Residency: tests, proof, practice, policy

dpenabill wrote: -- in contrast, the lack of evidence showing that the applicant's life is centralized in Canada tends to raise questions about the extent to which the applicant was in fact actually, physically present in Canada; in this regard, in particular, evidence that the applicant's life is not centralized in Canada may lead to the inference that the applicant was absent from Canada more than declared unless, of course, the applicant soundly proves otherwise (has enough evidence to overcome the negative inference arising from evidence life was not centralized in Canada), recognizing, however, that tends to be more difficult if the applicant's information and documentation failed to show a life centralized in Canada in the first place.

Edited by bjones - 21 Nov 2013 at 8:02pm

For what it's worth: Federal court/Judge's explanation of what constitutes “Residency”:
http://decisions.fct-cf.gc.ca/en/2013/2013fc70/2013fc70.html
Enquote
[11] The case law has established three methods by which “residence” can be determined; that is: (i) “actual, physical presence in Canada for a total of three years, calculated on the basis of a strict counting of days”; (ii) “a person can be resident in Canada, even while temporarily absent, so long as he or she maintains a strong attachment to Canada” (Antonios E. Papadogiorgakis (Re), [1978] 2 FC 208 (TD); or (iii) the place where one “regularly, normally or customarily lives” or has “centralized his or her mode of existence” (Koo (Re), [1993] 1 FC 286 (TD) at paragraph 10).

The following is long. It is of interest to only a few.

Thus, I offer some preliminary remarks regarding what it is about: the following observations and comments are offered to clarify aspects of proving residency which is mostly relevant for those given RQ and have cases which the facts and cirumstances leave open some concerns, some questions. Applicants who clearly have been settled in Canada need not be concerned. Even those applicants who have been given RQ, if their submission in response to the RQ clearly documents place of abode and place of employment, in Canada of course and covering the relevant time periods, there should be no reason to worry about an assessment as to whether their life is centralized in Canada.

This discussion, below, is not focused on the alternative Koo test for residency, which applies only in shortfall (less than 1095 days of actual physical presence) cases. That is discussed at length, in depth, with citation and links to CP 5 Residence (where it is set out in detail) as well as numerous cases actually applying this ("centralized" mode of existence) test to shortfall cases, in the first pages of this topic above.

This discussion is mostly relevant to applicants given RQ and who have been living or working abroad since applying, or those applicants given RQ and for whom many of the typical ties are more abroad than in Canada. The obvious example I discuss in my previous post, the applicant whose immediate family was living outside Canada. There are other examples. The applicant who has obtained a U.S. Green Card is another one, particularly if the applicant has had employment in the U.S. since landing as a PR and during the relevant time frame.

As such, this is of interest to only a small number of applicants, those who know (or if they looked carefully would recognize) that there are real concerns CIC has about the residency requirement in their case, and who are concerned about how to respond to the RQ itself, and especially in how to best prepare for a hearing with the Citizenship Judge if and when that were to happen.

Additionally, this discussion may illuminate why CIC is pursuing not just RQ but also doing a thorough residency assessment, resulting in what I generally refer to as a long-haul RQ process, if they are an applicant who has been given RQ and who were abroad for extended periods after applying.

Justice4B wrote: For what it's worth: Federal court/Judge's explanation of what constitutes “Residency”: http://decisions.fct-cf.gc.ca/en/2013/2013fc70/2013fc70.html Enquote [11] The case law has established three methods by which “residence” can be determined; that is: (i) “actual, physical presence in Canada for a total of three years, calculated on the basis of a strict counting of days”; (ii) “a person can be resident in Canada, even while temporarily absent, so long as he or she maintains a strong attachment to Canada” (Antonios E. Papadogiorgakis (Re), [1978] 2 FC 208 (TD); or (iii) the place where one “regularly, normally or customarily lives” or has “centralized his or her mode of existence” (Koo (Re), [1993] 1 FC 286 (TD) at paragraph 10).

So that the context is clear, the three "methods" referred to by Justice Shore in the linked case are precisely the subject of this topic, and are more fully exlained in numerous other cases cited and linked above, going back to the very first post in this topic.

While I have already clearly made a necessary clarification regarding how the centralized life factor comes up (see this discussion in the "Can't attend citizenship test - live overseas" topic), I will quote it here again (below) so that there is no confusion.

