Judge hearing and events after that

Make sure any other interactions with this judge are happening in presence of your lawyer, and ideally lawyer gets involved before you get denied.

I'm sorry to hear the treatment you got from CIC judge. Besides taking an attorney with you for your next hearing.

You may consider filing a complaint with appropriate authorities how your hearing was conducted.

1) Hearing started with Judge accusing "You are lying"
2) Judge expected US stamp on every visit to USA, its US procedure & you can't do much
3) Daily visit to USA are NOT stamped in the passport (per CIC, its NOT required)
4) Despite presenting all proofs such as utility, employer etc, judge did not want to review them
5) Asked you to produce letter from employer for even single day trip to USA, its impractical.
6) Apparently, judge made up her mind even before reviewing doc's to deny you Citizenship.
7) Request - if possible hearing with other judge, considering it was NOT fair by any standards.

Looks like CIC and all their staff from Call Center to top bureaucrats are abusing the system.

 

Complaint against Judge does not work. I made a complaint to the senior judge but he took Citizenship judge side. Then I made a complaint against sernior judge. they assinged a private investigator to hear both me and senior judge but again after finding my complaint correct dicision was given in favor of the senior judge. I even had a recording of entire discussion (80|minutes) with the citizenhip judge who use very bad language, spoke about my religion, about my country of birth etc... but they did not bother to get the recording from me and avoiding it all the time. So I believe complaint against judge would not work even there is a Protocol Addressing conduct issue policy which dealt with such complaints

sarin_j wrote: I became a PR in 2006 and lived in Mississauga and Milton area till 2010. After that I had to move to NY\NJ area due to a job related issue. I applied for Citizenship just before I moved after completing more than enough residency days above the 1095 days. I got my test date on March 2011 and RQ within a month. Sent in all documentation by Oct 2011 and then the wait began. Finally I was asked to send a few more details pertaining to my residency on July 2014 and finally in Feb 2015, I got a notice for a judge hearing. I read as much as I can about the hearing, gathered all my documentation including tax statements etc. and headed out. But what happened during the hearing was both shocking and disappointing. I am at this point pretty sure that she is gonna deny my citizenship application. I have read that you can go for a judicial review and its something better done through a lawyer. Anyone can recommend a good lawyer who can handle my case? Also, any other suggestion in this matter would be very helpful.

A lot could be said.

Much of it, though, I have said before. Such as, for example, in the topic "Leaving Canada after applying for citizenship", including in particular my recent discussion about the Helen Wang case there, in the topic Leaving Canada after applying.

For now, the cake is in the oven. Nothing will change the outcome; the CJ's decision now will be what it is. And while the outcome seems quite apparent, and not good, these things are very difficult to predict and you will not really know until you know, until you get notification of the denial or you are scheduled for the oath.

In the meantime, sure, the decision is whether or not to pursue an appeal, and if inclined to do so, to find the right lawyer for the job. And if you are at all inclined to go this direction, getting to it sooner rather than later is a good idea.

Must say, however, you should have recognized what you were up against. I do not know what you were reading, but I and some others have posted plenty in this forum that would have been a heads-up to anyone living outside Canada while the application was pending. Most of that is history now. Like going to the hearing accompanied by a lawyer, should-have-but-did-not.

Not sure you were paying attention, but since last August 1st, any CJ hearing was almost certainly a case in which CIC opposed the grant of citizenship and had submitted a memorandum of points and authorities (prepared using the FPAT) for why citizenship should be denied. I realize some here dismissed my oft repeated observations and cautions about this (but frankly their lack of credibility should have been obvious).

You have some time to figure out what to do. As noted, you might be surprised. The CJ might approve your application. Seems like not, but until you get the notice that your application has been denied you do not know for sure.

One note about the particulars: you are right, the "no stamps" refecting this or that trip is baloney. But if you were reading even a selection of the Federal Court cases I have cited repeatedly in this forum, you would see this baloney is on the menu rather often (the menu of excuses or justifications to discount an applicant's declared travel), and in particular the so-called "missing stamp" issue has been oft discussed, as it is indeed an oft recurring one. CIC often likes to hang, on missing stamps, a conclusion that the evidence is "inconclusive." Dealing with those would have been fairly easy for a lawyer.

