Revin Kevin

I looked into this quite a bit at one point and it appeared that previous IAD decisions have given significant and favourable weight to being settled in Canada, house, jobs etc so getting reported on entry wouldn't necessarily be the start of the end. Hopefully you would avoid getting reported anyway but then "sneaking" over the border and then staying in Canada for three straight years might work for some with some folk but for many it wouldn't be feasible and any further border crossing would put you at risk again.

catweazle

I am certainly not advocating illegal entry, or lying in any way, shape or form.

catweazle

The one million dollar question is whether CBSA officers at the POE have to follow the same rigorous, bureaucratic procedures as IRCC people do. And whether their decisions are as closely vetted and reviewed at the point of delivery.

It's not hard to imagine that if the answer to these questions is a qualified "no", then outcomes at POE may be more likely to favour non-compliant PRs.

Siouxie

Yes.

Who can be found to be inadmissible for misrepresentation?

The Immigration and Refugee Protection Act (IRPA) sets out that a foreign national or permanent resident can be found to have misrepresented for many reasons some of which include:

• Providing information to Immigration, Refugee and Citizenship Canada (IRCC) or to the Canada Border Services Agency (CBSA) that is inconsistent, inaccurate, or incomplete, and that as a result has or could induce an error in the administration of the IRPA;
• Withholding material facts from IRCC or CBSA that are relevant to the matter and that, as a result, has or could induce an error in the administration of the IRPA;

The penalty of misrepresentation - can result in exclusion from Canada for 5 years, deportation.. even loss of Citizenship if discovered later! It's just not worth it. If it was a case of being a month out of the required residency, perhaps - but years? Far better to see if it's possible to rescind PR and apply again.

catweazle

Siouxie, I'm not sure I understand why you're quoting the IRPA's misrep section? The "hack" above does not require anyone to misrepresent themselves. Also, CBSA officers are not personally bound by IRPA; that Act explicitly does not apply to Canadian Citizens !

Of course CBSA officers enforce IRPA with regards to PRs or foreign nationals. Like I said, I believe the rules, regulations and laws explicitly allow, but do not compel, border officers to enforce the residence requirements. Parliament (laws) and the Minister (regulations) have quite deliberately chosen to give officers plenty of autonomy and flexibility.

bc2015

There are people on...other forums... who claim to have been allowed to keep PR on the grounds that they were removed from Canada as minors. Usually they are over 18 and making their own application, not the parents making an application on their behalf. One person (a French national if I recall) wasn't even reported when he showed up at the border, the officer just let him through (of course he was then landlocked for two years).

christmasoompa

That's the key bit - and why I asked about the children's ages.

Siouxie

Because by purposefully implying that you meet or can meet the required residency to retain PR when you don't and can't it is misrepresentation. The CBSA officer can and is legally able to start proceedings against you.

catweazle

?? Where in this thread is anyone suggesting such a course of action?

catweazle

Ahem...

Former Lancastrian

From IRCC ENF Manual 58.1 Limited discretion of officer at A44(1)

The fact that an officer has the discretionary power to decide whether or not to write an A44(1) report does not mean that the officer can disregard the fact that someone is, or may be, inadmissible.

Rather, discretion under A44 means that officers and MDs have some flexibility in managing cases where the person is inadmissible, however the objectives of the IRPA may or will be achieved without the need to seek a removal order or write a formal inadmissibility report under A44(1).

While the body of case law respecting the scope of an officer’s discretion varies, the courts have affirmed that an officer’s discretion under A44, is very limited (see Appendix G: Case Law on the Scope of Officer Discretion under A44).

10.6 Residency obligation cases under A28(2)- Prescribed considerations

If, following an examination of a permanent resident, an officer concludes that a permanent resident has failed to comply with the residency obligation under A28, the officer may prepare a report for inadmissibility under A41(b) against a permanent resident, taking into account prescribed considerations set in the IRPA. A28(2)(c) specifically requires officers and the MD to take into account humanitarian and compassionate considerations, including the best interests of a child directly affected by the determination, when assessing whether such considerations overcome any breach of the residency obligation prior to the determination.

https://www.canada.ca/content/dam/ir.../enf05-eng.pdf

So yes the officer can use discretion but it is very limited. Person A has 700 days in Canada within last 5 years. Chances are report would not be written. Person B has 200 days in Canada within last 5 years. Chances are report would be written.
We can speculate all we want and even I as a CBSA officer cannot predict the outcome of a scenario until they are examined at a POE and the examining officer makes a decision to write a report or not. I can give my opinion on what could happen based on what the legislation says about the situation in question.

Engineer_abroad

• Withholding material facts from IRCC or CBSA that are relevant to the matter and that, as a result, has or could induce an error in the administration of the IRPA;

not telling the officer you haven’t meet the residency requirements when you know you haven’t is withholding a material fact. You can missrepresent yourself as a result of your inactions not just your actions

catweazle

Again, where in this thread is anyone advocating not telling the officer about material facts?

catweazle

Thank you Former Lancastrian for your well thought-out response. It certainly provides some good insights.

bc2015

To be fair, catweazle did say in the post to mention that they aren't in compliance