is a PoE examination leading to the issuance of a 44(1) Report and Departure (or "Removal") Order.

Back to comparing your situation to that of others, including @Bentham, it can help to distinguish what happens procedurally versus what decisions are made based on the facts.

The procedure is the same for everyone, with some exceptions or anomalies. We know the procedure. There is little doubt about the procedure. It is largely what I have already described.

What varies are the decisions made in that process. The decisions made depend on the facts. As I already noted, it appears there are some significant differences between the facts in your situation and those for @Bentham.

There are always differences in the facts (no two people have exactly the same facts). There are almost always differences in facts that matter. This makes it difficult to compare results for different individuals and draw any firm conclusions.

I can describe the procedure, the process, how the process works, but I do not forecast how things will go for you. I cannot say what the outcome will be.

I can reference the key factors and some other factors. The amount of time absent from Canada compared to time in Canada is the biggest factor. Reasons for absences is a big factor. Officers' perceptions about your credibility will be a big factor. Ties or the lack of ties in Canada can be a big factor (as I recall, @Bentham had a husband living in Canada, a rather significant tie in Canada). There are other factors.

How it has gone for @Bentham will NOT illuminate much about what you can expect.


Sidebar clarification:

I got a report at the PoE having committed no other offense excepting the breach of the RO. I have also attended an appeal hearing where a family returned to Canada one year before the expiration of their PR cards to settle permanently, and they got a report at the airport immigration. No other wrongdoings committed by them were discussed at the hearing.

To be clear, a failure to comply with the PR Residency Obligation is in no way an "offense" or "offence" or even any sort of "wrongdoing."

Technically the Residency Obligation is not a *condition* but that is largely how it practically operates. It is like paying dues to belong to an organization. No crime or offence is committed if someone fails to pay dues. But their membership in the organization may be terminated because they did not pay their dues.

 

[Bentham]

Let's be clear: there is very little if any doubt about the procedure. It is as I describe above.

Beyond that, actually it appears there many differences between your situation and that reported by @Bentham but that is not particularly important since how things actually go can vary greatly and how it has gone for one person is NOT a good indicator about how it will go for someone else . . . it is only ONE example of how things might possibly go (based on the fact that is how it has gone for one person).

Moreover, the process reported in this forum by @Bentham, while it was not entirely clear initially (back in 2018), it is precisely the process I describe above: PoE examination resulted in 44(1) Report and Departure (Removal) Order for a breach of the PR Residency Obligation. She appealed. She continued to keep PR status pending the appeal.

The more recent report of a stay of the Departure Order (Removal Order), by @Bentham, is a new and interesting detail. But that is part of the procedure in the appeal and not about the process that takes place when there is a PoE examination leading to the issuance of a 44(1) Report and Departure (or "Removal") Order.

Back to comparing your situation to that of others, including @Bentham, it can help to distinguish what happens procedurally versus what decisions are made based on the facts.

The procedure is the same for everyone, with some exceptions or anomalies. We know the procedure. There is little doubt about the procedure. It is largely what I have already described.

What varies are the decisions made in that process. The decisions made depend on the facts. As I already noted, it appears there are some significant differences between the facts in your situation and those for @Bentham.

There are always differences in the facts (no two people have exactly the same facts). There are almost always differences in facts that matter. This makes it difficult to compare results for different individuals and draw any firm conclusions.

I can describe the procedure, the process, how the process works, but I do not forecast how things will go for you. I cannot say what the outcome will be.

I can reference the key factors and some other factors. The amount of time absent from Canada compared to time in Canada is the biggest factor. Reasons for absences is a big factor. Officers' perceptions about your credibility will be a big factor. Ties or the lack of ties in Canada can be a big factor (as I recall, @Bentham had a husband living in Canada, a rather significant tie in Canada). There are other factors.

How it has gone for @Bentham will NOT illuminate much about what you can expect.


Sidebar clarification:



To be clear, a failure to comply with the PR Residency Obligation is in no way an "offense" or "offence" or even any sort of "wrongdoing."

Technically the Residency Obligation is not a *condition* but that is largely how it practically operates. It is like paying dues to belong to an organization. No crime or offence is committed if someone fails to pay dues. But their membership in the organization may be terminated because they did not pay their dues.

