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Abandonment of citizenship grant applications wher

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vefabuyuk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote vefabuyuk Quote  Post ReplyReply Direct Link To This Post Topic: Abandonment of citizenship grant applications wher
    Posted: 16 Nov 2012 at 12:47pm
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compliance View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote compliance Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 3:23pm

The abandonment procedures currently outlined in CP 13 state that abandonment can only occur in two scenarios:

  • Failure to attend a hearing with the citizenship judge after two notices (as described in subsection R11(9) of the Citizenship Regulations); and
  • Failure to attend a citizenship ceremony after one notice (as described insubsection R23(1) – this also applies to minor applicants 14 years and older).
That means if anyone missed the oath ceremony, his case will be closed?
Terrible!
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 3:39pm


Good observation vefabuyuk.

For anyone interested in referring to this OB (OB 476) in the future, probably a good idea to save a copy . . . this appears to be among the sort of OBs CIC might withdraw from the publicly accessible site, at least from what is readily accessible.

This OB 476 is more important, I think, relative to the signal it is sending regarding applicants who are living abroad, or are predominantly abroad.


Thus, my observations:


Overall observation: I think this is largely aimed at applicants living abroad while their applications are pending. Indeed: I would take this OB as a strong signal that CIC is continuing its efforts to make it more difficult for applicants who have left Canada after applying. That, I think, is what this OB is mostly about, although obviously it also encompasses a broader range of failures to respond to requests generally.

This appears to be putting some teeth into the RQ request and implementing a more aggressive, stricter approach to dealing with applicants who fail to submit a response to RQ and/or supporting documentation.

Note, for example, historically many of the cases one sees in the Federal Court decisions involve applicants who either did not respond to the RQ, or did not respond until another request was made by the CJ, or whose response to RQ was minimal, with minimal supporting documentation. These sorts of cases have probably been clogging up the system to a significant extent and this is an effort to shunt such applicants out of the process more efficiently.

I have some doubts about how strict CIC can approach or enforce this in cases where the applicant at least submits a response to the RQ and submits at least some but not all "requested" documentation. Indeed, I think the OB overstates its intended application -- either that it overstates the scope of authority CIC has to deem applications abandoned. (The latter is possible under this Minister, unfortunately.)

Of course, it is always best to follow the instructions and give the most complete response one can give for not providing something requested. But, that said, so long as the applicant provides a response to the RQ and provides some supporting documents, I believe that fair procedure will require the case to be submitted to a CJ and an opportunity given for an in-person hearing . . . any exception, I believe, could apply only where what is submitted falls so short of "establishing residency" (see referenced regulations) that the only reasonable inference is that the applicant has not substantially performed, which I think would be strictly applied against CIC. That is, if the applicant responds to the RQ and submits much supporting documentation at all, I do not think that CIC can deem the application abandoned, but must submit the case to the CJ.

That, obviously, is not the direction an applicant wants things to go. But my point is that this procedure for deeming applications abandoned should not intimidate applicants regarding the extent to which they need to include supporting documentation. CIC cannot by fiat, or even by regulation, change the burden of proof. The burden of proof is, still, and simply, that the applicant must establish residency by a balance of probabilities. CIC cannot demand more proof than that. CIC cannot substitute its judgment in this regard for that of the CJ.

And, I should note, I do not think that CIC would make an effort to penalize applicants in this regard. I am confident that this procedure, for deeming applications abandoned, will be reasonably implemented. That said, I must admit that as set out in this bulletin it seems intended to apply more broadly than what what either the regulations prescribe or how those regulations have otherwise been interpreted to apply as described in CP 13 "Administration, particular section 6 thereof. More regarding this below.

In any event, the intended targets, and almost certainly the practical targets as it is implemented, are certain types of applicants:

-- those who are living abroad (or at least predominantly abroad) while the application is pending

-- those who have given incorrect information about their residential address (or failed to keep CIC informed as to their correct address)

-- those who, for whatever reason, are indeed (in effect) abandoning their application


In other words: I believe any reasonable response to RQ will not result in so much as being considered for deemed-abandonment, even if the amount of supporting documentation submitted is relatively minimal. (Not that I recommend testing this proposition -- for one thing, a minimal submission of supporting documentation is undoubtedly going to result in a longer processing time in RQ and some negative inferences that will either make it more difficult to be persuasive or result in a denial of approval by the CJ.)


Additional observations as to enforcement standards
Reason for requesting delay


Note the example given for an "unacceptable explanation" for needing more time to respond to the RQ. It states:
Quote Below are some acceptable and unacceptable explanations for a delay in responding to request for additional documentation.
Unacceptable explanation (example)
• Applicant lives or continually travels abroad and wants to wait until next trip to Canada.


I am not sure whether this has been contested or not. It seems to me that this could be contested. Living outside Canada while the application is pending does not disqualify an applicant. Obviously, an applicant living outside Canada would in almost all situations need more time to respond to RQ than one living in Canada. A request for more time in this situation seems, to me, to be reasonable and denying an opportunity to proceed with the application in this situation would, it seems to me, be unreasonable. That said, this is not something I would want to be a test case regarding.

