Question on subsection 44(1)

[Ponga]

I became PR in March 2017. I came back to Canada after long break in Jan 2022 and at this point CBSA officer issued me 44(1) report because I wouldn't meet RO even if I would stay in Canada until my PR card would expire (May 2022). But CBSA officer made a possitive decision to keep my PR status.

Perhaps the above could have been worded/written differently by @Macius in their original post to this existing thread. Unless you are saying that a CBSA officer CAN in fact `make a positive decision to keep my status'. is it not ultimately up to IRCC when the PR either applies to renew their card, or has applied for a PRTD from abroad? Would the fact that the CBSA officer opted not to act on their own 44(1) report dissuade IRCC from possibly rendering a negative decision based on the R.O. breach when reviewing the renewal application?

As noted above, it appears that a year ago, January 2022, @Macius benefitted from a positive H&C decision setting aside a 44(1) Report. And thus, Macius is probably right to conclude the "decision made" on the PR card application is a positive decision to issue a new PR card. In this regard, it warrants noting that PR card applications are not denied (with some exceptions), not if the applicant is actually a PR. Rather, IRCC follows its version of the 44(1) Report process when a PR applying for a PR card is seen as in breach of the RO.


And as noted, this outcome was to be expected, frankly, given the PoE experience (well, assuming there was a positive decision when the 44(1) Report was reviewed).

@Macius doesn't mention that they applied for PR renewal under H&C grounds, only that they applied for PR Card renewal:

IRCC received my application for renewing PR card on 01.Feb.2022 and till today I haven't received and information from them just my online status turned to "Decision Made" in November 2022.

Does the fact that CBSA chose not to act on the 44(1) automatically mean that @Macius benefitted from a positive H&C decision from IRCC? Are they not the ones that ultimately decide this, in terms of PR R.O., at least in a case where the PR has managed to avoid the 44(1) enforcement?

Since @Macius is no longer in Canada and has already received communication regarding their PRTD application (alerting IRCC that they are no longer in Canada), it would be good to know if the PRTD application was sent before, or after the Nov 2022 `DM' change to the online status.

 

[Ponga]

@Ponga: please review discussion below regarding the procedure pursuant to which it actually is CBSA "that decides if a PR can keep their status" when a 44(1) Report for breach of RO is issued at a Port-of-Entry. I also pointed this out specifically in response to you here in this very topic, with detailed explanation of the procedures, just ten days ago.

As always, I appreciate the education...knowing that it's not hyperbole from someone that has no credence, or credentials, for such a lesson.

 

[armoured]

Perhaps the above could have been worded/written differently by @Macius in their original post to this existing thread. Unless you are saying that a CBSA officer CAN in fact `make a positive decision to keep my status'. is it not ultimately up to IRCC when the PR either applies to renew their card, or has applied for a PRTD from abroad? Would the fact that the CBSA officer opted not to act on their own 44(1) report dissuade IRCC from possibly rendering a negative decision based on the R.O. breach when reviewing the renewal application?

I think @dpenabill has the better grasp of the overall issue but if I may on this particular issue: I think you misapprehend by thinking that because CBSA is distinct from IRCC that it cannot make decisions in some respects. (Now whether it's ultimately 'up to IRCC' or even the minister or some appeal body or other is a more complex topic getting into epistemology of government and what "government" means).

But to boil down: CBSA is an agency with specific tasks and duties assigned to it by parliament viz 'the government' (via legislation and other regulation/acts), etc. Although its primary reporting responsibility is under/to the Minister of Public Safety, it has some responsibilities w/r/t immigration decisions at the border, and those authorities are well known:
https://cbsa-asfc.gc.ca/agency-agence/actreg-loireg/legislation-eng.html#_s3a

(Delegation instruments - "The following instruments delegate certain powers, duties and functions conferred on the Minister and/or the President of the CBSA under the Canada Border Services Agency Act or the program legislation.")

IRCC may be the primary government body (Ministry) with responsibiity for this areas, but that doesn't preclude other parts of government being involved.

So to go back to your text: where CBSA is empowered to make certain decisions at the behest of 'government' via delegation, yep, within the limits of that authority, it is "up to CBSA" (or at least the duly-authorized officer, etc). Sometimes this is very explicit as in cases of the "Minister's Delegate" - who I believe in this case normally would be a delegate of the IRCC Minister, even though just a line CBSA officer. (Wouldn't matter if a delegate of the Public Safety Minister who has in turn been delegated pursuant to an act, etc).

All this means of course is that such a decision can be formal and legal and valid in all respects that matter. Are they final (ultimate)? It depends.