Missing stamps really are not an issue except in particular situations, particular circumstances, and not usually at all an issue unless CIC focuses on them in the course of digging for reasons to challenge the application (which CIC will tend to do if the applicant is living abroad while the application is pending). Like scores and scores of successful applicants, I had dozens of trips, and not one stamp for any one them after the cancelled PR visa stamps for the day I landed, none at all. And no problems. But what CIC is essentially doing when it focuses on missing stamps is challenging the applicant to prove the declared trips . . . it is not so much that the absence of a stamp for this or that trip is evidence that the trip did not take place, but CIC, and in turn the CJ, has in essence pointed out that "no stamp, no supporting evidence of that trip, thus the burden is on the applicant to prove the trip - technically to prove the dates of presence by proving the dates of travel."

Thus, just explaining that it is common, if not the norm, for there to be no stamp for trips to and from the U.S., does not suffice. That does not put evidence into the record which supports your account of the trips.

And I understand fully that applicants in your situation are given virtually no warning that CIC and the CJ might take this tack in assessing residency . . . well, except there is plenty of discussion at this site which addresses this (sometimes lost due to the noise, sure, particularly among those who are more interested in complaining and not receptive to learning about how the process works and what applicants in a contested case need to know about how to navigate their way through CIC's minefields).

There have been a couple Federal Court cases of late which indicate there may be at least two Federal Court justices sympathetic to the lack of notice applicants are given regarding what they need to prove. I am suffering a monster head cold at the moment so my memory is fuzzy and my time on the key board is limited, but I will try to find those decisions. They probably will not offer any direct support for your case, but they do offer a glimmer of hope that a Federal Court justice could be receptive to an argument that the burden of proof imposed by the CJ unreasonably exceeded the balance of probabilities standard (the standard that should be applied). This is complex stuff, though, and there are probably a lot of lawyers not particularly well equipped to make the argument. And it is a tough argument to make persuasively even by the better lawyers (if I can find the two decisions I am thinking of, you might consider looking into the lawyers who represented the applicants in those cases).

And, unfortunately, there are some Federal Court justices who will simply not be sympathetic to your cause because you have been living outside Canada. (For example, see Justice Rennie's decison in the Helen Wang case; noting though, that Justice Rennie has moved up to the Federal Court of Appeals of Canada . . . more about this below.)   



A note about your CJ: I do not know her, but there is no doubt that if she was a "recent" appointment, you know who did the appointing and what some key criteria were for getting the gig. At the Federal Court level, for example, it was no coincidence that it was a Harper appointment to the Federal Court (Justice Rennie) who, despite three decades of case law to the contrary, soon after taking the bench issued a decision that "residency means presence" (back in 2011), and he is the one who recently ruled there is no "jus soli" right to citizenship in Canada either (citizenship by birth in Canada is, rather, a statutory based status). Many of the current CJs have been appointed since the Conservatives first formed a government. No need to guess their inclinations in how they approach citizenship residency cases.

This government avoids being transparent (like the plague), but some aspects of its governing are totally transparent . . . and who gets appointed to positions like this is no mystery.

Former Federal Court Justice Donald Rennie, for example, was recently appointed to the Federal Court of Appeals of Canada. A big promotion. Quid pro quo? for his decision in the Galati challenge to Bill C-24?

That might be good news. I think Justice Snider retired (or left the Federal Court for some other reason) over a year ago, and now Justice Rennie will not get the appeal from a CJ's decision as he has moved up to the Court of Appeals. These two have been the toughest on citizenship applicants. There are a number of others who have been following and applying the decisions by Justices Rennie and Snider, but in any event there are two less before whom the odds of succeeding on appeal were dismal.

The caselaw I was thinking of, which might be of some support, were two recent decisions by the same judge, Justice Locke, which is not good news because that means there is only one justice rather than two who has overtly ruled against CIC and a CJ based on concerns about the nature of the process itself, about procedural fairness. One of these cases is the Miji case (link is to French decision), and the other is the El-Husseini case (also in French) in which Justice Locke allows the applicants' appeal on the grounds that the applicants were, respectively (and in different ways) denied procedural fairness.

