Fed.court: 1101 days, missing passport...

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Another interesting case from Fed. court website:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION vs. DJENABOU HOPE DIALLO
http://decisions.fct-cf.gc.ca/en/2012/2012fc1537/2012fc1537.html

Applicant had:
1157 days of basic and 1101 days of physical presence
Children in Canada
Extensive evidence (medical visits, wireless bills, statements, etc.)
But:
Missing diplomatic passport (that covered 9 months out of the reference period)
Husband applied separately
Outcome:
Negative for the applicant (MCI's appeal allowed)
While it is debatable how much of the outcome is on the applicant, I find interesting the following 

[22]          
In the
present case, the question of the diplomatic passport takes on even more
importance because the respondent accumulated only six (6) days of presence
over the minimum required by the Act. As counsel for the applicant rightly
pointed out at the hearing before this Court, if the respondent left Canada
even once, that could mean that she did not attain the minimum number of days
of presence in Canada under the Act. Accordingly, in the circumstances, the
Court finds that the citizenship judge should have dealt with the absence of
such a central and determinative piece of evidence in her decision. The Court
can only observe that the notes of the citizenship judge show that this aspect
was completely disregarded. 
[23]          
Because
of the occasional gaps in the documentary evidence, as voluminous and
substantial as it is (863 pages), combined with the absence of the diplomatic
passport, it would be unreasonable to find, on a balance of probabilities, that
the respondent was in Canada for the required period preceding her citizenship
application. 

There was also a reference to the paragraph from Canada (Minister of Citizenship and Immigration) v El Bousserghini,
2012 FC 88 that is interesting as well and I think was not covered in our previous discussions (paragraph 19 - mentioning "excessive burden"):

 More specifically, in El Bousserghini,
the respondents had been required to turn in their old passports to the
Moroccan government, and they had explained this fact to the citizenship judge.
The Court stated the following at paragraph 19: 
[19] Regarding the first point, in my opinion the Minister imposes an
excessive burden on the respondents. In civil cases, the applicable standard of
proof is the balance of probabilities. Although citizenship is a privilege, the
Act does not require corroboration. It is the responsibility of the original
decision-maker, taking the context into consideration, to determine the extent
and nature of the evidence required (Mizani v Canada (Minister of Citizenship
and Immigration); Abbott Estate v Toronto Transportation Commission;
Lévesque v Comeau). I agree that it would be extremely unusual and
perhaps reckless, to rely on the testimony of an individual to establish his
residency, with no supporting documentation. I also agree that passports are
the best evidence, as long as they have been stamped at each point of entry.
Whether it was a failure to produce a document or a failure to call a witness
who could corroborate the facts in the citizenship application, the
decision-maker could come to an adverse finding. No questions were raised
regarding the respondents’ explanation that they had to turn in their
passports to the Moroccan government to obtain new ones. Although it would
have been preferable for them to have kept a copy of these passports, the
respondents cannot be punished for not doing so considering the judge was
convinced they were physically present in Canada.

[citations omitted; emphasis added]

Lessons learned?
(again) Pretty much anything can be called incomplete
You better have all your passports
Buffer days? (split on this one)

Edited by akella - 23 Jan 2013 at 12:05am