 

[Ponga]

I think @dpenabill has the better grasp of the overall issue but if I may on this particular issue: I think you misapprehend by thinking that because CBSA is distinct from IRCC that it cannot make decisions in some respects. (Now whether it's ultimately 'up to IRCC' or even the minister or some appeal body or other is a more complex topic getting into epistemology of government and what "government" means).

But to boil down: CBSA is an agency with specific tasks and duties assigned to it by parliament viz 'the government' (via legislation and other regulation/acts), etc. Although its primary reporting responsibility is under/to the Minister of Public Safety, it has some responsibilities w/r/t immigration decisions at the border, and those authorities are well known:
https://cbsa-asfc.gc.ca/agency-agence/actreg-loireg/legislation-eng.html#_s3a

(Delegation instruments - "The following instruments delegate certain powers, duties and functions conferred on the Minister and/or the President of the CBSA under the Canada Border Services Agency Act or the program legislation.")

IRCC may be the primary government body (Ministry) with responsibiity for this areas, but that doesn't preclude other parts of government being involved.

So to go back to your text: where CBSA is empowered to make certain decisions at the behest of 'government' via delegation, yep, within the limits of that authority, it is "up to CBSA" (or at least the duly-authorized officer, etc). Sometimes this is very explicit as in cases of the "Minister's Delegate" - who I believe in this case normally would be a delegate of the IRCC Minister, even though just a line CBSA officer. (Wouldn't matter if a delegate of the Public Safety Minister who has in turn been delegated pursuant to an act, etc).

All this means of course is that such a decision can be formal and legal and valid in all respects that matter. Are they final (ultimate)? It depends.

I always equated CBSA with the `doorman' outside of a club. In this case, the `club' is Canada. LOL! They decide who comes in and who does not, save for citizens and PRs, of course.

 

[dpenabill]

We are wandering well into the more technical, procedural weeds . . . but hopefully this can help put things in perspective.

But to boil down: CBSA is an agency with specific tasks and duties assigned to it by parliament viz 'the government' (via legislation and other regulation/acts), etc. Although its primary reporting responsibility is under/to the Minister of Public Safety, it has some responsibilities w/r/t immigration decisions at the border . . .

So to go back to your text: where CBSA is empowered to make certain decisions at the behest of 'government' via delegation, yep, within the limits of that authority, it is "up to CBSA" (or at least the duly-authorized officer, etc). Sometimes this is very explicit as in cases of the "Minister's Delegate" - who I believe in this case normally would be a delegate of the IRCC Minister, even though just a line CBSA officer. (Wouldn't matter if a delegate of the Public Safety Minister who has in turn been delegated pursuant to an act, etc).

I always equated CBSA with the `doorman' outside of a club. In this case, the `club' is Canada. They decide who comes in and who does not, save for citizens and PRs, of course.

Will probably comment further, at length and later, as I am wont to do. But for now it warrants emphasizing that the CBSA procedure is separate from the IRCC procedure.

A 44(1) Report (for RO breach only, not criminality) prepared by a CBSA officer at a PoE is reviewed by another CBSA officer, one who is qualified to act as the Minister's Delegate, a delegate of the Minister of Public Safety and Emergency Preparedness. (Note, for example, in appeals from these decisions before the IAD, the Minister of Public Safety is a party, NOT IRCC.)

A 44(1) Report for a RO breach prepared by an IRCC agent or officer is reviewed by an IRCC officer similarly acting as a Minister's Delegate, but in these cases as a delegate for the Minister of IRCC. (Note, for example, in appeals from these decisions before the IAD, the Minister of IRCC is the government party.)

IRCC plays no direct role in the process when the 44(1) Report is prepared by a CBSA immigration officer and upheld on review by the second officer. If the CBSA officer acting as the Minister's Delegate upholds the 44(1) Report, that is effected by issuing a Removal/Departure Order. This is a final decision terminating PR status. It is, of course, subject to the right of appeal.

Appeals go to the IAD. The IAD is NOT part of or overseen by IRCC. It is a part of the Immigration and Refugee Board, the IRB. An independent tribunal. The IAD hears and decides appeals from BOTH, from IRCC decisions upholding a 44(1) Report resulting in issuance of a Removal/Departure Order, and from CBSA decisions upholding a 44(1) Report resulting in issuance of a Removal/Departure Order.

All three, that is CBSA, IRCC, and the IRB have powers and duties as prescribed by IRPA and other legislative acts.

The other way PRs may be subject to a decision terminating their PR status for a breach of the RO is a visa office decision denying an application for a PR TD. Here too, appeals are heard by the IAD.

