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Residency: tests, proof, practice, policy

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mas24546 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote mas24546 Quote  Post ReplyReply Direct Link To This Post Posted: 03 Jul 2011 at 8:55am
Originally posted by dontmindhelping dontmindhelping wrote:



You are right about the applicants who are not able to speak either English or French, can take their test. What you don't know is that, the staff who check applicants in at their tests, if they are not satisfied with the language abilities of the applicants, have the discretion and duty to request a language hearing with a judge. That does not stop the applicant from taking his test. Should the applicant fail both the language requirements and the tests, then he(she) will be request to have a knowllege AND language hearing with a judge.


I am preparing for the Canadian citizenship test.   Where can i find Canadian citizenship test online?
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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: 04 Jul 2011 at 3:19pm
mas24546:

Please see this thread: which is about the "Discover Canada" guide (and this is a link); you can access the book through CIC website. Beyond that, there are NO official sources of the test online. Again, see the discussion in the thread I link for sample questions, and if you scroll back some pages you can also find information about other sites that offer sample tests or such (which largely seem unreliable to me).

Passing the knowledge test has nothing to do with the residency requirement, so your question was totally out of place here. Please try to post in the relevant thread in the future.

In the meantime I am buried by an article on Eminent Domain (as applied in a U.S. State), with a deadline I will not meet, but I do intend to follow up on the recent discussion about the current residency jurisprudence and some about prospective policy in this regard. It is hard to imagine that this situation can continue much longer, as, frankly, it is a real embarassment for Canadian law. May be a few days though before I can do the follow-up.
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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afimiko View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote afimiko Quote  Post ReplyReply Direct Link To This Post Posted: 11 Jul 2011 at 10:43pm
I was wonderrying if any body who has been living in Canada for 13 years without a PR can apply for Citizenship directly upon becoming a PR of canada ???

Is there such a possibility provided to people ? If yes, under what circonstances and what requirements ???


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britincanada View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote britincanada Quote  Post ReplyReply Direct Link To This Post Posted: 11 Jul 2011 at 11:39pm
Sorry afimiko one of the requirements it to hold PR status in Canada...however once PR is obtained if you have legally lived in Canada before being given PR you are entitled to claim these days as half days towards your Basic and Physical presence in Canada! 

For example I became PR in Sept 2010, I can claim my temporary status in Canada from December 2008 toward my requirement when I apply for Citizenship in December 2012... 
App received by CPC-M 1/06/10
Sponsorship approved 29/06/10
In Process 15/07/2010
VISA & PP Recvd 22/09/10
LANDED 29/09/10
ELIGIBLE TO BECOME CITIZEN 4/11/2012
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Post Options Post Options   Thanks (0) Thanks(0)   Quote canvis2006 Quote  Post ReplyReply Direct Link To This Post Posted: 11 Jul 2011 at 11:41pm
Nope, at least 2 years as a PR are necessary, but you can get credit for 1 year (2 years at half credit for each day spent in Canada on temp. status), provided it occurred in the last 4 years from the date of application.

So nope, please refer to the citizenship guide and application. Use the residency calculator on CIC website.



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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: 20 Jul 2011 at 2:29am
I intended to compose a further discussion of recent decisions and their implications, and include a summary of the various approaches that now go well beyond merely the oft times referred to three tests (though all of the approaches are variations of one sort or another on one or more of the tests). Toward that end I had been reorganizing a good deal of research into this.

The files and research and my notes and all that was on my network storage device, which I thought was safe because I had a mirrored drive of that storage. Crashed over a week ago. Thought the data would be restored quickly because it was duplicated on a second drive. Been over a week now and no progress on recovering the data from either drive. Does not look good. Losing this information (which I can relatively easily rebuild) is inconvenient but not serious. My work-work I maintain both backups and redundancy for, so that is OK. My photos for the last two years, however, were all on those two drives, one supposed to be the backup of the other. Not happy.

All that is, of course, off topic.

What I am saying is that I do still intend to pull together a great deal of all the information we've discussed here and in a couple other threads, especially the RQ discussions thread, and even if it is necessary to reconstruct a significant amount of the research, I still intend to bring a lot of this information together and post it here.

It is clear that things have gone far far from being at all clear, and indeed, are very muddled. The positions that CIC, the Minister that is, has taken in the appeals is, in particular, contributing to the Kafkaesque labyrinthes of approaches to evaluating what "resident in Canada" means and what proves that an applicant has been "resident in Canada" sufficiently.

Moreover, it is clear that many PRs are confused and many are applying for citizenship before they really are ready to do so, or are otherwise failing to maintain the sort of records some will be compelled to produce. This lack of clarity in communication from CIC is particularly disconcerting.

But a system in which a variety of approaches and standards may be applied without advance notice to applicants as to which approach or standard will be applied is inherently unfair.

This is an issue which demands attention and resolution.

