Metallo v. Canada 2021 FC: Reshaping Residency Obligation

Immigration Cases

In the “Metallo v. Canada 2021 FC 575” case, the Federal Court critically reviewed the IAD’s approach to calculating the five-year residency period for permanent residents under IRPA section 28. The court challenged the IAD’s use of the permanent resident card application date as the period’s end date. This approach had significantly impacted Mr. Metallo’s residency status, leading to a substantial shortfall. The court deemed this method unreasonable due to the IAD’s deviation from the usual practice without adequate justification. Typically, the decision date or the inadmissibility report’s preparation date marks the period’s end, especially for applicants within Canada. This decision highlights the need for consistent and well-justified administrative decision-making in immigration law. It also affects how authorities assess residency obligations, particularly in humanitarian and compassionate considerations.

Summary of Metallo v. Canada 2021 FC

In the “Metallo v. Canada (Citizenship and Immigration), 2021 FC 575” case, Giacomo Metallo, a permanent resident of Canada since 1972, faced a challenge regarding his residency status. He had spent his childhood in Canada before moving back to Italy in 1982 with his family. Years later, he began visiting Canada and decided to stay permanently. Consequently, Metallo applied for a permanent resident card in 2015.

An immigration officer’s review 2016 determined that he did not meet the residency obligation under the Immigration and Refugee Protection Act (IRPA), section 28. This section requires permanent residents to be physically present in Canada for 730 days each five years.

The officer’s assessment, which considered two different five-year periods ending on the date of Metallo’s application, concluded that he had a significant shortfall in meeting this residency requirement. Consequently, they issued a departure order. However, Metallo appealed to the Immigration Appeal Division (IAD), which dismissed his appeal. A subsequent Judicial Review application sent the case to the Federal Court.

The Federal Court reviewed this decision, focusing on the IAD’s choice of five years for assessing residency obligations and its impact on the humanitarian and compassionate (H&C) considerations in Metallo’s case.

The decision

In the “Metallo v. Canada (Citizenship and Immigration), 2021 FC 575” case, the Federal Court overturned the Immigration Appeal Division’s (IAD) decision. The IAD had dismissed Giacomo Metallo’s appeal regarding his residency status and issued a departure order. The court found the IAD’s method for calculating the five-year residency period, which led to a significant shortfall, unreasonable. The case was returned to the IAD for a new decision by a different panel.

I tried to locate the subsequent IAD hearing online, but I couldn’t. It appears the Minister has settled with Mr. Metallo at an ADR conference.

Notable sections of the law in Metallo v. Canada 2021 FC

This case cites the following sections of IRPA and IRPR. Of course, these are the ones I spotted on CanLII.

Immigration and Refugee Protection Act, SC 2001, c 27:

  • Section 28: This section outlines the residency obligation for permanent residents of Canada. It requires permanent residents to be physically present in Canada for at least 730 days every five years.
  • Subsection 28(2): This subsection provides specific conditions under which a permanent resident is considered to comply with the residency obligation. It includes being physically present in Canada, accompanying a Canadian citizen who is a family member, or working for a Canadian business or public service.
  • Section 44: This section pertains to reports on inadmissibility. It outlines the process for preparing reports alleging a person is inadmissible to Canada under the Act.
  • Subsection 44(1): Subsection 44(1) allows an immigration officer to prepare a report if they believe on reasonable grounds that a person is inadmissible to Canada.
  • Subsection 67(1): This section deals with the appeal process for immigration decisions. It outlines the grounds for an appeal to the Immigration Appeal Division (IAD), including considerations based on humanitarian and compassionate grounds.

Immigration and Refugee Protection Regulations, SOR/2002-227:

  • Section 28: This section defines how a person makes an application. It includes submitting a written application, seeking to enter or transit through Canada, and claiming refugee protection.
  • Subsection 62(1): This subsection outlines the circumstances under which the residency obligation is assessed. It includes considerations for when a permanent resident is outside Canada and the process for determining compliance with the residency requirement.

Cited cases

Metallo v. Canada 2021 FC cites the following cases.

