Re: extent to which POE officers are likely to issue 44(1) reports followed by the issuance of a Removal Order:
MarioYYZ said:
Apologies for going off-topic, but I was wondering how accurate the above info is: I always thought that a removal order was issued only after an inadmissibility hearing has been conducted, and then by referral from the minister. CBSA issues these orders at a POE nowadays ?? I thought CBSA only enforced them, meaning after an appeal has been lost they issue a departure certificate on the passenger's way out...
I address the procedure pursuant to which the Removal Order is issued toward the end of this long post.
This is hardly off-topic, but really goes to the core of how the PR Residency Obligation is enforced. There are, after all, only a few scenarios in which a PR's compliance with the PR Residency Obligation typically arises:
-- PR abroad without a currently valid PR card applies for a PR Travel Document
-- PR applies for a replacement/renewal PR card
-- PR makes some other application to CIC which might trigger an assessment of the PR's status; example: application to sponsor a family member for a family class PR visa
-- and when a PR is at a POE seeking re-entry into Canada
A PR in breach of the Residency Obligation but who is in Canada can readily avoid a residency examination by not leaving Canada and not making any applications to CIC for a new card or to sponsor a family member or such.
But if a PR in breach of the residency obligation is abroad, the PR has little choice: apply for a PR Travel Document if the PR does not have a currently valid PR card, or approach a Canadian POE seeking entry with a currently valid PR card. Not every returning PR is scrutinized for residency obligation compliance. The vast majority probably are not. But if there is an apparent breach, the risk of questions about residency are elevated, and the more obvious the breach, the greater the risk of a residency inquiry, and the greater the risk of being issued a 44(1) report.
You might notice that in my post I distinguished
past practices. There were, as
canuck_in_uk alludes to, many reports in the past of PRs returning to Canada and not issued the 44(1) report at the POE despite being in breach of the PR Residency Obligation.
But not all breaches of the PR Residency Obligation are created equal.
In particular, I strongly disagree with the statement itself, by
canuck_in_uk, however, in multiple respects, but especially as it relates to someone who has been outside Canada for more than three consecutive years.
canuck_in_uk said:
It is not virtually certain. As per the experiences of this forum, it is actually fairly rare that people are reported at POE for not meeting the RO. The majority of the time, CBSA just gives them a warning.
In addition to and apart from the trend of CBSA (and CIC) to increase scrutiny and enforcement relative to the PR residency obligation, and the expanded utilization of enhanced technology at the POE, in conjunction with more thoroughly scanning travel documents into the system, which serves to identify suspected instances of PR RO breaches, my statement about the virtual certainty of a 44(1) report being issued was explicitly predicated on the situation posed here by the OP:
where it has been more than three years since the last time the PR was in Canada.
A breach of the PR RO is obvious on its face if a PR approaches the POE and in response to the question "when was the last time you were in Canada?" (or another variation thereof, such as "how long have you been out of Canada?" among other similar ways of asking the same thing), gives an answer that is in effect
more than three years ago.
Many PRs in breach of the RO have traveled to and from Canada occasionally over the course of time. They may not even be asked questions related to compliance with the PR residency obligation. My sense is that the risk goes up the longer the last absence, but because all we see in this forum (and other forums) are sporadic reporting, compared to the many, many thousands of PRs who come and go, many of whom are in breach or close to being in breach, it is impossible to really know just what the odds for any particular individual are.
Many PRs who are working abroad are aware of this and will deliberately make periodic trips to Canada, knowing that the more recent the last entry is the less likely a POE officer will even make a referral to secondary, let alone having an officer in secondary pursue a residency compliance examination.
Many of the PRs who are given an admonition, rather than issued a 44(1) report, are only a little in breach of the obligation, and will usually have a fairly understandable and sympathetic reason. Moreover, as I also alluded to in my previous post, at least in the past CBSA POE officers seemed to be somewhat lenient, if not outright
generous toward PRs still within the first five years of being a PR, and who are finally coming to Canada to settle in Canada albeit a bit late.
None of those appear to apply to the OP's query here, it already being
more than three years since the last time the OP was in Canada, and anticipated return to Canada is still many months off.
To be clear: being absent from Canada for a total of more than three years during the five years that count (for new PRs that is the five years from date of landing to date of the fifth year anniversary of landing; for everyone else it is five years going backwards from the date of the residency examination) is a breach of the PR residency obligation. To what extent this amount of absences is apparent to POE officers varies. For many it may not be even apparent the PR is close to, let alone already exceeding the limit of absences, and even when it is apparent the PR might be in breach, unless it is obvious, if the PR appears to be returning to Canada to actually live in Canada, the scales tend to tip favourably on the PR.
