Judge hearing and events after that

sarin_j:


It appears your lawyer did not follow through. Not good. Though as it appears to be turning out OK (at least to the extent that your application will be re-determined), no serious damage done.

I think I have previously indicated (without revisiting earlier posts) that the case should now go to a Citizenship Officer who can decide to grant citizenship or to refer the application to another Citizenship Judge. How the latter works in practice I do not know, since this is a relatively new process (technically in place since August 2014, but in practice not employed enough for results to be reported in the forums or in any Federal Court decisions).

The procedural confusion and your lawyer's lack of engagement is disconcerting (unless you have not paid the lawyer). But again it appears this has been resolved.

While it is rare to see personal reports of the consent procedure, at the least your report illuminates it better (not sure who follows this stuff so closely beyond you, whose application it is, and me, with my obsession for citizenship application process and law).

In the meantime, the newly elected Liberals have promised to remove the "intent to reside" in Canada requirement from the new law. This does not directly affect you, but it may signal a general shift in how CIC (actually it is called Immigration, Refugees, and Citizenship now) approaches cases involving applicants with extended absences after applying or who otherwise continue to have significant residential or employment ties abroad. That is, you can hope the responsible citizenship officer takes a more flexible if not lenient approach to assessing the facts in your case, whereas under the Conservative leadership there was a clear push to approach these cases with an almost draconian skepticism.

Obviously, given the stumbling you have already encountered, you need to keep abreast of what is happening and make sure the process follows what is indicated.

While, again, I am not sure anyone else is following these procedures in the detail I do, your reports do help enhance my understanding of the process. Good to know, for example, that the "discontinuance" was not the appropriate procedure, but that a specific consent to grant of review is essentially necessary for the application to be returned to CIC for re-determination.

Good luck and please do continue to keep the forum informed.

Upfront: I am probably biased. My bias is that being represented by a qualified, experienced lawyer, is almost always an advantage in most adjudicatory or quasi-adjudicatory situations.

There are caveats to this.

Since I have minimal experience with Canadian lawyers perhaps that bias is not well-founded regarding the quality of legal representation in Canada. I suspect the criticisms about Canadian immigration lawyers, such as those typically seen in the forums, are not well-founded. But I do not really know. What little exposure I have had here has indeed been, at best, mixed. But this is a relatively small city a long way from any major city, and even in the States one would often see a rather different brand of jurisprudence outside metropolitan areas, so I do not extrapolate any generalizations about Canadian law based on what I have seen here. But I do not really know what to expect from Canadian lawyers.

Another caveat is that of course not all lawyers are created equal. And sometimes a bad lawyer can indeed be worse than having no lawyer at all. To find a good lawyer at this late date, over the holidays, on such short notice, that might not be practical if even possible.

A third caveat is that a lawyer cannot change the core facts or merits of a case. It is not as if hiring a lawyer guarantees a particular outcome.

A lawyer's first level of service is to ensure his or her client's rights are protected -- most people expect authorities to honor and respect and not violate their rights, that is that those whose rights are abused probably deserve it or at least that is what happens to someone else . . . until it happens to them. Thus, in the context of a citizenship application hearing, for example, a lawyer's foremost role is to assure the applicant has an opportunity to present his or her side of the case, that the Citizenship Judge does not engage in discriminatory or abusive inquiries, and in particular that the applicant have an opportunity to address the issues. My impression is that just having a lawyer present influences CJs to be more discreet and judicious in how they conduct the hearing.

Another role a lawyer has in this context has to do with issue-identification and assisting the applicant to prepare and submit information and evidence regarding the issues that really matter.

My bias is that lawyers can do both these things for clients well beyond what the client can do for himself or herself. (Even if the client is a lawyer!)

Issue-identification, in particular, is a hugely important skill. Perhaps many lawyers are only mediocre relative to this skill. But non-lawyers, even the most well-informed and intelligent ones, tend to either be quite lacking in this or are rather bad at it, tending to identify, and harp on even, the wrong issues, not only matters of little or no importance but oft times things which actually become a distraction if not an outright detraction.

The thing about quasi-adjudicatory proceedings is that ordinarily they are less formal and deliberately structured to facilitate a more or less open interaction aimed at accomplishing an equitable outcome, based more on what is deserved and less on technical requirements or formalities. This typically tends to weigh favourably for applicants. And it makes the process far more accessible to non-lawyers, to those who go into the proceeding without a lawyer. Historically most CJ hearings tended to be like this, I think, more an interview than a hearing (and many references to these hearings indeed have referred to them as an "interview"). Historically many if not most applicants did not need a lawyer, but needed to put their best face on and show the CJ they are honest, sincere, qualified applicants who deserve citizenship. A lawyer's presence, introducing a degree of formality to the proceedings, might disrupt this sort of proceeding.

