PR card is primarily a travel document not an identity document.
Reflection concerning validity period of the Canadian permanent resident card. Why not more than 5 years? Some concrete examples from other countries.
- Thread starter piotrqc
- Start date
For clarification:
The PR card is a "status document."
See Section 31 IRPA. In particular, note the distinction between subsection 31(2), referring to the PR card as a status document, and 31(3) which refers to a "Travel Document" issued to a PR who is not in possession of "a status document indicating permanent resident status." See https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-274660
There is only ONE circumstance in which the PR card is relevant for purposes of travel: PRs abroad can obtain permission to board a flight to Canada by presenting their status card, the PR card, IN CONJUNCTION WITH A VALID TRAVEL DOCUMENT (usually a passport).
For further clarification:
However, the fact the PR card is a status document, not a travel document, does not at all diminish the observations offered by @armoured, whose reasoning is very much on point.
And in contrast, the fact the PR card is a status document, not a travel document, does NOT, not in the least, bolster the largely specious argument that the PR card has no role in enforcing the PR Residency Obligation. Quite the contrary, the PR card is very much part of the overall administrative toolbox employed by IRCC and CBSA in regards to the implementation and enforcement of the RO. Very much about control.
The nature and extent of the latter is very well evident in scores and scores of IAD decisions upholding Visa Office decisions denying PRs abroad a PR Travel Document based on a failure to comply with the PR Residency Obligation.
Some Further Observations Regarding Individual or Personal Interests versus Interests Influencing Public Policy and Law:
Much of the case for expanding how long PR cards are valid for is rooted in a grossly disproportionate emphasis on individual or personal interests, much like the vastly exaggerated demands for prioritizing knowledge of Canada testing for citizenship applicants, with rather minimal regard for the nature and extent of broad, variable, and complex interests which factor into government decision-making, both on the macro level, such as Parliamentary decisions determining what the law is, and on the micro and logistical level, such as making and implementing administrative decisions, including as to particular practices and procedures, as well as all that in-between, such as formulating and adopting regulations and general policy guidelines.
Of course the impact of laws, rules, policies, and related decisions, on individuals affected by those, is a significant factor included in consideration of the broad, variable, and complex interests which factor into government decision-making. However, that impact is only ONE factor. And the weight which is given this ONE factor depends a great deal on the nature of the impact. Inconvenience tends to have rather little weight. A profound compromise of fundamental rights, in contrast and at the other end of the spectrum, not only carries more weight, the Charter mandates that laws, regulations, rules, and decisions that compromise or take away fundamental rights be fully vetted and limited to what other compelling interests actually require.
In other circumstances, in another time, it may be worthwhile to consider whether the matter of PR card validity periods warrants an analysis of the broader and more complex interests, such as how such a change might impact enforcement of the Residency Obligation. BUT FOR NOW, this year, in the current situation, there are so many other pressing matters that need to be addressed by just about every facet of the Canadian government, this issue is frivolous.
Edit to Add Note Regarding PRs and International Travel:
This too is relevant to the vastly exaggerated demands for prioritizing knowledge of Canada testing for citizenship applicants.
There is an important and definitive difference in the nature and rank of PR travel rights relative to travel within Canada versus international travel. This is explicit in the Charter of Rights, which specifically distinguishes the international travel rights of Canadian citizens as a protected fundamental right AND specifically LIMITS the scope of what is a protected right for Permanent Residents. In particular, PRs do NOT have a protected right to international travel in Canadian law.
This is not discussed much in the case law, so far as I have seen, but it is readily implicit otherwise. Consider the presumption that a PR abroad does NOT have valid PR status if the PR is not in possession of a valid status card. And how this influences decisions on PR TD applications.
In any event, this illustrates that the impact on a PR's ability to travel outside Canada does NOT appear to carry much weight in the law or policies governing PRs. In large part, Canadian policy appears to let the PR's home country determine the scope of a PR's capacity to travel internationally. (Whether or not one agrees this is how it should be.)
While many refer to the PR card as a "travel document," the PR card is NOT a travel document.
The PR card is a "status document."
See Section 31 IRPA. In particular, note the distinction between subsection 31(2), referring to the PR card as a status document, and 31(3) which refers to a "Travel Document" issued to a PR who is not in possession of "a status document indicating permanent resident status." See https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-8.html#h-274660
There is only ONE circumstance in which the PR card is relevant for purposes of travel: PRs abroad can obtain permission to board a flight to Canada by presenting their status card, the PR card, IN CONJUNCTION WITH A VALID TRAVEL DOCUMENT (usually a passport).
For further clarification:
However, the fact the PR card is a status document, not a travel document, does not at all diminish the observations offered by @armoured, whose reasoning is very much on point.
And in contrast, the fact the PR card is a status document, not a travel document, does NOT, not in the least, bolster the largely specious argument that the PR card has no role in enforcing the PR Residency Obligation. Quite the contrary, the PR card is very much part of the overall administrative toolbox employed by IRCC and CBSA in regards to the implementation and enforcement of the RO. Very much about control.