When I have more time, I will report the details of the procedure at IAD, step-by-step, about my own hearing and other hearings that I have attended. I will not go into details about my H&C considerations as they are too personal and case specific. Same about other people’s hearings. It helps little to other people to know, for example, that the Canadian embassy was closed in their country due to the war and they had to wait for PR decision for four years instead of one year which changed their plans, and this was brought as H&C consideration at the hearing, or that someone had a colorectal cancer in Canada, while adequate treatment was not available in their country of origine.

 

[vensak]

Just chiming in with @dpenabill - a Canadian PR does, in fact, have the right to enter Canada. If a PR can make it to a Canadian border, and prove that they are indeed a PR (regardless of meeting RO), the CBSA officer must allow them to enter (IRPA 19(2)). The officer may begin the process to strip PR if RO is not met, but till that process is complete (PRs are allowed 30 days to appeal), the PR has the right to enter Canada.

A PR cannot be turned away at the border if they are able to prove that they are in fact a PR.

However, a PR does not have the right to a travel document (PRTD or new PR card) if they haven't met RO. So if you're a PR that hasn't met RO and you cannot come to a land border (practically speaking, this means that you cannot enter the US and then drive/walk/swim/whatever to a border entry post), you can try applying for a PRTD - and your request will probably be denied and your PR status will be removed. Once that's done, your right to enter Canada is taken away from you.

Somehow we went from discussion that if permanent resident is "Canadian" or not and just how closely equal is he to a Canadian citizen / Indian and ended up discussing Right to enter and stay.
The reason I mentioned it a curiosity was because so many were pointing to the Chart of rights. Where it is unfortunatelly not granted.

It seems that under that law, reality is very different.
So lets go through it.

From
Immigration and Refugee Protection Act
19 (1) Every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or registered Indian.

Right of entry of permanent residents
(2) An officer shall allow a permanent resident to enter Canada if satisfied following an examination on their entry that they have that status.

This is what you are referring to. Interestingly, the part for Permanent residents is written a bit differently. On a first glance, there does not seem to be much of a difference. Other than the first sentence that Citizens / Indians (of course meaning those under Indian act and not those from India) have right to enter.

Later on, we have these paragraphs:
Right of permanent residents
27 (1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.
Marginal note: Conditions
(2) A permanent resident must comply with any conditions imposed under the regulations or under instructions given under subsection 14.1(1).

For comparison, this is for temporary residents:
29 (1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.

All that sounds correct. There is the right stated. But there is one additional part of the sentence, which does not give that much sense in common English - subject to the provisions of this Act.
I am no lawyer or expert in English language, so I helped myself comparing it to the part about temporary residents. And the result is, that whatever else is written in that immigration act has priority, if it is contradicting to that right has a priority.

And are there things limiting permanent resident? Oh yes they are and plenty:
Division 4 - Inadmissibility
Security
Human or international rights violations
Serious criminality
Organized criminality
I can only guess, that these cases would not be that frequent (maybe Serious criminality more probable)

And then this one:
Misrepresentation
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
(d) on ceasing to be a citizen under (specific paragraphs from Citizenship act are written here)

(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
So interestingly even PR can get years ban.

Plus there are these:
Cessation of refugee protection — permanent resident
Non-compliance with Act
(b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28. (those are residency obligations)

Interesting is especially subsection 27(2) (stated above). As that one will loop you to 14.1(1)

14.1 (1) For the purpose of supporting the attainment of economic goals established by the Government of Canada, the Minister may give instructions establishing a class of permanent residents as part of the economic class referred to in subsection 12(2) and, in respect of the class that is established, governing any matter referred to in paragraphs 14(2)(a) to (g), 26(a), (b), (d) and (e) and 32(d) and the fees for processing applications for permanent resident visas or for permanent resident status and providing for cases in which those fees may be waived.

And this one will promptly send you to more reading
12 (2) is not that important for this discussion, as only talks about foreign national to become economic class (which is more or less about selection criteria)

14 (2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting
There are plenty there but the interesting one is just listed under letter D
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
However all these regulations are tied to that division - which is just about requirements and selection (things that happen before you become PR). So in this context we would be talking about conditions for somebody that is a sponsor for example, also technically hands are not tied here.

