RO Compliance & Date of PRC application

[dpenabill]

This thread and discussion was triggered by a recent (June 9, 2021) decision in the Federal Court by FC Justice Nicholas McHaffie, in regards to PR Giacomo Metallo, in which judicial review was granted. At the time Metallo applied for a new PR card he was in breach of the PR Residency Obligation, and he was issued a 44(1) Report and . . . well, the procedure went off the rails a bit, but ultimately he was issued a Departure Order, and he appealed. No need to get bogged down in those procedural details here.

A key issue at stake was specifically about what date determined the relevant five year period for assessing RO compliance. The date the PR made the application for a PRC? Or the later date the 44(1) Report was prepared? As Justice McHaffie put it:

The main issue in this case is what five-year period should be used in an H&C assessment for someone living in Canada who applied for a permanent resident card: the five years ending on the date of the application or the five years ending on the date of the officer’s decision.​

Justice McHaffie ruled that Metallo was entitled to credit for days in Canada after applying for a new PRC . . . even in terms of assessing days in Canada for purposes of evaluating H&C factors.

The FC Metallo case is here: https://canlii.ca/t/jgdc5​

The IAD Metallo decision set aside is here: https://canlii.ca/t/j52xd​

BACKGROUND and CONTEXT:

Conventional wisdom is a PR should NOT apply for a new PR card UNLESS the PR is in compliance with the Residency Obligation. There are solidly good reasons for this. Notwithstanding the nuances addressed below, that is the best approach, the safe approach. Nothing here should be construed to counter that. There is no doubt: if a PR is in Canada: WAIT to apply for anything, WAIT to be in full compliance with the RO.

HOWEVER, as I have sometimes noted elsewhere, that conventional wisdom is often based on a misunderstanding about how compliance with the RO is calculated in processing a PRC application.

In particular, sometime more than a year ago I pieced together information from numerous official sources, mostly IAD decisions but other sources as well, to document what happens when a PR applies for a new PR card but is NOT in compliance with the Residency Obligation on the date of that application. In significant part that was to dispel the misleading, somewhat erroneous view, which seemed to be the most common view here, the view that in processing PRC applications the residency calculation is determined based on the day the PRC application was submitted.

But that is NOT how the process works, not entirely anyway.

The short version is that EVEN if the PR was in breach of the RO on the date a PRC application is made, the PR will still get credit for days in Canada AFTER applying for the new PRC up to the date the PR's RO compliance is actually examined. In practice it actually gets a little more complicated than that, given the variables in individual cases (just being in Canada, for example, will not necessary increase the PR's credit for time in Canada if days in Canada from five years ago are falling out of the calculation).

As noted, I have indeed outlined this in some detail before, here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/h-c-reasons.678182/page-2 where I also cite and link numerous sources.

Does this merit attention? The better approach, again, which is the safe approach, for a PR who has managed to return to and be in Canada despite being in breach of the RO, is to WAIT, to WAIT long enough to be sure to be in RO compliance BEFORE making any application for a new PRC, or to sponsor family members, or before traveling outside Canada.

So why bother with these nuances?

Well, a couple reasons at the least. The better we understand how things actually work, the better we can map navigational aids to help guide PRs through some of the more tricky terrain. Another reason is that not all PRs will wait, and not all can wait, and for these PRs understanding how things work can be pivotal in navigating their way through the process.

For example, a looming example, Metallo benefitted from a FC Justice willing to exercise discretion to not only address but make a decision based on an issue that was not raised before the IAD. The FC court will not, not usually, entertain arguments not raised in the lower tribunal. One might say Metallo was lucky. He had counsel for the IAD hearing, counsel who, apparently, did not argue the IAD should base its H&C assessment on how many days Metallo was in Canada up to the date of the 44(1) Report. Appears he had a better lawyer for the appeal to the FC (Arghavan Gerami, whose name has popped up on the making-a-difference side of the scales more than once).

But this brings up an important distinction. The difference between how information can influence a PR's decision-making before doing this or that, and how information can be used by someone AFTER they already made the decision and actually did this or that.

A lot of the time we are talking about what a PR should consider BEFORE doing this or that. Like making a PRC application. Easy to say: before making a PRC application, be sure to be in RO compliance.

Other times we are talking about what a PR is dealing with when the PR has already made the decision to do this or that, and has done it. Like making a PRC application. Like making a PRC application EVEN though the PR is not in RO compliance.

So yes, for sure, before applying for a PRC, be sure to be in compliance. BUT if a PRC application (or application to sponsor family member) has already been made, and it was made before the PR is in RO compliance, that is when this discussion is most relevant and useful. Days in Canada after applying should still be counted, credited.

For clarification: the question is not whether a PRC application will be denied if the PR is not in compliance. Denying a PRC application has no direct effect on a PR's status. To be clear, neither does the application being granted, being issued a new PR card. (Side note about the a-bit-off-the-rails procedure in the Metallo case: he was actually issued a PRC following a subsequent PRC application, but that had no impact on whether the Departure Order issued would be valid and enforceable.)

The question is whether, if not in RO compliance, the application for a PRC (or to sponsor a family member) will trigger a formal RO compliance examination that results in a 44(1) Report and Departure Order. If it does, it is important to note that days in Canada after making the application still count.

The difference that this Metallo decision makes is that it puts together all the various pieces and better describes the process for IRCC handling PRC applications by PRs in breach of the RO. Officially. My analysis in the other topic, which again is here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/h-c-reasons.678182/page-2 was indeed merely my analysis. I am no expert. I do the best I can but I am no expert. Now there is Justice McHaffie's decision which puts those pieces together. It is probably worth citing and linking the main IAD decision I relied on a year ago because that is the very same IAD decision that Justice McHaffie gives so much weight: the Rastgou 2018 CanLII 129864 decision, here https://canlii.ca/t/hx738

Also see cases cited and linked in the post linked above and partially quoted below:

. . . the following is a list of OFFICIAL SOURCES recounting ACTUAL cases . . . which amply illustrate that as a matter of policy and practice, generally those who apply for a PR card when not in RO compliance will NOT lose PR status if by the date of an interview, for a RO examination, they have in the meantime been in Canada enough to get into compliance; days in Canada after applying for a PR card will count toward compliance.

OFFICIAL SOURCES clearly showing that BEFORE issuing a 44(1) RO inadmissibility Report, IRCC does a RO calculation based on date of interview/examination, with credit for days IN Canada AFTER the date the PR card application was made:

Gamarachchi v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 37401 (CA IRB), http://canlii.ca/t/j01sx
PR card application made January 31, 2016. Examination date was July 10, 2017, based on five year period from July 11, 2012 to July 10, 2017.