But the PR who was last in Canada more than three years previous, well, there is no question about that being in breach unless the PR has persuasive H&C grounds (or one of the exceptions applies, such as accompanying a Canadian citizen abroad).
But to also be clear, in the past many PRs in breach of the obligation deliberately made misrepresentations to POE officers about how long they were outside Canada, and got away with this easily. Many traveled to and from Canada via the U.S., if they could, because it was easier to avoid the higher degree of scrutiny typically part of airline travel. This is a significant part of what recent initiatives with the U.S. are intended to address; in particular, at some point (perhaps already), all PR's exits to the U.S., by whatever means, are supposed to be (1) collected by the U.S. border officers, and (2) CBSA will have direct access to that information. In other words, Canada has recently taken steps to move toward capturing
both exits and entries (and the U.S. likewise is given access to all of Canada's entry data). That is, going forward, record of U.S. entries are accessible and, for CBSA purposes, are a record of exits from Canada.
The crux of it is that CBSA has a mandate to screen and enforce Canada's immigration laws including, specifically, screening the admissibility of returning PRs. The vast, vast majority of PRs going through a POE have no hint of an admissibility issue. For those that do, I don't think there is any doubt, the border is getting tougher, and is likely to continue to get tougher for the near future anyway. (If the Conservatives do not continue to constitute the government after next year's election, the trend may change or at least soften some.)
I recognize that generally a PR in possession of a currently valid PR card is far less likely to encounter difficult questioning at a POE than one whose card is expired. While technically the date the card expires is not at all relevant to an admissibility issue, the apparent practice at the border is to presume a PR in possession of a currently valid PR card is admissible. But again, the PR who has been abroad for more than three consecutive years is so blatantly in breach, the odds of getting a pass at the POE go down dramatically . . . again, unless there are persuasive H&C grounds.
Procedure for issuance of Removal Order:
You are correct that if a POE CBSA immigration officer finds cause to issue a 44(1) inadmissibility report based on a breach of the PR Residency Obligation, that does not constitute a conclusive determination. It is, indeed, just a report. The report is then given to the
Minister's delegate who is the one deciding whether or not to issue a Removal Order.
My understanding is that who is a "Minister's delegate" for this purpose is extremely broad, if not loose. There have been cases in which the same officer who issued the 44(1) report attempted to issue the Removal Order. This was, of course, ruled to be invalid (for obvious reasons, the main one being that the procedure itself clearly calls for the exercise of judgment and discretion by someone other than the officer initiating the report). But it illustrates the level of officers ostensibly wearing the mantle of the "Minister's delegate."
In any event, the typical practice (as best I understand it) is for a supervising CBSA officer at the POE to act as the Minister's delegate, and the "hearing" is conducted there at the POE soon following the initial officer's decision to issue the 44(1) report. Some cases in the IAD decisions reflect situation in which the "Minister's delegate" is at another location, another POE, and the hearing is conducted by telephone.
End result is that the typical process involves the determination, by the initial interviewing CBSA immigration officer, that the PR is inadmissible due to a breach of the PR Residency Obligation, and issues the 44(1) report, followed by the referral then and there to the "Minister's delegate," that being just another CBSA officer, usually a superior one. If the Minister's delegate agrees with the officer issuing the report, a Removal Order is issued and delivered there to the PR.
The Removal Order is NOT then immediately enforceable. The PR should be then allowed to proceed into Canada, and the PR has a specified period of time in which to file an appeal. If no appeal is filed, the Removal Order becomes enforceable, thus in effect a departure order. If an appeal is filed, the Removal Order is not enforceable unless and until the appeal is decided against the PR.
The CBSA POE officer does have other options. As already mentioned, the office may issue a caution or admonition. This is probably accompanied by the entry of a notation in FOSS for the PR. A flag. The officer may do that and also send a referral to the local CIC office, which may or may not trigger an inquiry at the local CIC office, which could lead to the PR being called in for a residency examination. The officer may hold off on preparing and issuing the 44(1) report, prepare and issue it later, in which case it will be sent to the PR and I do not know what the process is then relative to a Minister's delegate making a determination as to whether or not a Removal Order will issue. I believe that whatever that process is, the PR has an opportunity to submit proof of compliance or make submissions regarding H&C grounds excusing the breach.
But, again, for the returning PR who has been abroad for more than three consecutive years, particularly if significantly more than three years, the breach is obvious, blatant, and the outcome is, I think, very predictable. (Allowing, again, either some successful deception as to how long the PR has been abroad, or the presentation of persuasive H&C grounds.)