Remember: IRCC does NOT ordinarily deny a PR card application because the PR breached the RO. In this, the procedure for PR TD applications is different from PR card applications. The procedure in a case where a PR applying for a PR card is determined to be in RO breach, is also to prepare a 44(1) Report and proceed on that (usually done by a local office which has been referred the file by CPC). As often discussed, a sponsorship application by a PR clearly in RO breach can also trigger the preparation of a 44(1) Report.

Does the fact that CBSA chose not to act on the 44(1) automatically mean that @Macius benefitted from a positive H&C decision from IRCC? Are they not the ones that ultimately decide this, in terms of PR R.O., at least in a case where the PR has managed to avoid the 44(1) enforcement?

Once a 44(1) Report is "prepared" that will usually lead to a prompt review of it by a "Minister's Delegate." Whether that review is by a delegate of the Minister of IRCC or is by a delegate of the Minister of Public Safety, depends on whether IRCC prepared the 44(1) Report (such as in processing an application for a PR card) or CBSA prepared the Report (attendant a PoE examination of the PR). These are two completely separate processing streams. However, a positive H&C decision by one (either IRCC or CBSA) is mostly (not entirely) binding on the other.

If for some reason CBSA "chose not to act on the 44(1)," that would leave the Report outstanding. This would be unusual, other than for brief periods when an officer qualified to act as the Minister's Delegate is not available while the PR is still in the PoE, in which event the PR is authorized to proceed into Canada and CBSA will follow-up later, typically by telephone (there have been isolated reports of no further contact, the Report remaining outstanding, but these are probably due to breakdown in means of contact).

Remember, once a 44(1) Report is prepared, days the PR is in Canada after that will NOT count toward meeting the PR RO.

The officer reviewing the 44(1) Report, acting as a Minister's Delegate, will almost always act on the Report, either by:

(1) finding the Report valid in law and issuing a Removal/Departure Order, or​

(2) setting the Report aside after finding it is not valid in law or finding that H&C considerations are sufficient to allow the PR to keep PR status​

It is not for sure, but it appears the latter is the most likely action CBSA took in regards to the 44(1) Report prepared against Macius in January 2022, that upon reviewing the situation H&C relief was allowed, so Macius was determined to not be inadmissible despite a breach of the RO, and the 44(1) Report accordingly set aside.

Note Regarding Source of Some Common Confusion: We see scores and scores of anecdotal reports that CBSA officers do not act on a more or less obvious RO breach. We see many reports about PRs in breach being waived through the PoE, allowed into Canada, without being subject to a formal RO enforcement proceeding. This appears to have increased in frequency during the last two plus years, most likely due in large part to Covid related leniency in RO enforcement. It is clear that some of this, maybe a lot of it, involves a kind of informal H&C assessment, that is H&C reasons leading the officers to exercise their discretion to allow entry without preparing a 44(1) Report. In contrast, it is different, and it is a big difference, if a 44(1) Report is actually prepared (it is like a prosecutor filing an indictment). That commences the enforcement proceeding. It will lead to either the Report being upheld, and a Removal/Departure Order, or the Report set aside, such as where the PR is determined not be inadmissible for H&C reasons.

Formal H&C Decisions:

This distinction, informal versus formal H&C decisions, is my characterization, my effort to distinguish transactions resulting in a positive H&C decision that is mostly (not entirely) binding. Recognizing the formal or official version is relatively easy, and is best illustrated by a PR TD coded RC-1. This code designates a positive H&C decision. It is mostly binding. The PR who has been issued a PR TD coded RC-1 can fairly safely apply for a PR card without waiting until they are in RO compliance. While it is not so explicitly clear, this is essentially the same for a PR who has had a 44(1) Report set aside for H&C reasons. The decision to set the Report aside constitutes a formal/official adjudication which is ordinarily (with some exceptions) given credit, is binding, in subsequent transactions.

The extent to which these decisions are binding has limitations. The main limitation has to do with changed circumstances, and the most common changed circumstance is the PR's further absences from Canada. Additionally, RO compliance is an ongoing obligation, so each new day there is a different calculation. So for PRs outside Canada, that's additional absences from Canada, generally a negative in the H&C analysis. In contrast, as long as the PR remains IN Canada, that does not indicate a change in circumstances which would suggest the PR should lose status.

 

[Ponga]

Remember: IRCC does NOT ordinarily deny a PR card application because the PR breached the RO. In this, the procedure for PR TD applications is different from PR card applications. The procedure in a case where a PR applying for a PR card is determined to be in RO breach, is also to prepare a 44(1) Report and proceed on that (usually done by a local office which has been referred the file by CPC). As often discussed, a sponsorship application by a PR clearly in RO breach can also trigger the preparation of a 44(1) Report.

But, isn't that exactly why a PR renewal is denied; failure to meet the R.O.?

