Increase in 44(1) at the border?

[Bornlucky]

You seem to want it explained to you how the civil service functions, but don't wish to listen to those with some knowledge of it.

There's no surprises in the above. Government via legislation and regulations empowers certain officers to use their discretion, within the limit of the law. The government or 'ministry' of the day (with majority in parliament) deploys that discretion through officers who get instructions from the 'ministry' via the ministers responsible. Those directions for how to run things day to day via the civil service will never (well hardly ever, because scandal-generative) say to do anything contrary to the law, but can give guidance (frameworks, emphasis) on how policy is to be enacted in exercise of that discretion.

The fact this comes (however indirectly) from 'the Minister' is seen in the process, where a 'Minister's delegate' must sign off on the 44(1) reports.

Roughly that guidance might suggest that officers be very strict / extremely strict / strict but don't clog the system up with reports that will be overturned later, or - the least strict level - our priorities are [elsewhere] so be strict only to extent it doesn't detract from important stuff. Rather typical for all governments would be for initial instructions to say something at the extremes of this spectrum (eg 'zero tolerance') and the unintended consequences (eg extremely long waiting times for decisions, high legal expenses to govt) to become apparent after six months or so, and the course corrections to that initial guidance to avoid saying explicitly 'that other memo was moronic rubbish that's caused huge problems, pls ignore until further notice while we figure out how things work' but everyone can read between the lines.

Does any of the above mean that the officer's discretion does not exist? Nope. They have discretion, which they may exercise (as long as lawful), and they would probably never be punished for marginal cases and certainly not straightforward ones. But if their bosses (the minister and minions) are not happy with their exercise of their judgment, their career advancement may be, ahem, limited, and in extreme cases, dismissed. (Note dismissed usually not just due to disagreements over decisions but demonstrably incompetent i.e. at odds with any reasonable exercise of that judgment - or corruption, etc.; I'd hazard a guess that very few dismissals are due directly to disagreements over judgment in decisions such as this but rather serious problems elsewhere in one's record).

You assume that I have no knowledge, and that I won't listen to someone who does.

You don't know me, and I don't know you - but I don't have any trouble with the concept of discretion in the Federal Public Service of Canada.

Your insulting tone to me is like the first whiff of rubbish - you dismissing my understanding of the subject.

I asked a simple question for the very simple statement made, and these messages explaining existing discretion doesn't answer how it will be manifest for these specific cases to become more or less lenient.

You provide that officers will be harassed and their careers tanked if they don't exercise their discretion to be sufficiently severe.

Thanks for nothing

 

[deadinside]

On a side note, I checked canlii.org today and noticed that there have been no reports on the site since August. I wonder why? Is that website still actively maintained? Is there an alternative website that pulls official records like canlii?

 

[ethelstan]

On a side note, I checked canlii.org today and noticed that there have been no reports on the site since August. I wonder why? Is that website still actively maintained? Is there an alternative website that pulls official records like canlii?

It is Updated. Look up this case from December 2024 - Da v Canada about PRTD issuance refusal.

 

[deadinside]

It is Updated. Look up this case from December 2024 - Da v Canada about PRTD issuance refusal.

I took a second look, and found some interesting things on canlii. It is flooded with court cases pertaining to appeals about claims of refugees to gain asylum in Canada.

When I last saw this website in March 2024, most of the cases pertaining to Cic were related to RO breach by PRs.

I wonder what has caused this change? It looks like suddenly there are a whole lot of refugees claiming asylum in Canada, especially in the last six months. I suspect that the courts are clogged by these asylum cases. How will this affect reporting of PRs who're in RO beach..

 

[armoured]

You assume that I have no knowledge, and that I won't listen to someone who does.
...
Thanks for nothing

Assumption demonstrated positive, blocking and moving on. Life's too short.

 

[dpenabill]

On a side note, I checked canlii.org today and noticed that there have been no reports on the site since August. I wonder why? Is that website still actively maintained? Is there an alternative website that pulls official records like canlii?

It is Updated. Look up this case from December 2024 - Da v Canada about PRTD issuance refusal.

There continues to be plenty of ongoing activity at the https://www.canlii.org/en/ site, including publication of ten Federal Court decisions this year, just two business days into the year, and IRCC was a party in seven of those decisions (mostly refugee appeals); but it appears the site has not published any IAD decisions since August.

