Leaving Canada after applying for citizenship
Printed From: Canada Immigration and Visa Discussion Forum
Category: Canada Immigration Topics
Forum Name: Canadian Citizenship
Forum Description: Commentaries outlining important issues in acquiring Canadian citizenship through naturalization
URL: https://secure.immigration.ca/forum/forum_posts.asp?TID=8848
Printed Date: 23 Apr 2024 at 10:20am
Topic: Leaving Canada after applying for citizenship
Posted By: eli
Subject: Leaving Canada after applying for citizenship
Date Posted: 06 Jan 2012 at 9:53pm
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Hi All, Might leaving Canada after applying for citizenship negatively influence a citizenship application? I thought it raises doubts about your residency requirement and you may be asked to submit a Residency Questionnaire (RQ), which means a lot of delay. I thought maybe I can send some supporting documents proving my residency right from the beginning to avoid any possible delay. Is it a good idea to send these additional documents? what are these documents? Thank you
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Replies:
Posted By: jogruni
Date Posted: 07 Jan 2012 at 4:21pm
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It very much depends on the overall picture. Technically there are two parts. The physical presence is one clear thing, but when you leave, you will have a problem with the more vague term of "establishing a residence". But it really depends on a lot of things and this cannot be determined with the information you gave. But I would avoid leaving Canada for more than a vacation, until you have the citizenship. |
Posted By: eli
Date Posted: 07 Jan 2012 at 5:07pm
| Thanks Jogruni. This was one of my concerns indeed. There are various tests a CJ can apply to determine your residency requirement. If someone has been genuinely physically present >1095 days in the past 4 years, can such a person be refused on the basis of other qualitative tests, such as "centralizing your mode of existence in Canada" or "establishing residence"?! I have not seen any such case. You can always argue my intentions are to come back to Canada shortly later. |
Posted By: jogruni
Date Posted: 08 Jan 2012 at 2:49am
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Dpenabill might have a better overview on such cases, but AFAIK: Yes. Here is the problem: Imagine, when you apply and file the application and meet the physical 1095 and even established a residence. But that is at the time of filing the application. Now you leave Canada for a while. When a CJ now looks at the case and finds out that you left Canada, he could get the impression, that you actually did end your residence and now reside in another country (maybe your homecountry). In most countries (except your homecountry) you would need a residence visa, green card or something simolar to stay longer. Or you returned to your homecountry. That makes it very difficult to convince the CJ, that you still have your main residence in Canada. Also the CJ might look at the residency requirements at the moment he/she processes the case and because of the insane processing times, you might not meet the RO any more. Not that I support this logic, but I would not recommend to leave until you have your citizenship. Maybe dpenabill can provide his opinion or some references to high court decisions in such cases. |
Posted By: dpenabill
Date Posted: 08 Jan 2012 at 5:20am
I addressed this in RQ discussions. I was not exactly succinct though. I do not think a CJ can. And, in particular, I have seen no such case either. Moreover, I do not think a CJ would deny an applicant if the CJ is convinced the applicant was actually, physically present > 1095 days (qualified days) during the relevant 1460 days (following the establishing of residency in Canada and prior to the day of applying). But there is a lot of room for a CJ to have doubts about whether the applicant was actually, physically present in Canada for all the days the applicant claims to have been in Canada. Direct proof of presence on any given day is not always that easy to find. Thus, the concerns expressed by jogruni are real concerns. How this plays technically is one thing. But how it plays out practically is the real thing. Which leads to this:
If you reach that point, you probably have problems. What you can argue is usually about trying to convince someone, a decision-maker, to change their mind, and about the only time people change their mind is when they want to or when they decide to. And intention is almost always about inferences not about what a person claims is their intention. When the guy points a gun at someone's head and pulls the trigger, the jury is not going to give much (any?) weight to the guy's argument that he thought the gun was not loaded and did not intend to hurt anyone. Does not work that way. They infer the intent from the actions not from what the actor says. (Although, as they say in the movies, anything you say can and will be used against you . . . meaning, for example, that admissions against interest often do have much weight.) If a CJ gets the impression the applicant does not intend to maintain a permanent, life-time home in Canada, you can bet the CJ is going to go over that application very, very closely, looking for reasons to deduct time from the residency calculation. If And the longer abroad the applicant stays after applying, the more a decision-maker is likely to infer the applicant does not and did not intend to maintain a permanent, life-time home in Canada . . . especially if the applicant is abroad until just before the test, and then is abroad again until just before the hearing with the CJ. Such an applicant best have submitted a strong audit trail of actual presence in Canada for more than 1095 days during the relevant time frame, including a good deal of direct evidence of presence not just passive and indirect evidence. Evidence: Direct evidence of presence