Note: the "more formal use" of the term "centralized life" in Canada, which I refer to, is that referenced by Justice Shore in the case linked above, albeit Justice Shore uses the phrase "centralized . . . mode of existence," which as I explained before (and quote here below) is a test which may be applied to a shortfall case; that is, it is a test which a Citizenship Judge may apply to determine if an applicant who did not meet the actual physical presence test (APP > 1095 days) nonetheless was resident-in-Canada sufficient to qualify for citizenship.

The context in which a "centralized life" in Canada is an issue in the discussion carried on here by bjones above is NOT so much about that use of the term, not about that "test" for residence (which again is more thoroughly discussed with citations and links to the most relevant Federal Court decisions, in the first few pages of posts in this topic).

It is more about how this term refers to a more general assessment of the applicant's facts and cirumstances, including history, but also in particular including where the applicant has been living or working since applying for citizenship. It is about an evidentiary factor, not a qualifying requirement.

How this is relevant to many applicants is mostly about:

How is it, that even though absence after applying does not directly figure into the residency calculation itself, how is it that absences after applying can and often will factor into how CIC perceives the applicant, and how CIC processes the application?

In other words, the crux of the issue is illustrated by what I think is a common, underlying question for a significant number of applicants:
I qualified for citizenship, how can leaving Canada after applying negatively affect my case?

However, there are also some recent Federal Court cases (also cited, linked, and discussed in previous pages of this topic) which involve applicants who clearly, insistently, claimed to have been actually physically present in Canada for > 1095 days, but CIC opposed the grant of citizenship because, in CIC's view, the lack of evidence showing a centralized life in Canada amounted to, again in CIC's view, a failure to meet the burden of proving being resident-in-Canada for the requisite period.

So the scope of how significant evidence is of a life centralized in Canada (or not in Canada) is broader than just those cases involving applicant's who have extended absences from Canada after applying.

In any event, as I explained in the other topic (the discussion bjones was continuing in this topic):

Clarification regarding the "centralized life" in Canada factor This is one of those terms which easily leads to some confusion, which in part is because there is a more formal use of the term "centralized life" in Canada in contrast to a more or less generic, ordinary usage of the term, and in part because it is easy to confuse qualifications with evidentiary factors relevant to the residency qualification. To be clear, regardless of which way the term is used, it is not a qualification. There is no requirement that applicants for citizenship have "centralized" their life in Canada. But saying that is as likely to overlook important considerations much in the same as saying, albeit correctly, that there is no requirement an applicant for citizenship continue to live in Canada after applying. Both are correct. But the applicant who goes abroad to live after applying, and the applicant whose circumstances tend to indicate the applicant's life is not centralized in Canada, are at substantial risk for things to not go well, for there to be at least a longer and more difficult process, if not some risk of being denied citizenship. Two uses of the term "centralized life" in Canada: There is a formal approach to assessing APP shortfall residency cases based on a "centralized life" in Canada test (in particular it is one of the three recognized tests for residency). In this context, "centralized life" is a term of art, is applied as a standard based on the various descriptions of what this test entails, including such things as (in the opinion of some Federal Court justices) "an audit trail" of a life lived in Canada. Aspects of this, including application in particular cases, has been discussed in depth in the Residency: tests, proof, practice, policy topic (mostly in the 2011 and early 2012 discussions there). There is also the more generic, general usage sense in which the term "centralized life" in Canada is used. Unfortunately, both CIC and some Federal Court justices use the term without making this distinction, adding to the confusion, using it one way in one context, and in the other way in other contexts. Mostly, however, for our purposes, it comes down to this: -- strong evidence that the applicant has centralized his or her life in Canada is strong evidence corroborating a declaration of APP > 1095 days; that is, strong evidence of having a life centralized in Canada tends to corroborate the claim the applicant was resident-in-Canada. -- in contrast, the lack of evidence showing that the applicant's life is centralized in Canada tends to raise questions about the extent to which the applicant was in fact actually, physically present in Canada; in this regard, in particular, evidence that the applicant's life is not centralized in Canada may lead to the inference that the applicant was absent from Canada more than declared unless, of course, the applicant soundly proves otherwise (has enough evidence to overcome the negative inference arising from evidence life was not centralized in Canada), recognizing, however, that tends to be more difficult if the applicant's information and documentation failed to show a life centralized in Canada in the first place Thus, again, it is not a qualification. The applicant does not need to prove he or she centralized his or her life in Canada. But it can be a big, big evidentiary factor.