The nature and extent of the latter is very well evident in scores and scores of IAD decisions upholding Visa Office decisions denying PRs abroad a PR Travel Document based on a failure to comply with the PR Residency Obligation.
Some Further Observations Regarding Individual or Personal Interests versus Interests Influencing Public Policy and Law:
Much of the case for expanding how long PR cards are valid for is rooted in a grossly disproportionate emphasis on individual or personal interests, much like the vastly exaggerated demands for prioritizing knowledge of Canada testing for citizenship applicants, with rather minimal regard for the nature and extent of broad, variable, and complex interests which factor into government decision-making, both on the macro level, such as Parliamentary decisions determining what the law is, and on the micro and logistical level, such as making and implementing administrative decisions, including as to particular practices and procedures, as well as all that in-between, such as formulating and adopting regulations and general policy guidelines.
Of course the impact of laws, rules, policies, and related decisions, on individuals affected by those, is a significant factor included in consideration of the broad, variable, and complex interests which factor into government decision-making. However, that impact is only ONE factor. And the weight which is given this ONE factor depends a great deal on the nature of the impact. Inconvenience tends to have rather little weight. A profound compromise of fundamental rights, in contrast and at the other end of the spectrum, not only carries more weight, the Charter mandates that laws, regulations, rules, and decisions that compromise or take away fundamental rights be fully vetted and limited to what other compelling interests actually require.
In other circumstances, in another time, it may be worthwhile to consider whether the matter of PR card validity periods warrants an analysis of the broader and more complex interests, such as how such a change might impact enforcement of the Residency Obligation. BUT FOR NOW, this year, in the current situation, there are so many other pressing matters that need to be addressed by just about every facet of the Canadian government, this issue is frivolous.
Edit to Add Note Regarding PRs and International Travel:
This too is relevant to the vastly exaggerated demands for prioritizing knowledge of Canada testing for citizenship applicants.
There is an important and definitive difference in the nature and rank of PR travel rights relative to travel within Canada versus international travel. This is explicit in the Charter of Rights, which specifically distinguishes the international travel rights of Canadian citizens as a protected fundamental right AND specifically LIMITS the scope of what is a protected right for Permanent Residents. In particular, PRs do NOT have a protected right to international travel in Canadian law.
This is not discussed much in the case law, so far as I have seen, but it is readily implicit otherwise. Consider the presumption that a PR abroad does NOT have valid PR status if the PR is not in possession of a valid status card. And how this influences decisions on PR TD applications.
In any event, this illustrates that the impact on a PR's ability to travel outside Canada does NOT appear to carry much weight in the law or policies governing PRs. In large part, Canadian policy appears to let the PR's home country determine the scope of a PR's capacity to travel internationally. (Whether or not one agrees this is how it should be.)
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Wow ... I must admit that I am pleasantly surprised by your frankness ... Really, without irony: it almost made me want to like your intervention, I promise!
Thank you for your clarity, sincerely! ... I asked in a previous message, I take my hat off!
My previous message :
Luckily, and thank goodness, or thank you to luck (regardless of what everyone thinks or doesn't believe) that you are not the one making the legislation.
Your positioning leaves me stunned and speechless ... But on the form, again as I said above: I salute your courage, and your clarity, without ambiguity or false argument: You have clearly stated and described your ideas. Let me tell you that in law (the one I studied in Europe, not common law), 'legal doctrine' is considered one of the sources of law. (In addition to laws, regulations, case law, customs, etc., etc.). More clearly: We are talking here about the human element, the decision-maker or the legislator ...
This is why I thank Heaven, Providence, or the coincidence (As it suits you, as you wish) that you are not in a position to legislate.
Let us now come to the bottom of the subject: With respect, your arguments for closing the door completely to a possible extension of the validity period of the pr card are, to say the least, “populist”.
The pecuniary element is by no means a criterion. Let me explain: If - Fortunately this is not the case -, as you fantasize -, simple agents in the consulates (Those who issue visas or Permanent Resident Travel Document) began to reject a priori, and to imply by this fact that the person has lost their status, it would cost taxpayers even more in legal costs, even in compensation ...
The Canadian Immigration and Refugee Protection Act does not in any way mention that agents in consulates can rule on the loss or not of a person's PR status. The Immigration and Refugee Board of Canada (A specialized tribunal) has the jurisdiction to do so. End of the story.
There is a basic principle in justice in all countries, not just in Canada, that of natural justice. That is to say a principle of equity and the right to be able to defend one's case in person. In this case we are talking about PR people who have violated their minimum conditions of residence.
In other words even clearer: If they start doing what you say, and the federal court is called upon for judicial review (this is doable even if the person is stranded outside of Canada, via lawyers ), I can guarantee you that the request for judicial review will be accepted in the preliminary phase (You must submit a request for authorization at the beginning), then accepted with depends on the defendant.
I wouldn't even talk about the possibility of exemption on humanitarian grounds which exists and which is provided for by the immigration law ... I will not even discuss this possibility with you, that would be indecent ...