is evidence tending to show the applicant actually engaged in some activity at a specific time and place in Canada; for example, enrollment in a university course is only indirect evidence; actual attendance record indicating specific days of actual attendance would be direct evidence of presence on the respective days. Passive evidence includes things like utility and rent receipts, a drivers license, things consistent with residing in Canada and supporting an inference of presence but not directly showing presence. These things go the other direction as well. And a person given RQ will be requested to submit information and documentation about these things relevant to showing ties and presence and residence abroad. And yes, ties abroad can lead to inferences unfriendly to the applicant trying to persuade the CJ to infer that the applicant was really in Canada on all those days in-between the days the applicant can show direct evidence of actual presence. Moreover and importantly: The applicant for citizenship must continue to be in compliance with the PR residency obligation all the way to the day of taking the oath. If it takes 18 months to get to the test and another 20 months to reach the hearing with the CJ, that totals a couple months over three years . . . if the applicant has been abroad more than three years, the applicant becomes inadmissible, and if inadmissible the applicant no longer is eligible for a grant of citizenship. Not much attention was being paid to this before, one gets the impression, but at least under this Conservative majority government it appears that things like this are going to be scrutinized more going forward. Regarding multiple tests for citizenship: Oh yes, this is the case and it is a problem. Maybe less so though going forward since the trend seems to be solidly headed toward the strict physical presence test. A few Federal Court justices are still overturning some CJ decisions based on the application of the strict test (see the "Residency: proof, practice, policy . . ." topic, including some recent posts in which I cite and discuss some cases in which some justices are still demanding a Koo analysis). But more and more, it is obvious that, first, anyone applying based on so-called "basic-residence" and not meeting the > 1095 threshold can for sure expect long process RQ and a long wait indeed, and secondly that more and more of these applicants are being denied citizenship. The real test for practical purposes (there are some exceptions) is the actual, physical presence test. By the way: There are no "high court" decisions regarding what constitutes being "resident in Canada" under the Citizenship Act and that is a huge part of the problem. The appeal of a citizenship case is to what is mostly the trial court level of the Federal Courts; just that these courts do hear appeals of administrative decisions and some other proceedings, including, for example, the appeal of a decision by a Citizenship Judge. There is not even a procedure for seeking leave to appeal beyond that. There is no certification of questions to be heard by a higher court. So there are no decisions by the ordinary appeal level of the Federal Courts (Federal Court of Appeal I think it is called), let alone the Supreme Court of Canada, regarding what residency means under the Citizenship Act. Since decisions by a justice of the Federal Court have no binding effect on other justices of the Federal Court, there is a patchwork of decisions with very incongruous interpretations and results. Some "comity" is recognized, but not much in this area. Frankly I find the jurisprudence to be rather beneath a great country like Canada. I understand what Justice Mosely said about not every inconsistent application of the law is necessarily unreasonable, but when there are multiple inconsistent versions of the law being applied thousands of times each year, and the most consistent thing about the application of the law is that there is no consistency, that is, on its face, in my view, patently unreasonable. It is an unacceptable situation. It is somewhat less significant now because of the trend to be more consistent and apply only the strict presence test, but it is still a real mess and taints the whole jurisprudence surrounding interpretations and applications of the Citizenship Act. ------------- 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 |
There are various tests a CJ can apply to determine your residency requirement. If someone has been genuinely physically present >1095 days in the past 4 years, can such a person be refused on the basis of other qualitative tests, such as "centralizing your mode of existence in Canada" or "establishing residence"?! I have not seen any such case.Posted By: eli
Date Posted: 20 Jan 2012 at 1:06am
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Sure. But the applicant can come back for few days towards the end of the 3 years period, and renew his PR. He has been likely present in Canada 2 years preceding the application time, and therefore eligible to renew his PR. He may be even eligible to renew his PR while being abroad (not sure about this). But again back to the same question: how to prove residency to renew your PR? there is a lot of room for cic to question your residency. Not sure how hard it is to renew PR status. I think, from what I read, even meeting >1095 days of physical presence, an extended post-application absence, specially coming back just before the test or oath, probably leads an RQ and a 2-years delay with unpredictable results (even if you have no other RQ risk factor and have an otherwise convincing application). It seems to me that CIC recently is taking efforts to possibly refuse applicants who they believe will reside outside of Canada if granted Citizenship, "even if they meet the actual requirements". This include those who meet the requirement of >1095 ddays of presence, but want Canada citizenship for rainy days. Correct me if I am wrong.
