on-hold has provided good responses to the questions posed, but I offer the following observations to further elaborate and clarify.
xpro said:
Hello forum members, I have a few questions that have been on top of my head for a while and I would like to know if anyone can give me conclusive answers here.
1. As long as I spend less than 183 days in a year in Canada and my income is not from Canada I can declare my self as a (Non-resident for tax purposes) and I would not have to file tax returns at all regardless of my income outside of Canada. Would this have any effect on PR status as long as I meet physical presence requirements? (I would spend 146 days out of the year in Canada)
It is not necessarily true that spending less than 183 days in Canada in a given year means the individual is a
non-resident for taxation purposes. It is not necessarily true that a non-resident does not have to file an income tax return. 183 days presence in Canada merely raises a presumption of residence in Canada (a non-conclusive, thus rebuttable presumption) for taxation purposes; less than 183 days presence does
not create a presumption of non-residence. It is more complicated than that. These matters are governed by tax law, including CRA regulations and rules.
Not filing a Canadian tax return as a resident of Canada may indeed have an impact on how CBSA or CIC assess residency questions, and in particular in assessing whether the PR has complied with the PR Residency Obligation. Obviously, non-residence in Canada suggests the lack of presence. Obviously, the place a PR spends most of his or her time suggests that is the place the PR was during any time period not documented as elsewhere. At the least, then, this is something likely to elevate CIC's scrutiny if not overt skepticism and make it more difficult to persuasively show time present in Canada.
xpro said:
2. If CIC is unable to decide on my card renewal or if they decline it, do I have a right to judicial overview?
There is a right to seek judicial review. But the best course of action in response to the denial of an application for a new PR card is to make a new application once the PR is in a better position to document presence for 730+ days within the five years preceding the date of the new application.
The more salient problem arises if CIC commences a Residency Determination based on its perception that the PR is in breach of the PR Residency Obligation. This can result in a determination of inadmissibility, the issuance of a Removal Order, and loss of PR status. This too can be appealed, first to the IAD, and if that is lost, then judicial review may be sought. Generally, however, the most friendly assessment comes at the lowest level, so relying on review is
not a good plan.
Reminder: PR status itself is independent of the PR card. A PR does not need to have a valid PR card in possession. A valid PR card in possession is merely evidence the PR has valid status, but does not in itself necessarily mean the PR is not inadmissible (such as for a breach of the PR RO).
xpro said:
3. I have sent CIC all my passport pages, dentist appointments I had in Ontario and all my plane tickets. Would this suffice for my physical presence test?
What suffices in any particular case varies considerably. Absence of proof of place of abode in Canada (including as to duration) plus absence of proof of place of employment (or school attendance, and again including as to duration) can tip the scales heavily in a negative direction . . . but again
depending on a lot of particular factors in the specific case.
The combination of no years filing taxes as a resident, sporadic or otherwise incomplete documentation showing place of abode in Canada, and minimal or no employment in Canada, will likely invite an intensive degree of scrutiny, probably a significant degree of outright skepticism. Thus there may be a lower likelihood that CIC will infer dates between events in Canada as days spent in Canada: for example, applicant shows proof of entry on December 15, 2013 and proof of departure February 3, 2014; for most, CIC will typically infer the individual was
in Canada all those days in-between those two dates; but if CIC is approaching the case more skeptically, it may not infer the applicant was actually in Canada between those dates and require the applicant to show more proof of presence during that time.
xpro said:
4. Would having friends verify under oath about my physical presence be effective in administrative (CIC) proceedings or judicial proceedings?
CIC tends to downplay the weight given to testimonial submissions from the applicant, family members, or friends, or even colleagues. (It does give substantial weight to such submissions from professionals, like lawyers, dentists, doctors, accountants.) Technically however the courts have repeatedly affirmed that testimonial evidence must be
considered. And, sure, sworn statements probably carry more weight than unsworn ones (letters for example).
The problem many run into is the submission of statements containing generalizations or overall conclusions, most of which would be (much as
on-hold has suggested) lacking credibility on its face. Statements should be very specific, limited to particular
facts actually known to the affiant and which are of the sort which are subject of being known by other individuals.
Thus, a statement that
Joe stayed in my home from June 23, 2014 to July 12, 2014 carries a lot, lot more weight than a statement like
I know Joe was in Canada for more than 730 days between June 1, 2010 and May 30, 2015. In fact, the latter will carry virtually no weight . . . for what really should be obvious reasons.
More regarding filing tax returns:
Obligation to file a tax return depends on many factors in addition to residency-for-taxation-purposes. There are also a number of factors which may require a
NON-resident to file a Canadian tax return as a non-resident.
Moreover, the 183 days factor is a
presumption which is
not definitive. An individual may indeed be a resident of Canada for taxation purposes even though that individual is in Canada fewer than 183 days in the taxation year (airline pilot who predominantly flies international routes for example; off-shore oil rig workers, among others). An individual may spend more than 183 days in Canada in the year and
not be a resident for income taxation purposes, such as someone whose employment is U.S. based and is appropriately filing a resident U.S. tax return.
In particular, there is an important distinction between the obligation to
file a tax return versus the obligation
to pay taxes. For example, as between the U.S. and Canada (and similarly for many other countries), there is a tax treaty governing which country an individual with ties and/or income in both countries pays taxes to . . . but each country has its own requirements as to who must file a tax return, and a tax return can be required even if zero taxes are due (U.S. citizens in particular must file a U.S. tax return every year even if they have had no connection to the U.S. for many, many years; but they will not be double taxed if they are paying taxes in a treaty country, and are entitled to a near hundred grand deduction in any event even if they are not paying taxes abroad -- they do not even need to be a bona fide resident abroad to get this deduction).