Now this one is more interesting, as the whole division is about Entering and staying in Canada
26 (1) The regulations may provide for any matter relating to the application of sections 18 to 25.2, and may include provisions respecting
(a) entering, remaining in and re-entering Canada;
(b) permanent resident status or temporary resident status, including acquisition of that status;
(d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals;
And finally we have arrived to the point where those "rights" are build like a house made of straw - any stronger wind (in this case ministerial regulation) can alter it.
Why? Because they are subject of the whole act which gives minister power to issue further regulations, which unlike act do not require reading and approval from Parliament as long as they are anabled within certain act (and they are).
Not to mention, that there is also the whole inadmissibility aspect.

And yes, same can happen with the access to the labor market and studying
32 (d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study;

This was an interesting journey for me. And conclusion for myself is, that until I will become citizen, my rights can disappear quickly without anybody too much caring about it (just because it is not probable does not mean it is not possible). So I shall be aware of that. I also see bigger gap between a citizen and a PR than PR and a temporary resident or a foreign national if compared from outside Canada.
I definitely cannot see myself a "Canadian" in case of a privileged group and equal to citizens; this is only possible if you are speaking of inhabitants of Canada (which would also include all temporary residents).

 

[dpenabill]

​

When I have more time, I will report the details of the procedure at IAD, step-by-step, about my own hearing and other hearings that I have attended. I will not go into details about my H&C considerations as they are too personal and case specific. Same about other people’s hearings. It helps little to other people to know, for example, that the Canadian embassy was closed in their country due to the war and they had to wait for PR decision for four years instead of one year which changed their plans, and this was brought as H&C consideration at the hearing, or that someone had a colorectal cancer in Canada, while adequate treatment was not available in their country of origine.

Your observations about the uniqueness of certain important H&C factors is important. And, indeed, this is why I focus on describing relevant factors in general terms and avoid judging or forecasting outcomes in individual cases . . . even in cases which appear to be solid one way or the other can still go the other way, not so much about luck but about the particular facts and circumstances in the individual case. Which as you point out, can involve very specific, even unique facts and circumstances.

Outcomes vary considerably. And are extremely difficult to predict with much reliability. And this is due in large part to the range of differences in facts. And as you reference, many of the relevant facts, apart from being too numerous to practically share in a venue like this, can be far too personal to share in a venue like this.

I cringe when I see forum participants state definitively what the outcome will for certain be. Even when the odds are very high that is the likely outcome, that is way, way shy of a guarantee that will be the outcome.

The procedures, on the other hand, are rule driven, and we know the rules. There are some variations but the possible variations are well known and relatively easy to forecast. For those of us bothering to do the homework, there are many IAD and some Federal Court decisions which amply illustrate the practical application of procedural rules, which in turn are readily accessible in IRPA, IRPA regulations, and the Operational Manuals.

Many come here looking for definitive answers about what will happen in their case. We can offer them information about how the process actually works, including specifically what the procedures are, and additionally, to some extent (not completely) how certain factors can influence outcomes. NO ONE here can reliably state what will be the actual outcome before it happens.

And again, I think your observations related to this make an important point. And thus, for example, I totally concur in a reluctance to share intimate H&C details, since no matter how important those details are to the outcome in your case, they are different enough, inherently different enough, from anyone else's situation that knowing them will NOT help that other PR much at all.

 

[dpenabill]

Somehow we went from discussion that if permanent resident is "Canadian" or not and just how closely equal is he to a Canadian citizen / Indian and ended up discussing Right to enter and stay.
The reason I mentioned it a curiosity was because so many were pointing to the Chart of rights. Where it is unfortunatelly not granted.

It seems that under that law, reality is very different.
So lets go through it.

From
Immigration and Refugee Protection Act
19 (1) Every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or registered Indian.

Right of entry of permanent residents
(2) An officer shall allow a permanent resident to enter Canada if satisfied following an examination on their entry that they have that status.

This is what you are referring to. Interestingly, the part for Permanent residents is written a bit differently. On a first glance, there does not seem to be much of a difference. Other than the first sentence that Citizens / Indians (of course meaning those under Indian act and not those from India) have right to enter.

Later on, we have these paragraphs:
Right of permanent residents
27 (1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.
Marginal note: Conditions
(2) A permanent resident must comply with any conditions imposed under the regulations or under instructions given under subsection 14.1(1).

For comparison, this is for temporary residents:
29 (1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.

All that sounds correct. There is the right stated. But there is one additional part of the sentence, which does not give that much sense in common English - subject to the provisions of this Act.
I am no lawyer or expert in English language, so I helped myself comparing it to the part about temporary residents. And the result is, that whatever else is written in that immigration act has priority, if it is contradicting to that right has a priority.