That said: It is important that an applicant respond to the RQ by the deadline. If more time is required, at least send a letter requesting more time by the deadline. Personally, given the extent of the information and documentation requested, I think that an "explanation" for the requested extension could be as simple as: "Additional time needed to obtain documents and information from other parties, and to access documents in storage so that they can be consulted in preparing an appropriate response to the request for documentation."

I also think that if the applicant has no corrections to make to the residency calculation, it might be worthwhile stating in the response that the orginally submitted residency calculation was accurate (and/or include a copy of it) and be include the following documents:
* birth certificate (or appropriate alternative)
* PR card (or alternative, see gathering documents in guide) and COPR
* complete copy, in color, of all passports and travel documents, all properly translated

Additional observations as to enforcement standards
Sufficient supporting documentation to avoid abandonment being deemed


While I would not recommend testing this, if possible, for the applicant who is likely to have issues or questions or concerns which will result in a long-haul RQ anyway (and this would apply to virtually any applicant living abroad after applying, for example), the following should suffice in response to RQ to avoid abandonment being deemed and require, at the least, a hearing with the CJ:

* Complete application and residency calculation
* Substantially completed response to RQ form; some "not available" entries OK so long as key information as to the applicant is provided, including in particular
-- -- basic information section fully completed
-- -- complete declaration of absences
-- -- all residential addresses for period of times as requested
-- -- employment/activity history as requested
-- -- reasonable effort to provide additional information

Minimum supporting documentation which should be included:
* birth certificate (or appropriate alternative)
* PR card (or alternative, see gathering documents in guide) and COPR
* complete copy, in color, of all passports and travel documents, all properly translated
* CRA notices of tax assessments

That should be more than sufficient to require CIC to complete processing and refer the case to the CJ. The applicant can, and in many instances probably should, bring additional information and documentation to the hearing, if and when scheduled.

Footnote: I am not entirely sure if it is wise, but frankly for any applicant who foresees long-haul RQ prospects, I would lean toward the minimum in submitting supporting documents, that which I list above plus some representative documentation such as leasing agreements (or ownership or whatever is applicable), something to document employment or other activity. There is nothing to be gained by giving CIC a huge stack of material in which to go mining for inconsistencies if the case is going to go to a hearing with the CJ anyway. The minimum will require that the applicant be given an opportunity to appear at a hearing. That opportunity must include the capacity to present evidence. CIC probably would not like it that I suggest this approach.

Bottom-line: once the applicant has submitted substantial evidence in support of the claim of actual presence, and otherwise substantially complied with reasonable requests for more information and documentation, and in that has submitted what I outline above, the applicant has made at least a prima facie case that should meet the balance of probabilities standard unless CIC presents evidence to controvert the applicant's claims or evidence.

Best, no doubt, to go with a lawyer and follow the lawyer's advice. I offer this for what it is worth. Mostly though, I think applicants simply need to make their case and in doing so not go overboard, not give CIC a huge amount of ammunition with which to challenge the applicant's case, and rely on being able to submit additional information and documentation at the hearing.

CIC might cry foul. CIC may claim that section 3(4) of the regulations requires the proof to be submitted up front. But, the regulations cannot impose a greater burden on the applicant than what is provided for in the Act itself. Making a prima facie case beyond a balance of probabilities should meet the requirement in section 3(4), at least sufficiently to be given the opportunity of a hearing, which inherently should include the opportunity to present additional evidence.


Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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dpenabill View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 3:45pm
No time now to examine more closely what compliance posted. CP 13 is linked above and can be read by anyone.

I would note that I doubt that CIC is draconian in how they approach this. Many applicants have reported rescheduling the oath ceremony. Some have reported missing it and having it rescheduled. I would not rely on the latter, but instead be sure to reschedule before the originally scheduled ceremony.

I do not know about minors in particular.

I would note, though, as I have oft said relative to these matters: It is clear that CIC has been approaching those living abroad very strictly, and this OB 476 further signals the intent of CIC in this regard. Those living abroad while the application is pending: beware.
Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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vefabuyuk View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote vefabuyuk Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 4:27pm

Wht do you guys think about this:

"If the completed RQ and supporting documents are provided, current procedures for the preparation of residence cases apply (eg: the File Preparation and Analysis template is to be completed). The applicant will then be scheduled for a hearing. Immediately before the hearing, the applicant must be interviewed by a citizenship officer to complete the File Requirements Checklist. The applicant will not be asked to write the citizenship test. The citizenship judge will assess language and knowledge criteria during the hearing."

Does that mean pre-test RQ'd applicants won't write the citizenship test?
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Post Options Post Options   Thanks (0) Thanks(0)   Quote vefabuyuk Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 4:29pm
Also applicants are given 45 days as per the RQ form but 45 business days as per CIC Operation Bulletins.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote onyx Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 4:57pm
dpenabill my friend
CIC officers treat those who live in the same room with them in Canada the same as they treat those who live abroad
Originally posted by dpenabill dpenabill wrote:

No time now to examine more closely what compliance posted. CP 13 is linked above and can be read by anyone.