In short, to come back to our subject, all this to say that it would be wise and intelligent to use control measures during outings as an argument in favor of extending the period of validity of pr cards ...
Absolutely nothing to lose, if people notify the media and make a little noise (I remind you that the charter of freedoms allows it, it's legitimate) ...
It must be admitted that all this remains only a reflection in the medium or long term ... The most urgent for the moment is the resumption of processing of citizenship applications, currently technically blocked, de facto, because of the interruption of tests.
, Piotr.
Not clear what you are talking about.
What is clear, however, is that a Visa Office decision denying an application for a PR Travel Document is a decision that terminates PR status.
That is subject to appeal. But make no mistake, it is an official determination of PR status. Unless set aside in an appeal, it is the decision which terminates the PR's status as a Permanent Resident.
Reminder: A PR abroad who is not in possession of a valid status card (PR card) is PRESUMED to NOT have valid PR status.
So the decision is not suspensive?
To my knowledge, only the decision-makers of the course have the power to cancel a pr status (After having examined the possibility of exemption on humanitarian grounds)
You should look in the Immigration and Refugee Protection Act for the article (s) explicitly mentioning what you are saying.
Without an article of law explicitly mentioning it, the assertion that the pr card is a regulatory tool remains a personal interpretation, or a de facto finding, if it is true that the agents in the external treatment centers have the power to cancel PR status. (Definitive cancellation without possibility of appeal, or to invoke humanitarian reasons).
Anyway, all this remains secondary. It is rather a procedural flaw.
Basically, I think that - this is my theory - that if the duration of validity of the pr card was 4 years for example, or even 3 years, the objections against the extension of the duration would have been the same . Most opponents of this future eventuality (This is not an immediate urgency, especially given the current circumstances, we agree for once ... but this request will come back sooner or later, especially with the renewal deadlines. interminable, even before the covid crisis), would have held the same speech.
In other words, if the cate had a validity of 4 years for example, you would have found it just as correct. And even '' generous ''.
We must not lie to each other: The reason for this positioning is visibly ideological, even populist ... and in no way somebody's desire to consolidate the integrity and the rule of law ... Seriously: Who here is against the rule of law, and the prevalence of the law ? ... Not me.
I continue to think that the establishment of exit controls from Canada will constitute an exceptional opportunity to claim a pr card with a more generous validity, without affecting RO ... 7 years, or 10 years.
Why not ?
It will be a good idea to alert the press anyway.
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I have. Extensively. I have reviewed DOZENS of IAD decisions. I have discussed, with references and links, the procedures, the process, in many topics here. This is an issue I have been following closely for more than a decade. In general I am NO expert, but there is NO doubt, none at all, that when a PR abroad makes a PR TD application, and that application is denied, that is a decision terminating PR status.
There is a right of appeal. Of course. For Visa Office decisions denying a PR TD the period for making an appeal is sixty days. If the individual does not timely make the appeal, the individual is then a Foreign National, no longer a PR. And is then eligible for eTA (if the individual carries a visa-exempt passport), for example, or to apply for other status in Canada.
If the individual timely makes an appeal, the decision does not take effect until the appeal is dismissed or denied. The Visa Office decision will not terminate the PR's status ONLY if the IAD (Immigration Appeal Division) sets the decision aside.
Also note that CBSA immigration officers also have authority to make the decision terminating a PR's status based on inadmissibility for failing to comply with the Residency Obligation. One officer makes the 44(1) Report, and then that is reviewed by another officer who decides whether to issue the individual a Departure or Removal Order. The latter officer is designated a "Minister's Delegate," but that officer is often just another officer of no more authority than the one issuing the Report itself, or sometimes their supervisor at the PoE. To be clear about what authority these officers have, note that the "Minister's Delegate" is a delegate of the Minister of Public Safety, NOT a delegate of the Minister of CIC or IRCC, NOT someone at all in the hierarchy of the IRB.
Which makes it somewhat easy to distinguish the IAD decisions which are appeals from a PoE 44(1) Report versus appeals from Visa Office decisions, since Citizenship and Immigration (official name in statute for IRCC) is a party for the latter, while in appeals from the PoE involve the Minister of Public Safety and . . . .
As noted, the process, including specific procedures, are discussed at length and in depth in numerous topics here . . . see them for references, including scores of links to primary, official sources.
That his appeal be dismissed by IAD (Immigration Appeal Division) presupposes a physical presence of the applicant in court, and therefore in Canada, right?
If the answer is no, I would be curious to see if a person who has been prohibited from going to Canada to attend their appeal hearing has ever applied for leave for judicial review citing a breach of their natural justice right. (and procedural fairness)
I'll do my research.
It is an interesting subject that I would try to explore when I have time ... But I confess that it will not change my idea that the question is imminently ideological.
If the control a strict control of exits is established, the PR who does not respect his RO will certainly be sanctioned by the loss of his status, even if he manages to return to Canada after the expiration of his card (Someone with a Swedish passport, for example, or any other passport eligible for eTA).