And are there things limiting permanent resident? Oh yes they are and plenty:
. . . .
This was an interesting journey for me. And conclusion for myself is, that until I will become citizen, my rights can disappear quickly without anybody too much caring about it (just because it is not probable does not mean it is not possible). So I shall be aware of that. I also see bigger gap between a citizen and a PR than PR and a temporary resident or a foreign national if compared from outside Canada.
I definitely cannot see myself a "Canadian" in case of a privileged group and equal to citizens; this is only possible if you are speaking of inhabitants of Canada (which would also include all temporary residents).

Abstract analysis tends to be more a distraction than helpful. Particularly since there is usually a fair body of applied law which, as is the case here, amply illuminates and illustrates how things actually work.

For purposes of the discussion here, let's be clear, your accusation (late evening December 22) that forum participants have been wrong when "Many time on this forum, it was referred, that a PR holder has right to enter Canada," was UNFOUNDED. NOT TRUE.

And your subsequently repeated assertions (such as in post late morning December 24) "that permanent residents do not have right to enter Canada," LIKEWISE are NOT correct. NOT true.

And your convoluted effort to argue that the statutory provision (Section 19(2) IRPA) which explicitly states the right of entry of permanent residents somehow does not prescribe a statutory right of entry, is likewise way, way off the mark. And contrary to the applied law.

I can, and I might, say more about this.

But for now, the important thing to be clear about is the YES, PRs do have a statutorily prescribed right of entry into Canada as long as they are a PR.

NO, they cannot be denied entry based on inadmissibility without their status being adjudicated and determined to be terminated based on specified grounds.

Indeed, officers authorized to act as a Minister's Delegate can only issue a Departure Order in 44(1) Report cases based on breach of the RO, and that Departure Order is NOT enforceable for at least 30 days SO the PR MUST be allowed to enter Canada. Border officials can issue inadmissibility reports, that is the 44(1) Report, based on other types of inadmissibility (misrepresentation, serious criminality, or security grounds) BUT in those cases there is NO authority to issue a Departure Order at a PoE at all. Rather in those cases the PR must be allowed to enter Canada and the 44(1) Report is referred to IRCC which then decides whether to proceed with an admissibility hearing.

And let us be clear: the above is NOT my opinion. It is not my analysis. That is how it works. A PR can lose PR status, and once status is lost that person no longer has the "right" to enter Canada, but that can only happen pursuant to the prescribed procedures. As long as the individual is a PR, even if deemed inadmissible upon examination at a PoE, as a PR the PR has a right of entry and must be allowed to enter Canada.

Suggestions to the contrary are just plain wrong.

 

[asaeed100]

Abstract analysis tends to be more a distraction than helpful. Particularly since there is usually a fair body of applied law which, as is the case here, amply illuminates and illustrates how things actually work.

For purposes of the discussion here, let's be clear, your accusation (late evening December 22) that forum participants have been wrong when "Many time on this forum, it was referred, that a PR holder has right to enter Canada," was UNFOUNDED. NOT TRUE.

And your subsequently repeated assertions (such as in post late morning December 24) "that permanent residents do not have right to enter Canada," LIKEWISE are NOT correct. NOT true.

And your convoluted effort to argue that the statutory provision (Section 19(2) IRPA) which explicitly states the right of entry of permanent residents somehow does not prescribe a statutory right of entry, is likewise way, way off the mark. And contrary to the applied law.

I can, and I might, say more about this.

But for now, the important thing to be clear about is the YES, PRs do have a statutorily prescribed right of entry into Canada as long as they are a PR.

NO, they cannot be denied entry based on inadmissibility without their status being adjudicated and determined to be terminated based on specified grounds.

Indeed, officers authorized to act as a Minister's Delegate can only issue a Departure Order in 44(1) Report cases based on breach of the RO, and that Departure Order is NOT enforceable for at least 30 days SO the PR MUST be allowed to enter Canada. Border officials can issue inadmissibility reports, that is the 44(1) Report, based on other types of inadmissibility (misrepresentation, serious criminality, or security grounds) BUT in those cases there is NO authority to issue a Departure Order at a PoE at all. Rather in those cases the PR must be allowed to enter Canada and the 44(1) Report is referred to IRCC which then decides whether to proceed with an admissibility hearing.

