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Observations about C & I policy

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Topic: Observations about C & I policy
Posted By: dpenabill
Subject: Observations about C & I policy
Date Posted: 19 Dec 2011 at 12:42pm

This is a side trip, not a long, strange trip, just a tributary in the watershed of policy, invited by a recurring discussion in the citizenship threads, especially RQ related discussions, but also relevant to issues related to preserving PR status:


Despite the fact that I sold out in the 80s, joined the bourgeoisie, or attempted to anyway, taking on the mantle of the bourgeoisie even if not exactly with much financial success (yep, I am one among the great boomer hordes who grew up in the 50s, dropped out in the 60s, struggled into and sobered up in the 70s, and, indeed, sold out in the 80s, but at least I got my bearings in the new millennium, having met, courted, and married a great Canadian lady, and thus have [albeit only partially] escaped the evil empire to the south), my heart and my intellect are still rooted to late 19th, early 20th century political philosophy that encouraged workers of the world to unite and opposed the monstrous machines of nationalism. As one of my wife's favoured TV doctors (oh yes, it's Phil) will oft times say, how's that working for you? As in, it has not. Then again, I am also a devout pacifist living in a predominantly militarized and pervasively violent world.

You can't always get what you want.

That is, that said, the world is what it is and, frankly, for the near future the direction things are going is not toward the fading of national boundaries. In just the last decade the border between Canada and the U.S., long touted one of the most friendly national relationships in the world, has grown far, far more formal and restricted. Before ten years ago I crossed the U.S./Canadian border somewhere between seventy or eighty, and a hundred and fity times, perhaps more, it was totally insigificant and keeping track was not on the radar, going to Canada for dinner was not much different than going out for dinner generally, except the restaurants were better (and in those days cheaper). In the decade before 9/11 I was asked for identification when crossing the border only once in fifty or more crossings. Over the course of the next few years it became more and more common to be asked for identification, and then when the U.S. started requiring a passport it became almost every time entering the U.S. and a little less than two years ago Canada likewise began asking me for identification every time.

I explain this because it illuminates the trend, the direction things are going. The border deal the U.S. and Canada just signed on to moves this further in that direction, with much emphasis, and with a lot of relatively new technological paraphernalia to effectively render almost every single border crossing screened, regulated, and recorded into a readily accessible, shared database. Big brother is more than watching.


In other words: Status looms large and larger and larger.

And, to be honest, while formal immigration status looms very large in this equation, other shades of status also loom large, including those more or less tied to socio-economic factors. Despite the platitudes, it is not true, not everyone is created equal, not in the eyes of governing authorities, and not in venues of corporate influence.

There are all sorts of stratums in the current, sometimes rigid, oft times vague, not entirely formal scheme. Fairness is not much of a factor in these, and equality simply does not exist. As an American citizen I have long been able to travel to much of the world without giving a thought to applying for a visa in advance. In some countries people cannot travel to other provinces (or the comparable) without obtaining a travel authorization. In between there is great variation, and great disparity, among the nations and peoples of the world.

Not much point belaboring what is right or wrong in this. I have my personal views, still tied to what I said in the second paragraph above, but my personal views on what should be are not merely of minimal significance, they are contrary to what is, and to what will be for the rest of my days.



OK. There's a point lingering here somewhere.
And that point is that there are rules, as in laws and regulations and policies, and they are not always fair (oft times not fair actually), and they are not always equally applied (another source of unfairness), but for the most part they do map the terrain in which we live and work.


We are stuck with the rules. That's the game.

I do not judge here except in the most obvious situation, and even then mostly for informational purposes (wise up I might say, in effect, in addition to "no," to someone who asks, for example, if they can create a Canadian company and work abroad as an employee of that Canadian company and thereby be in-Canada for purposes of the PR residency obligation). And yes, as a spam cop I do see people's IP addresses, and I recognize many of the foreign based prefixes without even thinking about it, so I occasionally recognize some more or less obvious discrepancies, the occasional post I've been in Canada . . . posted by someone in L.A. California or Dubai (a couple of the more common, easily recognized IP addresses; and yeah, I realize there are ways of masking the IP address . . . but of course that bears its own implications and is more apparent than some might think).