Not sure why you assume there would be an objection to a 3 or 4 year PR card. The residency requirement is 2 out of 5 years so 5 years make logical sense.
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I don't know why you think my arguments are 'populist', or what you think Legal Doctrine means here. But I'll leave that discussion to the lawyers. I don't think it's particularly populist, just government making some set of trade-offs between the constraints of law, administrative feasibility and cost, etc.
"Simple agent" is not meaningful - of course decisions must be taken by some official authorized to make decisions, such as a Minister's Delegate or other (the decision usually taken formally in legal terms by 'the Minister'). That doesn't preclude judicial or quasi-judicial review or appeal, whether at home or abroad, as defined in the law. This includes - according to law and in practice - consideration of humanitarian considerations (both by the examining / deciding officers or subsequently in appeal). That cost applies both abroad and in Canada.
Part of - and indeed the part of cost I was referring to - is that to achieve the policy goal of enforcing to some degree the residency obligation at reasonable cost, doing so in Canada is quite difficult and expensive - and far less expensive abroad, since all they have to do to enforce the decision to remove PR status is ... not issue a PR/PRTD. (More expensive in Canada because having a reasonable prospect of actually enforcing a removal order, for example, is far more difficult if the PR / former PR does not wish to cooperate). Canada has very few 'immigration enforcement' officers in-country actually looking for those ordered to leave, and they mostly concentrate - as I understand - those considered dangerous; the practice of actually detaining those 'out of status' is also pretty rare (again, to my knowledge).
Since there is no requirement to have at all times a PR card, and for the most part someone physically in Canada does not have to have many interactions with IRCC or parts of government whose concern is enforcing such requirements, the construct that works in pragmatic terms is that those _in Canada_ who do not travel abroad are subject to a 'light touch.' Since they're already present, if they don't travel, they're (sort of) assumed to be in compliance or trying to get in compliance. If they don't break the law (criminal) or whatever else, they're left alone - subject to a few other 'touch points' like requesting a new PR card while out of compliance.
Hence in practice one of the main points of control for PR residency obligation / compliance is at the border or ports of entry AND the requirement to have valid travel docs such as PR card or PRTD. It's just simple and practical.
I dont' see how any of this is problematic from a legal perspective; if it were, believe me, it would have been challenged by now (and I presume has been, unsuccessfully).
It does not need to be described in law as a "control document" or other for it to serve a useful purpose as such in practice. The law is general (I believe) that IRCC / minister have responsibility and power to enforce such regs as necessary; within such general frameworks, govt then makes decisions about priorities and resources. (They could change the operating procedures to examine in detail _every_ PR at border for non-compliance and initiate steps to strip PR status for everyone even a day out of compliance; they don't because a terrible use of resources - diverting CBSA officers from public safety responsibilities - and likely very ineffective in achieving other policy goals and would overload review bodies etc).
I don't see how any of this is particularly populist. It's not perfect, of course.
As previously noted, there are many threads or topics here in which the procedural details related to decisions terminating PR status are discussed at-length and in-depth. With lots of references and links to primary and official sources.
There are multiple procedural aspects involved. For example, just a discussion about obtaining a special PR TD which will allow SOME (not all) PRs to board a flight to Canada, so they can be in Canada pending their appeal, which I will address in more or less outline form below, is complex and detailed enough it has been the specific subject of discussion in multiple topics.
Without trying to reconstruct a comprehensive accounting of what is extensively explained in those other topics . . .
There is no need to suppose or presuppose. You raise this as if there might be some question about the actual procedure in these cases. As if the context was how-it-should-be (be that in regards to legal or equitable reasons, social or political reasons, ethical or moral reasons) rather than how-it-actually-works.
Whatever views posed in regards to how-it-should-be, in contrast, how-it-actually-works is well documented in HUNDREDS of IAD decisions and, going back over many years, a significant number of Federal Court decisions.
The procedures, the actual procedures followed in real cases, are also extensively explained in the applicable Operational Manuals
For pdf versions of the Operational Manuals see links at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html and see ENF 1, ENF 3, ENF 4, ENF 5, ENF 6, ENF 23, and OP 10. (These are being phased out, just as those governing citizenship, such as CP 5 "Residence," have already been replaced by Program Delivery Instructions. So to some extent they are not up-to-date, and thus some caution should be exercised in relying on particular aspects of these without cross-checking and verification against official sources, like the statutes and regulations; and they especially do not account for special covid-19 measures).
ENF 23 "Loss of permanent resident status," and OP 10 "Permanent Residency Status Determination," cover most of key elements in the process. The latter, for example, describes much of the procedure in a Visa Office ("OP" is Overseas Processing). But the others include important information, such as ENF 5 "Writing 44(1) Reports" and ENF 6 "Review of reports under subsection 44(2)."
Short answer: No, many appeals (in cases reviewing decisions to terminate PR, both by CBSA as well as IRCC officers in Visa Offices abroad) are heard, decided, and dismissed by the IAD with NO physical presence of the PR (the individual affected remains a PR as long as the appeal remains pending) before the IAD.