And let us be clear: the above is NOT my opinion. It is not my analysis. That is how it works. A PR can lose PR status, and once status is lost that person no longer has the "right" to enter Canada, but that can only happen pursuant to the prescribed procedures. As long as the individual is a PR, even if deemed inadmissible upon examination at a PoE, as a PR the PR has a right of entry and must be allowed to enter Canada.

Suggestions to the contrary are just plain wrong.

so as you stated that any breach of RO ONLY can lead to a DO with a 30 day delay.
yet with someone having "security issues", there is NO DO at all? and he/she gets to roam free? until someone in IRCC files a cases against him/her? and as you said it may or may not happen at all.
please elaborate.

my take is that it is the complete opposite for both cases.

 

[dpenabill]

so as you stated that any breach of RO ONLY can lead to a DO with a 30 day delay.
yet with someone having "security issues", there is NO DO at all? and he/she gets to roam free? until someone in IRCC files a cases against him/her? and as you said it may or may not happen at all.
please elaborate.

my take is that it is the complete opposite for both cases.

I have repeatedly and ACCURATELY described the Port-of-Entry procedures which lead to the issuance of a Departure Order by a Minister's Delegate: Again, it goes like this:

Referral to PoE Secondary => PoE Secondary officer issues 44(1) Report => Another officer (authorized to act as a "Minister's Delegate") reviews the Report and interviews the PR, and issues the Departure Order => PR is allowed to enter Canada (Departure Order is NOT enforceable for at least 30 days) => if PR appeals, that goes directly to the IAD, that is the Immigration Appeal Division (NOT to IRCC or even the "Immigration Division")​

The procedure for other grounds of inadmissibility is different. That said, those procedures can also START with issuance of a 44(1) Report.

Of course PRs determined to be inadmissible due to serious criminality or security grounds can be issued a Removal Order and Deported from Canada. Eventually. BUT THAT IS NOT DONE by a MINISTER'S DELEGATE attendant a PoE examination. The Minister's Delegate ONLY has authority to make a removal order (to issue a Departure Order) for a PR "in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28." In respect to other 44(1) Reports transmitted to the Minister (again, in practice this just means another border officer who has authorization to act as a "Minister's Delegate") regarding PRs (authority as to Foreign Nationals is more extensive), "if the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing." This is spelled out in Section 44(2) IRPA.

This is also clearly described in the Enforcement Manuals. For example, Section 3.6 (page 11) in ENF 6 "Review of reports under A44(1)" where it states:

The Minister's delegate is given the power to issue removal orders against permanent residents only in cases where the sole basis for removal is loss of permanent resident status due to the inability to comply with the requirements of A28. In such cases, a departure order will be issued. The power of the Minister's delegate does not extend to the loss of permanent resident status on other grounds.​

This is also described in ENF 3 "Admissibility Hearings and Detention Review Proceedings" in Section 8.1 on page 11; and also see Section 11.4 in ENF 4 "Port of Entry Examinations" Section 11.4 on page 36

(Reminder: the "Minister's Delegate" is NOT the same thing as the "Minister's counsel.")

NOTE, as well, if officers at a PoE determine a returning PR is inadmissible for serious criminality, on security grounds, or otherwise poses a danger to the public, the PR may be detained. In such cases, the Minister has a mandate to forthwith make the referral to the Immigration Division, whose responsibility it will be to hold an admissibility hearing.

KEY SOURCES -- Official Law Sources:

For sections 44(1) and 44(2) IRPA, see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#h-274821

-- see same page in IRPA for Section 45 which prescribes what the Immigration Division is to do attendant an admissibility hearing, and Section 46 which prescribes when a PR loses PR status
-- also same page in IRPA the statutory provisions begin which specify the nature and effect of Removal Orders​

For section 55 and provisions allowing officers to detain PRs for inadmissibility based on serious criminality or security grounds, see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-11.html#docCont
For Regulations section 228(2) IRPA, which is the provision specifying that the "removal order" made against a PR for a breach of the Residency Obligation "shall be a departure order," see https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-48.html#docCont​

KEY SOURCES -- For official Interpretation and application of law Sources, these can be readily found and researched at https://www.canlii.org/en/ca/ where one can limit the scope of searches to just the IAD, or for access to Federal Court decisions see https://decisions.fct-cf.gc.ca/fc-cf/en/0/ann.do

Note, I have previously cited and linked multiple officially published accounts of actual cases which illustrate precisely the procedure I have described repeatedly here.


