Residency: tests, proof, practice, policy

Yes, they will eventually send you notice for the test and interview, and that will also appear in eCas.

Regarding file transfer: Processing of the application is done in the local CIC office for where the applicant lives. Your application is now in the local office for where you live. You could be scheduled for the test sometime soon or not for many months from now. The notice for the test will be issued by that office.

Submission of an affidavit in support of residency:

See Justice Mosley's decision in the Ojo airline pilot shortfall case.

There is minimal discussion of affidavits or other testimonial submissions (such as letters) in citizenship cases. This is something others here and I discussed in some depth several years ago when it was becoming apparent that CIC was more aggressively challenging residency declarations 1095+ and not just shortfall applicants. That was back in 2010/2011, best I can recall, so I do not have a link to those discussions.

While Justice Mosley did not consider the affidavit submitted, he did affirm that it is competent evidence the applicant can submit.


In particular, Justice Mosley explicitly addressed the admissibility and relevance of the proffered affidavit:

"In this proceeding, the parties debated the admissibility of evidence which Mr Ojo attempted to introduce as exhibits to an affidavit sworn by his spouse. I did not consider any of the evidence which had not been placed before the Citizenship Judge, since the law is settled that a reviewing court must confine itself to the evidentiary record that was before the decision-maker. . . .

. . . now that the decision will be reconsidered, I can see no obstacle to Mr Ojo’s submitting this evidence directly to the Minister or bringing it to an eventual hearing with a Citizenship Judge, should one be convened.

It is not apparent what CIC actually argued in regards to the spouse's affidavit, but it appears to have been more than just the technical restriction regarding what is considered in appellate review . . . since Justice Mosley explicitly commented on the future admissibility of the affidavit.

It is, however, apparent that CIC has long tended to dismiss the significance, if not the relevance, of affidavits submitted on behalf of citizenship applicants . . . except those from professionals or other objective sources (doctors, lawyers, accountants, and so on, submitting statements about contacts/activities with the applicant). Why this has been so is obvious enough: for those willing to engage in fraud, composing affidavits affirming the applicant's declarations is easy.

There is no hint in the Residence Questionnaire (probably will be renamed to be a "Physical Presence Questionnaire" in the future, like the online "Residency Calculator" has already been replaced by an online "Physical Presence Calculator") that in addition to the documents requested that the applicant can or should submit additional evidence including testimonial statements from family or friends or colleagues. Such evidence appears to be inherently suspect in CIC's view, at the least self-serving and deserving minimal weight.

In contrast, however, in almost all other contexts, testimonial evidence, even that from family or friends, is recognized as competent and relevant, and entitled to a presumption of validity unless there is controverting evidence or an explicit reason to doubt the credibility of the source or the evidence itself.

In all the discussions about what to submit in response to RQ, testimonial affidavits, let alone unsworn statements (like letters), are rarely mentioned. And, to be frank, it seems that including letters or affidavits from family or friends is not likely to make the difference in most cases. But, in close cases it could, and in any event it would augment the evidence supporting an appeal if it comes to that.

And, in watching for this particular issue for years, this decision by Justice Mosley is the best statement so far that supports the applicant's right to not only submit affidavits in support of his or application, but to do so at the time of appearing for a hearing with a Citizenship Judge.

Justice Mosley's observation relies specifically on the respective Regulation (section 28), which CIC could all too easily change, but there are also fair procedure requirements which in practice mandate the opportunity to submit evidence at a hearing.



This is a shortfall case and illustrates that at least in some instances CJs are still willing to apply a qualitative test:

This airline pilot was approved by the Citizenship Judge but CIC appealed, so there was (so far) no grant of citizenship. CIC has won the appeal at least to the extent that the CJ's decision has been set aside and the case has been sent back to CIC to be determined anew.

The significance of these shortfall cases is fading, of course, given that for all new applications (since June 11, 2015) there is no leeway for shortfalls allowed at all in the law. But there are probably hundreds if not thousands of shortfall applications still in process. Indeed, there was probably a rush of shortfall applications just before the change in the law.

This case is significant to the extent it reflects the continued application of Koo in at least some cases.

Indeed, this case involves a huge shortfall, the pilot absent nearly twice as much as present in Canada (590 days short of 1095 in the relevant four years; absent 955 days in the relevant four years; present just 505 days). The reason for the absences was not just employment abroad, but employment for a non-Canadian employer. So this reflects a remarkable exercise of discretion by the Citizenship Judge, willing to even consider let alone approve an applicant who spent well less than half his time in Canada.

For those who applied before June 11 and thus have a shortfall application in the pipeline, this case offers a glimmer of hope.

This has already been posted in response to a more recent discussion about applying with a shortfall (meeting basic residency requirement, but not the APP test), but I am also posting it here to keep this particular topic current (FWIW . . . perhaps nothing)


For anyone with a *shortfall* application pending or likely to make a shortfall application before the revised requirements take effect:


Good News:

The Good News is that as recently as February 2014 a Citizenship Judge overtly applied the qualitative test for residency based on the Koo criteria, and did so for an applicant more than five hundred days short of meeting the actual physical presence test (1095 days APP).