Chatterjee v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 127475 (CA IRB), http://canlii.ca/t/j4r1l
PR card application made August 31, 2015. 5 year period considered based on date of interview February 17, 2017, so time in Canada between Aug 31, 2015 (date of application) and Feb 17, 2017 was counted.

Rastgou v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129864 (CA IRB), http://canlii.ca/t/hx738
December 12, 2015 PR card application.
Period of consideration for the purpose of RO assessment is the five-year period preceding the 44 report, that is, from October 20, 2011 to October 19, 2016 (Oct 19, 2016 being the date of the interview)

Hajar v Canada (Public Safety and Emergency Preparedness), 2019 CanLII 129235 (CA IRB), http://canlii.ca/t/j5361
. . . applied to renew his Permanent Resident card (PR card) in February 2016. The Departure Order was issued after the officer found that the appellant is inadmissible for failing to reside in Canada for at least 730 days (two years) out of the five year period ending May 10, 2017 (date ID officer prepared the Report)
{/quote]

 

[canuck78]

This thread and discussion was triggered by a recent (June 9, 2021) decision in the Federal Court by FC Justice Nicholas McHaffie, in regards to PR Giacomo Metallo, in which judicial review was granted. At the time Metallo applied for a new PR card he was in breach of the PR Residency Obligation, and he was issued a 44(1) Report and . . . well, the procedure went off the rails a bit, but ultimately he was issued a Departure Order, and he appealed. No need to get bogged down in those procedural details here.

A key issue at stake was specifically about what date determined the relevant five year period for assessing RO compliance. The date the PR made the application for a PRC? Or the later date the 44(1) Report was prepared? As Justice McHaffie put it:

The main issue in this case is what five-year period should be used in an H&C assessment for someone living in Canada who applied for a permanent resident card: the five years ending on the date of the application or the five years ending on the date of the officer’s decision.​

Justice McHaffie ruled that Metallo was entitled to credit for days in Canada after applying for a new PRC . . . even in terms of assessing days in Canada for purposes of evaluating H&C factors.

The FC Metallo case is here: https://canlii.ca/t/jgdc5​

The IAD Metallo decision set aside is here: https://canlii.ca/t/j52xd​

BACKGROUND and CONTEXT:

Conventional wisdom is a PR should NOT apply for a new PR card UNLESS the PR is in compliance with the Residency Obligation. There are solidly good reasons for this. Notwithstanding the nuances addressed below, that is the best approach, the safe approach. Nothing here should be construed to counter that. There is no doubt: if a PR is in Canada: WAIT to apply for anything, WAIT to be in full compliance with the RO.

HOWEVER, as I have sometimes noted elsewhere, that conventional wisdom is often based on a misunderstanding about how compliance with the RO is calculated in processing a PRC application.

In particular, sometime more than a year ago I pieced together information from numerous official sources, mostly IAD decisions but other sources as well, to document what happens when a PR applies for a new PR card but is NOT in compliance with the Residency Obligation on the date of that application. In significant part that was to dispel the misleading, somewhat erroneous view, which seemed to be the most common view here, the view that in processing PRC applications the residency calculation is determined based on the day the PRC application was submitted.

But that is NOT how the process works, not entirely anyway.

The short version is that EVEN if the PR was in breach of the RO on the date a PRC application is made, the PR will still get credit for days in Canada AFTER applying for the new PRC up to the date the PR's RO compliance is actually examined. In practice it actually gets a little more complicated than that, given the variables in individual cases (just being in Canada, for example, will not necessary increase the PR's credit for time in Canada if days in Canada from five years ago are falling out of the calculation).

As noted, I have indeed outlined this in some detail before, here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/h-c-reasons.678182/page-2 where I also cite and link numerous sources.

Does this merit attention? The better approach, again, which is the safe approach, for a PR who has managed to return to and be in Canada despite being in breach of the RO, is to WAIT, to WAIT long enough to be sure to be in RO compliance BEFORE making any application for a new PRC, or to sponsor family members, or before traveling outside Canada.

So why bother with these nuances?

Well, a couple reasons at the least. The better we understand how things actually work, the better we can map navigational aids to help guide PRs through some of the more tricky terrain. Another reason is that not all PRs will wait, and not all can wait, and for these PRs understanding how things work can be pivotal in navigating their way through the process.

For example, a looming example, Metallo benefitted from a FC Justice willing to exercise discretion to not only address but make a decision based on an issue that was not raised before the IAD. The FC court will not, not usually, entertain arguments not raised in the lower tribunal. One might say Metallo was lucky. He had counsel for the IAD hearing, counsel who, apparently, did not argue the IAD should base its H&C assessment on how many days Metallo was in Canada up to the date of the 44(1) Report. Appears he had a better lawyer for the appeal to the FC (Arghavan Gerami, whose name has popped up on the making-a-difference side of the scales more than once).

But this brings up an important distinction. The difference between how information can influence a PR's decision-making before doing this or that, and how information can be used by someone AFTER they already made the decision and actually did this or that.

A lot of the time we are talking about what a PR should consider BEFORE doing this or that. Like making a PRC application. Easy to say: before making a PRC application, be sure to be in RO compliance.

Other times we are talking about what a PR is dealing with when the PR has already made the decision to do this or that, and has done it. Like making a PRC application. Like making a PRC application EVEN though the PR is not in RO compliance.

So yes, for sure, before applying for a PRC, be sure to be in compliance. BUT if a PRC application (or application to sponsor family member) has already been made, and it was made before the PR is in RO compliance, that is when this discussion is most relevant and useful. Days in Canada after applying should still be counted, credited.

For clarification: the question is not whether a PRC application will be denied if the PR is not in compliance. Denying a PRC application has no direct effect on a PR's status. To be clear, neither does the application being granted, being issued a new PR card. (Side note about the a-bit-off-the-rails procedure in the Metallo case: he was actually issued a PRC following a subsequent PRC application, but that had no impact on whether the Departure Order issued would be valid and enforceable.)

The question is whether, if not in RO compliance, the application for a PRC (or to sponsor a family member) will trigger a formal RO compliance examination that results in a 44(1) Report and Departure Order. If it does, it is important to note that days in Canada after making the application still count.

