Update to reference Saeidi v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129890 (CA IRB), http://canlii.ca/t/hx72g which confirms date of examination, NOT date of PRC application, establishes the relevant five years for calculating RO compliance.
One could more or less infer, based on the outcome anecdotally reported by @Ninio, confirmation of my previous observations that if a PR stays in Canada after making a PRC application, those days continue to COUNT toward RO compliance, and as long as the PR has enough presence as of the date of a formal RO Examination status should not be lost despite being in breach as of the date of the PRC application. BUT, as I otherwise often caution, the outcome for a particular PR should NOT be relied on as establishing what the rule is, let alone what will happen for another PR in a similar situation.
Thus it is helpful to refer to an official source confirming that the relevant five year period for calculating RO compliance is the date of the examination . . . NOT the date the PR card application was made. Which the IAD in Saeidi v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129890 (CA IRB), http://canlii.ca/t/hx72g does.
In this case the PRC application was made before the fifth year anniversary of the date of landing, and the PR's submissions were inconsistent with the date of the application and other transactional dates in the course of processing the PRC application and subsequent 44(1) Report for Inadmissibility due to a breach of the RO. There is, consequentially, a convoluted accounting of dates . . . BUT ultimately there are two competing periods of time relevant to the assessment of RO compliance:
Consistent with my previous observations, thus no surprise, the IAD ruled that the appropriate five year period for calculating RO compliance is the latter, the date of the actual examination. For this particular PR this did NOT favour him, since he was actually outside Canada most of the time period between the date the application was submitted (September 2015) and the date of the examination (July 2015), including after October 2015 (fifth year anniversary of landing) . . . and his credits for days present DECREASED.
In addition to confirming that for purposes of determining whether to issue a Departure Order (decision terminating PR status) the relevant calculation period is based on the date of the formal RO Determination, in a more general sense this further confirms some observations about prudent practices, NAMELY THAT THE PR cutting-it-close OR IN BREACH as of the date a PRC application is made, can benefit from STAYING IN CANADA after making the PRC application. And this is NOT merely about H&C relief. Days in Canada continue to count toward RO compliance right up to the date of the formal RO examination/determination.
(There are, of course, potential wrinkles in the details for particular PRs, such as situations in which, while time is passing in the process, some of a PR's days present might fall out of the calculation for being more than five years past. And this is of course another reason, and a big reason, why it is so dangerous to extrapolate what will happen to a given individual based on what has happened for someone else: there is almost always some variation in the factual details, and oft times those variations can dictate a different result.)
The H&C analysis in this case is also informative and instructive, and illustrates how complicated various factors can be.
Additional IAD case similarly concluding the relevant time period is based on the date of the interview/examination and NOT the date the PRC application is made:
see Petrov v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 13985 (CA IRB), http://canlii.ca/t/hr31f
The panel stated:
(here too there were some other dates involved, but ultimately it is NOT the date of the PRC application but the date of the interview/meeting/examination that establishes the relevant five year period)
I came across these cases in my continuing homework to more fully and thoroughly outline the criteria for obtaining the working-abroad-for-a-Canadian-business credit . . . still working on that, albeit sporadically as time allows.
One could more or less infer, based on the outcome anecdotally reported by @Ninio, confirmation of my previous observations that if a PR stays in Canada after making a PRC application, those days continue to COUNT toward RO compliance, and as long as the PR has enough presence as of the date of a formal RO Examination status should not be lost despite being in breach as of the date of the PRC application. BUT, as I otherwise often caution, the outcome for a particular PR should NOT be relied on as establishing what the rule is, let alone what will happen for another PR in a similar situation.
Thus it is helpful to refer to an official source confirming that the relevant five year period for calculating RO compliance is the date of the examination . . . NOT the date the PR card application was made. Which the IAD in Saeidi v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 129890 (CA IRB), http://canlii.ca/t/hx72g does.
In this case the PRC application was made before the fifth year anniversary of the date of landing, and the PR's submissions were inconsistent with the date of the application and other transactional dates in the course of processing the PRC application and subsequent 44(1) Report for Inadmissibility due to a breach of the RO. There is, consequentially, a convoluted accounting of dates . . . BUT ultimately there are two competing periods of time relevant to the assessment of RO compliance:
-- the five year period based on landing to fifth year anniversary; October 15, 2010 to October 15, 2015 (again, PRC application was in September 2015)
-- the five year period immediately preceding the date the PR came in for an interview/examination: July 14, 2011 to July 14, 2016
-- the five year period immediately preceding the date the PR came in for an interview/examination: July 14, 2011 to July 14, 2016
Consistent with my previous observations, thus no surprise, the IAD ruled that the appropriate five year period for calculating RO compliance is the latter, the date of the actual examination. For this particular PR this did NOT favour him, since he was actually outside Canada most of the time period between the date the application was submitted (September 2015) and the date of the examination (July 2015), including after October 2015 (fifth year anniversary of landing) . . . and his credits for days present DECREASED.
In addition to confirming that for purposes of determining whether to issue a Departure Order (decision terminating PR status) the relevant calculation period is based on the date of the formal RO Determination, in a more general sense this further confirms some observations about prudent practices, NAMELY THAT THE PR cutting-it-close OR IN BREACH as of the date a PRC application is made, can benefit from STAYING IN CANADA after making the PRC application. And this is NOT merely about H&C relief. Days in Canada continue to count toward RO compliance right up to the date of the formal RO examination/determination.
(There are, of course, potential wrinkles in the details for particular PRs, such as situations in which, while time is passing in the process, some of a PR's days present might fall out of the calculation for being more than five years past. And this is of course another reason, and a big reason, why it is so dangerous to extrapolate what will happen to a given individual based on what has happened for someone else: there is almost always some variation in the factual details, and oft times those variations can dictate a different result.)
The H&C analysis in this case is also informative and instructive, and illustrates how complicated various factors can be.
Additional IAD case similarly concluding the relevant time period is based on the date of the interview/examination and NOT the date the PRC application is made:
see Petrov v Canada (Public Safety and Emergency Preparedness), 2018 CanLII 13985 (CA IRB), http://canlii.ca/t/hr31f
The panel stated:
There was some confusion between the parties at the hearing with respect to the relevant five-year period to be considered in this appeal. It seems that on February 5, 2013, the appellant submitted an application to renew his permanence resident card.[2] On July 3, 2013, the appellant met with an immigration officer responsible for assessing his compliance with the residency obligation. . . .
. . . I find that the relevant period is from July 3, 2008, to July 3, 2013.
. . . I find that the relevant period is from July 3, 2008, to July 3, 2013.
(here too there were some other dates involved, but ultimately it is NOT the date of the PRC application but the date of the interview/meeting/examination that establishes the relevant five year period)
I came across these cases in my continuing homework to more fully and thoroughly outline the criteria for obtaining the working-abroad-for-a-Canadian-business credit . . . still working on that, albeit sporadically as time allows.
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