So CanII is still operational in most regards but, it appears, it has not been publishing IAD decisions since August. And yeah, this is a big deal, the published IAD decisions has constituted one of the most useful resources for figuring out a lot about things like how the Residency Obligation is enforced in actual cases.

The operational manual for appeals before the IAD, that is ENF 19 Appeals before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), was updated in August. The summary of changes says there are updates regarding "directions on recording final decisions in GCMS."

But I do not see where the changes to ENF 19 would affect CanII access to and publication of decisions. It might be hard to dismiss the concurrence of the update and the subsequent absence of IAD decision in CanII (last IAD decision published in CanII was August 19, and this manual was updated August 22), but actually it was in mid-May when the steady publication of IAD decisions in CanII abruptly ended, there being only two heavily redacted decisions published since then.

Demands further research. The IAD decisions are an important resource.

I took a second look, and found some interesting things on canlii. It is flooded with court cases pertaining to appeals about claims of refugees to gain asylum in Canada.

When I last saw this website in March 2024, most of the cases pertaining to Cic were related to RO breach by PRs.

I wonder what has caused this change? It looks like suddenly there are a whole lot of refugees claiming asylum in Canada, especially in the last six months. I suspect that the courts are clogged by these asylum cases. How will this affect reporting of PRs who're in RO beach..

The only thing I see that has changed much is CanII not publishing IAD decisions, as discussed above. Asylum cases have long dominated the immigration related "cases" published by CanII, recognizing that in response to a search of CanII it lists decisions in multiple forums under "cases," thus including both Federal Court and IAD decisions, as well as published decisions in other forums, including the Federal Court of Appeals, the Supreme Court of Canada, and numerous adjudicatory bodies throughout the Canadian government. For decisions specifically by a particular forum, CanII facilitates a search of just that particular forum or, alternatively, use the filter provided to just show a particular forum's decisions.

The majority of published Federal Court decisions have long been refugee appeals, followed by appeals in regards to denied visa or permit applications and appeals in regards to inadmissibility for criminality (including both PRs and FNs). Very few RO enforcement cases reach the Federal Court (but those that do are important sources of information about how the law is applied in actual cases).

Until mid-May last year, a lot of the cases published at CanII were IAD decisions, and a large percentage of these were about RO enforcement, mostly about whether the PR should be allowed to keep PR status despite a breach of the RO based on H&C considerations. If we have lost easy access to these decisions that will really hamper efforts to stay well informed about RO enforcement. Not only did those decisions articulate the reasons why, or why not, the PR kept or lost status, but they often described many of the underlying facts and procedures, and typically described the position the Minister takes. It was in the IAD decisions we saw a dramatic increase, during the last five or so years, in the extent to which the Minister was arguing who-accompanied-whom issues in regards to some PRs living outside Canada with a Canadian citizen spouse.

There is nothing in any of this which appears likely to influence RO enforcement at the Port-of-Entry. So, in regards to "How will this affect reporting of PRs who're in RO beach," if by "reporting" you are referring to the formal preparation of a 44(1) Report for RO breaches, there is no indication it will have any effect.

this so-called quote contains content that is NOT from anything I posted

You assume that I have no knowledge, and that I won't listen to someone who does.

You don't know me, and I don't know you - but I don't have any trouble with the concept of discretion in the Federal Public Service of Canada.

Your insulting tone to me is like the first whiff of rubbish - you dismissing my understanding of the subject.

I asked a simple question for the very simple statement made, and these messages explaining existing discretion doesn't answer how it will be manifest for these specific cases to become more or less lenient.

You provide that officers will be harassed and their careers tanked if they don't exercise their discretion to be sufficiently severe.

Thanks for nothing

Please delete the misquote attributed to me.

The content you purport to have quoted from me was posted by another forum participant who is among a number here making a concerted effort to be informative.

"I asked a simple question for the very simple statement made, and these messages explaining existing discretion doesn't answer how it will be manifest for these specific cases to become more or less lenient."​

No one here is answering what confidential criteria border officials are applying. That's confidential. We don't have access to that information.