The difference that this Metallo decision makes is that it puts together all the various pieces and better describes the process for IRCC handling PRC applications by PRs in breach of the RO. Officially. My analysis in the other topic, which again is here: https://www.canadavisa.com/canada-immigration-discussion-board/threads/h-c-reasons.678182/page-2 was indeed merely my analysis. I am no expert. I do the best I can but I am no expert. Now there is Justice McHaffie's decision which puts those pieces together. It is probably worth citing and linking the main IAD decision I relied on a year ago because that is the very same IAD decision that Justice McHaffie gives so much weight: the Rastgou 2018 CanLII 129864 decision, here https://canlii.ca/t/hx738

Also see cases cited and linked in the post linked above and partially quoted below:

This will only envourage people to try to delay processing in order to bank more time. Case also proves how the old PRs are not being crossmatched in the the ETA system. I wonder why we have residency rules sometimes. This man easily entered as a visitor for years when he shouldn't have been able to and was able to bank a good portion of his RO time after he applied for a new PR card. It also seems as though the brother only returned back to Canada in 2019 to try to make his H&C case stronger. Results of reconsideration should come out soon.

 

[dpenabill]

The primary reason for discussing the Metallo case (for reference: the FC Metallo case is here: https://canlii.ca/t/jgdc5 and the IAD Metallo decision set aside is here: https://canlii.ca/t/j52xd ) is that the Federal Court decision explicitly explains and documents important aspects of the process for PR card applications. Much of this was also covered in the IAD decision in Rastgou 2018 CanLII 129864 (here https://canlii.ca/t/hx738 ). But an IAD ruling is not binding outside the scope of the particular case. While a FC decision is not binding on other FCs in other cases, in regards to IAD decision-making it does carry a lot of weight and is to some extent binding.

Even though other IAD panels were not bound by the IAD decision in Rastgou, it warrants noting, as Justice McHaffie discussed in the FC Metallo decision, consistency in administrative decision-making can compel an explanation if an IAD panel departs from longstanding practices or established internal authority, and in Justice McHaffie's view, the IAD decision in Rastgou reflected such practices (citing and linking numerous other consistent rulings).

The key aspect clarified in these decisions is that it is NOT just the date of the PR card application that matters; actually the PR gets the benefit of either that date or the later date of an examination (typically the date of an interview, but potentially the date a processing agent or officer makes a decision on the application). Thus, in particular, if at the time a PR applies for a new PR card the PR is not in RO compliance, the PR will not lose PR status if the PR has been in Canada enough to be in compliance by the time there is a decision made on the PR card application or the PR is otherwise examined for RO compliance. Caveat: this is Justice McHaffie's view of how the IAD and IRCC have interpreted and applied the law, so it is not so much a definitive statement of judicial interpretation by the FC itself as it is an acknowledgement of how the administrative agency has interpreted and applied the law. Justice McHaffie waffles just a little, toward the end of the decision, about how definitive this interpretation is, which is fair, since in the case before him that issue was not squarely presented and statutory interpretation is primarily for the agency to determine.

A key reminder that is also a take-away from this case is that being issued a new PR card does not solve a PR's breach of the RO. That is, a PR card "does not confer, restore or reinstate PR status on the holder of the card."

The first of these propositions is counter to a lot of posts in this forum which assert that the date of the PR card application is determinative; at best that is misleading, and in some cases outright wrong.

The second of these propositions, that a PR card "does not confer, restore or reinstate PR status on the holder of the card," is consistent with the conventional wisdom, often stated here, that when it comes to determining a PR's admissibility, or inadmissibility for failing to comply with the RO, the dates on a PR card are NOT at all relevant . . . and indeed, just having a valid PR card is not relevant. Even being issued a new PR card, like Metallo was, does not necessarily mean the PR's status is valid (the PR card generally will not be issued unless PR status is valid, but the fact it is issued does not necessarily mean it is valid and does not overcome, for example, a previously issued 44(1) Report).



The above is why the Metallo case is relevant and informative.

Not sure it is necessary, but for clarity I will nonetheless address the following post:

This will only envourage people to try to delay processing in order to bank more time. Case also proves how the old PRs are not being crossmatched in the the ETA system. I wonder why we have residency rules sometimes. This man easily entered as a visitor for years when he shouldn't have been able to and was able to bank a good portion of his RO time after he applied for a new PR card. It also seems as though the brother only returned back to Canada in 2019 to try to make his H&C case stronger. Results of reconsideration should come out soon.

Other than as to the outcome for Metallo personally, the particular details in Metallo's situation are of little import generally, similar to those in the procedural side-trip the case took (with perhaps a small, illustrative exception; addressed in separate post below). Apprehending that this case might influence more than an isolated few PRs, if that many, seems to lean a bit toward paranoia.

Metallo, after all, is a PR who spent ten years living in Canada, essentially grew up in Canada, had extensive family in Canada (more than three dozen within a second-degree relationship), and later in life was coming to Canada EVERY YEAR for many years, spending a considerable amount of time in Canada (but less than enough to comply with the RO), before deciding to stay and apply for a PR card. Not likely to be a flood of other PRs in similar circumstances following that example. (Moreover, trying to follow that example is more difficult now given the eTA system; more below re this as well.)

Besides, the word is out. And has been out for a long time. The conventional wisdom in this and other forums is to take a different tack than what Metallo did.

Metallo apparently did not know it, but if he waited long enough to get back into compliance with the RO before making the PR card application, his PR status would have been secure. No need to sweat how well the H&C case would go. Just wait.

This has been rather well known, for a long while, that PRs abroad in breach of the Residency Obligation might be allowed entry into Canada without being screened or Reported in regards to the RO. And if they are in fact able to get to Canada and are allowed into Canada without being Reported, they can keep their PR status by waiting for two years (or less for some, like Metallo even, depending on the details of their breach) BEFORE making any application to IRCC (no application for a PR card, no application to sponsor family).

I'd estimate that the admonition to WAIT long enough to get back into RO compliance before making a PRC application has been posted a hundred times, perhaps hundreds of times, in this forum alone (I have personally repeated it dozens of times). It's no secret.

But not everyone potentially affected by this knows about it. Apparently Metallo did not. And occasionally the forum gets a query from this or that PR in breach, in Canada, who applied for a PR card failing to wait long enough to get into compliance. The Metallo case is mostly relevant, instructive, for this group.

In any event, if any other PRs are taking clues from the Metallo case, it would be to NOT follow Metallo's example, but rather to avoid it.

"Case also proves how the old PRs are not being crossmatched in the the ETA system."​

I do not know how well the system is actually functioning. But it is OBVIOUS that this case illustrates NOTHING about the eTA system since Metallo's trips to Canada were well BEFORE eTA was implemented . . . his PR card application was made following a return to Canada in 2015, more than a year before eTA was finally implemented (delayed from its planned March 2016 implementation), and eTA came after Metallo settled and was living in Ottawa. So NO, not at all, this case does NOT prove anything at all about the eTA system.

