essy86 said:
Background: As we're very close to Bill C-24 implementation date and people (like myself) will give the eligibility date less buffer time, it becomes more important to calculate the trip dates correctly. I have my border crossings from CBSA and there are a couple of discrepancies; I crossed the border just after midnight a few times in the past year, and they have the correct time/date on my records. However, the US border agents apparently didn't roll their stamp to the next date, and my passport has the timestamp of the day before in all cases.
Question: Does anyone know which one will be considered the official time of exit if my case is RQ'ed; the CBSA record or the stamps in the passport?
Thanks
Note: while I have been reading the relevant case law, statutes, regulations, operational manuals and bulletins, and more recently the Program Delivery Instructions, in addition to following multiple forums and anecdotal reports for about six years now, I am
not a Canadian lawyer and I have no expertise in citizenship or immigration anywhere. In other words, I am
NO expert.
That said: I do not think there is any "official" or definitive rule for assessing variances in evidence regarding questions of fact. It is not as if a stamp in the passport always trumps some other evidence of a date of entry or exit, or that some other evidence will trump a date stamped in the passport. Passport stamps are
evidence of a fact, that fact being the date of a border crossing. If there is conflicting evidence, the fact-finder weighs the conflicting evidence and determines what the facts are. The decision will depend on which evidence is stronger or more persuasive, and evidence is almost always subject to being weighed in context, in light of all the facts and circumstances in a case.
Obviously you do not want to apply unless and until either way the fact-finding goes, you still have more than 1095 days actual presence. If the evidence is muddled, because of an erroneous date in the stamp, it is muddled. You should take that into account when deciding what day you will make the application.
In the meantime, whether this leads to RQ is largely beyond your control. Anyone can get RQ'd.
From your explanation it does not appear to be something which will trigger a pre-test RQ, so the question is probably more about how this will go in the course of the interview, when the interviewer is examining your passports and might examine the dates of stamps closely enough to compare them in detail with the dates in your residency calculation . . . how the interview goes varies, and is a much larger subject of discussion.
Note: there is a tendency, sometimes, to overly-emphasize the import of precise technicalities. How CIC reacts, in contrast, especially in the context of an interview for example, but also in the context of determining what the facts are, is more about trusting or not trusting the applicant than about a technical finding regarding precise details. Interviewer or fact-finder perceives the applicant as trustworthy, no problem (so long as requirements are met on their face); interviewer or fact-finder perceives reasons to mis-trust the applicant, anything not solidly nailed down can tend to be interpreted unfavourably.
Some general, overall observations:
Any applicant could be issued RQ. There is no sure way to avoid RQ, no certain set of facts or circumstances which will definitely avoid RQ.
In contrast, there are certain things which will definitely trigger RQ, like falling short of 1095 days actual presence, like significant discrepancies or inconsistencies, among a few others. These can usually be avoided, thus avoiding for sure getting RQ, but not necessarily entirely avoiding RQ.
In any event, the main thing is to be sure to be qualified, based on the actual presence test (thus having
more than 1095 days of APP), and to properly and
accurately and completely provide the required information in the application, including the Residency Calculation. Beyond that, it is largely either chance . . . or spending a lot of time, over the course of years, studying this stuff and applying what can be learned to one's own situation, to figure out if and how one can improve the odds (I had what was once a virtually guaranteed RQ factor, and ended up waiting nearly two years beyond reaching the 1095 days APP threshold to apply . . . and it worked, but that's more extreme than all but a very few want to pursue) . . . but even then, there is still a large element of chance (I still anticipated the likelihood of RQ, for example, but had waited long enough and diligently prepared enough that I had all the documentation needed to make my case without a wrinkle, just in case).
But with the revised requirements in the
SCCA looming over the heads of thousands of PRs just these days arriving at the threshold of eligibility, the equation for calculating the best time to apply has changed dramatically. Many are, like you, wrestling with this and related questions. There are no sure-fire answers, no for certain guidelines.
We do not even know whether or not the last batch of applicants under the old law will be scrutinized the same or perhaps be examined more closely given that it appears obvious hundreds if not thousands will rush to apply before the law changes.
All I can offer in this regard is to be sure you are qualified and come as close as feasible to submitting a perfect application, and in the meantime be sure to gather and maintain documentation in preparation for the possibility of RQ . . . so that there is virtually no chance of being denied even if you do get RQ.
In ordinary times . . . :
In ordinary times, under the usual circumstances, the precise number of days is relatively insignificant compared to many other factors. Of course, absolutely having the minimum 1095 days of actual presence is imperative, and thus an applicant should be absolutely certain to have this covered before applying. But beyond that, whether an applicant's calculation is for 1097 versus 1129 days, or even 1224 days, probably is of little import compared to numerous other facts and circumstances. A buffer is probably still a good idea, but ten or thirty days is not likely to make much difference . . . it is just if there is anything leading a CIC bureaucrat to question the number of days, sure, the smaller the margin the bigger the risk that could tip that bureaucrat's thinking more in a negative direction.
Among other factors which can loom particularly large are discrepancies. Discrepancies, inconsistencies, and even incongruities, can really hurt. Even when they are not the applicant's fault, at the least they draw more intense scrutiny, which in effect amounts to negative attention.
The discrepancies you refer to probably would not be noticed in the initial triage criteria screening (so long as you enter your dates accurately and the information CIC has access to is consistent with that), and otherwise are minor enough, easily enough explained (sort of . . . ), that unless the officer interviewing you has other reasons to be concerned, noticing the one day discrepancy in reported dates versus a couple stamps should not trigger any concerns. Notice a lot of
IFs in this.
All that is to say is that this issue does not seem likely to trigger pre-test RQ and if all is in good order when you reach the interview stage it alone should not cause any problems.
But again, there are a lot of
IFs in this.
Note, for example, that the examination and decision-making model employed by CIC and CBSA is fairly consistent across many if not most of their functions . . . the substantive details change, but the style and approach are largely consistent, a sort of
issue-screening approach. So a lot depends on whether the interviewer is favourably disposed (they usually are, mine for sure was) . . . but if for some reason the interviewer has a heightened concern, then the nature and character of the questions, and their import, changes and . . . well these things can go either way, toward resolving the interviewer's doubts or toward the interviewer apprehending a
reason-to-question-residency.
So for most applicants, most of the time, a small wrinkle or minor issue with a stamp or other particular detail, will not cause any problems . . . but if the interviewer's sensitivities are heightened, there can be greater focus on small details and incongruities, let alone overt inconsistencies or discrepancies, and these can then be rather problematic . . . and note that interviewers do not ordinarily ask for an "explanation" in a direct way, but rather ask fact oriented questions and will draw their own conclusions. If the facts themselves do not favourably resolve the question, that pushes things toward RQ or at least a follow-up CIT 0520 request for additional documents.
This probably comes across more negative than I intend . . . it is worth remembering that things usually go well for honest applicants who are qualified.