To be clear, however, PRs are NOT prohibited from entering Canada pending their appeal, and are NOT prohibited from appearing at their appeal hearing.
Not so Short Explanation:
PRs, even those with appeals pending following decisions to terminate their PR status, are NOT prohibited from entering Canada. They are NOT prohibited from traveling or "going to Canada." And those abroad who have been physically IN Canada within the previous year will generally be issued a special PR Travel Document so they can use regulated commercial transportation to travel to Canada. The notice of decision sent to the PR will ordinarily (as much as the anecdotal reporting reveals) include information about making an application for a special PR TD for the purpose of coming to Canada for the appeal.
Those who have not been IN Canada within the previous year can apply for the special PR TD as well, but it appears this is usually denied.
In any event, there is NO PROHIBITION barring any of these PRs, those with an appeal pending, from going to Canada.
In particular, PRs who can travel via the U.S. can go to Canada for their appeal by getting to a land-crossing PoE into Canada on the U.S. border, where they will allowed to enter Canada. PRs who have private transportation that will allow them to otherwise travel to Canada from abroad are not prohibited from doing so. (I'd guess not many can do this . . . while I have had friends and partners with ocean going boats and some with private planes, in what one might describe as my previous life (as in long before I immigrated to Canada), I'm guessing the number of PRs with access to private planes capable of trans-oceanic flights or boats capable of a trans-oceanic voyage are few in number).
But as for PRs abroad who do not have a valid PR card, and who are denied a special PR TD, and who cannot arrange to travel via the U.S. or via private means, one might say they are practically "prohibited from going to Canada to attend their appeal hearing," since they will not be allowed to board regulated commercial transportation under the rules governing who commercial transport can carry to Canada.
Caveat: current procedure is likely very different than the routine procedure, given measures taken in response to Covid-19. The current procedures are temporary, even if they last longer than most imagined. My observations here are about how these things actually work apart from how special measures related to covid-19 currently affect them.
Let us be clear, again, Canada does not prohibit PRs from entering Canada. That said, of course there is a big difference between restrictions on who is allowed entry into Canada, versus restrictions on who is allowed to travel to Canada, and in regards to the latter, the means of travel matters (since commercial transporters are strictly regulated and restricted in who they may allow to be passengers aboard their conveyances).
So, first, PRs abroad who have an appeal pending, for either a Report and Departure Order issued at a PoE, or for a decision denying a PR Travel Document, are NOT "prohibited from going to Canada to attend their appeal hearing," at least NOT "prohibited" by Canadian law. But many will find it very difficult to get to Canada, since for many the only means of travel to Canada is via commercial transportation and without either a PR card or PR TD the carriers will not allow, and cannot allow, the PR to board their plane or boat.
Thus, historically, many do not appear or appear via telephone from abroad.
Overall: those PRs (with an appeal pending) who can find a means of travel to Canada will be allowed to enter Canada, allowed to remain in Canada pending the appeal, and to the extent there is an in-person appeal hearing (which I think the PR IN Canada can probably insist on, except perhaps not in the current situation), allowed to physically appear. No restraint at all on their fair procedure right to participate in a hearing, let alone an excessive or unjustified restraint.
WARRANTS NOTING: As noted in a previous observation, other than the extent to which the law in effect entitles PRs to ENTER Canada itself, Canadian law does not offer much if any protection of a PR's rights regarding international travel.
That policy side of Canadian immigration law should not be underestimated. As I previously attempted to emphasize, there is a big difference in what the Canadian rules ALLOW, in effect tolerate, compared to those purposes and objectives promoted by the rules. At the risk of oversimplifying things, one might say the laws, regulations, and practices do NOT limit or restrict a PR's travel outside Canada, but they do NOT support, let alone promote or protect the PR's travel outside Canada, not much anyway.
There are multiple procedural aspects involved. For example, just a discussion about obtaining a special PR TD which will allow SOME (not all) PRs to board a flight to Canada, so they can be in Canada pending their appeal, which I will address in more or less outline form below, is complex and detailed enough it has been the specific subject of discussion in multiple topics.
Without trying to reconstruct a comprehensive accounting of what is extensively explained in those other topics . . .
"That his appeal be dismissed by IAD (Immigration Appeal Division) presupposes a physical presence of the applicant in court, and therefore in Canada, right?"
There is no need to suppose or presuppose. You raise this as if there might be some question about the actual procedure in these cases. As if the context was how-it-should-be (be that in regards to legal or equitable reasons, social or political reasons, ethical or moral reasons) rather than how-it-actually-works.
Whatever views posed in regards to how-it-should-be, in contrast, how-it-actually-works is well documented in HUNDREDS of IAD decisions and, going back over many years, a significant number of Federal Court decisions.
The procedures, the actual procedures followed in real cases, are also extensively explained in the applicable Operational Manuals
For pdf versions of the Operational Manuals see links at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html and see ENF 1, ENF 3, ENF 4, ENF 5, ENF 6, ENF 23, and OP 10. (These are being phased out, just as those governing citizenship, such as CP 5 "Residence," have already been replaced by Program Delivery Instructions. So to some extent they are not up-to-date, and thus some caution should be exercised in relying on particular aspects of these without cross-checking and verification against official sources, like the statutes and regulations; and they especially do not account for special covid-19 measures).