So, yes, the rules, the rules of the road, that's what we deal with.

It is no irony that as members of the public we are not told all the rules. There are layers of disclosure. Some rules are simply not public information. Some are actually secrets. Some rules are more or less informal policies, some unwritten, some written.

I oft times refer to the influence of the deserves factor. This is something deeply embedded in unwritten, informal rules. Yet its influence should not be underestimated. Many, many, many are surprised, dismayed, when they have done everything by the book and technically comply, only to have some decision-maker decide a few facts to the contrary where there is room for discretionary inferences (many, many facts fall into this category), sufficient enough, however, to rule against the individual who did it by the book and technically complied.

In the http://www.immigration.ca/forum/forum_posts.asp?TID=5523&PN=3&title=residency-tests-proof-practice-policy - thread "Residency: tests, proof, practice, policy" I discuss the http://decisions.fct-cf.gc.ca/en/2011/2011fc301/2011fc301.html - Sotade v MCI case , for example. While it is not certain, it appears that Samuel Sotade returned to Canada immediately after landing in the U.S. as a Green Card holder, and indeed remained in Canada for many months after that (until selling his home in Canada). He applied for Canadian citizenship eight days after obtaining his U.S. Green Card. He declared actual presence in Canada for 1096 days. The CJ deducted the eight days between obtaining the GC and the date Sotade applied for citizenship.

Technically, I believe that Sotade was not lying when he claimed to have returned to Canada (probably same day as that on which he landed in the U.S.), but the CJ inferred, and the Federal Court judge concurred in this, that Sotade was absent those days.

Personally, as a jurist, I think the residency requirement is intended to be just that, and as such has both elements, one based on maintaining residence, in addition to the other element based on actual presence. Thus, from a jurisprudence perspective, as soon as Sotade landed as a permanent resident in the U.S., he effectively terminated his "residence" in Canada, so even though he physically returned to Canada, he was no longer resident-in-Canada, and so those days should have been deducted. The CJ, however, simply inferred he was not present. Sotade did not obtain Canadian citizenship.

There was more to the deserves side of Sotade's case than that, of course, since he had been commuting to a job in the U.S. for some time . . . by doing day trips to his job he was, technically, in-Canada those days. Very easy to see why Sotade lost his case. Technically, though, it seems clear he met the technical requirements.

Here's an important side to the http://decisions.fct-cf.gc.ca/en/2011/2011fc301/2011fc301.html - Sotade v MCI case : that was an application for citizenship submitted mid-2008 (May or June I forget). It was among the decisions in the Federal Court at the beginning of this year signalling that a distinct trend toward getting tough on the actual, physical presence aspect of the residency requirement. It seems obvious that CIC, CJs, and the system in general, have continued to get tougher and tougher on the formal requirements, scrutinizing applicants more and getting stricter.

So, as I say, those are the rules, the rules of the road, and that's what we deal with.

But, a huge caveat, again, about this I am quite confident, that deserves side of things looms much larger than almost anyone will admit.

Anyone whose circumstances hint of not really deserving citizenship (from the standpoint of, say, Jason Kenney, and his standpoint is not exactly a friendly one) best be sure to have a very, very solid case based on the merits. It could be a tough sell.


-------------
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



Replies:
Posted By: jogruni
Date Posted: 19 Dec 2011 at 2:00pm
Going through the Sotade Federal Court decision, I have to say, that this case really raises questions and I would also doubt the applicants claims, requiring more detailed explanations and more proof.

Not knowing what evidence exactly the applicant provided, but it looks to me, that evidence was weak.