Once a 44(1) Report is "prepared" that will usually lead to a prompt review of it by a "Minister's Delegate." Whether that review is by a delegate of the Minister of IRCC or is by a delegate of the Minister of Public Safety, depends on whether IRCC prepared the 44(1) Report (such as in processing an application for a PR card) or CBSA prepared the Report (attendant a PoE examination of the PR). These are two completely separate processing streams. However, a positive H&C decision by one (either IRCC or CBSA) is mostly (not entirely) binding on the other.

If for some reason CBSA "chose not to act on the 44(1)," that would leave the Report outstanding. This would be unusual, other than for brief periods when an officer qualified to act as the Minister's Delegate is not available while the PR is still in the PoE, in which event the PR is authorized to proceed into Canada and CBSA will follow-up later, typically by telephone (there have been isolated reports of no further contact, the Report remaining outstanding, but these are probably due to breakdown in means of contact).

Remember, once a 44(1) Report is prepared, days the PR is in Canada after that will NOT count toward meeting the PR RO.

The officer reviewing the 44(1) Report, acting as a Minister's Delegate, will almost always act on the Report, either by:

(1) finding the Report valid in law and issuing a Removal/Departure Order, or​

(2) setting the Report aside after finding it is not valid in law or finding that H&C considerations are sufficient to allow the PR to keep PR status​

It is not for sure, but it appears the latter is the most likely action CBSA took in regards to the 44(1) Report prepared against Macius in January 2022, that upon reviewing the situation H&C relief was allowed, so Macius was determined to not be inadmissible despite a breach of the RO, and the 44(1) Report accordingly set aside.

Yes, but that is an admissibility issue, correct? If the protocol is that a 44(1) report that is `set aside' thwarts the fact that a PR can have a severe deficit of days in Canada to meet the R.O. and still successfully receive a renewed PR Card...is > a bit surprising.

 

[dpenabill]

Ohhh how weedy can this go?

Remember: IRCC does NOT ordinarily deny a PR card application because the PR breached the RO. In this, the procedure for PR TD applications is different from PR card applications.

But, isn't that exactly why a PR renewal is denied; failure to meet the R.O.?

No. An application for a new PR card is NOT denied because of a failure to meet the RO (at least not directly). Not the way it works.

OK, it has happened, at least apparently. Actual practices vary and can vary well off course. Stuff Happens.

The very few cases I am aware of, in which reference is made to a PR card application denied because of a failure to meet the RO (maybe three as best I recall, years ago, encountered in decisions while researching other issues), involved PRs abroad, and frankly the back-story procedure in those cases was not clearly presented let alone explained.

Again, if during processing a PR card application (or, during processing a PR's application to sponsor a spouse or child), it is ascertained the PR is in breach of the RO, the procedure is to prepare a 44(1) Report for Inadmissibility based on a breach of RO, and proceed on that. Outcome is either a Removal Order or the 44(1) Report is set aside (such as where there are H&C reasons for allowing the PR to retain status despite the breach).

Subsequently, in those cases where the 44(1) Report leads to a Removal Order (meaning there is a final decision that PR status is terminated, subject to appeal), and that Removal Order is enforceable (when the right of appeal is exhausted), a PR card application or an application to sponsor will be denied because the applicant's PR status has been terminated; the individual is NOT a PR. (Note: then separate procedures are applicable to actually deport the individual if the former PR does not voluntarily leave Canada.)

Pending an appeal: Even though it has been determined the PR breached the RO, is thus inadmissible, and a final decision has been made terminating PR status, unless and until the right of appeal has been exhausted the PR is still entitled to a status card, a PR card. In these cases IRCC will issue a one-year PR card.

More weedy detail as to technical procedures: The general, usual procedure (subject to a range of more specific practices in particular situations) is that when the CPC processing a PR card application has identified a RO compliance "concern," based on "enhanced triage criteria," the case is referred to a local IRCC office "for further review when there are concerns in regards to the applicant's residency obligations being met." The local IRCC office investigates and decides whether to prepare a 44(1) Report for Inadmissibility.