 

[dpenabill]

This gets weedy . . . but for those trying to fully grasp the process, largely for the purpose of helping those with questions, the principles involved warrant some further illumination.

Note Re Procedural Side-Trip Along the Way for Metallo:

There are some serious wrinkles in the procedural path that occurred in Metallo's case. They are not relevant to the key elements of the ruling, so I was reluctant to wander down this side-street. But they are at least a little interesting, and illustrative.

That procedural side-trip was interesting enough I had drafted an inquiry I seriously considered sending to Metallo's lawyer back in late 2019, when the IAD decision was published. My memory is not what it once was, and it was never all that great, so when I was looking over some old files containing notes about these issues, and came across a file with my draft inquiry to Metallo's first lawyer, it surprised me. Forgotten I had delved into Metallo's case to that depth nearly two years ago.

The facts stated in the FC decision answered the questions I had in 2019. In the 2019 IAD decision it appeared the 44(1) Report was issued to Metallo in July 2018, when Metallo had been living in Canada for at least two years (since June 2016). In fact that is precisely what the IAD decision stated:

Following a review of his application, a report under subsection 44(1) of the Act was issued on the July 10, 2018, for failing to comply with the residency obligation.​

As of that date, July 2018, Metallo had been living in Canada two years, since June 2016, in addition to the several hundred days total in Canada in the three years prior to that. Well over the 730 days within the prior five years threshold. My question, back in 2019, was why didn't Metallo get credit for the days he was in Canada up to the date the 44(1) Report was issued. (Spoiler alert: actually a 44(1) Report was issued November 14, 2016, and then, or so it appears, it was another one that was issued in July 2018.)

That is, Metallo should have been given credit for days in Canada up to the date of the examination itself. Section 28(b)(ii) IRPA (should link) explicitly states:

It is sufficient for a permanent resident to demonstrate at examination . . . that they have met the residency obligation in respect of the five-year period immediately before the examination​

In contrast, the regulation governing the calculation of RO compliance, Regulation 62(1) (should link) prescribes:

62 (1) Subject to subsection (2), the calculation of days under paragraph 28(2)(a) of the Act in respect of a permanent resident does not include any day after​

(a) a report is prepared under subsection 44(1) of the Act on the ground that the permanent resident has failed to comply with the residency obligation; or​

(b) a decision is made outside of Canada that the permanent resident has failed to comply with the residency obligation.​

So, as long as there has not been a 44(1) Report issued, a PR gets credit for days in Canada AFTER the date an application is submitted (for Metallo, however, an earlier Report had been issued, issued at a time he was still short of complying with the RO ) . . . be that an application for a new PR card, or an application to sponsor a family member. And, indeed, there really is no controversy about this. This much was known (despite more than a few posts here not acknowledging this). I have tried to make this clear in this forum for years. The IAD decision in Rastgou (2018, linked in first post here) helped document what I was saying. Indeed, the Minister's representative in Rastgou agreed (but not for purposes of evaluating H&C factors). And before the FC in Metallo, counsel for the Minister conceded this even as to evaluating H&C factors, but asserted that the difference in the extent of non-compliance was not enough to warrant a different H&C outcome (that is, the IAD panel decision to dismiss the appeal should be upheld).

So how was it, I was very curious back in 2019, that a PR represented by a lawyer did not get the benefit of credit for days in Canada prior to the date the 44(1) Report was issued. It was the right question to ask, but as I have noted, actually a 44(1) Report was issued in November 2016. And as of that date, November 2016, Metallo was still NOT in compliance with the RO. So, as of then, the question was whether there were sufficient H&C reasons to allow Metallo to keep status.

The IAD panel in Metallo got more than the relevant date of the 44(1) Report wrong. Part of the problem extrapolating useful information from these decisions is that they do, indeed, get some stuff wrong.

Consider this statement by the IAD in the Metallo case: "a PR must contribute to the Canadian economy though their work, which is not the case here." There is no support for this proposition in the Act, contrary to what this IAD panel, that is Linda Féquière, says. There is no requirement that PRs engage in employment in Canada in order to keep their PR status.

In any event, as sorted out by the FC, there was a 44(1) Report issued against Metallo in November, 2016, at which time he was still more than 120 days or so short of being in compliance with the RO. So the Report itself was, as they say, "valid in law," and whether Metallo should be allowed to keep PR status became a H&C case.

 

[JosephMG]

Excellent analysis @dpenabill. Thank you for taking the time to share with us.

I have a related query, that I did post separately, but my question has not received a response.

I wonder if you would provide your thoughts (not advice) on the following:

I plan to apply to renew my PR Card soon. I am physically present in Canada but do not meet the residency requirement. I'm short by 500 days and the card expires early October. I realise the "safest" thing to do would be to wait until I am back in compliance before I apply, but I cannot wait that long.

Would I be better to travel abroad, let the PR card lapse and then apply for a PRTD once overseas under H+C grounds (my mother has Alzheimer's and is now getting close to the end), or should I apply now for the PR card citing the H+C reasons on my application (I was her carer for a number of years until her placement in a residential facility last year).

Is there any distinct advantage or disadvantage to either method?

Thanks again for your time.

 

[armoured]

I plan to apply to renew my PR Card soon. I am physically present in Canada but do not meet the residency requirement. I'm short by 500 days and the card expires early October. I realise the "safest" thing to do would be to wait until I am back in compliance before I apply, but I cannot wait that long.

Would I be better to travel abroad, let the PR card lapse and then apply for a PRTD once overseas under H+C grounds (my mother has Alzheimer's and is now getting close to the end), or should I apply now for the PR card citing the H+C reasons on my application (I was her carer for a number of years until her placement in a residential facility last year).

I'm going to risk weighing in but with major caveats and cautions:
-I'm not sure what you mean by 'not being able to wait that long' - do you mean you can't wait to apply for the card? Or you can't wait to travel abroad?

You say you need to travel abroad - for the reasons you state and so for purposes here leaving out the 'remain in Canada until in compliance' option which is the only 'safe' one - far better (I believe) would be to return before your PR card expires.

If you return before your card expires, you would be taking the chance of being reported when arriving back in Canada (after which if they proceed you would appeal and make the same H&C arguments). But you would be in Canada and that seems to improve chances. There is also the chance you would not be reported (border officer at port of entry gives lenience effectively based on how you explain your non-compliance, i.e. more or less a verbal summary of your H&C issues) - and then you would be roughly in the same position as now, wait to get back in compliance. (No-one could make a reasonable guess on which of these two is more likely or your chances).