The judge in the decision mention "Canadian bank account" only, so I assume the applicant did not provide more details about his account and account card or credit card usage in Canada. The "UPS commercial address" also raises questions in my opinion.  The fact to be a single day above the threshold is another thing that fuels doubt. Not knowing the quality of the evidence, but from reading the judge's arguments in this court decision, I would also have my doubts and TBH I think I would have denied the appeal (if this really was the only evidence presented). To me it appeared that the applicant left Canada a day after meeting the basic criteria and still not having enough proof for the physical presence.

I think if you are that close to the edge (one day) you have to have a ton of excellent evidence to back up the case and RQ are just about 100%. I do not see this case is a good example for someone who deserved the citizenship, but was denied. He was really on the edge and I agree with the doubts both judges showed in this case. And I think the applicant still has the option to reapply with a stronger case.


Posted By: jogruni
Date Posted: 19 Dec 2011 at 2:06pm
One more thing in this case, as I believe the applicant was commuting between the US and Canada:
There is a major difference in calculation days of physical presence in Canada for PR status vs. citizenship.
PR:
every day counts, even every day partially spend in Canada counts as a full day of physical presence.
Citizenship:
On travel days, from the day you left and the day you returned only one day counts. I am not sure, what that exactly means, if you were traveling every day to the US and returning on the same day.

Anyway, this could be an explanation why the judge deducted days from the applicants claims.


Posted By: dpenabill
Date Posted: 19 Dec 2011 at 2:09pm
Sorry, I guess my point got sidetracked.

I see the Sotade case as a prime example of someone who, probably, technically complied with the requirements (at least in terms of actual, physical presence) but who lost because he did NOT appear to deserve citizenship.

He and his wife sold their house in Canada in 2009 (nearly a year after applying for citizenship) so I don't think he had a shot at re-applying. Maybe. I doubt it.

But, again, I refer to that case because, to my view, it illustrates someone cutting it close and otherwise not appearing to deserve Canadian citizenship, so the CJ and Fed Court judge decided it was appropriate to infer he was not present in Canada for enough days to apply the strict physical presence test and deny citizenship. That's why I cite it in support of my warning: falling on the wrong side of that deserves factor can bite one in the behind, even if the requirements have been technically met.

-------------
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


Posted By: dpenabill
Date Posted: 19 Dec 2011 at 2:17pm

Quote
One more thing in this case, as I believe the applicant was commuting between the US and Canada:
There is a major difference in calculation days of physical presence in Canada for PR status vs. citizenship.
PR:
every day counts, even every day partially spend in Canada counts as a full day of physical presence.
Citizenship:
On travel days, from the day you left and the day you returned only one day counts. I am not sure, what that exactly means, if you were traveling every day to the US and returning on the same day.


The commuting factor probably did, indeed, play a significant role. Perhaps a huge role.

Further illustrating my point:

If you leave Canada after midnight and return before midnight, that is a day trip. That's a day that counts, for citizenship, as a day in Canada.

But that is technically it counts.

And then to top that off, he obtains the U.S. Green Card. His intentions were obvious. And not, one might say, well received.

Frankly, I suspect they would have looked for a way to deduct days even if he did not land in the U.S. until eight days after applying.

As in, that's the point, technically complying is important but is not always enough.



-------------
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


Posted By: jogruni
Date Posted: 19 Dec 2011 at 2:21pm
I think the question to me was, how would a case turne out, if the applicant had like 1150 days of presence. Not having commuted, having enough strong evidence to proof the physical presence. But still sell the house a year after application and maybe move to US. What happened in such a case?

I would like to get a better view on really what evidence is enough to "proof" physical presence. This is my biggest concern in terms of burden of proof. But yet there is no clear set of rules for that.


Posted By: dpenabill
Date Posted: 19 Dec 2011 at 2:46pm


Quote I would like to get a better view on really what evidence is enough to "proof" physical presence.


That was one side to the discussion around which the thread "Residency: tests, proof, practice, policy" was pursued. timbit_TO, who contributed to the discussion a good deal for months, was very much concerned with this issue . . . there being hints in the RQ process that someone with a U.S. Green Card, for example, faced a tougher, higher hurdle.