Note: Quotes in the latter paragraph are from the operational manual ENF 27, Permanent resident card. In several respects ENF 27 is out of date. IRCC, and before it CIC, has been migrating the operational instructions and guidelines to Program Delivery Instructions (PDIs) for around a decade now and has only been partially updating the manuals like ENF 27. The PDIs often do not include a lot of the detailed procedural information that has been provided in the Operational Manuals, with more and more of this information being deemed confidential (probably now in internal guides and instructions), so no longer publicly accessible (even by ATI request) let alone openly published. For now the still extant and applicable (with limitations, subject to changes not reflected in them) operational manuals can be found in links here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html

For purposes of this discussion, the key manuals are ENF 4, 5, 6, 23, 27 and OP 10. Reminder: these are valuable sources of information that illuminate a lot about procedures related to enforcement of the RO and related PR matters, BUT they are (1) not official, so even when they were kept up-to-date the actual practices sometimes deviated from the manuals, sometimes in key respects; (2) now not anywhere near current; and (3) are most useful when carefully considered in conjunction with other sources, including (listed roughly in order of importance):

-- statutory provisions (mostly but not exclusively IRPA)​

-- regulations (mostly IRPR but also Immigration Appeal Division Rules)​

-- PDIs and other information online published by IRCC and CBSA, including guides and instructions for applications and such​

-- published IAD and Federal Court decisions (recognizing these often contain inconsistencies and some outright conflicts; most salient example of the latter is seen in different approaches to who-accompanied-whom questions in assessing the RO credit for accompanying a citizen spouse abroad)​

-- anecdotal reports (approached cautiously, recognizing the prevalence of misinformation, some deliberately so, far more due to misperception, misunderstanding, or vague or incomplete reporting)​

Example of operational manual migration: just this past October, in 2022, the operational manual OP 1 Procedures (OP is Overseas Processing) was decommissioned and has been "updated and converted to instructions" which "replace OP 1.". . . Spoiler alert: the new instructions do not appear to include a lot of procedural information that was published in OP 1 (of course I have retained my own copies of many ENF and OP manuals, so still have OP 1 for example); that said, a lot is probably there in the PDIs, somewhere, but organized differently and not all that easily found.

 

[dpenabill]

Weedy, weedy, weedy . . . my kind of jungle . . .

Yes, but that is an admissibility issue, correct? If the protocol is that a 44(1) report that is `set aside' thwarts the fact that a PR can have a severe deficit of days in Canada to meet the R.O. and still successfully receive a renewed PR Card...is > a bit surprising.

I am not sure I understand the query.

Note that setting aside the 44(1) Report is a finding, a verdict if you will, that the PR is ADMISSIBLE, that is, NOT inadmissible, DESPITE the breach of the RO. Unless a PR is inadmissible they are entitled to a status card, the PR card.

So, if the question is "can a PR apply for and obtain a PR card even if they have not met the PR Residency Obligation?" Yes. The more common and obvious examples involve PRs removed as a minor, who have been determined to NOT be inadmissible for their breach of the RO. They are entitled to obtain a PR card.

PRs who are in Canada, but not in RO compliance, can make a PR card application and submit H&C evidence, and if accepted IRCC will issue a new PR card. Conventional wisdom cautioning PRs that this can be an unnecessary gamble is well-founded. The SAFE approach is to just wait long enough to be in RO compliance, which cures any former breach, and then apply for a new PR card.

The discussion here is about cases in which a PR has been subject to 44(1) Inadmissibility proceedings.

An Analogy; Criminal Procedure:

With the caveat that the analogy is flawed in several respects, nonetheless it might help illuminate the nature of the process: compare the 44(1) Report to an indictment in a criminal case. Here, in Canada, the prosecutor (the "Crown") decides if and when to file an indictment, and the case then goes to a court where the person charged is, in a trial, convicted or acquitted (skipping alternative outcomes available in many cases).

Where an officer determines a PR is in breach of the RO, the officer (either CBSA, if this is attendant a PoE examination, or IRCC, if this is attendant a PR card application) prepares a 44(1) Report, which is comparable to the Crown filing an indictment, in effect making the allegation/charge the PR is inadmissible because of a RO breach.

Then another officer, one qualifying as a Minister's Delegate, more or less tries the case (albeit in a hearing which is so informal it is more like an interview, and apparently is done telephonically fairly often), which has two parts: first the reviewing officer determines if the 44(1) Report is valid in law (this mostly depends on whether the facts show the PR failed to meet the RO, but a 44(1) Report can also be found to be not valid in law if there has been a breach of procedural fairness). If the officer acting as the Minister's Delegate finds the Report valid in law, the officer then proceeds to determine whether the PR has presented H&C information that warrants allowing the PR to keep PR status despite the breach.