BUT: crucially and obviously this would require returning in advance of your PR card expiring. That may simply be a choice you will have to make - i.e. to depart your home country before your card expires, 'no matter what.'

You perhaps should consider legal counsel.

[I'm not going to comment here that obviously being 500 days short means really only having been in Canada for a little over a half-year in five years. That's obviously not particularly compelling. It will be all the less compelling if you're attempting to renew or get a PRTD while abroad. Remaining in Canada is really the only 'safe' approach.]

 

[dpenabill]

Excellent analysis @dpenabill. Thank you for taking the time to share with us.

I have a related query, that I did post separately, but my question has not received a response.

I wonder if you would provide your thoughts (not advice) on the following:

I plan to apply to renew my PR Card soon. I am physically present in Canada but do not meet the residency requirement. I'm short by 500 days and the card expires early October. I realise the "safest" thing to do would be to wait until I am back in compliance before I apply, but I cannot wait that long.

Would I be better to travel abroad, let the PR card lapse and then apply for a PRTD once overseas under H+C grounds (my mother has Alzheimer's and is now getting close to the end), or should I apply now for the PR card citing the H+C reasons on my application (I was her carer for a number of years until her placement in a residential facility last year).

Is there any distinct advantage or disadvantage to either method?

Thanks again for your time.

I do not do "advice," for many reasons.

As I recall I saw your post in the forum but did not have a helpful response. That happens in cases like these.

After all, should I or anyone suggest what your priorities should be in a situation like this? There's a rather harsh underside to that, where few want to go, and certainly not me.

You know what is safe relative to keeping PR status. With a breach to the extent of yours, you know that it will be very risky taking any other path.

What may seem like a very strong H&C case typically does not have great odds. As much as family health matters is referenced as a reason for failing to meet the RO, there is not a lot of support to indicate that works all that often.

The Metallo case offers little if anything you can use . . . well, it does illustrate, for example, that if you apply for and are issued a new PR card, that does NOT solve the RO compliance issue.

Indeed, applying for a new PR card is likely to result in a flag in your GCMS, which would make all the more likely you face elevated scrutiny in future transactions . . . such as the PoE screening if you return to Canada while your PR card is still valid . . . or if you apply for a PR TD while abroad . . . and even if you get a new PR card, the screening you go through the next time you return to Canada. REMEMBER: a new PR card does NOT restart the RO compliance clock . . . well, unless it is explicitly a positive H&C decision, but that is not how these things tend to go.

You will have to do what you have to do. Consulting with a lawyer could help you understand all the angles better, and make a more informed decision. But there is no good reason to sugarcoat things, you are in a tough spot.

 

[armoured]

far better (I believe) would be to return before your PR card expires.

Sorry, to clarify here as I think my phrasing above was unclear - returning before your PR card expires (if you must go) is, I think, better than trying to apply for a PRTD after your card expires.

Now the caveat I didn't explicitly state: I do not know much about the 'apply for a PR renewal under H&C grounds' option and so I'm not addressing specifically. I am under the impression that in the vast majority of cases, IRCC will not 'renew a card in advance on H&C grounds', nor give any approval to leave and come back in advance. The cases where they would do not apply to you - I think. But again, I don't know much about that.

Another point that is worth stating: if you MUST travel (in any event), the shorter the absence from Canada, probably the better - i.e. if you leave and stay out for a year that would likely reduce your chances compared to eg departing for a two week period for a truly urgent matter. That still doesn't mean leaving at all is 'advisable.'

Or in very rough order of 'safety': remain in Canada; return before PR card expires; and if truly unavoidable, apply for a PRTD after the card expires (and I am not implying this is 'safe' in any way, to be avoided - only putting here really as this seems to be one of the possibilities of what you've already decided may happen and to emphasize that the other two are 'better').

As @dpenabill mentioned, 'advice' is problematic. None of these options are good and may seriously impact your life, so any comments from others (eg me) can't be relied upon. You may have some painful options ahead, and my sympathies.

 

[JosephMG]

I'm going to risk weighing in but with major caveats and cautions:
-I'm not sure what you mean by 'not being able to wait that long' - do you mean you can't wait to apply for the card? Or you can't wait to travel abroad?

You say you need to travel abroad - for the reasons you state and so for purposes here leaving out the 'remain in Canada until in compliance' option which is the only 'safe' one - far better (I believe) would be to return before your PR card expires.

If you return before your card expires, you would be taking the chance of being reported when arriving back in Canada (after which if they proceed you would appeal and make the same H&C arguments). But you would be in Canada and that seems to improve chances. There is also the chance you would not be reported (border officer at port of entry gives lenience effectively based on how you explain your non-compliance, i.e. more or less a verbal summary of your H&C issues) - and then you would be roughly in the same position as now, wait to get back in compliance. (No-one could make a reasonable guess on which of these two is more likely or your chances).

BUT: crucially and obviously this would require returning in advance of your PR card expiring. That may simply be a choice you will have to make - i.e. to depart your home country before your card expires, 'no matter what.'

You perhaps should consider legal counsel.

[I'm not going to comment here that obviously being 500 days short means really only having been in Canada for a little over a half-year in five years. That's obviously not particularly compelling. It will be all the less compelling if you're attempting to renew or get a PRTD while abroad. Remaining in Canada is really the only 'safe' approach.]

Thanks for the reply.

I wouldn't leave Canada at all at the moment but for the fact that my mother is now deteriorating really rather quickly, and I don't think she has much longer left. Sadly, dementia seems to run in my family and I have seen how rapidly both of my aunts passed away at this stage of the disease. So I would be returning for my mother's last days, to bury her and settle her affairs.
This throws up the "not being able to wait that long" and also the doubt as to whether the card will be valid. Yes, if she dies in a week then I don't have a card issue. If it's in November then I do. I have no other family in my home country, just her. I'm conscious of the fact that I need to tend to my duties at home, but also aware that by doing so It may put my PR in jeopardy. Obviously familial duty comes first.

As for the time outside the country, I left Canada just over four years ago, after a vacation back home, when it became apparent that things were the way they were and my mother resembled a skeleton. I won't get into the ins and outs of the disease but it is complex and quite honestly a horrible thing to deal with. She was fighting me every step of the way in refusing help, I arranged social services and she was refusing them, not eating, wandering to childhood addresses. I filed for power of attorney but could not get it actioned until such time as I could prove she no longer had full control of her mental faculties. My solution in the interim was to be at home and care for her, get her medication, feed her and basically tend to her physiological and mental requirements.
Eventually the Power of attorney was enacted in Sep 2019. At that point I could have her undertake capability assessments, despite it being against her wishes. Then Covid happened and I couldn't get her placed into any care homes, as in the UK, where I live, they had stopped all admissions. I finally managed to get her into full time residential care in October 2020. I returned to Canada in January 2021.