See page 2 in that thread. Aspects of this were discussed at length.

timbit_TO put a great deal of weight on the technical burden of proof: on a balance of probabilities, which, in turn, at least technically would seem to weigh heavily in favour of an applicant who declares presence for more than 1095 days and for whom there is no directly controverting evidence as to being outside Canada on any of those days the applicant declared to be present in Canada.

Sotade, as I have said, illustrated the weakness in that approach, in relying on the technicalities. Citizenship Judges are not real judges, not by training anyway, so technical positions based on formal statements of burden of proof are not exactly their strong suit. What they see as fair and just probably has far more influence than any technical principles governing the weight to be given evidence. Indeed, CIC tends to affirm this, in the operational manual it explicitly diminishes the weight to be given to affidavits in support of the applicant . . . based on a presumed interest, presumed lack of complete knowledge . . . whereas formal principles governing the weight to be given evidence puts a great deal of weight on affirmatively sworn to statements of fact, so much so that in the absence of controverting evidence (not mere suspicion, but real evidence), such statements of fact must, in most legal systems derived from British common-law (such as Canada's and the U.S.), be presumed true. In other words: a sworn declaration is, as a matter of law in most adjudicatory contexts, alone enough to establish the facts on a balance of probabilities unless there is direct evidence presented to the contrary. There are nuances and exceptions, but nothing approaching the dismissiveness toward affidavits expressed in the operational manual.

All that said, I do not think a genuine applicant for citizenship has much if anything to worry about, so long as they have been living in Canada, have met the strict physical presence test, and accurately and completely filled out the application including a thorough and accurate residency calculation. Yes, perhaps the applicant who has left Canada to work abroad after applying can expect RQ and can anticipate their circumstances to be closely scrutinized, with a lot of skepticism in some cases, but if they initially submitted a solid case, did not cut it close, and if the overall indicators are consistent with an intent to make Canada their lifetime home, all should go well.

Some push the envelope in this. And those other influences have some bearing . . . see the case of the German family who spent a remarkably little amount of time actually in Canada, but they belonged to Vancouver yacht club and were, well, clearly of an affluent class, and yes they got citizenship.

So, no, there is no precise formula, no guarantees for those pushing the envelope. We live in an increasingly global world, but national boundaries are looming large nonetheless, and we are not all going to be treated equally when we encounter those boundaries.

-------------
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


Posted By: dpenabill
Date Posted: 06 Dec 2012 at 3:50pm

The following is in response to the topic "Letter to Minister Jason Kenney . . ." in the Citizenship conference. I make my remarks here because I do not want to distract the conversation there with my lengthy observations any more than I already have.

Quote Dpenabill, given your journalism and editorial background, would it be possible for you to rewrite the original letter with more generalization about the lengthy processing times and the general issues? Your last post in this topic raised several good points and I can't think of anyone better positioned to address those concerns (i.e. effectiveness, etc). That would be great


I too have grave concerns about how long the routine cases are taking to process. And I think that is indeed a general, policy matter in dire need of more attention, and that it is an appropriate subject warranting communication to MPs and the Minister in regards.

A very simple letter stating who the author is and what the concern is, barely a paragraph, would suffice. (As you have well noticed, I am sure, I am not capable of writing such a letter; I always elaborate.)

I also believe that many, if not a great many RQ'd applicants have suffered excessive delays well beyond what is fair, and so of course that too is something that should be addressed.

That, however, is a more complicated matter and has many aspects.

I do not think it is a good idea to purport to be communicating on behalf of anyone other than those who have explicitly requested the author, or given permission for, to speak on their behalf.

I would be extremely careful about generalizations as to the facts. There are, probably, thousands of applicants who are going through the RQ process, but unless one has some definitive information verifying this, reference to a number is not worth risking one's credibility. The Minister probably has a very good idea about how many. A lot better idea than any of us have. No need to speculate about the number. A reference to "many" is good enough to make the point. (I know, a number would have more gravitas, definite is always more powerful than general, but that is only if the number is indeed well-founded; the risk is the number becomes the focal point, a distraction . . . an allusion to thosands who complain, for example, really needs to be based on some reliable source reflecting that there are literally thousands complaining . . . two dozen or four dozen anonymous user-ids in a half dozen different forums does not add up to thousands, especially when among those many are the same person.)