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Posted By: eli
Date Posted: 20 Jan 2012 at 1:17am
| In other words, it seems that it's up to the ministry to finally accept you or no, even if you meet the requirements of 1095 days/past 4 years, and have some reasonable proof for that. The citizenship acts says that the minister shall grant citizenship to anyone who meets these requirements, but on the other hand, citizenship is not a right. They can refuse you for no reason. Also as you mentioned in another post, in practice they have much more room to play with you and possibly reject your application (eg putting you in a 2 year queue to see a CJ, maybe until your PR expires, etc). The court cases are not a reliable source of info, since they are old, and do not reflect on cic position on applications made after sept 2011, when changes were made in cic. |
Posted By: jogruni
Date Posted: 20 Jan 2012 at 2:02am
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@eli: I am not sure if it is clear to you, that the term "residency" in the citizenship act and for permanent residents mean two different things. Therefor RQ for PR purpose and citizenship are tho different things. To maintain PR status ONLY the physical presence counts, but for citizenship you need to center your life around that residency. Here is a simple example, that might explain the difference: Peter, he is Canadian PR. He lives in Vancouver and found a job in Bellingham (USA). He travels to the US every morning and every evening he returns to his home in Vancouver. To make it simple he works every day 7/365. And there is Paul. He is Canadian PR too but lives in Bellingham and works in Vancouver. They both meet every day at the border. Both have NEXUS and can provide electronic proof of border crossings every day. Both have been in Canada every single day for several hours. So for PR purpose every day, where someone partially was physical present in Canada counts as a full day. This means both have no problem to renew a PR card. But in terms of citizenship it is different. Here you have to build your residency in Canada. You can only reside in one country. Obviously Peter has his residence in Canada and Paul in the US. So peter can apply for citizenship and Paul cannot, even though for PR status both have the same amount of days of physical presence. In RQ for PR purpose you just need to prove the physical presence. In this case a NEXUS protocol is enough. But a RQ in case of citizenship not only has to prove physical presence, but also the fact that you center your life in Canada. so to have a house in US and maybe your kids go to school i US do not qualify you for Canadian citizenship. So someone, who stayed in Canada for the initial 2 years +1 day in the previous 5 years and then left Canada, can apply for a PR card renewal. Ad if he can proof the physical presence in that 731 days, there is no reason to deny the new PR card. Even if he was not present in Canada when he applied for the renewal. Okay he will be in breach of PR residency obligations two days later, so there might be a problem when he picks up the renewed PR card (assuming he was absent all te time during the pending appligation). |
Posted By: dpenabill
Date Posted: 20 Jan 2012 at 6:39am
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In the RQ discussions thread I just discussed the following two cases. At least one is directly relevant to the discussion in this topic and both, it seems to me, are relevant to the extent they reveal a continuation of a trend we have seen unfolding during the last year. Those cases are: http://canlii.ca/en/ca/fct/doc/2012/2012fc12/2012fc12.html - MCI and ABDULDAEM AL-SHOWAITER http://www.iijcan.org/en/ca/fct/doc/2012/2012fc13/2012fc13.html - MCI and DINA EL-KOUSSA Regarding what the cases tell us, no, these are not old cases, these are cases decided earlier this month, and they fit a pattern we have seen unfolding for the last year. The cases are a very reliable source of information. However, they are a very limited source of information . . . not because of how old they are but because they represent such a small portion of all cases processed, and indeed, are but a very, very small slice of just the RQ cases. We can, nonetheless, glean a great deal from the cases . . . and in particular, cases like these last two I discuss are particularly informative because they are cases in which the Citizenship Judge ruled in favour of the applicants but CIC appealed . . . so from these cases we get a more strident view of the position advanced by Minister Kenney and his minions. One thing that eli posted that really caught my attention was this (and I discuss it in the RQ discussions topic as well):
As I said, I discuss this in the RQ thread and, it seems to me, part of that is worth repeating. I said:
It is worth emphasizing, again, something I have often said here, and that is that the applicant who appears to deserve citizenship is likely to fare far, far better than an applicant who appears to NOT deserve citizenship. This is not rocket science. It is not even civil engineering. A little common-sense tells much of the story. Applicants with a life in Canada, and an obvious intent to live their life in Canada, are going to find the fact-finding decision-makers significantly more friendly than someone whose circumstances hint that they approached Canadian citizenship like acquiring points for the purpose of obtaining a university degree. Sure, many, many have circumstances that are far from so clear-cut. So CIC officers and Citizenship Judges assess the facts and circumstances and histories. Bottom-line: applicants spending a lot of time outside Canada, whether during or after the relevant four year time frame, send a pretty strong message about their intentions. And those intentions, as inferred, sure, they are going to have an impact on the decision-making. Again, no rocket science necessary. All that said, there is a critical aspect relative to maintaining PR status that may not be entirely clear. After quoting an observation of mine about the need for the PR to remain in compliance with the PR residency obligation, eli posted the following:
First, I concur in the analogy and observations made by jogruni, highlighting some important distinctions and illuminating some significant nuances in the contrast between the Citizenship residency requirement and the PR residency obligation. But it also appears to me that there is, perhaps, some confusion about "renewing" the PR card. In particular, this part looms large:
Let's be clear. A PR who has been outside Canada for, say, two and a half years can, indeed, return to Canada and, so long as within the previous five years was present in Canada > 730 days, apply for and obtain a new PR card, and that card will be "valid" for five years. BUT that does NOT absolve the PR from continuing to meet the PR residency obligation. As has been oft times emphasized in the preserving PR status forum, the validity dates of one's PR card is irrelevant regarding compliance with the residency obligation. If that PR then goes abroad again, as soon as that PR has been abroad > 1095 days within the previous five years, that PR is INADMISSIBLE, inadmissible for being in breach of the PR residency obligation, and as such no longer eligible for citizenship, and this is true even if the PR card itself is valid for another three or four years. Beyond the whole who deserves citizenship versus who might not balancing act, and how that might affect the decision-making of those who decide what the facts are, to be clear, if an applicant for citizenship goes abroad soon after applying for citizenship and before actually taking the oath of citizenship they are abroad for > 1095 days out of five years, they are in breach of the PR residency obligation, they are inadmissible, and as such NOT eligible for citizenship, and if CIC discerns this, almost for certain, that individual will be precluded from taking the oath. Remember: the PR card is only documentary evidence of status. It is not, itself, determinative of status. A PR without a valid PR card is still a PR. A PR with a valid PR card may nonetheless be inadmissible. ------------- 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: EasyRider
Date Posted: 01 Apr 2012 at 11:55am
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Ok, this is an older thread, but since I'm in similar situation and having spent time reading this forum and federal court cases made things to appear more clear to me, here are some conclusions: 1) it helps more to read actual court cases themselves than paying much attention to speculations on this issue here. They are the source. If we go read cases we find out that there's no single case where citizenship was denied when applicant clearly had >1095 days of physical presence. In these cases either: a) judge relied on Koo which meant basically <1095 days from the very beginning and an uphill battle for an applicant to prove his "centralized mode of existence" making all things like "intentions", leaving a country after application, selling a house in Canada, etc. come at play. b) applicant basically couldn't satisfactory account for a physical presence, couldn't present evidence, had suspicious inconsistencies during relevant period or even worse caught lying in his application. So, if you're neither a) or b) you shouldn't have any problems with decision. The forum members here who advocate that leaving after applying may be unsafe usually imply you may be either a) or b), but in fact these scenarios may have nothing to do with one's personal situation. 2) The second source of information is other applicants' accounts-- here, again, maybe I just haven't seen them yet and they do exist, but I don't remember anyone accounting for major troubles with this issue, applying having a clean case and having a solid physical presence record and getting denied for some other reason. |
Posted By: mach90
Date Posted: 01 Apr 2012 at 6:40pm
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Just wanted to get your thoughts on my situation (jogruni/dpenabill would really appreciate your input). I am planning on taking a two year leave of absence from work this year to pursue a masters program in the US. I intend to apply for citizenship next year and will have more than >1095 days at that point (including my studies absence). Given that it takes around 12-15 months for processing, I will hopefully be back by the test date (or around then) to resume my job. 1) But will my being out of the country for 9 months before I apply (and having a US address for that timeframe) trigger an RQ from CPC-Sydney despite meeting the 1095 days 2) At a test date would being out o the country for 2 year study program trigger an RQ (I will of course have all the proof for it being a two year program and also a leave of absence from work to pursue this post-grad program) 3) Could this prevent me from being denied citizenship? Thanks in advance for your response
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Posted By: EasyRider
Date Posted: 01 Apr 2012 at 11:12pm
From the analysis of http://decisions.fct-cf.gc.ca/en/2010/2010fc298/2010fc298.html - this case:
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Posted By: canuck25
Date Posted: 02 Apr 2012 at 2:19pm
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My two cents on each of your questions: 1) But will my being out of the country for 9 months before I apply (and having a US address for that timeframe) trigger an RQ from CPC-Sydney despite meeting the 1095 days It's hard to say whether you will be given an RQ just based on your absence. According to my understanding of the process from this forum - the chances are very high when there are questions about the applicant's actual presence in Canada during the 1095 days. If you present a clean, concise proof - such as travel records from the CBSA, etc... - you may avoid the RQ. This is just one hurdle, however. In addition to meeting the physical presence requirement, an applicant will be scrutinized to determine whether his/her life is truly centred around Canada, and this is where your 9-month absence will likely raise some red flags and you may be required to see a citizenship judge. A valid question a CJ and immigration folks can ask is "why not participate in a similar masters program in Canada?" if your life is truly centred around Canada? 2) At a test date would being out o the country for 2 year study program trigger an RQ (I will of course have all the proof for it being a two year program and also a leave of absence from work to pursue this post-grad program) Hard to say, since a lot of it is subjective. At the interview, immigration agents will check your passport to ensure that your arrival/departure stamps match the travel history you provided in your application. They - for the most part - do not care about what happened afterwards at that point in time. As recent cases have demonstrated, however, the CIC may request additional documentation to determine whether you indeed have ties to Canada that warrant issuance of citizenship. 3) Could this prevent me from being denied citizenship? Not outright. If you have such an extensive absence from Canada, I am guessing that you will be required to submit to an interview with a Citizenship Judge. On top of that - please note that you technically need to notify the CIC if you leave the country for more than 2 weeks at a time after your citizenship application has been submitted, and you need to have an address in Canada where your mail can be received. While your situation flat out does not mean that you will be denied citizenship, it will likely result in a Citizenship Judge hearing which can set you back by 6-24 months.