It is worth repeating, I think, that most of us have nothing whatsoever to fear in regards to considering whether our life is centralized in Canada; most of us came to Canada to live in Canada, are living in Canada, and there is little doubt, our lives are settled in Canada.

Beyond that, to whatever extent CIC has concerns about whether an applicant's life is centralized in Canada this does not necessitate that one's life be exclusively set in Canada. But, sure, the more one's life is tied to things, work, family, outside Canada, however, the more risk there is that questions might naturally arise as to whether the applicant was actually resident in Canada as declared.


By the way, the post about the PR residency obligation is off-topic, and not even relevant to this forum (Canadian Citizenship) but rather should be posted in an appropriate topic in the Preserving Permanent Residence Status forum.

Most recent citizenship case decisions specifically focused on residency in the Federal Court:

MCI and Rahman, in which there is a detailed calculation of days, and the failure to present one of two passports was a key issue; this was a CIC appeal of the CJ's approval and the CJ's approval was quashed (CIC won).

Irani and MCI is a shortfall case and a credibility case (never a good combination for an applicant); CJ's denial of approval upheld.

The extent to which the precise calculation of days present is a big part of the MCI and Rahman case is unusual, particularly in decisions decided in the last couple of years. There is no suggestion, though, that the Citizenship Judge engaged in a precise counting of days, and perhaps that was part of why the Federal Court was able to side with CIC and set aside the applicant's approval in the case.

This case in particular may signal that the underlying calculation of days present, days absent, is increasingly an important focal point in contested cases. There is still little or no hint that CIC or even CJs regularly engage in a detailed recalculation of days present, days absent; almost all the indications of the approach taken by CIC and by the CJs is to make a more general conclusion, either accepting a declaration of actual physical presence (APP) of 1095 days or more, or in effect finding the applicant failed to meet the burden of proving residency despite declaring 1095+ days APP. As I have more than occasionally noted, particularly for CIC there appears to be little or no effort to actually count how many days are questionable, how many days are to be deducted from the applicant's declared APP; the fulcrum appears to be simply whether the applicant's declaration is questionable, and if so, whether it is so to a degree that warrants finding that the applicant failed to prove residency.

This MCI and Rahman case may, as I say, signal a different direction in this regard, perhaps pushed by lawyers litigating cases on appeal, or perhaps pushed by a Federal Court justice who looks at the strict APP test and concludes that requires a clear accounting of days APP.

Ordinarily I would not consider a single decision regarding the residency issue to be particularly prophetic, especially since there are so many analytical threads entangled in the three specifically recognized tests for residency. But, the increased emphasis on the strict APP test combined with CIC's expanded issuance of RQ to applicants who have declared 1095+ days APP, seems bound to lead to more cases in which the calculation of days present, days absent, will loom more importantly.

This all points back to a tangent of discussion in this particular topic, not quite three years ago, but one which seemed of particular interest to timbit_TO, having to do with proving actual presence in contrast to residence-ties, particularly in the context of the applicant who has declared 1095+ days APP. See, in particular, the discussion of the Mariam Shubeilat v MCI, Sotade v MCI, Abbas v. MCI, and Raad v. MCI cases back in March 2011 in this topic.

I do not really know that more precise accounting of days present, days absent, days uncertain, will be a feature focus in cases going forward, but for any applicants who declared and claim to have been APP 1095+ days but who are headed for a residency issue hearing with a CJ, crafting a case built on an accounting of days may be a strategy worth pursuing. As I have said, my sense is that CIC tends to not do the precise accounting, focusing on the conclusion that there is reason to question the applicant's declaration of residency and that the applicant has thus failed to prove residency, not separately counting or otherwise distinguishing how many days of claimed presence are to be deducted from the applicant's declared presence. In the cases I refer to above (which are linked in the earlier post, probably on page 2 of this topic), this would not have helped much, as there was not much room for a margin of error, the questionable days easily reducing the APP to less than 1095. And a large part of why I think the strict counting of days has not been a major element in the Federal Court cases regarding citizenship residency has been that the cases are not usually so close that precise counting will make a difference.