Supreme Court and the FCA

Federal Court

After 2015

On or before 2015

Immigration and Refugee Board of Canada (IRB)

A list of cases that cite Metallo v. Canada

Thanks to CanLII, I located the following case laws when writing this article. All of them cite Metallo. Consequently, we can understand how courts treat this case law in their decisions.

How Metallo v. Canada 2021 FC could assist the Minister’s Counsel in future cases

As the Minister’s Counsel handling future residency obligation cases, the “Metallo v. Canada (Citizenship and Immigration), 2021 FC 575” decision provides several valuable insights and strategies.

Disclaimer: Please note that the following text (and this article in general) is intended for educational and informational purposes only and does not constitute legal advice. These suggestions are based on my understanding and analysis of this specific case. Every legal situation is unique, and readers are encouraged to consult with a qualified lawyer for advice on their specific legal matters. 
  1. Upholding Standard Five-Year Period Assessments: Emphasize the importance of consistency in selecting the five years for residency assessments, referencing Para 18-22. Argue for the standard approach unless exceptional circumstances justify a departure.
  2. Emphasizing Significance of Residency Shortfalls: Highlight the material impact of residency shortfalls on H&C considerations, using Para 26-27. Stress the importance of meeting residency obligations to defend the Minister’s position.
  3. Justifying Departures from Established Practices: In cases of deviation from standard practices, use Para 24-25 to guide the provision of clear and detailed justifications, thus reinforcing the Minister’s stance.
  4. Critical Analysis of H&C Factors: Use Para 30-34 to critically assess H&C factors, focusing on aspects that reinforce the Minister’s position on upholding immigration regulations.
  5. Adherence to Precedent and Legal Interpretation: Refer to Para 29 to align with legal precedents and interpretations that support the Minister’s decisions, particularly regarding procedural aspects.

How Metallo v. Canada 2021 FC could assist the applicant’s counsel in future cases

If you are an applicant’s counsel, you may find the following points helpful for future cases. P

Disclaimer: Please note that the following text (and this article in general) is intended for educational and informational purposes only and does not constitute legal advice. These suggestions are based on my understanding and analysis of this specific case. Every legal situation is unique, and readers are encouraged to consult with a qualified lawyer for advice on their specific legal matters.
  1. Challenging Inconsistencies in Five-Year Period Selection: Use Para 18-22 to challenge any inconsistencies in how the five years for residency assessment is determined, advocating for the standard approach that benefits the applicant.
  2. Highlighting Unfair Shortfall Assessments: Reference Para 26-27 to argue against unfair assessments of residency shortfalls, particularly when these have significant implications for H&C considerations.
  3. Questioning Deviations from Established Practices: Utilize Para 24-25 to question and challenge any deviations from established practices, demanding clear and justified reasons for any such departures.
  4. Emphasizing Comprehensive H&C Factor Analysis: Draw on Para 30-34 to ensure a comprehensive and fair analysis of H&C factors, stressing any aspects favouring the applicant.
  5. Advocating for Adherence to Precedent: Use Para 29 to advocate for decisions in line with legal precedents and interpretations supporting the applicant’s case.
  6. Ensuring Procedural Fairness: Cite the general principles from the decision to ensure procedural fairness is upheld in all aspects of the applicant’s case.

Conclusion

The Metallo v. Canada 2021 FC clarifies the residency obligation calculations. Thus, we could consider the following approaches.

  • For applicants within Canada: The five-year residency calculation’s end date is generally when the officer’s decision is made or when the inadmissibility report is prepared.
  • For applicants outside Canada: The end date is usually the date of the application, particularly for those applying for a permanent resident travel document.

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    Al Parsai

    This article has been expertly crafted by Al Parsai, a distinguished Regulated Canadian Immigration Consultant (L3 RCIC-IRB – Unrestricted Practice) hailing from vibrant Toronto, Canada. Al's academic achievements include an esteemed role as an adjunct professor at prestigious Queen's University Law School and Ashton College, as well as a Master of Laws (LLM) degree from York University. A respected member of CICC and CAPIC organizations, Al's insights are further enriched by his experience as the dynamic CEO of Parsai Immigration Services. Guiding thousands of applicants from over 55 countries through the immigration process since 2011, Al's articles offer a wealth of invaluable knowledge for readers.