That said, it is not as if the Minister is issuing a directive to be "more or less lenient." That's not how it works. The directives almost certainly identify various factors and how those factors should be weighed, which in turn will have an impact that is more lenient, or less lenient. Thus, even though neither CBSA or IRCC publicly disclosed how officers were to handle returning PRs in RO breach following the Covid pandemic, it was clear from anecdotal reporting that both CBSA and IRCC were giving the impact of Covid a good deal of weight and generally, overall, approaching RO enforcement more leniently during that time . . . not because there was a directive to be more, or less, lenient, but almost certainly because there was a directive to take the impact of Covid into consideration and give that considerable weight. And that direction has almost certainly been modified if not withdrawn, probably some time ago, so that the guidelines for officers no longer direct them to give Covid reasons the weight they were given in the wake of the pandemic.

Bottom-line: if your complaint or criticism is contesting the statement by @canuck78 that the probability of a PR in breach of the RO being subject to inadmissibility proceedings also "depends on directives from gvt about whether they should enforce or show leniency," that's parsing the language used in search of a reason to challenge, to criticize, rather than trying to understand the gist of it, which is true, and that is that the way officers exercise their discretion is subject to and directed by rules and guidelines adopted by the Minister, which will in turn affect how lenient or strict the enforcement of the RO is.

Again, the period of rather obviously lenient enforcement in the wake of Covid is a prime example. In contrast, another example is the increased strictness in how the accompanying a Canadian citizen spouse RO credit is applied, which is interesting because this was well evident in decisions by IRCC officers (mostly those denying PR TD applications) but NOT in decisions made by CBSA officers -- it is not certain but it appears that the Minister of IRCC approved or adopted a more strict approach (as mostly evidenced by the arguments made by the IRCC Minister's representatives before the IAD and Federal Court), whereas there has been no indication that the Minister of PSEP (Public Safety and Emergency Preparedness, which administers CBSA) has directed border officials in this way.

 

[Bornlucky]

I will not try to speak for @canuck78 but there is nothing in what @canuck78 posted that suggests directives contrary to the governing legislation, but rather appropriately made reference to the fact that under a Minister's administration, CBSA and IRCC formulate and adopt directives guiding and instructing officers in regards to what to consider and how to consider it when making decisions, including decisions involving an exercise of discretion, and otherwise structuring the scope of the officers discretion. To a large extent, that is what bureaucracies do, one part figuring out and administering how things are to work (including how to apply the governing law), and the other part implementing that.

Beyond all that . . . the discretion allowed government decision makers is almost never absolute discretion but is almost always structured by internal policies, rules, and guidelines or instructions, within the framework prescribed by law (the applicable statutes and regulations, and court rulings). In particular, border officers are limited in what they can consider in making a decision whether or not to prepare a 44(1) Report. Unfortunately much of that is confidential.
[/QUOTE]

You seem like a sincere and pleasant person who tries earnestly to help people.

I understand discretion within Canada's immigration's legislation and how that authority is found and bound by the descriptions within the delegated authorities and instruments as to who and what.

Regulations and policies narrow the focus, set up standards, etc. Manuals sew it all together for references, tools and guidance.

I don't need primers, prerequisites or think-pieces on the topic of Canada's Immigration Officers and what their discretion authorizes them to decide. I don't say that with any smirk or derision - I've been around.

Absolute discretion in Legislation cannot be outweighed by anything in subordinate Regulations or Policy because Legislation simply trumps it all. That doesn't mean that these things can't creep in, and it's only when challenged successfully that they disappear.

You're evidently a student of the whole immigration enchilada, so you may be conscious of the then new legislative drafting approach for IRPA to write broad legislation and shape and reshape it going forward in the Regulations. It was a change in the depth of focus.

Broadly written Legislation, narrowed in the Regulations would allow for swift changes - no need to go to the floor of the House for a vote, and you were free to add and subtract as you please. Little need to annotate IRPA when the changes are in the Regs. You can deal with the committee because you have to either way, but no House votes.

Lovely, but the detractors warned - broad Legislation lies out there and is a risk when no Regulations can legally stem or reverse its course. It will have to go to the floor, or you live with it, stop funding it - whatever.