May be awhile, but I will get back to compiling a summary of where things are at, with full citations to the relevant sources of authority.
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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jawad View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote jawad Quote  Post ReplyReply Direct Link To This Post Posted: 21 Jul 2011 at 6:39am
can somebody please explain this???
 
PARAGRAPH 5(1)c OR PARAGRAPH 5(5)d of the citizenchip act
 
thank you for the person willing to explain
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 21 Jul 2011 at 2:47pm






jawad:

Quote can somebody please explain this???
PARAGRAPH 5(1)c OR PARAGRAPH 5(5)d of the citizenchip act



Again, for a detailed explanation of a particular provision of law, one must look to an attorney for an opinion, and look to the courts for a legal determination, although one can also look at department or agency rules and regulations for an interpretation of how the provision should be applied.

That said, I am not sure why you are even asking about Section 5(5)(d) of the Citizenship Act; that subsection only applies to a person who is the child of a Canadian citizen (at the time of the child's birth) but who is stateless and always has been stateless. This is a very narrow category. This is a fix for a particular problem with the relatively recent amendments to the law governing who is a Canadian citizen by birth. It only applies to children born since those changes were effected, and while I do not recall the year those changes took place it has been within the last ten years, so this provision will not apply to anyone over ten years of age now. I doubt very much this provision is at all relevant to your case.



As for Section 5(1)(c) (the "residency" requirement):


As for Section 5(1)(c), that is the "residency" requirement and it has been the topic of much discussion, and is in particular the topic of most of the discussion in this particular thread. It gets complicated because there is no one standard even though, with some exceptions, the Federal Courts have allowed that the Citizenship Judge is relatively free to apply one of three articulated tests or standards.

Again, this can get very complicated, and if you read this thread beginning with the first post on page 1, you will get a glimpse of just how complicated it has become. Recent Federal Court decisions have made the issue even more complicated and less certain, with two extremes emerging.


However, for most, in most circumstances, it is not that complicated:

Generally, an applicant meets the residency requirement (that is, they have "accumulated at least three years of residence in Canada" within the applicable time frame) if after they landed as a PR they established their home (residence) in Canada and following that they were actually, physically present in Canada for at least 1095 days in the four year time frame immediately preceding the date of their application for Citizenship.

That is not complicated. That is the standard a prospective applicant should meet before applying. The applicant who meets this standard should have no problems, although if given RQ they will be required to submit proof they were actually, physically present for at least those 1095 days.

Thus, while the jurisprudence interpreting the residency requirement has become increasingly convoluted and uncertain, and is, frankly, as several Federal Court justices have themselves stated in their official decisions, a real ffzng mess (using more formal language of course), for the vast majority of applicants the requirement is pretty straight forward: the land, they establish their residence in Canada, and when they have actually, physically been present in Canada for more than 1095 days within four years, they meet the residency requirement, and ONLY THEN should they apply.

Some PRs may meet this requirement based on living in Canada prior to the date they landed. This is what section 5(1)(c)(i) is about, that is credit toward the residency requirement based on time living in Canada prior to landing as a PR. To be entitled to credit for actual, physical presence for days prior to landing as a PR, the PR must have been a PR for at least two years and must have made Canada his or her home prior to landing (typical cases: people on student or work visas, refugees, to some extent some visitors may qualify for this as well). Again, all days to be credited must be within the relevant four year time frame. The days prior to landing that the applicant was actually, physically present in Canada get credited at the rate of one-half day for each day of presence. For this type of applicant, the total credit toward meeting the residency requirement is simply based on the total number of days the PR was physically present in Canada since landing plus one-half times the number of days the PR was living in Canada and physically present prior to landing (but only going back four years from the date the application is submitted).


Bottom line for the vast majority:

What section 5(1)(c) means for the vast majority of applicants is that they must be a PR who has been actually, physically present in Canada for more than 1095 days in the four years immediately preceding the date the application was submitted.



For those given RQ:

There are, in essence, two categories of applicants subject to RQ:

I. Basic Residence but not sufficient actual presence:

This group consists of those who applied based on having maintained their "residence" in Canada for more than three years in the previous four years, but who were not actually, physically present in Canada for more than 1095 days in that applicable four year time frame. These applicants must submit convincing evidence that notwithstanding their absences, their life was centralized in Canada, the absences were temporary and due to exceptional circumstances those days should nonetheless still be counted toward meeting the three years "residence in Canada" requirement. The so-called Koo criteria are the most often referred to factors which are taken into account for this. These days, though, it is apparent that the applicant needs to also have presented a case which persuades the Citizenship Judge that Koo criteria should be applied and credit given toward residency despite the absences.