It has been a very difficult period of my life and has taken a considerable mental toll. I have substantial documentation and correspondence with doctors, welfare staff, councils, police, care home and other agencies to validate my case.

So, just to wrap it up, given the uncertainty as to WHEN I need to return to the UK, am I best applying now for the PR card or waiting to see what happens and potentially require a PRTD?

Thanks again.

EDIT: Just saw your responses @dpenabill and @armoured. Thanks to you both. I realise they are just opinions and not advice. I think the best way is perhaps not to apply for the PR card, wait and see when the "event" happens, and if I need a PRTD at that point then apply from the UK. I'd be out of Canada for maybe a couple of weeks and have a death certificate to further substantiate my case.
I shall let you know what happens. All the best.

 

[armoured]

EDIT: Just saw your responses @dpenabill and @armoured. Thanks to you both. I realise they are just opinions and not advice. I think the best way is perhaps not to apply for the PR card, wait and see when the "event" happens, and if I need a PRTD at that point then apply from the UK. I'd be out of Canada for maybe a couple of weeks and have a death certificate to further substantiate my case.
I shall let you know what happens. All the best.

Good luck, and again, having dealt with and (to a far lesser degree) dealing with some of them now, it's a difficult and terrible situation - sympathies.

I repeat, I just don't know much about the 'apply for a PR card under H&C now' approach - so no comment on that.

The only thing to add that may be relevant - if you returned to Canada in January 2021, I assume you were out of compliance then - were there any comments or discussion with CBSA about the non-compliance on your arrival? Did they question you, do you recall what you responded, did they mention anything about the non-compliance and your reasons?

I don't know whether any such comments or lack of them would be determinative in future - but if there were, they might be at least relevant.

 

[JosephMG]

In January I was asked how long I had been out of Canada and the reasons for it. I recounted the same story as above, as concisely as I could. The border agent said that he was sorry to hear that, asked me about my quarantine plans and told me to make sure I stay in Canada for as long as possible now, which I have done. I was expecting secondary evaluation but he then proceeded to say "welcome home" and gave me my documents back, which really did put a lump in my throat and I thought was a very kind thing to do.

Sorry for derailing this thread, but once again thank you both for your insight.

 

[armoured]

In January I was asked how long I had been out of Canada and the reasons for it. I recounted the same story as above, as concisely as I could. The border agent said that he was sorry to hear that, asked me about my quarantine plans and told me to make sure I stay in Canada for as long as possible now, which I have done. I was expecting secondary evaluation but he then proceeded to say "welcome home" and gave me my documents back, which really did put a lump in my throat and I thought was a very kind thing to do.

I don't think there's much can be added to previous points - one could speculate about whether the officer put notes in the file and if so, what exactly or if any detail - but from the sounds of it at least any notes probably wouldn't be anything explicitly negative.

And evidence that they can and do (sometimes anyway) listen and decide. That's not nothing, as they say.

All the best.

 

[canuck78]

The primary reason for discussing the Metallo case (for reference: the FC Metallo case is here: https://canlii.ca/t/jgdc5 and the IAD Metallo decision set aside is here: https://canlii.ca/t/j52xd ) is that the Federal Court decision explicitly explains and documents important aspects of the process for PR card applications. Much of this was also covered in the IAD decision in Rastgou 2018 CanLII 129864 (here https://canlii.ca/t/hx738 ). But an IAD ruling is not binding outside the scope of the particular case. While a FC decision is not binding on other FCs in other cases, in regards to IAD decision-making it does carry a lot of weight and is to some extent binding.

Even though other IAD panels were not bound by the IAD decision in Rastgou, it warrants noting, as Justice McHaffie discussed in the FC Metallo decision, consistency in administrative decision-making can compel an explanation if an IAD panel departs from longstanding practices or established internal authority, and in Justice McHaffie's view, the IAD decision in Rastgou reflected such practices (citing and linking numerous other consistent rulings).

The key aspect clarified in these decisions is that it is NOT just the date of the PR card application that matters; actually the PR gets the benefit of either that date or the later date of an examination (typically the date of an interview, but potentially the date a processing agent or officer makes a decision on the application). Thus, in particular, if at the time a PR applies for a new PR card the PR is not in RO compliance, the PR will not lose PR status if the PR has been in Canada enough to be in compliance by the time there is a decision made on the PR card application or the PR is otherwise examined for RO compliance. Caveat: this is Justice McHaffie's view of how the IAD and IRCC have interpreted and applied the law, so it is not so much a definitive statement of judicial interpretation by the FC itself as it is an acknowledgement of how the administrative agency has interpreted and applied the law. Justice McHaffie waffles just a little, toward the end of the decision, about how definitive this interpretation is, which is fair, since in the case before him that issue was not squarely presented and statutory interpretation is primarily for the agency to determine.

A key reminder that is also a take-away from this case is that being issued a new PR card does not solve a PR's breach of the RO. That is, a PR card "does not confer, restore or reinstate PR status on the holder of the card."

The first of these propositions is counter to a lot of posts in this forum which assert that the date of the PR card application is determinative; at best that is misleading, and in some cases outright wrong.

The second of these propositions, that a PR card "does not confer, restore or reinstate PR status on the holder of the card," is consistent with the conventional wisdom, often stated here, that when it comes to determining a PR's admissibility, or inadmissibility for failing to comply with the RO, the dates on a PR card are NOT at all relevant . . . and indeed, just having a valid PR card is not relevant. Even being issued a new PR card, like Metallo was, does not necessarily mean the PR's status is valid (the PR card generally will not be issued unless PR status is valid, but the fact it is issued does not necessarily mean it is valid and does not overcome, for example, a previously issued 44(1) Report).



The above is why the Metallo case is relevant and informative.

Not sure it is necessary, but for clarity I will nonetheless address the following post:



Other than as to the outcome for Metallo personally, the particular details in Metallo's situation are of little import generally, similar to those in the procedural side-trip the case took (with perhaps a small, illustrative exception; addressed in separate post below). Apprehending that this case might influence more than an isolated few PRs, if that many, seems to lean a bit toward paranoia.