To my view, though, the MCI and Rahman case tends to show that CIC has been pushing for non-approval more aggressively, in cases that are a closer call than what we were seeing back in 2011 and before, and in cases where in particular the APP is at minimum significantly closer to the 1095 days threshold.




Some Additional Notes
Timeline: Application date was August 2010 and CJ decision (approving applicant for citizenship) was November 8, 2012; Federal Court decision quashing the approval was December 20, 2013.

Major issue between the lines: While the Federal Court justice waves the issue off, I have a very strong sense that the real issue underlying CIC's adamant opposition to granting citizenship in this case is tangled in CIC's perception that this applicant's life was not centered in Canada and that in particular the fact that the children were living abroad is a potent indicator that the applicant herself was, quite likely (CIC's view I believe), not actually living in Canada as much as she claimed, beyond the 100 questionable days the Federal Court justice focuses on.

CIC's effort to double count nearly a year's absence: See Federal Court's references to arguments made by CIC (referred to as the "applicant" in the decision, because CIC was the party appealing) regarding the time period during which the earlier, second passport which was not presented to CIC or the CJ, was still valid. The applicant had self-declared most of that period of time as being abroad anyway. CIC argues that the entire time should be deducted from the applicant's declared presence. That is, CIC essentially argues that despite the fact that over 300 of those days were already deducted in the applicant's residency calculation, they should be again deducted. See paragraph 20 of the decision. I do not know for sure this is a correct characterization of the arguments made by CIC. Perhaps the Federal Court misunderstood the argument. But the Court's reference in particular to the number of days CIC (again referred to as the "applicant" in the decision) asserts the applicant was resident, 697, tends to suggest this was indeed CIC's argument. And if so, that is extremely disconcerting. Such blatant mischaracterization of the facts is simply unacceptable. Yes, parties are allowed wide latitude in terms of what is arguable, but this is far afield of any position that is rationally arguable. To my view this is a strong clue, however, as to how adamantly opposed to the grant of citizenship CIC was in this case, and thus to my view tends to reinforce and emphasize that there was more concern (from the perspective of CIC) than merely the 100 so-called questionable days identified by the Federal Court justice.




The Irani and MCI case: As I noted, this is a shortfall case and a credibility case (never a good combination for an applicant). In this particular case, however, references to a single credit card transaction (see paragraph 11) in the U.S. warrant some attention:

[11] The Judge suspected that in October 2006, Mr. Irani was in the United States but had not disclosed this trip in his application. The Judge noted that on one of Mr. Irani’s credit card statements, there was a charge on October 16, 2006 from a restaurant in Dallas, Texas. Mr. Irani explained in his affidavit filed in this appeal that his friend owned the restaurant, had borrowed money from him, and the easiest way to pay Mr. Irani back was to charge his credit card. Mr. Irani says that he was not actually physically present at the restaurant to incur the charge. I am prepared to give Mr. Irani the benefit of the doubt.

I mention this because, first, while it is said that the CJ "suspected . . . [based on credit card transaction]," it is almost certain that this was not a detail the CJ discovered in examining the record, but rather this is something that CIC had discovered and highlighted for the CJ in its referral to the CJ. Secondly, however, this illustrates how CIC examines documentation such as credit card statements: they are not looking to confirm the applicant's version of things, but rather looking for items that will indicate inconsistency, discrepancy, reason to deem the applicant's credibility compromised.

The Federal Court justice's condescending "I am prepared to give Mr. Irani the benefit of the doubt," regarding this, is offensive. There should be plenty of indicators, one way or another, surrounding the date of that single transaction which would tend to show that Mr. Irani was either in the U.S., or in Canada. The location for a single credit card transaction is not substantial evidence of where the individual was physically, particularly given the way credit card transactions can be processed. Applicants who want the opposite to weigh heavily in their favour will be sorely disappointed: CIC may give some weight, but not much at all if there are any contrary indicators at all, to pages of credit card statements reflecting transactions in Canada. That is, it is clear that CIC will not be persuaded that even multiple credit card transactions in Canada will prove the applicant's presence in Canada, so this focusing on a single, apparently totally isolated transaction, as evidence controverting the applicant's testimonial evidence of presence in Canada, is duplicitous. To my view it falls into the same category of unreasonable argument as CIC's effort to double count days absent in the Rahman case.