The Law is Clear, PRs Have the Burden of Proving RO Compliance By Balance of Probabilities:
Unless you're unilaterally entitled to change and interpret the law, the text is about number of days spent in the country. End of. By burdening the applicant to "prove" their residency obligation, the system is offloading responsibility they get paid to perform. I don't need to prove I'm in the country. Unless I climbed a wall or a swam through a burgeoning sea, CBSA let me in. Check with them, and figure it out. Either that, or stop taxing the people to pay salary to useless inefficient process runners
Burden of proving compliance with the PR Residency Obligation is an easy one. As a matter of law, the burden is on a PR to prove they have met the Residency Obligation.
While it has been stated often, very often, in multiple ways, here's one of the more recent direct and simple versions:
The [permanent residents appealing IRCC decision] bear the burden of establishing, on a balance of probabilities, that they were physically present in Canada for at least 730 days during the relevant period, from February 24, 2016, to February 24, 2021. The Appellants have not met their burden of proof.
See OFFICIALLY published IAD decision for Mianoor v Canada (Citizenship and Immigration), 2023 CanLII 39047 (CA IRB) . . . copy can be seen here:
https://canlii.ca/t/jx3sf
Similarly, illustrating there is nothing new about the PR's burden of proof in Mianoor, see Rohani v Canada (Citizenship and Immigration), 2017 CanLII 26503 (CA IRB),
https://canlii.ca/t/h3m71
[6] A permanent resident must comply with a residency obligation by being physically present in Canada for 730 days of a five-year period.
[7] The [PR appealing] bears the burden of proof. To allow this appeal the appellant must satisfy the Panel on a balance of probabilities that the immigration officer’s decision was wrong in law or fact, or mixed law and fact [going on to add likewise as to proof of H&C reasons justifying retention of PR despite a breach]. (Emphasis added, just in case some have difficulty reading "the text" ," noting by the way that case law is law in Canada.)
In this Rohani case the PR claimed to have been present in Canada for 743 days. She claimed there was an error in the calculation by the immigration officer. The IAD stated:
[13] Even if it was a mistake and she in fact was in Canada for 743 days and therefore met the residency obligation as alleged, she provided no corroborating evidence to support this position.
Those who pay attention to how the burden of proof works will readily recognize this as a prime example.
Even if she met the RO (if, say, this could be seen in a
crystal ball and God spoke it was so),
she failed to meet the burden of proving she did. Decision terminating her status for a breach of the RO was valid in law.
BESIDES . . . spoiler alert . . . yeah, THE TEXT of the statute itself imposes the burden of proof on the PR:
Getting back to "
the text" of the law, just the statutory text alone clearly places the burden of proving compliance on the PR. Section 28(2)(b) IRPA states:
(2) The following provisions govern the residency obligation under subsection (1):
(b) it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination;
See
https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-5.html#h-274598
Just to be clear (in case there is any difficulty actually reading and understanding the text), if a PR is subject to examination to determine if they have complied with the PR RO, the PR must demonstrate (establish, prove) they have been present in Canada for at least 730 days in the previous five years. That will be "
sufficient" for purposes of complying with the RO. The Federal Court and IAD panels have universally interpreted and applied this to mean the PR's burden is to prove compliance by a balance of probabilities (so PRs do not need to meet any of the more difficult standards of proof, like beyond a reasonable doubt, or by clear and convincing evidence; for those who seem to rely on American principles, the by a balance of probabilities is basically equivalent to the standard in the U.S. known as "
the preponderance of evidence").
The fact that IRCC and CBSA do not rely on CBSA travel history to show a PR met the RO, but rather uses the CBSA travel history to cross-check what a PR reports and potentially use it to show discrepancies, has been widely discussed in this and in the Citizenship forum. Many advance strong arguments why the government could, and advocate the government should, as a matter of how things actually work they simply do not.
So . . .
"Unless I climbed a wall or a swam through a burgeoning sea, CBSA let me in. Check with them, and figure it out."
Not how it works. How it works is CBSA and IRCC rely on the ONE and ONLY person, the only one in the whole world, who was for sure there each and every time the PR entered or exited Canada, the one person who for sure could make and keep an absolutely complete record of all entries and exits. Yep: you, the PR. (Like it or not, that's how it works.)
Of course they will not just take your word for it. They cross-check all sorts of information. Including CBSA
entry records. Note: last I saw, unless the PR's case has become the subject of an investigation, for purposes of verifying RO compliance it appears they are still only considering entry records, NOT exit records, like those based on land border crossings into the U.S., captured as entries into the U.S. by U.S. authorities.