So, comparable to a criminal court deciding if a person charged with a crime is guilty or not guilty of the crime, the Minister's Delegate will (as I just described in my previous post) either:

(1) find the Report valid in law and (similar to a criminal court sentencing a convicted criminal) issue a Removal/Departure Order, or​

(2) set the Report aside after finding it is not valid in law, or finding that H&C considerations are sufficient to allow the PR to keep PR status (similar to the criminal court finding the defendant is not guilty and dismissing the case); this constitutes an adjudication the PR is admissible (NOT inadmissible)​

In those cases where the reviewing officer finds the PR is not inadmissible based on H&C considerations, that constitutes an adjudication entitled to credit, a decision that will be a binding precedent (with some limitations). So if this was a 44(1) proceeding conducted by CBSA, the PR having been adjudicated as not inadmissible for H&C reasons, the PR can proceed to apply for and, ordinarily be issued a new PR card. IRCC is mostly (again, there are exceptions) bound to accept the PR is admissible and thus eligible to be issued a status card, the PR card.

If the 44(1) proceeding was conducted by IRCC attendant a PR card application, and for H&C reasons the Report is set aside, the local office returns the PR card application to CPC which will proceed to approve the application and issue a new PR card.

Caveats/cautions:

-- IRCC can still have some concerns even after it has made a decision approving the PR card application and issues a new PR card. Lots of tangents here, but the most common and salient tangent is IRCC does not mail the PR card but requires an in-person card pick-up, which at the very least will include a counter-interview. Note, for example, IRCC can deliver a new PR card to an individual and if information obtained in the course of the counter-interview warrants it, nonetheless then prepare and proceed with a 44(1) Report.

-- While the outcome of a CBSA proceeding (PR adjudicated to be admissible despite RO breach, based on H&C reasons) is binding, this does not preclude IRCC conducting additional inquiries or investigation, in its subsequent processing of a PR card application if it has concerns. In many of these cases, there are no concerns and a new PR card is routinely issued (again, despite the fact the PR has not met the RO as of that time, because the PR has been adjudicated to be admissible despite the breach). But in many cases (other cases) IRCC may have concerns and subject the PR card application to non-routine processing; the concerns can be triggered by or rooted in a wide range of issues, but the most salient and probably the most common are concerns about whether there has been any misrepresentation or there has been a change in circumstances. So, sometimes the PR who has benefitted from a formal adjudication they are admissible, despite failing to comply with the RO, will more or less be promptly issued and delivered a new PR card, while other times the PR card application gets bogged down in non-routine processing. We do not know why this happened to Macius, but that is what appears to have happened, and then in the meantime Macius went abroad . . . so now Macius needs a PR TD to return to Canada, and one question (there are a few) is whether the visa office might conclude there has been a change in circumstances sufficient to deny a PR TD despite the outcome of the 44(1) Report proceedings conducted by CBSA.

Beyond That: There's more, plenty of tangents, lots of nuance, no shortage of exceptions, all sorts of anomalies and incongruities, more than a few inconsistencies. Fortunately most PRs, nearly all, do not need to worry about much of this stuff. For most it is simple: the safe approach is to avoid breaching the RO, but if that cannot be avoided, the sooner the PR gets to Canada the better their odds, and the more settled in Canada they get, the better their odds. And even if they succeed in getting formal H&C relief, such as it appears Macius benefited from, the odds are better if the PR then STAYS in Canada, if not for a full two years, as long as practically feasible.

 

[Ponga]

Weedy, weedy, weedy . . . my kind of jungle . . .
Caveats/cautions:

-- While the outcome of a CBSA proceeding (PR adjudicated to be admissible despite RO breach, based on H&C reasons) is binding, this does not preclude IRCC conducting additional inquiries or investigation, in its subsequent processing of a PR card application if it has concerns.

then in the meantime Macius went abroad . . . so now Macius needs a PR TD to return to Canada, and one question (there are a few) is whether the visa office might conclude there has been a change in circumstances sufficient to deny a PR TD despite the outcome of the 44(1) Report proceedings conducted by CBSA.

The above Makes perfect sense...now. Thank you.

One last question:

Outcome is either a Removal Order or the 44(1) Report is set aside (such as where there are H&C reasons for allowing the PR to retain status despite the breach).

If the 44(1) report is created but never reviewed by a second officer, could that also be seen as being `set aside'?

I ask, because @Macius does not elaborate as to how/why the CBSA officer (singular) `made a positive decision' to keep their PR Status; no mention of a second officer (Minister's Delegate) being involved at all who could have overruled the first officer and quashed the report. If so, it at all possible that IRCC would not have known about the obvious R.O. breach until after the PR Card renewal we being processed?

I would expect that @Macius would have been told exactly what was happening regarding the 44(1) report, since most anyone would be shocked to find out that they were subject to one and would want/need all of the info available to them, including how/why they survived the experience.

And just for giggles...if you choose to reply, do so in 50 characters or less. It'll be fun! LOL!

 

[dpenabill]

50 characters eh . . . must be talking to someone else

If the 44(1) report is created but never reviewed by a second officer, could that also be seen as being `set aside'?