One change within the Act that was a hot topic was the change to reporting inadmissibilities where in the previous Act it said that the officer, "shall" and it of course became, "may" for IRPA.

There was a loud concern from Immigration enforcement management, inland and at POEs that they could no longer compel an officer to make an inadmissibility report. Were they all wet? What do they know about Legislation.

Thanks for your efforts - I know you put your heart into it.

Now - "Also depends on directives from gvt about whether they should enforce or show leniency."

No, it cannot depend upon directing the use of discretion.

Do you see my point?

If "directive" was a poorly chosen word, say so and correct it. Otherwise this is more simply ignorance.

 

[Bornlucky]

There continues to be plenty of ongoing activity at the https://www.canlii.org/en/ site, including publication of ten Federal Court decisions this year, just two business days into the year, and IRCC was a party in seven of those decisions (mostly refugee appeals); but it appears the site has not published any IAD decisions since August.

So CanII is still operational in most regards but, it appears, it has not been publishing IAD decisions since August. And yeah, this is a big deal, the published IAD decisions has constituted one of the most useful resources for figuring out a lot about things like how the Residency Obligation is enforced in actual cases.

The operational manual for appeals before the IAD, that is ENF 19 Appeals before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), was updated in August. The summary of changes says there are updates regarding "directions on recording final decisions in GCMS."

But I do not see where the changes to ENF 19 would affect CanII access to and publication of decisions. It might be hard to dismiss the concurrence of the update and the subsequent absence of IAD decision in CanII (last IAD decision published in CanII was August 19, and this manual was updated August 22), but actually it was in mid-May when the steady publication of IAD decisions in CanII abruptly ended, there being only two heavily redacted decisions published since then.

Demands further research. The IAD decisions are an important resource.



The only thing I see that has changed much is CanII not publishing IAD decisions, as discussed above. Asylum cases have long dominated the immigration related "cases" published by CanII, recognizing that in response to a search of CanII it lists decisions in multiple forums under "cases," thus including both Federal Court and IAD decisions, as well as published decisions in other forums, including the Federal Court of Appeals, the Supreme Court of Canada, and numerous adjudicatory bodies throughout the Canadian government. For decisions specifically by a particular forum, CanII facilitates a search of just that particular forum or, alternatively, use the filter provided to just show a particular forum's decisions.

The majority of published Federal Court decisions have long been refugee appeals, followed by appeals in regards to denied visa or permit applications and appeals in regards to inadmissibility for criminality (including both PRs and FNs). Very few RO enforcement cases reach the Federal Court (but those that do are important sources of information about how the law is applied in actual cases).

Until mid-May last year, a lot of the cases published at CanII were IAD decisions, and a large percentage of these were about RO enforcement, mostly about whether the PR should be allowed to keep PR status despite a breach of the RO based on H&C considerations. If we have lost easy access to these decisions that will really hamper efforts to stay well informed about RO enforcement. Not only did those decisions articulate the reasons why, or why not, the PR kept or lost status, but they often described many of the underlying facts and procedures, and typically described the position the Minister takes. It was in the IAD decisions we saw a dramatic increase, during the last five or so years, in the extent to which the Minister was arguing who-accompanied-whom issues in regards to some PRs living outside Canada with a Canadian citizen spouse.

There is nothing in any of this which appears likely to influence RO enforcement at the Port-of-Entry. So, in regards to "How will this affect reporting of PRs who're in RO beach," if by "reporting" you are referring to the formal preparation of a 44(1) Report for RO breaches, there is no indication it will have any effect.



Please delete the misquote attributed to me.

The content you purport to have quoted from me was posted by another forum participant who is among a number here making a concerted effort to be informative.

"I asked a simple question for the very simple statement made, and these messages explaining existing discretion doesn't answer how it will be manifest for these specific cases to become more or less lenient."​

No one here is answering what confidential criteria border officials are applying. That's confidential. We don't have access to that information.