ENF 23 "Loss of permanent resident status," and OP 10 "Permanent Residency Status Determination," cover most of key elements in the process. The latter, for example, describes much of the procedure in a Visa Office ("OP" is Overseas Processing). But the others include important information, such as ENF 5 "Writing 44(1) Reports" and ENF 6 "Review of reports under subsection 44(2)."
Short answer: No, many appeals (in cases reviewing decisions to terminate PR, both by CBSA as well as IRCC officers in Visa Offices abroad) are heard, decided, and dismissed by the IAD with NO physical presence of the PR (the individual affected remains a PR as long as the appeal remains pending) before the IAD.
To be clear, however, PRs are NOT prohibited from entering Canada pending their appeal, and are NOT prohibited from appearing at their appeal hearing.
Not so Short Explanation:
PRs, even those with appeals pending following decisions to terminate their PR status, are NOT prohibited from entering Canada. They are NOT prohibited from traveling or "going to Canada." And those abroad who have been physically IN Canada within the previous year will generally be issued a special PR Travel Document so they can use regulated commercial transportation to travel to Canada. The notice of decision sent to the PR will ordinarily (as much as the anecdotal reporting reveals) include information about making an application for a special PR TD for the purpose of coming to Canada for the appeal.
Those who have not been IN Canada within the previous year can apply for the special PR TD as well, but it appears this is usually denied.
In any event, there is NO PROHIBITION barring any of these PRs, those with an appeal pending, from going to Canada.
In particular, PRs who can travel via the U.S. can go to Canada for their appeal by getting to a land-crossing PoE into Canada on the U.S. border, where they will allowed to enter Canada. PRs who have private transportation that will allow them to otherwise travel to Canada from abroad are not prohibited from doing so. (I'd guess not many can do this . . . while I have had friends and partners with ocean going boats and some with private planes, in what one might describe as my previous life (as in long before I immigrated to Canada), I'm guessing the number of PRs with access to private planes capable of trans-oceanic flights or boats capable of a trans-oceanic voyage are few in number).
But as for PRs abroad who do not have a valid PR card, and who are denied a special PR TD, and who cannot arrange to travel via the U.S. or via private means, one might say they are practically "prohibited from going to Canada to attend their appeal hearing," since they will not be allowed to board regulated commercial transportation under the rules governing who commercial transport can carry to Canada.
"If the answer is no, I would be curious to see if a person who has been prohibited from going to Canada to attend their appeal hearing has ever applied for leave for judicial review citing a breach of their natural justice right. (and procedural fairness)"
Caveat: current procedure is likely very different than the routine procedure, given measures taken in response to Covid-19. The current procedures are temporary, even if they last longer than most imagined. My observations here are about how these things actually work apart from how special measures related to covid-19 currently affect them.
Let us be clear, again, Canada does not prohibit PRs from entering Canada. That said, of course there is a big difference between restrictions on who is allowed entry into Canada, versus restrictions on who is allowed to travel to Canada, and in regards to the latter, the means of travel matters (since commercial transporters are strictly regulated and restricted in who they may allow to be passengers aboard their conveyances).
So, first, PRs abroad who have an appeal pending, for either a Report and Departure Order issued at a PoE, or for a decision denying a PR Travel Document, are NOT "prohibited from going to Canada to attend their appeal hearing," at least NOT "prohibited" by Canadian law. But many will find it very difficult to get to Canada, since for many the only means of travel to Canada is via commercial transportation and without either a PR card or PR TD the carriers will not allow, and cannot allow, the PR to board their plane or boat.
Thus, historically, many do not appear or appear via telephone from abroad.
Overall: those PRs (with an appeal pending) who can find a means of travel to Canada will be allowed to enter Canada, allowed to remain in Canada pending the appeal, and to the extent there is an in-person appeal hearing (which I think the PR IN Canada can probably insist on, except perhaps not in the current situation), allowed to physically appear. No restraint at all on their fair procedure right to participate in a hearing, let alone an excessive or unjustified restraint.
WARRANTS NOTING: As noted in a previous observation, other than the extent to which the law in effect entitles PRs to ENTER Canada itself, Canadian law does not offer much if any protection of a PR's rights regarding international travel.
That policy side of Canadian immigration law should not be underestimated. As I previously attempted to emphasize, there is a big difference in what the Canadian rules ALLOW, in effect tolerate, compared to those purposes and objectives promoted by the rules. At the risk of oversimplifying things, one might say the laws, regulations, and practices do NOT limit or restrict a PR's travel outside Canada, but they do NOT support, let alone promote or protect the PR's travel outside Canada, not much anyway.
The fact that the 5-year term of validity of the card, suposely, agrees with the OR ** in a concern to '' regulate '' people and control them, and make them respect the OR is a coincidence. The reasoning you set out may seem, and seems logical, I agree ... But it is nothing more than a coincidence, which is not written into the rules at any time.