Metallo, after all, is a PR who spent ten years living in Canada, essentially grew up in Canada, had extensive family in Canada (more than three dozen within a second-degree relationship), and later in life was coming to Canada EVERY YEAR for many years, spending a considerable amount of time in Canada (but less than enough to comply with the RO), before deciding to stay and apply for a PR card. Not likely to be a flood of other PRs in similar circumstances following that example. (Moreover, trying to follow that example is more difficult now given the eTA system; more below re this as well.)

Besides, the word is out. And has been out for a long time. The conventional wisdom in this and other forums is to take a different tack than what Metallo did.

Metallo apparently did not know it, but if he waited long enough to get back into compliance with the RO before making the PR card application, his PR status would have been secure. No need to sweat how well the H&C case would go. Just wait.

This has been rather well known, for a long while, that PRs abroad in breach of the Residency Obligation might be allowed entry into Canada without being screened or Reported in regards to the RO. And if they are in fact able to get to Canada and are allowed into Canada without being Reported, they can keep their PR status by waiting for two years (or less for some, like Metallo even, depending on the details of their breach) BEFORE making any application to IRCC (no application for a PR card, no application to sponsor family).

I'd estimate that the admonition to WAIT long enough to get back into RO compliance before making a PRC application has been posted a hundred times, perhaps hundreds of times, in this forum alone (I have personally repeated it dozens of times). It's no secret.

But not everyone potentially affected by this knows about it. Apparently Metallo did not. And occasionally the forum gets a query from this or that PR in breach, in Canada, who applied for a PR card failing to wait long enough to get into compliance. The Metallo case is mostly relevant, instructive, for this group.

In any event, if any other PRs are taking clues from the Metallo case, it would be to NOT follow Metallo's example, but rather to avoid it.

"Case also proves how the old PRs are not being crossmatched in the the ETA system."​

I do not know how well the system is actually functioning. But it is OBVIOUS that this case illustrates NOTHING about the eTA system since Metallo's trips to Canada were well BEFORE eTA was implemented . . . his PR card application was made following a return to Canada in 2015, more than a year before eTA was finally implemented (delayed from its planned March 2016 implementation), and eTA came after Metallo settled and was living in Ottawa. So NO, not at all, this case does NOT prove anything at all about the eTA system.

I have also given the advice that one should remain in Canada for 730 days or more before applying for a PR card if you are lucky enough and didn’t get reported when entering Canada or get flagged for other reasons for not being in compliance with your RO. My comment is about the ability to continue to appeal or do anything to prolong your stay in Canada in order to then have your time in Canada during the last 5 years considered not your RO when you first got reported. If you have been reported and are trying to retain your PR you end up being rewarded for the slow bureaucratic process or rewarded for your ability to prolong the process as long as possible. The slower the process, the better your chance of retaining your PR.

 

[dpenabill]

In January I was asked how long I had been out of Canada and the reasons for it. I recounted the same story as above, as concisely as I could. The border agent said that he was sorry to hear that, asked me about my quarantine plans and told me to make sure I stay in Canada for as long as possible now, which I have done. I was expecting secondary evaluation but he then proceeded to say "welcome home" and gave me my documents back, which really did put a lump in my throat and I thought was a very kind thing to do.

Sorry for derailing this thread, but once again thank you both for your insight.

It has been a good while since I returned to Canada by air, so I am not personally well acquainted with how things go upon arrival at an airport these days. When driving across the border (which, for me, even doing that was fairly long ago now), the difference between the PIL (Preliminary Inspection Line) screening and Secondary is clear: the booth is the PIL, and Secondary is anything beyond that. My sense is that it can be less clear when going through what many refer to as "customs" at an airport Port-of-Entry. Covid-related screening may have clouded things even more.

Border officials often (perhaps generally) do not formally declare they are conducting a Secondary examination. And there are various types of Secondary examinations, albeit there are two main groupings: customs and immigration, which can be done jointly.

I mention this as a backdrop because it would be almost certain the exchange you describe resulted in notes to your file, quite likely constituting an "alert," IF that exchange took place during a Secondary screening. And, I wonder if given the necessary Covid-related screening of travelers, whether all travelers are, in effect, going through Secondary screening these days.

Even if that exchange was not in the context of a Secondary examination, the nature of the questions suggests that with or without an alert, a RO compliance issue is readily apparent to any official you are dealing with during any transaction with CBSA or IRCC.

But the RO compliance issue was probably more or less apparent anyway. These things tend to be more readily indicated to officials these days, including PIL border officials.

Which does not change the rather heart-wrenching circumstances confronting you (offering my condolences even though that seems a rather faint gesture, or perhaps even lame). It does, however, highlight the extent to which you will be relying, if not totally dependent, on the weight of H&C reasons if you travel abroad. The border official's reaction in January is probably a good clue, but of course is no guarantee, rather far from it unfortunately.

It is possible to review some of the more salient aspects of your situation and correlate those to risk-trends. More obvious examples of this include the longer you are in Canada and then the less time you are abroad, probably improves your odds of a favourable outcome; and just being in Canada now changes the equation some, not the least of which is it means you can get a special PR TD to return to Canada, attendant an appeal, even if the application for a PR TD based on H&C is initially denied. BUT that is an assessment probably not worth pursuing because it would be far, far too speculative to make a decision based on an expectation of H&C relief. This reveals a rather harsh side to what is supposed to be a humane and compassionate side of the RO enforcement scheme, the impact of uncertainty against the somewhat promised, but not really promised, availability of H&C relief. That, however, is inherent in drawing lines subject to bureaucratic discretion in assessing criteria for allowing some going over the lines.

None of which, I am afraid, helps you much. It's a tough situation.

It might be worth considering, if it is possible for you to travel via the U.S., and thus approach the Canadian border by private transportation, returning to Canada by this route rather than applying for a PR TD while abroad. If for no other reason than to avoid remaining abroad waiting for a decision on the PR TD application, or if that is denied, then having to make a request for and wait to be issued a special PR TD to return to Canada pending an appeal.

I wish for things to go as well for you as they can in such circumstances.

 

[dpenabill]

I have also given the advice that one should remain in Canada for 730 days or more before applying for a PR card if you are lucky enough and didn’t get reported when entering Canada or get flagged for other reasons for not being in compliance with your RO. My comment is about the ability to continue to appeal or do anything to prolong your stay in Canada in order to then have your time in Canada during the last 5 years considered not your RO when you first got reported. If you have been reported and are trying to retain your PR you end up being rewarded for the slow bureaucratic process or rewarded for your ability to prolong the process as long as possible. The slower the process, the better your chance of retaining your PR.