That said, it is not as if the Minister is issuing a directive to be "more or less lenient." That's not how it works. The directives almost certainly identify various factors and how those factors should be weighed, which in turn will have an impact that is more lenient, or less lenient. Thus, even though neither CBSA or IRCC publicly disclosed how officers were to handle returning PRs in RO breach following the Covid pandemic, it was clear from anecdotal reporting that both CBSA and IRCC were giving the impact of Covid a good deal of weight and generally, overall, approaching RO enforcement more leniently during that time . . . not because there was a directive to be more, or less, lenient, but almost certainly because there was a directive to take the impact of Covid into consideration and give that considerable weight. And that direction has almost certainly been modified if not withdrawn, probably some time ago, so that the guidelines for officers no longer direct them to give Covid reasons the weight they were given in the wake of the pandemic.

Bottom-line: if your complaint or criticism is contesting the statement by @canuck78 that the probability of a PR in breach of the RO being subject to inadmissibility proceedings also "depends on directives from gvt about whether they should enforce or show leniency," that's parsing the language used in search of a reason to challenge, to criticize, rather than trying to understand the gist of it, which is true, and that is that the way officers exercise their discretion is subject to and directed by rules and guidelines adopted by the Minister, which will in turn affect how lenient or strict the enforcement of the RO is.

Again, the period of rather obviously lenient enforcement in the wake of Covid is a prime example. In contrast, another example is the increased strictness in how the accompanying a Canadian citizen spouse RO credit is applied, which is interesting because this was well evident in decisions by IRCC officers (mostly those denying PR TD applications) but NOT in decisions made by CBSA officers -- it is not certain but it appears that the Minister of IRCC approved or adopted a more strict approach (as mostly evidenced by the arguments made by the IRCC Minister's representatives before the IAD and Federal Court), whereas there has been no indication that the Minister of PSEP (Public Safety and Emergency Preparedness, which administers CBSA) has directed border officials in this way.

Canuck78 frequently makes great errors, and apologies for the remark meant for another.

Thanks for missing any indication of my own understanding of how it all works. I don't need this analysis - I've been to the mountain, but thanks.

Confidential criteria instructions to fetter discretion? Are you talking about the Confidential Manual for overseas case processing?

 

[Bornlucky]

Assumption demonstrated positive, blocking and moving on. Life's too short.

Good bye, Featherhead

 

[canuck78]

Canuck78 frequently makes great errors, and apologies for the remark meant for another.

Thanks for missing any indication of my own understanding of how it all works. I don't need this analysis - I've been to the mountain, but thanks.

Confidential criteria instructions to fetter discretion? Are you talking about the Confidential Manual for overseas case processing?

First not true. Also thought this was common knowledge so a short post that anyone reading can understand seemed appropriate. Was not expecting this saga. Would add that we will likely also see something similar from IRCC. Anecdotally seems to be already happening in pathways like H&C. There is no other option given the volume of applicants.

 

[dpenabill]

In General:

If anyone knows more about why IAD decisions issued since last May are not readily accessible at CanII, or where else those decisions can be readily accessed, please share what you know.

That is the main, key story in this thread.

That is not to dismiss the effort to track and explain trends in RO enforcement. But that is more about watching the way the blows . . . it is very difficult to discern trends of this sort, aggravated by how long it takes to even reliably discern shifts in enforcement practices let alone unannounced policies. But without ready access to IAD decisions, or more precise and reliable statistical data, it will be far more difficult to figure out the impact on who on who is affected, what is actually changing or why, even when a trend is more or less obvious.

I understand discretion within Canada's immigration's legislation and how that authority is found and bound by the descriptions within the delegated authorities and instruments as to who and what.

Sorry, your claims in this regard lack credibility. In addition to falsely attributing a quote to me (post 16 in this thread), which I politely asked you to delete and you haven't, you persist on falsely claiming officers have "absolute discretion" in deciding whether to prepare Section 44(1) Reports notwithstanding scores of courts specifically stating there is NO such thing as absolute discretion (subject to some quirks in Canadian law, mostly in regards to labelling; see legislation and cases about fishing licenses for example), including the Supreme Court of Canada. Among such Supreme Court decisions there is an extensive and thorough explanation, in the very often cited Vavilov decision, of the essential elements of discretionary decision making, analyzing in depth the relationship between reasonableness and the nature and scope of discretion which may be exercised, which necessarily includes "the institutional context" for decision making informed by the administrative body's "policies or guidelines" (which is a big part of what @canuck78 and @armoured and others have been referencing, which @canuck noted is "common knowledge") . . . and, oh yeah, its declaration that there is NO such thing as absolute discretion. Moreover, you mischaracterize both the former Immigration Act of 1976 and how IRPA (adopted in 2002) differs from it.