KEY SOURCES -- Operational Manuals

While the Operational Manuals are not always up-to-date and they are guidelines not definitive statements of law, they offer the best overall outline about how these things work. And they cite the applicable statutory provisions and regulations. There are links to pdf versions of the Enforcement Manuals at the IRCC website; see https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html

These manuals are particularly useful if researched in conjunction with the statutory provisions, IAD decisions, and reliable anecdotal reports from forum participants such as @Bentham

I have referenced these before. For the issues discussed here the more relevant manuals are:

ENF 1 Inadmissibility
ENF 3 Admissibility Hearings and Detention Review Proceedings
ENF 4 Port of Entry Examinations
ENF 5 Writing 44(1) Reports
ENF 6 Review of reports under subsection A44(1)
ENF 23 Loss of Permanent Resident Status​

Beyond that I feel as though I am beating a dead horse. I have described, for PRs in breach of the PR RO arriving at a PoE, how the process works. That is what happened for @Bentham and that is what happened in three OFFICIAL accounts of ACTUAL cases I cited and gave you links for in other posts, which I provided as simply examples among scores of others in the published IAD decisions. And that is the procedure outlined in the Enforcement Operational Manuals I have previously cited and reference above.

Again, as for other grounds of inadmissibility, the procedure is different. Of course PRs determined to be inadmissible for any of the other grounds (misrepresentation; serious criminality; security) can be issued a Departure Order. BUT NOT by a Minister's Delegate attendant a PoE examination. If a PR returning to Canada is identified as and determined to be inadmissible for these grounds, a 44(1) Report can be issued and then the matter is referred to IRCC which will conduct an admissibility hearing. This is also clearly outlined in the respective Enforcement Operation Manuals, ENF 3 and ENF 4 in particular. AND the PR may be kept in custody pending an admissibility hearing. (Section 55(3) IRPA) The procedures in these cases is likewise outlined in the respective Enforcement Operation Manuals, ENF 3 and ENF 4 in particular. Again, this procedure is different that the procedure for PRs deemed inadmissible for a breach of the RO.

 

[asaeed100]

I have repeatedly and ACCURATELY described the Port-of-Entry procedures which lead to the issuance of a Departure Order by a Minister's Delegate: Again, it goes like this:

Referral to PoE Secondary => PoE Secondary officer issues 44(1) Report => Another officer (authorized to act as a "Minister's Delegate") reviews the Report and interviews the PR, and issues the Departure Order => PR is allowed to enter Canada (Departure Order is NOT enforceable for at least 30 days) => if PR appeals, that goes directly to the IAD, that is the Immigration Appeal Division (NOT to IRCC or even the "Immigration Division")​

The procedure for other grounds of inadmissibility is different. That said, those procedures can also START with issuance of a 44(1) Report.

Of course PRs determined to be inadmissible due to serious criminality or security grounds can be issued a Removal Order and Deported from Canada. Eventually. BUT THAT IS NOT DONE by a MINISTER'S DELEGATE attendant a PoE examination. The Minister's Delegate ONLY has authority to make a removal order (to issue a Departure Order) for a PR "in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28." In respect to other 44(1) Reports transmitted to the Minister (again, in practice this just means another border officer who has authorization to act as a "Minister's Delegate") regarding PRs (authority as to Foreign Nationals is more extensive), "if the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing." This is spelled out in Section 44(2) IRPA.

This is also clearly described in the Enforcement Manuals. For example, Section 3.6 (page 11) in ENF 6 "Review of reports under A44(1)" where it states:

The Minister's delegate is given the power to issue removal orders against permanent residents only in cases where the sole basis for removal is loss of permanent resident status due to the inability to comply with the requirements of A28. In such cases, a departure order will be issued. The power of the Minister's delegate does not extend to the loss of permanent resident status on other grounds.​

This is also described in ENF 3 "Admissibility Hearings and Detention Review Proceedings" in Section 8.1 on page 11; and also see Section 11.4 in ENF 4 "Port of Entry Examinations" Section 11.4 on page 36

(Reminder: the "Minister's Delegate" is NOT the same thing as the "Minister's counsel.")

NOTE, as well, if officers at a PoE determine a returning PR is inadmissible for serious criminality, on security grounds, or otherwise poses a danger to the public, the PR may be detained. In such cases, the Minister has a mandate to forthwith make the referral to the Immigration Division, whose responsibility it will be to hold an admissibility hearing.