** And despite everything, this reasoning is relative, and purely speculative:
It is about your own interpretation. Interpretation that is- again I say I agree have you- logical ... But is not a policy or official wish, not de jure (By power of law).
A concrete example to illustrate my thinking is better than a thousand explanations:
Your interpretation and personal conclusion could have been perfect ... If the pr card was theoretically awarded from the first day of the permanent resident status of people, but this reasoning is altered by several variables:
- The pr card is not produced immediately. Permanent residents often have another document during the processing of their pr card, “The Confirmation of Permanent Residence (COPR)”. This fact alters your calculation from the start.
- The pr card is a physical object which can be lost or damaged: During a fire, or a loss of wallet for example. A reset with a new card will question your reasoning.
- To go further in the reflection, here is a more complex argument which goes in the opposite direction of the simplistic reasoning of period pr card 5 years = control of RO. For citizenship application for example, the periods of temporary residents, under certain conditions, are also considered for the calculation, at the ratio of 1/2 day per day.
To come back to your question, and answer you simply: I think that, basically, the objections against some extension of the validity period of the pr card are often, most of the time , fed by ideological or populist considerations (not to say conservative or something else). This is why I think that if the pr card had a validity period of 4 or even 3 years, it will always be perceived by some as "Already a lot, very generous, etc ...".
Once again, this is all just a reflection, and I am aware that this issue can only be seriously discussed in the medium or long term, especially considering the current circumstances, but it is a good thing to discuss it, to show people that we can discuss everything in a democracy without fear.
In the immediate future, what is urgent and important is to demand an unblocking for the situation of effective, de facto stop of the citizenship procedures by stopping the tests.
... On the other hand, if the project to control exits from Canada were to materialize, it would be necessary to relaunch and talk seriously about the period of validity of the pr cards, which is short and problematic.
... And the minimum, the least of things - if the control of outputs becomes effective and efficient -, the minimum will be a very significant acceleration of the processing times for renewal of pr cards.
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I'm not sure what you are trying to claim here. Are you saying that government CANNOT use a coincidence as a means of regulation/control? You're throwing out 'de jure' as if it's meaningful, but I'm not aware of any such principle.
I haven't looked at the statute closely but I believe overall gives the responsibility to implement the act to the Minister/Ministry, and within that, they can implement such systems as necessary. (Plus budget constraints, etc). The fact that a particular document isn't specified in law as a means of control for compliance with residency obligations is, I think, completely irrelevant (legally).
I do not understand your point here. Government works from sometimes-detailed, sometimes broad specifications in law, supplemented by regulations such as orders-in-council, further supplemented by various actual practices.
It seems to me you're operating from a misapprehension that such details not coinciding perfectly create some imperfection in control, and if imperfect, somehow the whole system is invalidated. It's quite possible that the minor gap between landing and card issuance date is basically irrelevant in the big picture.
Why is there a difference of a few months? Possibly because practice has always been to issue documents marked "issued on." Could they change the practice to state "effective as of..."?
Sure, they could. But quite possibly the added benefit of changing that practice would provide little extra benefit, take quite a bit of work, and ultimately have close to zero practical impact and none whatsoever legally. Canadian government practice with respect to residency obligations changes over time (sometimes more, sometimes less strict), but overall less strict than 'allowed' by law. A month or two difference between landing and issuance date has very little importance in a context where being out of compliance by small amounts often doesn't matter.
And as important, the validity date of the PR card has zero legal meaning with respect to the 'validity' of PR status - which is permanent until removed. (One _is_ a permanent resident, whether in or out of compliance with residency obligations, which are separate from the card).
What is the link you are making with the PR card? Or just a separate topic?
Both of these are just your opinion (which of course is fine); I think what some others have been saying here is that they don't agree that PR card validity periods are self-evidently "short and problematic" (and therefore necessary that it be revised in future). Sure, there are some arguments for - but you haven't convinced me for one.
I do hope and agree that there should be improved processing times and hopefully exit controls will assist with that. Not sure that my modest "I hope" means one should count upon it, though. And by all means advocate for it.
My feedback on your 'reflections' is overall that there is little demand or interest in longer-tenor PR cards; and that if you wish to advocate for something (free society etc etc), advocating for more responsive and rapid issuance of new cards is more likely to see success. (There will always be some problematic cases that take longer but in the vast majority of cases, should be fairly quick.)
Good luck.
Rather well-structured and well-founded observations. And the overall point is well taken.
The Canadian approach is far more organic than mechanical. Especially in regards to applying and enforcing the PR Residency Obligation, which of course includes the manner and means of screening PR compliance. Which may seem to involve inherent inconsistencies, such as the generally rather flexible if not overtly liberal, even lenient approach in deciding when the failure to comply with the RO warrants the loss of PR status, when compared to particular elements such as the presumption that a PR does NOT have valid PR status if the PR is abroad and not in possession of a valid PR card. Especially in light of how liberal the RO is itself (the RO allows PRs to spend more time abroad than in Canada indefinitely, for life even). But it is readily apparent the scheme is deliberate, intended to allow PRs wide personal discretion, with enough flexibility hardwired into the system to accommodate a wide, wide range of real life contingencies without triggering litigation, with no need to judge intangibles like intent.