I ask, because @Macius does not elaborate as to how/why the CBSA officer (singular) `made a positive decision' to keep their PR Status; no mention of a second officer (Minister's Delegate) being involved at all who could have overruled the first officer and quashed the report. If so, it at all possible that IRCC would not have known about the obvious R.O. breach until after the PR Card renewal we being processed?

I would expect that @Macius would have been told exactly what was happening regarding the 44(1) report, since most anyone would be shocked to find out that they were subject to one and would want/need all of the info available to them, including how/why they survived the experience.

I do not know what actually transpired in regards to the 44(1) Report prepared against Macius.

However, the account Macius provided very much fits the typical procedure, a common pattern:

I came back to Canada after long break in Jan 2022 and at this point CBSA officer issued me 44(1) report because I wouldn't meet RO even if I would stay in Canada until my PR card would expire (May 2022). But CBSA officer made a possitive decision to keep my PR status.

The only significant thing I am reading into this, that is not explicitly there, is that the CBSA officer who "made a possitive decision to keep my PR status" was not the same officer who prepared the 44(1) Report, but was a second officer, one acting in the capacity of a Minister's Delegate. Which is what makes sense, total sense actually, and practically the only thing that makes sense. The officer who issued/prepared the 44(1) Report would have been the officer conducting the Secondary immigration examination. The officer making the positive decision allowing Macius to keep PR status would have been the reviewing officer, acting as a Minister's Delegate.

As I have referenced multiple times, part of the confusion about the process comes from the number of anecdotal reports in which it appears the officer conducting the Secondary immigration examination recognizes the returning PR has not met the RO BUT nonetheless waives the PR through without preparing a 44(1) Report. This is an exercise of leniency which appears to have increased a lot during the last two plus years (probably Covid related). In many if not most of these cases it is very likely that the examining officer is at least partially swayed by what we consider H&C reasons. Many times the PR in these scenarios is advised or cautioned about RO compliance. The PR may or may not be aware of it, but typically (and probably nearly always) the officer will make a GCMS entry of this, a record of it, sometimes also putting an "alert" in the PR's GCMS file.

But you allude to another source of confusion I have not specifically referenced in this particular discussion, but have many times in others, which is that anecdotal reports are often coming from PRs who are not fully aware of what took place during their PoE screening. A lot of this is due to the PR's lack of familiarity with the procedures, but the anecdotal reporting also suggests that quite often, if not usually, the PoE officers do NOT explain much about the process, let alone tell the traveler "exactly what was happening." Many times the PR only encounters questions and then is notified of the outcome.

Regarding: "If the 44(1) report is created but never reviewed by a second officer, could that also be seen as being `set aside'?"

The premise here, a Report "never reviewed," would be an anomaly. Contrary to operational procedures.

Among the anecdotal reports by individuals reporting they were the subject of a 44(1) Report, advised they would be contacted for a hearing or interview later (probably due to the unavailability of a qualified officer to review it), and then allowed to enter Canada, I have seen one or three claim there was no follow-up contact. The sketchiness of those accounts offer little insight.

But no, setting aside the Report is akin to entering a not guilty verdict in a criminal case. It is one of the possible outcomes in the inadmissibility proceeding, which is commenced by a 44(1) Report being prepared. The other possible outcome is a Removal/Departure Order is issued.

Note: if the review of the 44(1) Report is suspended or delayed (for whatever reason), the PR does not get credit toward RO compliance for days in Canada after the Report was prepared. Those days may be considered a positive factor in assessing H&C factors, but they do not count toward meeting the RO.

Regarding . . . "at all possible that IRCC would not have known about the obvious R.O. breach until after the PR Card renewal we being processed?"

If a 44(1) Report was prepared, that and its disposition would almost certainly be in the client's GCMS. Remember, CBSA and IRCC both use the GCMS system, and have been for many years now. Moreover, there will almost always be a record made in the client's GCMS file for any significant concern or issue addressed during a PoE Secondary examination.

To illustrate the nature and scope of what may be included in records of PoE transactions, I have seen a case in which IRCC prosecuted a PR for inadmissibility for misrepresentation based on false information given to CBSA officers during a PoE examination, where the PR had been questioned during the PoE examination YEARS earlier about RO compliance and claimed to have been in Canada during periods of time it was later documented they were not, could not have been in Canada.

 

[MukutPR001]

I was given a s.44(1) report to say that there were grounds to believe that I am a PR who is inadmissible for failing to comply with the residency obligation under s.28 of the IRPA Act. Also that I failed to demonstrate there exist any h&c grounds to justify retention of PR status. This report was given to me by CBSA at the airport.