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Posted By: dpenabill
Date Posted: 02 Apr 2012 at 3:17pm
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Good response Canuck25. It is more complicated than that, but it almost always is. I would just note that if the purpose for an absence bears the earmarks of being clearly temporary, it has less negative implications; that must, of course, be looked at in context, a huge part of that context being the extent to which it appears the applicant is settled in Canada and is maintaining permanent ties in Canada. Many, many factors come into play . . . but for the applicant with solid proof of being actually, physically present > 1095 days there is little to worry about in the long run. For the applicant whose actual presence might be challenged, the post-applying absence can and probably does loom larger. Unfortunately no one really knows what the specific odds are of getting RQ for an extended absence after applying. And in some situations, the risk of RQ is essentially irrelevant, the time being right to apply and the applicant willing to accept the intrusion and delay inherent in RQ. Way, way, way too many personal, individual factors are at play in how this works out as it goes for anyone to even suggest what is likely to happen. That's why you'll get answers in the vein of, if it goes to a CJ hearing it "can set you back by 6 - 24 months." That's about as close to a prediction as anyone can reasonably offer: you may or may not get RQ; if you get RQ you may or may not be returned to the file-review process, or you may or may not get the long-haul RQ which could mean an additional wait time of, yeah, 6 to 24 months (some go longer). ------------- 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: 02 Apr 2012 at 3:27pm
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The following statement by Justice Zinn in http://decisions.fct-cf.gc.ca/en/2010/2010fc298/2010fc298.html - the Areej Hussein Elzubair case quoted by EasyRider:
------------- 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: EasyRider
Date Posted: 02 Apr 2012 at 3:45pm
| I guess Koo won't be dead, but at the same time it's not for you. It'll be reserved for beautiful people who bring money and prop real estate market. |
Posted By: dpenabill
Date Posted: 02 Apr 2012 at 4:02pm
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For an example of a case in which the applicant claimed to be actually, physically present in Canada > 1095 days and in which the CJ and Federal Court justice focus on some relatively minor and rather inconclusive discrepancies to reach the conclusion that the applicant did not prove being actually, physically present for more than 1095 days, and denied citizenship (without deciding whether or not the applicant was actually, physically present for > 1095 days, just that the applicant failed to prove she was), see the http://decisions.fct-cf.gc.ca/en/2010/2010fc1260/2010fc1260.html - Mariam Shubeilat v MCI case . This is among the cases discussed and linked, as I have said many times, in http://www.immigration.ca/forum/forum_posts.asp?TID=5523&PN=2&title=residency-tests-proof-practice-policy - Residency: tests, proof, practice, policy (link to page where this case is dicussed) . Let's be clear about the Mariam Shubeilat case: she was denied citizenship because the evidence was insufficient . . . to prove physical presence; there is no finding that she was not actually physical present > 1095 days, but only that the CJ's conclusion, that the applicant did not prove actual presence, was reasonable. (CJ's conclusions about days present was not necessarily correct, but being "reasonable" it was thus sufficient to avoid interference by the Federal Court.) Another case in which the applicant claimed, all the way through to an appeal, to have been actually, physically present > 1095 days is the is http://canlii.ca/en/ca/fct/doc/2011/2011fc1354/2011fc1354.html - the Fadi Atwani and MCI case . Here again, one can focus on the reasons that the applicant's account/calculation was dismissed, but the underlying fact is that this was a case in which the applicant claimed to have been actually present > 1095 days but did not submit sufficient documentation and evidence to prove it. Indeed, the applicant argued that that CJ erred by failing to make a specific determination of how many days the Applicant was actually physically present in Canada. In the absence of such a determination, the Applicant argued, the Judge could not reasonably have concluded that the residency requirement was not met. Justice Snider said:
In the meantime, an important aspect of the Sotade case is that Sotade claimed to be actually present in Canada those eight days they deducted from his calculation (and probably was -- his house, his wife and family, were all in Canada and continued to be for many more months after that). A person can focus very intently on distinguishing why CIC, the CJ, and ultimately the Federal Court justice decided to not count those eight days, but there is nothing in the decision that even hints that Sotade was not actually present in Canada on those days, only that they would not count them because he had obtained residency in the U.S. Even if actually present in Canada, they still deducted them, enough to reduce his total credit to less than 1095 days and then denied him a grant of citizenship. In fact, consider this quote from http://decisions.fct-cf.gc.ca/en/2011/2011fc301/2011fc301.html - the decision in Sotade :
Sotade loses on this point. Relative to the relevancy of conduct after applying, in particular, Justice Snider stated:
To avoid confusion, while some may interpret some of this language differently, this should not be taken to mean that the extent of an absence after applying is not relevant. The "counting" of days absent reference here is clearly about the calculation of days itself . . . as in, days absent after applying cannot be deducted from the days present during the relevant time period . . . and just as clearly (particularly given the extent to which this arises otherwise and is indeed a relevant factor) the extent (and nature) of absences after applying can be considered to the extent that such conduct is linked to "claims and actions" during the relevant (calculation) period. Finally, my recollection being refreshed (well, I went and read where I have already discussed much of this before in the Residency: tests . . . topic), I want to acknowledge a Federal Court justice who has ruled that it was inappropriate for the Citizenship Judge to consider events after the four year period in assessing whether or not the applicant was resident-in-Canada (applicant took a three year teaching appointment abroad after applying). This is the http://www.canlii.org/en/ca/fct/doc/2011/2011fc743/2011fc743.html - Rana Khalil Zabad case . As I have emphasized, however, to the contrary one sees many more instances where CJs and Federal Court justices take into consideration what the applicant does after applying in assessing the evidence and deciding the facts. The distinction in Zabad is that the CJ relied on the post-application conduct to infer what the applicant's intentions were relative to previous conduct during the relevant four year period, it was a Koo criteria case, and actually this is something typically done (looking at post application conduct as a relevant consideration in assessing the applicant's intentions during the relevant four years) in Koo criteria cases, so Justice Mandamin's ruling is out-of-step with the approach one generally sees (in those cases decided on appeal anyway). In contrast, for example, see the Jose Mcilroy case, another Koo case (residency calculation short of 1095 days actually present by 79 days), yes, but one in which the applicant argued, on appeal, that the CJ wrongfully relied on the applicant's post-application circumstances and Federal Court justice ruled that the CJ is not limited to the calculation period -- in this instance the justice said this applied specifically to a Koo case . . . but there are cases such as http://decisions.fct-cf.gc.ca/en/2011/2011fc301/2011fc301.html - Sotade , which were not Koo cases and in which post-application conduct was explicitly considered. As jogruni pointed out above: there is extensive uncertainty regarding the meaning of what "resident-in-Canada" means. There are at least three different tests and so far as I know, the applicant does not need to be told in advance which test the CJ will apply. There is some case law suggesting that actual physical presence > 1095 days makes an applicant entitled to citizenship, But it should be remembered that none of these Federal Court decisions are binding on anyone else, they are only binding in the actual case in which that justice makes that decision. Otherwise they are influential, but not controlling. This underlies why the conflict in different interpretations of the Citizenship Act regarding what constitutes residency have not been resolved, even though many Federal Court justices have been stating that the situation is an utter mess for . . . well going on two decades or more at this point. This underlies why we do not really know the extent to which CJs may focus on other residence based criteria, like evidence showing establishing and maintaining one's primary residence, to the exclusion of other residences, in addition to or apart from proof of actual presence. One might deduce that whatever definition or meaning of residence a CJ might apply, it must be within reasonable parameters . . . but we are not talking about the easy cases here, the vast majority for which the applicant merely discloses all travel abroad, the dates are then corroborated by travel documents and whatever other sources CIC consults, all consistent with the applicant's reported address history and work history, and then both CIC and the CJ INFER that the applicant was actually, physically present in Canada all those days in-between reported entry and next exit. Those are easy. We are talking about more complicated scenarios here, the situations in which applicants are given RQ and in which they must disclose all travel abroad after applying, and all property ownership abroad including after applying, and the geographical location of immediate members of the applicant's family as of the date of responding to RQ, as in well after applying, and so on. Trying to discern the mental machinations of total strangers who are bureaucrats and who are assessing whether or not an individual should be granted citizenship, it is very very difficult to predict how it will play out in any particular case, in the hands of any particular Citizenship Judge. And with no consensus as to what "residency" even means . . . well, it is easy to see why the gap between those easy cases and the hard RQ cases is a wide one. Thousands of applicants are rejected each year. Only a few dozen appeal. We do not get to see a whole lot of how this goes down. What we do get to see seems to suggest that the CJ's overall impression, whether or not the CJ thinks the applicant deserves citizenship, may play a huge role in how that CJ decides what the facts really are. So any one who thinks that what they do after applying should not affect the outcome, just be aware that a big part of the overall picture is what the CJ thinks of the applicant, and for someone given RQ, what the CJ sees includes a whole lot of stuff that happened after applying. ------------- 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: 02 Apr 2012 at 4:11pm