I would note that I doubt that CIC is draconian in how they approach this. Many applicants have reported rescheduling the oath ceremony. Some have reported missing it and having it rescheduled. I would not rely on the latter, but instead be sure to reschedule before the originally scheduled ceremony.

I do not know about minors in particular.

I would note, though, as I have oft said relative to these matters: It is clear that CIC has been approaching those living abroad very strictly, and this OB 476 further signals the intent of CIC in this regard. Those living abroad while the application is pending: beware.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 5:01pm

Caution regarding scope of how OB 476 provisions will be applied


As seems to be all-too-common in CIC materials of late, the OB is poorly composed, grammatically ambiguous in places, and vague in many respects.

Reminder: as I prevsiously said, it appears to me that this is largely, perhaps predominantly, aimed at applicants who are abroad while their application is pending.

I think that the timeline, referred to by vefabuyuk (business days not calendar days) for applying a deemed abandoned designation based on a failure to respond to a pre-test RQ issued by Sydney is telling. It does say business days, which is thus effectively more in the range of two months on the calendar. Moreover, that is followed by a week grace period, then a final notice must be sent to the applicant, giving the applicant another 30 business days to respond. Minimum amount of time, then, before a failure to respond to pre-test RQ can result in the application being deemed abandoned is fifteen weeks, as in more than three months, and that is only if the local office sends the second, final notice of RQ immediately upon the expiration of the one-week grace period.

This reinforces the point: this is really aimed at:

-- those who are living abroad (or at least are predominantly abroad) while the application is pending

-- those who have given incorrect information about their residential address (or failed to keep CIC informed as to their correct address)

-- those who, for whatever reason, are indeed (in effect) abandoning their application

This is not likely to be implemented or enforced in a draconian way. It is not going to be applied in a way to trap otherwise qualified applicants who are living in Canada.



Quote vefabuyuk:
Quote from the OB
Quote "If the completed RQ and supporting documents are provided, current procedures for the preparation of residence cases apply (eg: the File Preparation and Analysis template is to be completed). The applicant will then be scheduled for a hearing. Immediately before the hearing, the applicant must be interviewed by a citizenship officer to complete the File Requirements Checklist. The applicant will not be asked to write the citizenship test. The citizenship judge will assess language and knowledge criteria during the hearing."


I am quite sure this is in reference to "No-shows for a test and/or an interview with a citizenship official" and is in reference to the new pilot procedure for no-shows. Reminder: under this process, no-shows are given two opportunities to appear, and if there is a no-show for second one scheduled, the applicant must be given RQ.

So, my interpretation is that the quoted portion here is not referring to pre-test RQ'd applicants generally.

I am not sure. The structure of the OB is vague and in some respects ambiguous, but this is my best attempt at interpreting what is intended, what it means. For example, immediately following the paragraphs in which the above quoted language appears there is a "note" stating that these procedures who are mailed a second test notice as of [today].

Additional note: My distinct impression is that CIC is indeed in the process of trying to make the application process more efficient, so that qualified applicants can get through the process more timely, and so that unqualified and fraudulent applications can be set apart, addressed, and disposed of more quickly, without consuming as many resources.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 5:17pm

Quote onyx:
Quote dpenabill my friend
CIC officers treat those who live in the same room with them in Canada the same as they treat those who live abroad


I do not get what you are trying to say here. I do not know, for example, who "them" refers to.

But, this much is clear: CIC is more thoroughly scrutinizing applicants who are living abroad while the application is pending and this OB is not merely consistent with that observation, but clearly signals the extent to which scrutinizing applicants living abroad is a priority at CIC. Indeed, perhaps it can be said of this that it signals CIC's intent to (indirectly) penalize applicants living abroad.

If the reference to "those who live in the same room with them in Canada" is about the scrutiny an applicant will encounter if their address is the same as someone who has been targeted for fraud, or for some other reason, I suspect that is true: that those sharing an address are likely to be approached according to the lowest common dominator, suspicion of one likely to result in suspicion of others at the same address. This could be part of the "suspect address" risk indicator. This is not an implicit part of the discussion here however.

Bureaucracy is what bureaucracy does, or When in doubt, follow the instructions. Otherwise, follow the instructions.



BTW: Not an expert, not a Can. lawyer, never worked in immigration
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Post Options Post Options   Thanks (0) Thanks(0)   Quote vefabuyuk Quote  Post ReplyReply Direct Link To This Post Posted: 16 Nov 2012 at 5:24pm
dpenabill wrote:
 
Additional note: My distinct impression is that CIC is indeed in the process of trying to make the application process more efficient, so that qualified applicants can get through the process more timely, and so that unqualified and fraudulent applications can be set apart, addressed, and disposed of more quickly, without consuming as many resources.
 
I totally agree. They obviously learned from their previous mistake and do not want to create a huge backlog wiith citizenship applications.

 
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