KEY SOURCES -- Official Law Sources:

For sections 44(1) and 44(2) IRPA, see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-10.html#h-274821

-- see same page in IRPA for Section 45 which prescribes what the Immigration Division is to do attendant an admissibility hearing, and Section 46 which prescribes when a PR loses PR status
-- also same page in IRPA the statutory provisions begin which specify the nature and effect of Removal Orders​

For section 55 and provisions allowing officers to detain PRs for inadmissibility based on serious criminality or security grounds, see https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-11.html#docCont
For Regulations section 228(2) IRPA, which is the provision specifying that the "removal order" made against a PR for a breach of the Residency Obligation "shall be a departure order," see https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-48.html#docCont​

KEY SOURCES -- For official Interpretation and application of law Sources, these can be readily found and researched at https://www.canlii.org/en/ca/ where one can limit the scope of searches to just the IAD, or for access to Federal Court decisions see https://decisions.fct-cf.gc.ca/fc-cf/en/0/ann.do

Note, I have previously cited and linked multiple officially published accounts of actual cases which illustrate precisely the procedure I have described repeatedly here.


KEY SOURCES -- Operational Manuals

While the Operational Manuals are not always up-to-date and they are guidelines not definitive statements of law, they offer the best overall outline about how these things work. And they cite the applicable statutory provisions and regulations. There are links to pdf versions of the Enforcement Manuals at the IRCC website; see https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html

These manuals are particularly useful if researched in conjunction with the statutory provisions, IAD decisions, and reliable anecdotal reports from forum participants such as @Bentham

I have referenced these before. For the issues discussed here the more relevant manuals are:

ENF 1 Inadmissibility
ENF 3 Admissibility Hearings and Detention Review Proceedings
ENF 4 Port of Entry Examinations
ENF 5 Writing 44(1) Reports
ENF 6 Review of reports under subsection A44(1)
ENF 23 Loss of Permanent Resident Status​

Beyond that I feel as though I am beating a dead horse. I have described, for PRs in breach of the PR RO arriving at a PoE, how the process works. That is what happened for @Bentham and that is what happened in three OFFICIAL accounts of ACTUAL cases I cited and gave you links for in other posts, which I provided as simply examples among scores of others in the published IAD decisions. And that is the procedure outlined in the Enforcement Operational Manuals I have previously cited and reference above.

Again, as for other grounds of inadmissibility, the procedure is different. Of course PRs determined to be inadmissible for any of the other grounds (misrepresentation; serious criminality; security) can be issued a Departure Order. BUT NOT by a Minister's Delegate attendant a PoE examination. If a PR returning to Canada is identified as and determined to be inadmissible for these grounds, a 44(1) Report can be issued and then the matter is referred to IRCC which will conduct an admissibility hearing. This is also clearly outlined in the respective Enforcement Operation Manuals, ENF 3 and ENF 4 in particular. AND the PR may be kept in custody pending an admissibility hearing. (Section 55(3) IRPA) The procedures in these cases is likewise outlined in the respective Enforcement Operation Manuals, ENF 3 and ENF 4 in particular. Again, this procedure is different that the procedure for PRs deemed inadmissible for a breach of the RO.

i hear you loud and clear
i thank you for the references provided and the time you have taken to put them all together. so hats off to you on that.

in short i fail to understand whether it is best to be a criminal and be able to cross the border scot-free or disclose that you have not fulfilled the RO and face an inevitable DO. ?

how the regulations are interpreted and enforced seem to be vague .it could even vary from one PoE to another (ie depending on the experience and volume of such cases they handle)

let us leave it at that.

 

[21Goose]

i hear you loud and clear
i thank you for the references provided and the time you have taken to put them all together. so hats off to you on that.

in short i fail to understand whether it is best to be a criminal and be able to cross the border scot-free or disclose that you have not fulfilled the RO and face an inevitable DO. ?

how the regulations are interpreted and enforced seem to be vague .it could even vary from one PoE to another (ie depending on the experience and volume of such cases they handle)

let us leave it at that.

No, it's really not vague.

Yes, if you're a layperson the workings of the law may seem vague and arbitrary, but this is something that has been settled law for a long time, and there is a vast body of jurisprudence behind it. If you really want to get into it, you would need to spend time learning about it. Or you can accept that you don't know how it works and trust a skilled practitioner such as an immigration lawyer.