So, this is not for you . . .

. . . but, rather, for those who are interested and to clarify for them, and repudiate some of the misinformation @Bornlucky has posted. Looming large, as noted, is making it clear for whoever is interested, CBSA officers do not have absolute discretion in deciding whether to make/prepare a 44(1) Report.

Absolute discretion in Legislation cannot be outweighed by anything in subordinate Regulations or Policy because Legislation simply trumps it all.

This is a non-sequitur. The discussion here is not about any absolute discretion granted by Canadian law. It is about the discretion officers may exercise in deciding to prepare a 44(1) Report, which is NOT absolute. Not close to absolute.

As noted, according to authoritative sources like the Supreme Court of Canada, there is no such thing in Canada law as absolute discretion (again. allowing some quirky exceptions).

Where legislation states "shall" that usually (not always, depends on context) constitutes a mandatory dictate, a declaration of what MUST be done (or in some contexts, what is done by operation of law). No discretion.

Revising a provision to replace "shall" with "may" does not confer absolute discretion. How much discretion is thereby authorized varies considerably, depending on context and the legislative purpose or objective, and a whole lot of other elements as the Supreme Court addressed in detail, at length, in the Vavilov decision.

What "may" means in Section 44(1) IRPA, as I previously quoted from ENF 5 (which is not an overseas processing manual), is that officers "have some flexibility in managing cases where the person is inadmissible," which is far, far shy of granting individual officers absolute discretion.

One change within the Act that was a hot topic was the change to reporting inadmissibilities where in the previous Act it said that the officer, "shall" and it of course became, "may" for IRPA.

This is another glaring example of mischaracterization, if not outright misinformation posted by @Bornlucky, supposedly describing a "change within the Act," in regards to "reporting inadmissibility." Foremost, to be clear, Section 44(1) in IRPA has never been amended or changed. This provision continues to be precisely what it was when IRPA was adopted in 2002, more than two decades ago. That was when IRPA completely replaced (it did not revise, amend, or change, but totally replaced) the Immigration Act of 1976, in which there was no "residency obligation" as such (that Act had a very different structure in regards to required PR presence in Canada, noting that the difference between a requirement and an obligation looms very large) and in which the provision governing "reports on permanent residents" did not include reporting PRs based on a failure to reside in Canada. That Act, the previous Act, contrary to what @Bornlucky falsely asserted, did NOT say that PRs "shall" be reported based on residency related inadmissibility. (Section 27(1) in the Immigration Act of 1976 prescribed when a report was to be made against a PR, and that provision in particular did not provide for reporting PRs based on a lack of residency; Section 20 in that Act prescribed reports to be made at a PoE when inadmissible travelers were detained or subject to an order to detain, noting that border officers did not necessarily need to "report" such individuals but could allow the person to leave Canada as an alternative to making a report.)


For reference, the current version of Section 44(1) IRPA states:

An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.​

 

[deadinside]

In General:

If anyone knows more about why IAD decisions issued since last May are not readily accessible at CanII, or where else those decisions can be readily accessed, please share what you know.

That is the main, key story in this thread.

Are you referring to this? It has summary of IAD RO appeals data - https://www.irb-cisr.gc.ca/en/statistics/immigration-appeals/Pages/index.aspx

 

[dpenabill]

Are you referring to this? It has summary of IAD RO appeals data - https://www.irb-cisr.gc.ca/en/statistics/immigration-appeals/Pages/index.aspx

No, but that is a good source of relevant data . . .

. . . albeit a lot of other information is needed to extrapolate conclusions regarding trends, and of course the Covid-years throw things off considerably.

Part of the difficulty extrapolating reliable information about RO enforcement trends at the PoE is that this does not distinguish RO cases in appeals from Removal Orders (includes appeals for Removal Orders for both RO breaches and other grounds of inadmissibility in the data). The stats for "Residency Obligation Appeals" are appeals of denied PR TD applications.

And just to be clear, the big story is about the absence of recent IAD decisions at CanII, which your earlier post alerted me to (I spend a lot of time reading IAD decisions based on content queries but I had not noticed the absence of decisions since last May).