But these days CJ hearings are more adversarial, CIC's advocacy present in the form of the referral prepared using the File Preparation and Analysis Template, and cases which go to a CJ these days are almost always cases which CIC is indeed presenting, in the referral, an advocate's argument as to why citizenship should be denied.

So these days, my sense is that the particular expertise of lawyers who do litigation (most do not), and who have experience in citizenship application cases, should be quite helpful, the lawyer in a position to offer important services.

There are many other more subtle elements the good lawyer brings to the table. Experience in dealing with decision-makers is a big one. Knowing when to push and when not to push, how hard to push, when to concede, what to concede, what to absolutely not concede, all play into how lawyers deal with decision-makers (from juries to judges, to administrative decision-makers in quasi-judicial roles like a Citizenship Judge). And of course, again, lawyers are not all equal in such skills, but they are typically better at this than non-lawyers.

Among other significant aspects, as well, is that if things are not going well in the hearing, if there is clear disagreement and an unfavourable inclination tipping the CJ toward a negative decision, is that an experienced lawyer has better odds of patching up the differences, or can draw the CJ's ire to himself or herself in a way that leaves open a way for the CJ to think more favourably of the applicant . . . even to the point where the lawyer can be the one who is disagreeing in a manner that makes a strong point with making it look like the client, the applicant, is disagreeing with the CJ, so the applicant looks more qualified or at least less guilty . . . and when things are leaning toward real ugly, a lawyer will typically do a better job making sure the record reflects important elements which will help win an appeal. And then, ultimately, the lawyer is a more or less objective observer of the hearing and can illuminate, if necessary, whether there was bias, discrimination, or an abuse of discretion involved.


Time is short, however, and since you have been through this once, you are far more informed about how these go and should have an idea about how to be better prepared to advocate your case this time.

And ultimately, whether to pay the cost of a lawyer, and do that extra work (to find a good lawyer, and then to inform the lawyer well enough he or she can competently handle the case), is worth it, that is a very individual, personal judgment call. Who is available makes a difference. Financial resources make a difference.

Will be interested to see how this goes, so please keep the forum informed.

Looks like am getting nowhere in my search for an attorney to accompany me to the hearing. Those I call are either not into dealing with hearing or citing too short notice to handle this. Am gonna keep trying.

Finally all the action and dram has come to an end, though with a disappointing end result for me - though it was not completely un-expected. The second hearing had a bit of dram with the first date being missed due to a nasty snow storm. We were around 90 minutes late when reached the CIC office. That day was really bad and we started with about 90 minutes buffer. Long story short, the interview was postponed and they said I would be notified. That gave me an additional couple of months to continue my search for a lawyer. A good stroke of luck landed me a reference to an attorney in Toronto who seem to have good reputation albeit rather expensive. After contacting him and providing the references, he agreed to take up my case. The fee was rather steep at 3000$ per hearing per person. So I took his service for both myself and my wife. All the case details and documents were provided to him and he did careful review and suggested we meet a day before the hearing. So I met him at his office in downtown Toronto and he went through my case with a fine-tooth comb. He came at me quite aggressively and later explained that this is how the judge is gonna be and he wanted to see how I respond. We discussed in detail all possibilities and in the end he said that mine is a very unique case with very little possibility of getting an approval considering the circumstances. It all depends on the judge's perspective as based on facts and evidence the judge can rule eitherway as both outcomes have enough supporting evidence. Ultimately it all depends on how the judge views you. If you face an unsympathetic judge, your case is a toast. So it was a sobering thought and in retrospect prepared me for what was coming the next day.

dpenabil, there are certain aspects of the PR that were previously unknown to me and explained to me by the lawyer. Again these are based on current law and there is no guarantee that it could stay the same down the lane. I am a little uncomfortable discussing these aspects in a public forum, but the bottom line is that your status as a landed immigrant remains regardless of your residency obligations. The key is how do you enter the country legally. Typical scenario is you need PR card or passport or proof of landing document for a land crossing. If you don't maintain the RO, you will loose PR card, but proof of landing can get you in through a land crossing. It could be difficult but not impossible. Now there are certain combinations of your statuses that could get you in legally and then allow you to stay in Canada allowing you to build RO and then satisfy the requirement for PR renewal ultimately leading to your citizenship. The path is complicated, expensive and is a fine line between legal and illegal status. But its possible. I can't say anything more than that.