While these cases might not be that close factually to the situation you had, a big part of why Justice Locke granted these appeals is the lack of notice to the applicants what was missing, what would have made a difference. And that is at least in part what I see underlying your interaction with the Citizenship Judge.

What will ultimately matter, of course, is the CJ's actual decision and the reasons given by the CJ for that decision. And frankly, given your residence abroad since applying, many if not most Federal Court justices are not likely to be sympathetic. It could be a tough case make to a sympathetic judge let alone one who is not sympathetic.

The solicitors (lawyers) for the applicants in the above cases, the cases resulting in Justice Locke's decisions about procedural fairness, were Quebec lawyers, not from Toronto, one from Montreal, the other essentially Ottawa (Gatineau). My sense is they did a good job respectively. You can also find Toronto area lawyers by looking at other citizenship cases.

I am now frantically trying to gather my entry exit records from both US and Canadian side to support my case. It might be too late, but . . .

Yeah, it is mostly too late. You will not be allowed to introduce any new evidence (at least not that will be considered by the Federal Court) in the appeal. But, a savvy lawyer might be able to use such evidence to illustrate what you could have brought to the hearing if you had been given notice that the dates you reported exiting or entering Canada were themselves disputed.


Potential arguments in the appeal:

This goes beyond what I know about how the issues might be raised and considered on appeal. But, in most other bureaucratic decision-making processes, procedural fairness requires applicants to be given reasonable notice if particular evidence or asserted facts are disputed. And, frankly, I have long failed to understand why this issue has not been more vigorously advocated in citizenship cases. There are many cases in which the Federal Court simply says, as CIC has argued, that the applicant has the burden of proof and if there are questions about actual dates of residency the applicant has failed to meet his or her burden of proof. But what has happened in some of these cases is that the applicant has submitted extensive evidence, including the applicant's own testimonial evidence of dates present in Canada, and has not been given notice that CIC is challenging that evidence. CIC challenges the overall conclusion, but it seems to me that if that conclusion is inconsistent with the evidence of record, there should be more than mere bald-faced skepticism to support it, there should be some actual evidence contrary to the evidence submitted by the applicant . . . and if there is, that procedural fairness should require that the applicant be given notice of such negative evidence, sufficient notice to give the applicant a reasonable opportunity to respond to it.

I am not a Canadian lawyer and I do not know how such an argument should be presented in particular, but the concept, it seems to me, is similar to when a visa officer reviewing a skilled worker PR application makes a negative decision based on rejecting the applicant's evidence of having been employed in a certain position by a certain employer . . . the applicant must be given a chance to respond to the negative evidence CIC is relying on in rejecting the applicant's evidence of that employment.

This goes to the balance-of-probabilities standard of proof the applicant must meet. The submission of competent evidence (and an applicant's testimonial evidence should be considered competent unless there is specific reason to doubt its credibility), on a matter of fact, should suffice to meet the balance-of-probabilities standard of proof as to that fact unless there is evidence to the contrary. If there is evidence to the contrary, my understanding in almost all other contexts (except citizenship cases) is that procedural fairness requires that the applicant be given notice of the contrary evidence or a copy even. I have seen not seen this argument made in citizenship cases, let alone made successfully, but I really do not understand why.

There have been other versions of the procedural fairness argument, such as was raised successfully in the two Locke decisions I reference above.



Whaaat haaappened? or the big crash of expectations

I understand the more emotive elements in your reaction to what happened in the hearing.

But there are at least two big aspects which separate your case from even most residency cases, let alone routine cases . . . which is to say, a lot of what you say was diametrically the opposite of what you expected, which largely comes down you being surprised by the extent to which you feel your case was approached negatively rather than objectively, is about your case in particular. Not that your case in particular is unique, the only case approached this way, or even all that unusual let alone rare.

To a large extent I addressed this in my previous post.

Those two aspects of your case in particular are:

(1) residing outside Canada after applying

(2) being scheduled for a CJ hearing after August 1, 2014    

There is more to it than just that of course, but those are the two aspects of your case in particular which distinguish your case from even the majority of citizenship applications involving RQ, let alone from the vast majority of citizenship applicants generally (the largely routine applications).