 

[Efgan]

No, but that is a good source of relevant data . . .

. . . albeit a lot of other information is needed to extrapolate conclusions regarding trends, and of course the Covid-years throw things off considerably.

Part of the difficulty extrapolating reliable information about RO enforcement trends at the PoE is that this does not distinguish RO cases in appeals from Removal Orders (includes appeals for Removal Orders for both RO breaches and other grounds of inadmissibility in the data). The stats for "Residency Obligation Appeals" are appeals of denied PR TD applications.

And just to be clear, the big story is about the absence of recent IAD decisions at CanII, which your earlier post alerted me to (I spend a lot of time reading IAD decisions based on content queries but I had not noticed the absence of decisions since last May).

Approximately 30 % appeal process is successful. Others dismissed

 

[dpenabill]

First, the Good News: CanII has posted IAD decisions dated as recently as October 24 including more than 40 decisions from last year that were not posted on the site earlier this month. This has been one of our most valuable, informative sources about RO enforcement, and it is very good news that we have not lost ready access to these decisions. The caveat is the number of published decisions still seems very low compared to what I estimate to be a much higher number of IAD decisions made. Nonetheless, as long as there is a sizable sampling posted publicly this will continue to be a valuable resource even if it falls short of being comprehensive.

The Bad News . . . well, I suppose it might be good news for those who advocate stricter enforcement of the PR Residency Obligation:

See Agzaou v Canada, 2024 CanLII 135398, https://canlii.ca/t/k8z2s

The good news for Kamal Agzaou is that the IAD allowed his appeal on H&C grounds. That a 44(1) Report was prepared and a Removal Order issued to this individual, however, is contrary to the general leniency often noted here in regards to PRs returning to Canada before the expiration of their first PR card. I am not sure I said as much out loud (and if I did, now that can be seen to have been clearly in error), but it has long seemed to me that as long as a PR who made a soft-landing returned to Canada at least a year prior to the fifth year anniversary of their landing, the odds seemed very good they would be waived into Canada without being subject to inadmissibility proceedings.

Kamal Agzaou landed and became a PR on May 27, 2020, and left 60 days later in July 2020.
He returned to Canada in December 2023, with around 18 more months to go before the fifth year anniversary of when he landed.
He was issued a Removal Order upon his arrival here in December 2023 when he was just 60 days short.

We have seen anecdotal report after anecdotal report from PRs waived through the PoE after arriving here just a few months, some just weeks, before their first PR card expired, including many whose soft-landing was well shorter than 60 days.

And even though we have seen some, but NOT many, RO enforcement proceedings against PRs who were short by only a couple or four months, as far as I can recall all those involved PRs well past the first five years with a history and circumstances indicating little or no intent to actually settle in Canada permanently.

Similar to me, most of the seasoned participants here typically caution that any breach puts the PR at risk.

But if Kamal Agzaou had inquired about his chances back in the fall of 2023, many if not most of us would have suggested he had a very good chance of getting waived through upon his arrival. We would have noted the risk otherwise. We would have suggested being prepared to present H&C considerations if subject to a RO enforcement examination. But few here would have bet a Removal Order would be issued.

Agzaou won this appeal and apparently did so without the assistance of a lawyer (no representative is listed in the decision).

Is this an outlier? Is it an indicator of increased RO enforcement at the PoE?

Am I right to assume that the number of 44(1) reports issued at the border have increased after the US election?

It is clearly NOT an indicator of increased 44(1) Reporting "after the US election," since this Report was prepared back in 2023 and this decision was months before the U.S. election.

Some Other Recent PoE RO Enforcement Cases:

Zebib v Canada, 2024 CanLII 135401, https://canlii.ca/t/k8z36

This is another Report and Removal Order resulting from a PoE examination 8 months prior to the fifth year anniversary of landing; way short but had previously entered Canada multiple times including just a little more than a year prior to arrival date resulting in the Report and Removal Order. Given how few days had been spent in Canada, no surprise there was a Removal Order and that was upheld by the IAD . . . not much but a bit of a surprise the 44(1) Report was prepared given days spent in Canada just a bit more than a year earlier (as to why this makes a difference, many of PoE cases involve PRs who are returning to Canada after an absence that in itself indicates a RO breach, or otherwise is lengthy enough to indicate a high probability of a RO breach).