This was in the Farid Ameziane case, a decision by Federal Court Justice René LeBlanc.

Bad News:

The Bad News is that the CJ denied approval for citizenship and Justice LeBlanc affirmed the validity of the CJ's decision.

Moreover, this is particularly Bad News for those whose shortfall is due to work abroad.

In the Farid Ameziane case, the applicant was abroad only for the purpose of employment, and otherwise all other aspects of his life were in Canada: wife and children, home and personal possessions, banking, payment of taxes, involvement in volunteering, all in Canada. He had no connection to the place abroad where he was working other than the employment itself (stayed in employer's trailers on site while abroad, for example, not even having a rental residence abroad).

Other factors may be important, such as the extent of the absence for example (outside Canada half the time overall), and the fact that the employment was in one country (which may elevate the weight given the connection to that country in contrast to the argument his life was centralized in Canada).


Caution: Most indications suggest few Citizenship Judges are willing to apply any residency test other than the actual physical presence (APP) test, and that all CJs usually apply the APP test. So the fact that on some occasions, this or that CJ has been persuaded to apply the Koo test offers very little hope for shortfall applicants.

While this Farid Ameziane decision does not mean absences due to work alone will never allow for approval based on a qualitative test, my sense is it reflects that extended absences due to work abroad are not likely to be counted as time resident in Canada, and especially so if the employment itself is not temporary . . .
. . . remember, to be successful, the shortfall applicant must still have accumulated at least 1095 days resident in Canada, allowing for credit toward time resident in Canada for time abroad.

Thus, not including time abroad for employment makes sense. As Justice LeBlanc discusses, the place one works is itself a major connection to that place. And this is particularly so if the employment itself is not for a Canadian employer.



It is also worth noting that the Program Delivery Instructions now suggest that a shortfall case should be referred to a Citizenship Judge for a decision. While the PDI is not particularly clear, in context it seems to suggest that, in effect, RQ may be virtually guaranteed and that a long-haul residency case is very likely, the case ultimately going to a hearing with a CJ.   
See PDI "Referring applications to a citizenship judge" in particular.

For all current PDIs regarding decision making in citizenship cases, see PDI contents/links for Citizenship decision making.




Notes:

*shortfall* -- this is a reference to applicants with fewer than 1095 days of actual physical presence, that is, those relying on meeting the basic residency eligibility threshold but falling short of the APP test.

*resident-in-Canada* -- to be qualified for citizenship, the PR must have been "resident in Canada" for at least three years, or 1095 days, within the four years preceding the date of the application.

"Resident in Canada" for three years is not necessarily the same as three years actually physically present. Three years APP has been repeatedly ruled to absolutely constitute three years "resident-in-Canada." In contrast, a shortfall applicant (applicant who was not APP for at least 1095 days) may be qualified by proving he or she was "resident-in-Canada" for at least 1095 days . . . thus, in effect, this means the shortfall applicant must persuade the CJ that credit toward time "resident-in-Canada" should be given for time absent, at least enough of the time spent abroad to make up the APP shortfall.

As always, very helpful.

brown2677 wrote: A question: when reviewing the citizenship application, does the cic compare information on a) old citizenship application and b) pr card renewal application? or citizenship application process is separate from pr card renewal process?

Short answer: Probably.

CIC definitely has the capacity to do this. And CIC almost certainly does it in some cases, particularly any case or application that is diverted from routine processing for elevated scrutiny, such as a residency case in citizenship application processing.

CIC maintains numerous data or information banks containing a great deal of client information, and information related to clients. There are varying standards for what information is retained and for how long. Increasingly, the information is stored digitally (versus old physical files, the days of microfilm), making it more readily accessible.

It might be worth noting, for example, that the information contained in the original PR application is retained for 65 years.

CIC does not disclose its so-called investigatory methods, so we do not really know to what extent there is cross-checking of information in one data bank, such as the one titled "Determination of Permanent Resident Status," with information submitted in a pending application (be that for citizenship, to sponsor a family member, or another PR card, or such).

But there is also a separate (although I think all these are in some way connected) information bank titled the "Permanent Resident Card" bank.

My sense, but I cannot confirm this, is that there is software which compares certain information submitted with existing information. Probable example: client's last known address. If a client has a transaction with CIC and provides a different address than was given to CIC previously, my sense is this is flagged. That in itself means little, other than it is part of the complete picture CIC perceives when assessing a particular application. If, however, an anomaly or inconsistency is identified in comparing the information, that will of course affect the course of processing the application.

Summary: in routine case processing, perhaps there is minimal cross-checking of an individual's personal information stored in various information banks, but the information is there for quite a long while and if the case is tipped off the routine processing track, and especially if a residency investigation is triggered, then there is almost certainly a significant degree of cross-checking.