It's the same in any skilled profession. I have a very vague understanding of medicine, and there's really no way that I would argue with my doctor or with someone who has spent years studying the subject. Or architecture - I have no idea how a 50-storey building works; how do you get water up there? An architect would know.

In your example - "I fail to understand whether it's best to be a criminal..." - well, if you are a criminal, and CBSA knows you're a criminal with active warrants issued against you, you would be arrested at the border and sent to a nice snug jail. Do you think drug smugglers are allowed to cross the border "scot-free" if they are a PR/ Canadian citizen and are caught with drugs at the PoE?

Of course, if you don't get caught, you can cross the border scot-free, but that's true for all criminals all over the world - you're only a criminal if you get caught.

 

[asaeed100]

No, it's really not vague.

Yes, if you're a layperson the workings of the law may seem vague and arbitrary, but this is something that has been settled law for a long time, and there is a vast body of jurisprudence behind it. If you really want to get into it, you would need to spend time learning about it. Or you can accept that you don't know how it works and trust a skilled practitioner such as an immigration lawyer.

It's the same in any skilled profession. I have a very vague understanding of medicine, and there's really no way that I would argue with my doctor or with someone who has spent years studying the subject. Or architecture - I have no idea how a 50-storey building works; how do you get water up there? An architect would know.

In your example - "I fail to understand whether it's best to be a criminal..." - well, if you are a criminal, and CBSA knows you're a criminal with active warrants issued against you, you would be arrested at the border and sent to a nice snug jail. Do you think drug smugglers are allowed to cross the border "scot-free" if they are a PR/ Canadian citizen and are caught with drugs at the PoE?

Of course, if you don't get caught, you can cross the border scot-free, but that's true for all criminals all over the world - you're only a criminal if you get caught.

honestly speaking i really didnt want to drag this too far
so you concur with @ dpenabil, that an inadmissible person has more "rights" than a poor baby yoda looking PR card holder (expired) who has not done anything remotely wrong - regardless of him/her getting caught or reported.

please answer with either a Yes or a No

thanks

 

[Bentham]

honestly speaking i really didnt want to drag this too far
so you concur with @ dpenabil, that an inadmissible person has more "rights" than a poor baby yoda looking PR card holder (expired) who has not done anything remotely wrong - regardless of him/her getting caught or reported.

please answer with either a Yes or a No

thanks

No. You just asked to answer yes or no, but you asked a wrongfully worded question. A PR in breach of RO is an inadmissble person too. He may or may not have an expired card.So contrasting an inadmissble person with a PR holding an expired card is logically wrong as one person can be both at the same time. If your question is whether being inadmissble for criminality is better than being inadmissble for the breach of RO, then the answer is clear no. If a PR has an expired card, but is not in a breach of RO and has evidence of compliance, it is even better as he has no problems whatsoever apart from delay for a secondary examination.

 

[21Goose]

honestly speaking i really didnt want to drag this too far
so you concur with @ dpenabil, that an inadmissible person has more "rights" than a poor baby yoda looking PR card holder (expired) who has not done anything remotely wrong - regardless of him/her getting caught or reported.

please answer with either a Yes or a No

thanks

PR card expiry has nothing to do with meeting RO.

Your fundamental understanding of the whole process is incorrect and you don't seem to be interested in actually understanding the process. @dpenabill has provided dozens of links to case law and statue if you wish to learn.

If you persist in your insistence that you know best, there's nothing anyone can do - this is no longer a rational discussion and it is a waste of time to engage any further.

 

[asaeed100]

PR card expiry has nothing to do with meeting RO.

Your fundamental understanding of the whole process is incorrect and you don't seem to be interested in actually understanding the process. @dpenabill has provided dozens of links to case law and statue if you wish to learn.

If you persist in your insistence that you know best, there's nothing anyone can do - this is no longer a rational discussion and it is a waste of time to engage any further.

thank you

 

[asaeed100]

No. You just asked to answer yes or no, but you asked a wrongfully worded question. A PR in breach of RO is an inadmissble person too. He may or may not have an expired card.So contrasting an inadmissble person with a PR holding an expired card is logically wrong as one person can be both at the same time. If your question is whether being inadmissble for criminality is better than being inadmissble for the breach of RO, then the answer is clear no. If a PR has an expired card, but is not in a breach of RO and has evidence of compliance, it is even better as he has no problems whatsoever apart from delay for a secondary examination.

thank you