Hasnaoui v Canada, 2024 CanLII 132835, https://canlii.ca/t/k8rh0

Another PoE case . . . date of landing August 2019 . . . date of PoE examination, Report and Removal Order, December 2023 (nine months before end of first five years as PRs). More than three year absence prior to arrival in December 2023. Minor child also lost PR status in this case.


Sosa v Canada, 2024 CanLII 36407, https://canlii.ca/t/k49bm

Another PoE 44(1) Report and Removal Order case . . . date of landing June 23, 2019 . . . date of arrival, Report and Removal Order, September 12, 2023 (not quite a year prior to the end of his first five years as a PR). Appeal dismissed.

Approximately 30 % appeal process is successful. Others dismissed

I do not know where that number comes from.

Without actually counting the outcomes in RO cases within the last year, in just reading through a few dozen published cases (appeals of denied PR TD applications plus PoE cases), it appears that there are rather few successful appeals. That said, most of these cases involve individuals who had spent very little time in Canada (some were "absolute" breaches, meaning no days in Canada within the five years preceding the application for a PR TD), were definitely not established in Canada, and otherwise not strong H&C cases.

All that said . . . I draw no particular trend indicators from the few dozen published RO cases this year I have perused . . . but nonetheless take note of the PoE cases involving PRs with valid PR cards returning to Canada before the end of their first five years. Suggests, perhaps, the risk of RO enforcement should be given more emphasis for PRs in similar situations, or at least more emphasis that the sooner the PR gets here (the less the breach) the better their odds.

An Off-Subject Tangent. . . a Misrepresentation in PR card application case Zhao v Canada, 2024 CanLII 135383, https://canlii.ca/t/k8z1b:

Hard to sort out the particular dates and some details; it is a transcript of an admissibility hearing (not before the IAD) and decision, and as such is not well organized and it can be difficult to nail down some of the details. But this case is noteworthy because it is an example of CBSA pursuing a misrepresentation case based on misrepresentations made in a PR card renewal application many years AFTER that application was made and a new PR card issued. This is about a PR card application in 2011 and an admissibility hearing that began in June 2024, final hearing July 2024.

I could not see, in this transcript and decision, when it was that this inadmissibility for misrepresentation case started. It appears likely that at least a decade had passed, and in the meantime this individual had (as best I can figure out) settled and mostly stayed in Canada.

The allegation is that this PR misrepresented her travel history, and was outside Canada for 1098 days (so in RO breach by three days) in the period February 18, 2008 to February 6, 2011. There is no explanation why she was applying for a new PR card just three years after landing. (Perhaps a lost card? Don't know.) In her application she declared absences adding up to only 938 days outside Canada.

In the summer 2024 hearing the PR did not challenge the CBSA numbers based on lack of memory regarding precise travel dates between 2009 and 2011. (Which invites a no shit Sherlock comment . . . who could remember precise dates from more than a decade ago?)

Makes one wonder: why is Canada going after this PR, making a decision terminating her PR status and issuing a five year exclusion order, for a discrepancy in travel history more than a decade earlier amounting to a total of 156 days in a three year time period, when taking even the CBSA version on its face she would have been merely three days short of RO compliance? (Was she a friend of some Canadian version of Hunter Biden perhaps? I jest.)

Actually I do not wonder. CBSA and IRCC and the IRB are, apparently, still in cleaning house mode in regards to the widespread consultant-based fraud that the Harper government exposed and went after a decade ago. The details in evidence against this particular PR were . . .

". . . found at the premises of a convicted fraudster, Shun Sun Iwang (ph), who admitted in a criminal court setting in Canada to engaging in this very exact type of business or illegal business, specifically fabricating information to make it appear that someone was in compliance with their residency requirements in Canada as a permanent resident, when in fact they were not."​

So the innocent mistake defense was, well, rejected. It cost her five grand (apparently) to avoid the risk of RO enforcement falling just a few days short of complying with the RO. Definitely a mistake. Not so innocent. She will have an opportunity to make a H&C case in an appeal to the IAD, if she follows through with that.