The officer signed the report. I was subsequently required to sign the report. I think I signed two copies and one was kept by CBSA.

Therefore, based on my own experience, you may not have actually been issued a s.44(1) report if one was not presented to you for signing. I will defer to any of the more experienced members for any further views on this. Hope this helps... it may be that the officer was simply giving you a "hard time"....

 

[MukutPR001]

Hello Members,

I just joined this forum. Very informative. I have been stressing out thinking about my situation; Please guide me. Here is the summary:

Not fulfilled RO and PR card expired in Aug 2024. I landed in Canada in July 2019 but have stayed for only one month. I wanted to come back after resigning from the job, but the Pandemic started. To cut a long story short, I messed up. Please guide me on the following points:

1. If I am issued a 44(1) report at the POE while the PR card is still valid for the next eight months(for example, I land in November 2022), am I still allowed to stay at least up to the expiry of the PR card(which is till July end of 2024)?

2. If I am traveling to join a job in Canada, would I still be able to join if I get a 44(1) report? What I mean is, does the 44(1) report has to do anything with the refusal to join a job?

3. If I appeal for 44(1) within the given timeline of 30 days, do I lose the remaining eight months of my PR? Would I still be able to work while my appeal is in the hearing and decision process?

4. Any idea of the processing time to decide on the appeal to IAD?

5. Finally, please suggest a few strategies to increase my chances.

Thank you, everyone. Please let me know your thoughts.

 

[armoured]

1. If I am issued a 44(1) report at the POE while the PR card is still valid for the next eight months(for example, I land in November 2022), am I still allowed to stay at least up to the expiry of the PR card(which is till July end of 2024)?

You would be allowed to stay while your case is under appeal, which can take quite some time.

2. If I am traveling to join a job in Canada, would I still be able to join if I get a 44(1) report? What I mean is, does the 44(1) report has to do anything with the refusal to join a job?

It has nothing to do with employment.

3. If I appeal for 44(1) within the given timeline of 30 days, do I lose the remaining eight months of my PR? Would I still be able to work while my appeal is in the hearing and decision process?

PR card has nohting to do with your PR status or ability to stay. See point 1.

4. Any idea of the processing time to decide on the appeal to IAD?

No, but more than six months is probable.

5. Finally, please suggest a few strategies to increase my chances.

Return as soon as possible. Prepare how you will answer. Make sure to mention covid and any other issues that delayed you, even if others tell you they are not good reasons. Employment, covid, covid uncertainty, need to provide for family - all are reasons.

Then: don't go into too much detail, do not tell them your life story in the form of a dostoyevsky novel. Your goal is to briefly summarize your reasons - to make them believe you have real reasons. THen answer questions - briefly. If they believe the reasons sound plausible, there is a better chance the officer will decide that the 44(1) process would be long expensive and pointless for the government.

Ah, confirming whatever ties you have in Canada and that you will be employed and contribute to economy - if you can credibly say so - better chances.

 

[MukutPR001]

You would be allowed to stay while your case is under appeal, which can take quite some time.



It has nothing to do with employment.



PR card has nohting to do with your PR status or ability to stay. See point 1.



No, but more than six months is probable.



Return as soon as possible. Prepare how you will answer. Make sure to mention covid and any other issues that delayed you, even if others tell you they are not good reasons. Employment, covid, covid uncertainty, need to provide for family - all are reasons.

Then: don't go into too much detail, do not tell them your life story in the form of a dostoyevsky novel. Your goal is to briefly summarize your reasons - to make them believe you have real reasons. THen answer questions - briefly. If they believe the reasons sound plausible, there is a better chance the officer will decide that the 44(1) process would be long expensive and pointless for the government.

Ah, confirming whatever ties you have in Canada and that you will be employed and contribute to economy - if you can credibly say so - better chances.

Thank you so much

 

[dpenabill]

You would be allowed to stay while your case is under appeal, which can take quite some time.



It has nothing to do with employment.



PR card has nohting to do with your PR status or ability to stay. See point 1.



No, but more than six months is probable.



Return as soon as possible. Prepare how you will answer. Make sure to mention covid and any other issues that delayed you, even if others tell you they are not good reasons. Employment, covid, covid uncertainty, need to provide for family - all are reasons.

Then: don't go into too much detail, do not tell them your life story in the form of a dostoyevsky novel. Your goal is to briefly summarize your reasons - to make them believe you have real reasons. THen answer questions - briefly. If they believe the reasons sound plausible, there is a better chance the officer will decide that the 44(1) process would be long expensive and pointless for the government.

Ah, confirming whatever ties you have in Canada and that you will be employed and contribute to economy - if you can credibly say so - better chances.

Very clear, informative, and succinct post. Well done.