Having PR status does not trigger a presumption of residency in Canada for taxation purposes. On the other hand, not filing a tax return as a resident is, of course, significant evidence of non-residency for purposes of assessing residency for purposes of the PR Residency Obligation. And now CIC and CRA have broader information sharing authority for the purposes of confirming information regarding tax filing and residency.
Burden of proving compliance with PR Residency Obligation on the PR:
This is mostly a reminder, but an important reminder: the PR has the burden of proving compliance with the PR Residency Obligation. Absent a permanent, primary residence in Canada plus employment (or school attendance), proving compliance with the PR RO could be problematic for some PRs.
xpro said:
CIC does put a high weight on paychecks, and income tax reports which is crazy cause they can be easily be obtained without actually being physically present in the country as boarding passes and passport stamps are almost always accurate. But it's a government agency and like most governmental bodies it's highly flawed. So can't blame them much. That's why I'm hoping for judicial overview as judges are not idiots like most administrative agents.
I've been a PR for the past 6 years and for the first 3 years I went to school in Ontario, but I'm trying to find a way to prove my physical presence for the upcoming 5 years. It looks like there is no policy manual as what constitutes conclusive proof of physical presence. Income tax and paychecks don't prove presence but prove residence which is not required by PR. I think the only way is I make a deal with a notary and every few days he/she would verify I'm physically present in front of her.
CIC does not necessarily put a high weight on paychecks. T4s and Notices of Assessments, yes. Paychecks are more in the category of corroborating evidence. Standing alone paychecks do not carry a lot of weight. In conjunction with the CRA documents, assuming consistency, they at least show employment and employer.
Employment alone in Canada will not prove presence sufficient to meet the PR RO. In fact, if CIC engages in a full Residency Determination, it is important for the PR to document (1) place of abode, (2) employment, and (3) dates of travel,
all three at minimum . . . weakness in any of these three areas can be problematic.
It is, however, a matter of fact-finding and decision-making, and again the burden of proof is on the PR. So what CIC concludes will be
reasonable inferences and conclusions based on facts CIC finds.
xpro said:
It looks like there is no policy manual as what constitutes conclusive proof of physical presence.
In addition to the specific regulations and the policies and practices reflected in ENF 23 Loss of PR Status, there are many, many IAD and Federal Court decisions, all of which offer a great deal of information about the fact-finding process in determining whether a given PR has breached the PR Residency Obligation. Moreover, while the rules of evidence do not strictly apply to the fact-finding process, they too offer a lot of information about evidence, inferences, and conclusions in this process.
Evidence is always subject to assessment, to be compared and contrasted and weighed in the light of other evidence, considered in context with other facts, including known facts and alleged facts.
It is not that complicated.
For a PR living in Canada, it is relatively easy to show compliance. For a PR not maintaining a primary place of residence in Canada, sure, it gets
difficult. PR status is given for the purpose of immigrating
permanently to Canada (even if in fact it ends up not being permanent for many). For those who do not immigrate to Canada and establish their primary residency in Canada for the indefinite future, sure, they can anticipate CIC and CBSA exercising a higher degree of scrutiny.
xpro said:
Despite it's name "permanent resident status" the law (as written by legislatures) requires only physical presence and not residence. Despite what legislatures have written CIC does not only expect physical presence but also residence.
Foremost:
residency is a huge factor relevant to assessing presence. A person is far more likely to spend time in the place he or she is resident than a place he or she is not resident. Absence of proof of residency is a strong evidentiary consideration tending to indicate lack of presence.
In particular:
CIC may rely extensively on evidence of residence in Canada, because that is consistent with and corroborates any evidence of presence.
In contrast, lack of residence in Canada is, at the least, cause for CIC to more thoroughly if not skeptically assess claims as to presence in Canada.
Moreover, it appears you may be confusing the technicality of the law with its purpose.
And, apparently you underestimate how a strict technical interpretation and application of the law will tend to
NOT be in your favour. (Imagine applying the beyond a balance of probabilities standard to proving each and every day the PR claims to have been present in Canada. You would indeed virtually need a notary's affirmation.)
Many cases have discussed and ruled on the purpose of PR status. Its purpose is for those immigrating
permanently to Canada, to
reside in Canada, with broad even generous accommodation for those who still maintain extensive ties abroad.
Bottom-line:
For the vast majority of PRs who come and go frequently, but who do indeed stay in Canada at least close to half time, CIC does not pose difficult hurdles.
In contrast, the closer one cuts it to the minimum, particularly in conjunction with a lack of evidence showing maintenance of a primary place of residence in Canada, the more concern and questions CIC is likely to have.
Overall, most reports indicate CIC is actually rather lenient if not generous in assessing residency for PRs, but this is predominantly for those who are at least in the process of finally establishing a permanent, primary residency in Canada, not those who are trying to keep a
card-in-the-hole to be played later.
An applicant with no permanent place of residence in Canada who claims to have spent exactly 146 days a year for each of the relevant five years is, for very obvious reasons, very likely to encounter significance skepticism from CIC. Up it to 156 days each year, a total of 780 days, is still very likely to encounter elevated skepticism. CIC is a bureaucracy but those making decisions are not stupid.