Thus, to the extent there is litigation about the RO, such as IAD appeals regarding decisions to terminate PR status based on a failure to comply with the PR RO, very, very few of those cases involve serious questions about whether the decision is valid-in-law. Indeed, in the vast majority of such cases the IAD decision perfunctorily verifies the decision is valid-in-law (with some exceptions). RO litigation almost always revolves around whether there are circumstances in which Canada will allow a PR to retain PR status DESPITE the RO breach, DESPITE the PR's failure to comply with the very liberal Residency Obligation.
Some comments about references to "de facto" and "de jure" characterizations: these terms tend to be misused and otherwise misleading, and generally at best are not useful.
The term "de jure" offers almost nothing apart from what is otherwise said to be a legal or lawful act, decision, or outcome. It illuminates virtually nothing except when used in contrast to "de facto." The employment of the term "de facto" tends to almost always be the expression of a judgment, of a conclusion. And thus does not explain or illuminate much outside some very narrow issues.
So, these terms are rarely useful, even though there are some very narrow issues in which they are employed, even though there are some questions addressed by the courts in which these concepts play a role. And what litigants characterize as de facto in litigation very often, probably most often, fails to persuade the courts. For example, if an agency deliberately does not process an application it has a mandate to process, even if there is no formal, definitive timeline within which the law requires a decision, the applicant may have grounds for a Writ of Mandamus to order the agency to process the application and make a determination. In such instances the courts can conclude that the failure to process the application is tantamount to a decision denying the application. Some will appropriately use the term "de facto" in such circumstances to characterize what amounts to the in-practice, that is in-fact denial, even though there is no formal denial, no denial by or in law. But many more make an argument like this which is rejected by the courts.
As noted, the employment of the term "de facto" tends to almost always be the expression of a judgment, of a conclusion. And thus does not explain or illuminate much. Especially when it is used, as it more often is, to gloss over substantive questions.
Consider again the example about an agency deliberately not processing an application. It is NOT how long it has taken the agency that matters, even though the timeline may have evidentiary value in discerning whether it is true, in fact, the agency is deliberately not processing the application tantamount to making a decision to deny it. Back when there were lengthy delays in processing citizenship applications, under the Harper government, many applications for Mandamus were decided by the Federal Court. Claims that CIC's failure to decide applications for more than THREE YEARS constituted a de facto denial of the application were routinely rejected by the FC. But where CIC made a decision to suspend processing without a legal basis for doing so, there were decisions granting Mandamus on the grounds that did constitute a de facto denial of the application.
So the Harper government amended the Citizenship Act to include a fairly broad provision allowing the government to suspend citizenship application processing.
The latter does not entirely slam the door on Mandamus for such cases. But it does elevate the already high hurdle by a lot. Applicants can still challenge the decision to suspend processing as one constituting a breach of fair procedure. A very tough case to make.
The point, though, is that use of the terms "de facto" and "de jure" generally offer little or nothing to the kind of discussion taking place here.
To be fair, I was being mildly provocative when I made the comment above about de jure. I believe I (perhaps) understood the point, which was that it is not specified in law that the PR card can be used as a means of control.
And my objection to this point is, I'm not aware of any requirement in Canada's legal system that would require such a link to be made in the law and implementing regulations. It's a misapprehension of how the law and the government work.
Arguably the most illuminating point is in an unrelated section in the act that says " Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act."
The point, inherent to Canadian system of government, is that the Minister has the power to determine the most efficient manner to administer the laws for which they are responsible.
The law sets out a large variety of points covering all of immigration and refugees - in practice, in some areas quite detailed, but in many, many areas, very general and few specifics. (Some of which are covered by Orders-in-Council and other documents, of course - but many of which can be changed).
Which circles around to broader point: the act specifies that PRs shall be given status documents; some points about PRTDs; presumption about status in and out of the country; residency obligations; 'examination' of PRs e.g. at entry; and procedures to report, consider and start procedure of revoking PR status.
Within that general framework and some very specific points, it is the Minister's responsibility to determine the most efficient way to administer the Act (worth noting the act has other general 'goals' which must also be considered). Including, of course, some enforcement of the residency obligation - but even this is rather broad, with issuance of a PRTD the only point at which a PR must satisfy an officer that they are in compliance with the RO (subject to H&C or having been in Canada in last year). There's nothing in the law about the validity period of the PR card or how it shall be issued or effective date or whatever.
If the Minister finds the status card, validity and renewals (with examination upon renewal) to be a useful mechanism to enforce the residency obligation (within appetite for enforcement and resource budget), that's already a solid start to a legal basis, whether this is made explicit or not (assuming compliance with all other parts of law and promulgated regs, etc). The power to determine the 'effective way to administer the law' is not trivial.