I continue to have trouble following your logic. Nothing in the Metallo decision suggests he is or should in any way be rewarded for how slow the bureaucratic process was following the first instance in which his RO compliance was examined (November 14, 2016), and a 44(1) Report prepared. There is nothing to indicate Metallo benefitted (other than being able to live and work in Canada in the meantime) from the process being prolonged. By the time he was actually delivered a 44(1) Report (July 10, 2018), after all, he had in fact been in Canada well over the 730 day threshold (over a 1000 days it appears), and there is no hint he is getting any benefit from that. Justice McHaffie does not even definitively rule that Metallo must be given credit for days in Canada right up to when the initial 44(1) Report was prepared (again, November 14, 2016), even though that is the issue which his decision is based on, which McHaffie pronounces is "the main issue," and his decision tends to support that view based, in significant part, on that being the generally accepted approach by both the Minister and IAD.


Apart From the FC Decision, Might Metallo (or others) Benefit From Prolonged Processing Timelines in IAD Proceedings?

Again, there is nothing in the FC Metallo decision suggesting he should benefit, let alone be given a "credit," for time in Canada after the Report was issued and pending the IAD or other proceedings in the case.

In contrast, here too the conventional wisdom often expressed in this forum is that a PR who appeals a 44(1) Report, or the denial of a PR TD, should STAY in Canada pending the appeal. Nothing in the Metallo case points to or illustrates this. But it is widely and well-known that PRs who remain in Canada pending the appeal tend to have more favourable outcomes than those who are mostly outside Canada pending the appeal; and the longer, it seems, the better. Which at least gives the impression that the more prolonged the appeal process is, the more a PR can benefit by remaining in Canada.

Which is what it appears you are expressing concern about, that this probably encourages PRs to appeal and if possible prolong the process during the appeal, aiming to get sufficient additional benefit for time in Canada in the meantime

And this may indeed play a role when the Metallo case appears before another IAD panel. Metallo might get some benefit from his days in Canada after the date the initial Report was prepared (again, November 14, 2016), for days in Canada up to when he was actually delivered a 44(1) Report (July 10, 2018), plus the three additional years he has been in Canada since then (it appears, assuming he has been living in Canada during this time). But there is nothing in Justice McHaffie's decision suggesting Metallo should get credit or otherwise benefit from that, let alone directing that he get any such benefit let alone a credit.

If Metallo gets such "credit" (which would not be credit toward meeting the RO but credit in the sense of a positive H&C factor) that would be consistent with numerous other IAD decisions which might appear to give some positive weight to days in Canada after being Reported (or denied a PR TD). Which is what the conventional wisdom in this forum is largely based on, the fact that it appears those who stay in Canada pending their appeal have better results than those who do not.

***Note regarding what follows: I will be making observations based on my memory of many IAD decisions, without, for now anyway, revisiting the research, so without citation or links. This is a subject I have followed closely for years, so I think my analysis is at least close even though others may be able to clarify or correct certain aspects. ***

How and Why PRs MIGHT Benefit, at least some, From Staying In Canada Pending Appeal; ​

​

That is "Credit" Versus Favourable Factor versus the Absence of a Negative Factor:​

Again, the conventional wisdom in this forum, which seems well founded, is that PRs in breach of the RO can improve their odds in an appeal if they stay in Canada pending the appeal. Indeed, this is a significant element underlying suggestions that PRs in breach might consider, if it is possible, traveling to Canada via the U.S., not just to avoid the PR TD application process with some chance they might be waived into Canada without being reported (so not having to appeal, even though they would then have to stay and wait, typically two years, until when they are in full RO compliance, to apply for a new PR card or travel abroad), but recognizing that even if Reported they will be allowed to enter Canada, and if they do so, appeal, and then stay, that can improve their odds of keeping their PR status.

BUT that comes with HUGE CAVEATS. Staying does NOT guarantee a favourable H&C outcome in the appeal. NOT even close.

(No hint, for example, that Metallo benefitted much, if any at all, from remaining in Canada after the Report was prepared.)

This leads to unraveling the H&C analysis itself, which for PR RO compliance cases is way different than immigration related H&C cases in other contexts, even though some key factors are to some extent the same, such as BIOC (best interest of child) and hardship if deported. The PR RO H&C case is typically, usually, mostly about whether the PR deserves a chance to keep PR status. The criteria and the scope of discretion are broader, less well defined, less structured in application, than in much if not most other immigration rule enforcement. This is in the formal decision-making environment, by IAD panels, let alone in the more informal decision-making settings, including the most informal, the PIL officer who has discretion to waive a PR through without further examination or refer the PR to Secondary, with no significant review or oversight of that officer's exercise of discretion.

Way too many tangents to attempt, here, a comprehensive outline of how such discretion is actually employed. Obviously, the breadth of such discretion in conjunction with highly variable, and to some extent nebulous criteria, results in widely disparate results. Which is why no prudent observer here attempts to forecast specific outcomes but for the most obvious cases, and even in the latter doing so with looming caveats and disclaimers, for sure NO guarantees.

It may be worth breaking down the H&C analysis relative to categories of weight rather than the various factors or considerations themselves. By the way, however, the factors and considerations themselves are listed over and over again in many sources, from Operational Manuals and PDIs, to IAD and FC decisions. A quick, superficial, and not exhaustive outline, includes --

-- extent of breach​

-- -- # days outside Canada within relevant five years​

-- -- # days in Canada during relevant five years​

-- reasons for or nature of absence​

-- timeliness and reasonableness of attempts to return to Canada​

-- BIOC​

-- establishment in Canada​

-- ties in Canada (especially family)​

-- hardship resulting from loss of PR status​

In terms of the weight given this or that consideration, this or that factor, this is typically discussed in terms of --

-- positive weight or favourable factor​

-- negative weight or unfavourable factor​

-- neutral weight​

Each addressed, respectively, by various quantitative characterizations, which is one of the aspects of the H&C analysis where approaches tend to diverge. One decision-maker, for example, might characterize a short-fall from compliance by 60 or 90 days quite differently than another (there are enough actual cases one could, doing some serious homework, catalog much of this based on IAD decisions -- but the usefulness of that would be rather limited given how utterly impossible it is to map particular factors to particular outcomes; many of us refer to risk-trends or something similar, as the best-guess-estimate, typically no more precise than referencing the factor might increase or decrease odds).

Leading to two questions I am trying to address (which will require continuing this in another post):

-- What sort of "credit" will Metallo, and similarly Rastgou, get for days in Canada after making application up to date of 44(1) Report?​

-- What sort of "credit" or benefit might a PR get for staying in Canada pending an appeal?​

To be continued . . .