Last Updated on June 24, 2021 by Steven Meurrens
Section 28 of the Immigration and Refugee Protection Act
(28)(1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(2) The following provisions govern the residency obligation under subsection (1):
The Applicable Five Year Period
(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or
(v) referred to in regulations providing for other means of compliance;
(b) it is sufficient for a permanent resident to demonstrate at examination
(i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
(ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
In Metallo v. Canada (Citizenship and Immigration)
, 2021 FC 575, Justice McHaffie stated:
In Rastgou v Canada (Public Safety and Emergency Preparedness), the IAD was faced with the same situation that arose in Mr. Metallo’s case. Mr. Rastgou had applied for a new permanent resident card from within Canada and a section 44 report was prepared almost a year later. In considering whether H&C factors favoured Mr. Rastgou, the IAD had to consider whether his residency shortfall should be calculated based on the five-year period preceding the application, or the five-year period preceding the report: Rastgou at paras 3, 9–12. As in Mr. Metallo’s case, the officer identified both windows in their notes: Rastgou at para 13.
The Minister in Rastgou argued the earlier five-year period should apply. At the same time, the Minister said the officer identified both windows because the applicant would be found to comply with section 28 if they met the residency requirement in the later five-year period preceding the section 44 report. The IAD felt this supported a finding that the later window applied: Rastgou at para 16.
The IAD in Rastgou contrasted the situation of those applying from within Canada with that of someone applying for a permanent resident travel document overseas: Rastgou at paras 17–19. In such cases, compliance with the residency obligation is assessed based on the five-year period preceding the application: see, e.g., Amorocho-Diaz v Canada (Citizenship and Immigration), 2009 CanLII 76301 (CA IRB) at para 16, quoting Overseas Processing Manual 10 (OP-10: Permanent Residency Status Determination). Using the date of application when an applicant is outside Canada prevents them from being disadvantaged by any delay in the assessment of the application: Amorocho-Diaz at para 16. This approach can be seen in the factual descriptions of such determinations reviewed by this Court: Tantoush v Canada (Citizenship and Immigration), 2014 FC 245 at para 16; Behl v Canada (Citizenship and Immigration), 2018 FC 1255 at paras 7–8; Sanchez Rebaza v Canada (Immigration, Refugees and Citizenship), 2019 FC 509 at paras 9–10.
The IAD concluded that using the date on which the review was conducted and the report issued was consistent with the language of subparagraph 28(2)(b)(ii) of the IRPA, the language of subsection 62(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, and the Minister’s position on compliance with section 28: Rastgou at paras 16–21. It therefore concluded the applicable five-year period was the five-year period preceding the section 44 report, noting this is “consistent with the approach taken by other panels and Minister’s counsel in similar types of appeals”: Rastgou at para 22, citing Gilbert v Canada (Public Safety and Emergency Preparedness), 2017 CanLII 77079 (CA IRB) and Razaghi v Canada (Public Safety and Emergency Preparedness), 2012 CanLII 99644 (CA IRB).
In addition to the Gilbert and Razaghi cases, a number of decisions of this Court show the IAD using the date of the section 44 report as the relevant date for the five-year period where the applicant is in Canada. In Parikh, the five-year period examined ended on the date of the section 44 report, although the applicant entered Canada and was interviewed five months earlier: Parikh v Canada (Public Safety and Emergency Preparedness), 2019 FC 13 at paras 8, 14, aff’g 2015 CanLII 92733 (CA IRB). While the applicable period was not in dispute, Justice Pentney described the five-year period ending on the date of the section 44 report as the “correct period”: Parikh at para 14. Similarly, in Li the applicant entered Canada and was examined in April 2016, but the applicable five-year period ended on the date of the section 44 report in May 2016: Li v Canada (Citizenship and Immigration), 2018 FC 187 at para 10, aff’g 2017 CanLII 63732 (CA IRB) at para 5 and fn 4. In Huang, the period examined was again the five years prior to the determination, rather than the five years prior to the applicant’s application for a permanent resident travel document: Huang v Canada (Citizenship and Immigration), 2020 FC 327 at paras 4, 6, aff’g 2019 CanLII 30481 (CA IRB).
The IAD in the current case, however, adopted the contrary approach by considering only the five-year period ending on the date of the application. The IAD identified this as being the five-year period prior to the examination (or control). While the IAD clearly turned its mind to the question of the applicable “examination,” it gave no explanation why the triggering “examination” was the date of application rather than the date on which the section 44 report was prepared. While Rastgou and the other cases referred to above may not be enough to constitute “established internal authority,” they include considered opinions of IAD members on the precise issue and appear to reflect at least a longstanding practice, requiring some justification for departure: Vavilov at para 131.