Basically this group of applicants is in the position of pleading with the Citizenship Judge, urging the Judge to determine that they deserve to be granted citizenship even though they do not meet the actual, physical presence standard. All such applicants must (ordinarily) go to a hearing with the Citizenship Judge. All such applicants are at a substantial risk of being denied citizenship. That risk seems to have increased significantly in the last year or so, as it appears more Citizenship Judges are applying the strict actual, physical presence test and some Federal Court judges are suggesting that this is indeed the only proper interpretation of the residency requirement (section 5(1)(c) of the Citizenship Act).


II. Questions, concerns, or doubts about accuracy of residency calculation:

Many of those subjected to RQ and posting here claim to have been actually, physically present in Canada for more than 1095 days, that is, they claim they clearly meet the residency requirement based on their actual, physical presence, they qualify under the strict presence test. And, indeed, a number of the decisions in the Federal Court cases indicate that at least some of the time the issue is whether or not the applicant has sufficiently proven actual, physical presence for the required 1095 days.

These RQ cases are more about evidence and proof, about establishing when the applicant was actually, physically present, when the applicant was absent. On the surface the issue is numeric, a counting of the days present, but the real issue is evidentiary, about proof.


For those given RQ and posting here, I recently have begun pleading that they reveal which group they belong to, whether they belong to the group asking for a grant of citizenship notwithstanding failing to have been actuall, physically present for the required days, or whether they belong to the group that claims to have been actually, physically present as required but are nonetheless being challenged to prove their actual presence.

The difference is huge. The nature and quality of the proof involved is different (related, overlapping to a large degree, but involving very different objectives).

    
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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jawad View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote jawad Quote  Post ReplyReply Direct Link To This Post Posted: 22 Jul 2011 at 6:11am
thks dpenabill
 
 
we ill see on its time - but do u think it is good to ask why i have been rq
or better wait and see
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Post Options Post Options   Thanks (0) Thanks(0)   Quote dpenabill Quote  Post ReplyReply Direct Link To This Post Posted: 30 Jul 2011 at 4:32pm

I apologize jawad for not responding to this . . . must have glanced at it and thought I would come back and then got distracted and this thread dropped down a page.

Should you "ask why i have been rq . . ." Ask whom? In what setting or context? It is not clear that there is a suitable context for making such an inquiry. Moreover, to the extent that others have reported being told why, the response is glib: CIC (or the judge) has questions about whether you met the residency requirement.

(This is a bit like being charged with a crime and, upon asking why you are told you committed a crime. OK, but what crime? When? How? Where? In other words, to say an applicant has been given RQ because there is a question about meeting the residency requirement is no answer at all, since all this response does is repeat that the applicant is subject to a residency questionnaire.)

But, jawad, as I have oft times emphasized: you can and should ask yourself why you got RQ. You should be able to assess your case, yourself, especially if you have read through a lot of the information in this thread and have been following the discussion in the RQ discussions thread. A thorough, objective, self-examination will almost always reveal the "why?"

That should be done prior to submitting the response, so that at least in the "additional information" part of one's response, one can directly address what is likely to be the underlying issue or issues and offer a cohesive argument advocating why the applicant should be found to have met the residency requirement.

If not done then, it should be done in preparation for the actual hearing or interview with the CJ, again, so that the applicant can present a clear, succinct argument advocating why the applicant should be found to have met the residency requirement.


In the meantime, there is still some hope that all my data will be recovered, but not for awhile, so I have not begun to rebuild my residency jurisprudence database.

In the meantime, though, a couple more recent cases have been published: more Minister appeals. Some interesting observations. More invitation to read the tea leaves . . . especially given Justice Tremblay-Lamer's passing reference (in the "Zhang" case -- sorry no link at the moment) to a couple cases we've talked about, which cases appear to indicate some changes in the wind: the Ocla case compared to the Marinez-Caro case.

Justice Tremblay-Lamer stated:

Quote While there has been some recent disagreement on the question of whether or not more than one test is permissible (Justice Robert Barnes in El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533 [El Ocla] and Justice James O’Reilly in Dedaj v Canada, 2010 FC 777, 90 Imm LR (3d) 138 found that the qualitative Koo test was the correct test to apply, while Justice Donald Rennie in Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640 found that the quantitative Pourghasemi test was the correct test to apply), it is not necessary for me to address this issue on the current appeal.


Not necessary to address this issue? But she brings it up nonetheless? Yeah, I am reading the tea leaves, but "this issue", and the respective two opposing views of it, is clearly on the minds of those addressing the residency question . . . and, of course, what I wonder is whether the Minister is pushing the Rennie version these days. I have my suspicions.

The other minister appeal (which the minister won) is in the Behzad Memar-Zadeh case, again I do not have a link at the moment.

I hope to look at this more thoroughly in the near future . . . but, again, it appears to me that perhaps there is some momentum toward a confrontation or change regarding the various conflicting standards involved. (Which could take awhile, since these things tend to move rather slowly in the labyrinthes of bureaucracy.)
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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