Moreover, relative to delays in RQ'd cases overall, as many of my posts reference, I think the issues are more complex, often if not usually entangled in the particulars of the individual cases, and I truly believe that a big part of what was behind OB 407 and implementation of the pre-test RQ process, including especially the pre-interview check, is a concerted effort at CIC to address the problem of more timely processing applicants given RQ but who are indeed qualified and whose response to RQ documents their qualifications including especially residency.

That is to say, I believe the more general RQ issue is largely being addressed, at least relative to the issue of RQ'd but well-qualified applicants (please forgive me, but I think "well-qualified" aptly conveys the sort of applicant even vefabuyuk's letter is about: qualifications are clearly indicated in the application and all other information in the file, a strong case is made in response to the RQ, and there are no indications of having failed to declare an absence).

The new procedures probably are not addressing the situation where there are specific issues or problems causing an inordinate delay in individual cases. These, however, should be addressed on a case-by-case basis. Individuals ensnared by inordinate delay should hire a legal representative to look into and advocate their case. We do not see many reports, but I believe that there are, indeed, many who manage to get their cases more timely resolved by pursuing recourse through inquiries or through advocacy by a legal representative.

Notwithstanding recent changes in the process, there are at least two groups of RQ'd applicants who, I think, can anticipate continuing having to face inordinate delays, or at least the longer of the long processes toward reaching a final determination, even if they made a strong case that they were actually, physically present for at least 1095 days:

-- those for whom CIC perceives indications that they did not fully and accurately declare all absences

-- those who CIC perceives were in-effect submitting the application on the way to the airport

For the first of these, there is no getting around it: it is adjudication, and adjudication is a very lengthy process. CIC will put the file in a queue for a case officer to do a thorough assessment and preparation of the file for referral to the Citizenship Judge. It will take a long, long time for this to unfold for a great many of these applicants. Does not matter if the applicant has submitted very strong evidence of actual physical presence for at least 1095 days. The issue is the failure to declare all absences. It will be up to the CJ to decide the credibility to be given the evidence submitted showing presence. It will take a long time to just get the file to the CJ's desk.

For those who CIC perceives to be, in effect, leaving Canada (especially those already gone), as I have said before, I do not take sides in that debate. I understand both sides of it. For now, CIC appears to target these applicants for a long-haul sort of RQ. That is just how it is, or at least that is how it very much appears to be. Those affected but who believe that this is wrong, sure, they can and should make their concerns known. But, that said, two important points:

-- Arguments/activism on this issue should not be conflated or confused or entangled with arguments on behalf of those pushing for more responsive timelines for applicants who are otherwise well-qualified (again, please forgive me for using this descriptive term but I can think of no other which is apt). I realize there are arguments why these should not be made separate. Both are premised on the impact delays have for applicants who have met the prescribed qualifications. But that leads to the second point --

-- Canadians in general, and Conservatives in particular, harbour little or no sympathy for these applicants. Sorry, that is just the reality. Despite what the law prescribes, the general sentiment is that applicants on their way to airport (so to say) should not be entitled to citizenship.

The latter makes the point about not entangling the two more imperative. Those who harbour much hope to effectively influence the Minister to improve processing timelines for qualified RQ'd applicants, have far better odds of being persausive if they do not conflate these.


Overall:

I already spend way too much time on this stuff.

I am not an advocate. I left that field over two decades ago.

Mostly, I doubt the efficacy of an effort to mount a broad-based activist agenda about this. That said: I do think personal, sincere and genuine, succinct (not my forte) letters, written from a personal point of view, perhaps discussing some of the very real hardships there are resulting from an inordinate delay, are worth doing.


-------------
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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