Number (1), residing outside Canada after applying, is what turned up the heat considerably, leading CIC to scrutinize and question your case in much detail, looking not to verify your assertions but for evidence that would support a finding that you had failed to prove your case, especially residency.

Number (2), being scheduled for a CJ hearing after August 1, 2014, is about the nature of the proceeding itself. It is not absolutely certain, but almost so, that after August 1, 2014, going to a CJ hearing is akin to going into a adversarial trial (it is a quasi-judicial proceeding) in which CIC is the opposing party and in which the opposing party (CIC) has already made a full submission of its case against you, the applicant.

I repeated this observation with some emphasis more for anyone else who might happen to still be using this site for information and is in a situation which might lead to a CJ hearing (acknowleging that use of this forum is way, way down). Applicants who have long been in a post-test RQ phase should be aware of the prospect of a CJ hearing and what that means. What it means is that they are, in essence, going into an adversarial quasi-judicial proceeding in which the adversarial party has already put together and submitted an extensive, thorough, and probably negative account of the case, and that the CJ has read this before the hearing even starts.

Your expectations were largely reasonable but only up to the point your case became destined for a CJ hearing.


Caveat re cost of appeal:

There are costs inherent to litigation above and beyond the lawyer's fees; and litigation is more emotionally challenging, more stressful, than most people realize. And, make no mistake, this is probably not a case that stands any chance without a lawyer, and a lawyer is going to cost thousands.

Additionally, there appears to be an increasing risk that the Federal Court could charge the applicant who loses with paying the Minister's costs. That is, there is a risk that the applicant could have to pay for the Minister's legal costs in addition to the costs of prosecuting the appeal itself (the applicant's own lawyer's fees for example).

Additionally, there are changes in the appeal procedures adopted in Bill C-24 with which I am not much familiar, but these may affect the manner and availability of judicial review now (I have not looked closely at this aspect of the coming into force provisions governing the implementation of the SCCA, that is the Strengthening Canadian Citizenship Act often referred to as Bill C-24).

Hopefully you kept an exact copy of everything you submitted to CIC so that a lawyer can make a reasoned, informed assessment of the case without having to do a lot of work (expensive work) just to evaluate whether or not it is worth pursuing the appeal.



Make a customized ATIP application very soon:

Make a customized ATIP application very soon! Specifically request a copy of everything CIC presented or submitted to the Citizenship Judge. You will not get all that. There are recent references in Federal Court cases to the FPAT (File Preparation Analysis Template) being a protected document. I do not know if this means the applicant is totally denied access to it, or that the access is restricted in a way that keeps it sealed from the public. But my sense is the former.

In contrast though, here too in almost all other proceedings, the applicant is entitled to a copy of everything the decision-maker considered, or to at least sufficient information about what was submitted to the decision-maker to give the applicant an opportunity to respond to its content.

Here too I am confused why this has not alredy become a battle-ground addressed by lawyers in citizenship cases.

But in any event, the sooner you make this ATIP request the better. You might want a lawyer's help in making it, but you do not want to delay making it.

This is either free or has a minimal cost (depending on the scope of what is specifically requested).

You will not get the response in time to help you decide whether or not to appeal (time to appeal is one of the things which definitely changed last August, and I think you will now only have 30 days from the date of the notice of a negative decision to make the appeal -- of course, it still remains possible this will not be a negative decision), but it should be in time to help you decide how much to invest in pursuing the appeal (you can always withdraw an appeal if the prospects are too dismal and the costs of proceeding are prohibitive), and it may be very helpful in setting up arguments to be made in the appeal itself -- although I do not know the procedure that well, and I do not know the extent to which the arguments must be made a part of the notice or filing of the appeal, or application for leave to appeal.


The case I would like to see made in the Federal Court is that when CIC submits negative evidence to the CJ, the applicant should be given notice of that negative evidence. I do not know how this would go, but to my view that is what a fair procedure requires. In almost any judicial or quasi-judicial process, a party is entitled to a reasonable opportunity to respond to the other side's evidence. I do not know if your case has underlying facts which would make this kind of case feasible or not, but it seems to be in the ballpark.