Emphatic ditto for this. The whole line of Koo cases are clearly about discerning whether or not the applicant was resident in Canada despite absences. In contrast, CIC (see operational manual CP 5 and see references to what the Minister argues in cases on appeal) has taken the position that the qualitative test is only applicable in exceptional circumstances. The latter view seems to be dominant now. I suspect this government might have already changed this (see discussions about previous bills to amend the residency requirement in the Residency: tests . . . topic) except that, yes, indeed, this still gives them the discretion to be a lot more generous to some individuals. "Beautiful people . . . " proably, of a sort anyway. And right, right on, "not for you" . . . meaning the vast, vast majority of us. ------------- 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: EasyRider
Date Posted: 02 Apr 2012 at 4:27pm
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Ok, and what's your point, dpenabill? I can diss them to the category of cases where crazy dumb applicants 1st state one thing, then in RQ another, and then on interview something completely different. We already know that if you start messing with the system this way and worse lying you lose. I mean what's wrong with the people remembering and writing down their entire 6 trips? This is not primary about residency problem, but about stupidity, so why bother? Do you see the difference? In one case I read:
In another:
I disagree that either of these cases has "relatively minor and rather inconclusive discrepancies". There are multiple problems with stupidity and credibility here. What it has to do with the issue discussed here? |
Posted By: dpenabill
Date Posted: 02 Apr 2012 at 5:31pm
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The point is obvious: Just because the applicant claims to have been present > 1095 days all it takes is some articulable reason to doubt the applicant and they can (and have been) denied citizenship. Not often. Probably not really unfairly. But . . . that's why I pointed out: we see maybe forty or so decisions a year in the Federal Court, forty applicants who case is appealed . . . but CJs reject thousands, yes, thousands of RQ's applicants each year. It is a good idea to have some idea about the parameters involved, a good sense of what might influence the Citizenship Judge, one way or another. How the judge sees the individual can have a huge impact. What a person does, overall, including after applying, is something that the CJ looks at for the RQ'd applicant. It has an impact on what the CJ thinks, what the CJ assesses. Discrepancies . . . or mistakes? Many, many applicants who participate here have discussed the mistakes they made. One received RQ because they put down the wrong year when signing the residency calculator . . . in context, it was obviously intended to be the same year they submitted the application and same date they signed the application, and especially so because there was travel disclosed in the calculation for up to the right year . . . but CIC re-calculated according to the earlier date, chopping off a whole year of presence (not sure how that one came out in the end). Stupid yes. Typical, well maybe not real common but it is the sort of typographical error that humans make all too regularly. If that same person left Canada for an extended period of time soon after applying: big problem. Just might make the difference. So look at the particular sorts of things that you cite from the cases:
How does that disprove the applicant's claim of being present. That evidence may or may not be useful, may not help the applicant, but it does not disprove presence either. And "bank records not solely in his name?": does that mean that applicants who have joint accounts with their partners should not even bother submitting their bank statements when RQ'd? It may diminish the weight of that evidence but it does not turn it into evidence that the applicant was not present when the applicant claimed to be. And the other individual: could not "explain" why two entry stamps were missing. Here's what is telling about that: the individual obviously returned to Canada at some point in that time frame on both those occasions. So it is not as if they were not back in Canada relative to those trips, it is just that the CJ (and Justice Snider if I recall for that one) focused on not being able to establish (because stamp was missing) precisely which date the applicant returned . . . except that the applicant told them, and they had no other information suggesting it was not correct. Indeed, one of those occasions (again I think I am recalling it . . . not revisting it at the moment) was when it was obvious that the applicant transited through the UK on the way back from (Jordan?, do not recall for certain), and had an entry stamp for UK following exit from their previous home country on that trip . . . obviously on her way back to Canada . . . obviously the applicant returned on either that day or if the flight went to past midnight or was early next morning, the next day . . . so her residency calculation might have been off by one single day for that trip, but it is focused on as among the reasons for denying citizenship. (No hint the applicant had any ties to the UK, so no hint the applicant was really staying in the UK and did not continue on to Canada . . . plus it was clear that even if the applicant did not return to Canada that exact day, the applicant was soon in Canada.) And then this one:
So that proves she was lying? That she was claiming to be out of the country more than she really was? HUH? Obviously an error by someone other than her. But if it was her error, it means she was in Canada even more days not lying about being in Canada when she was not. The income and bank statements in that case: there are many, many immigrants out there who live on a cash basis, no life of affluence, mostly barely getting by. I know a couple myself (the church helps, pays their rent some months, buys them groceries, pay for utilities -- we do it directly, a cost-control thing I hope, perhaps a control thing I hope not, so they do not have any records for themselves, no funds flowing through any account of theirs). For many immigrants, bank records showing their life in Canada is not a routine, easily gathered thing. Now I am not saying that either of these individuals should have been granted citizenship. I am not suggesting they were actually present. We do not know. The CJ and the Federal Court justice did not care to know. Did not matter. They had failed to convince the CJ that they were actually present, and that was good enough for the Federal Court justice. They might have been present, might not, probably not I'd guess. But yes, indeed, a lot, a real lot comes down to credibility and whether or not the CJ feels the applicant deserves citizenship. And a lot of many different factors go into that . . . physical appearance probably matters . . . affluence or contribution to society probably matters . . . a lot of intangibles that are not legitimate criteria probably matter . . . and in making that assessment about whether or the individual deserves citizenship, the CJ is looking at absences after applying, ties to home or other countries including after applying, business interests in Canada versus abroad, property ownership in Canada or abroad, location of immediate family. And after looking at all that, in the course of looking at that, the CJ can look at all the details one submitted in responding to RQ and if a half dozen discrepancies can be spotted, rely on those to deny citizenship . . . after all, in this one case the CJ decided that a day care attendance record purporting to show the applicant's children were at day care in Canada on a day that the applicant has admitted to traveling outside Canada, somehow shows that her accounting of days present in Canada should be dismissed. Here is the thing: almost no one definitively proves they were actually, physically present in Canada every day they claim to have been in Canada for purposes of the residency calculation. Almost everyone relies on the decision-maker to accept the inference that the applicant was in fact present in Canada on a number of days in-between those days the applicant directly proves presence in Canada. Some more than others. For most it does not matter (eight of ten, CIC does not look past the disclosed entry and exits dates). For many if not most applicants there are hundreds of days in the course of four years for which they may have no direct proof of where they were on that given day. Hundreds of such days. All the CJ has to do is find a few mistakes in the documents submitted, and it can go badly. Not likely to happen to someone who is fully on the up-n-up. More likely to happen to someone who barely stayed in Canada long enough to meet the minimum threshold and then left Canada for an extended time after applying. About mistakes: last year I used the ATM machine a block from my home, here, in Ontario. Days later I noticed that my bank statement was showing, somehow, for whatever reason, that I had withdrawn the money from an ATM machine thousands of kms away in B.C. (A province I have not been in for several years now.) How many mistakes like that occur in such records? I do not know. (I recently discovered how important it is to count one's cash when making a withdrawal from an ATM by the way: it was over $200 short . . . if it has been short by less I might not have even noticed it.) Mistakes of all sorts happen. Most are insignificant in the general scheme of things. Most will not be focused on by CIC . . . they know people make mistakes, records are not always accurate, a day care provider doing attendance checks off the names of children they usually see but who were not there on this or that occasion . . . and so on. Many, many people have reported in this forum about leaving out travel dates in the residency calculation. To what extent will the mistakes and incongruities and anomalies add up to a serious problem? Depends. Been living outside Canada for over a year since applying and facing RQ . . . that applicant is bound to discover just how closely the CJ will be going over the details looking for mistakes, inconsistencies, incogruities, and so on. So this is mostly in the heads-up, don't be stupid category, as in, yeah, minimize the mistakes, be as accurate as you can, and it is better to not be living abroad for an extended period of time while you have RQ pending. ------------- 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: eli
Date Posted: 03 Apr 2012 at 1:09am
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@mach90. I have been thinking about this for a while. I am now convinced that it does not negatively influence the final decision if you truly meet the requirements. At worst, it might delay your process with some small probability. 1- There is some small chance. I suggest sending supporting documents with your application showing your residency, to avoid RQ on the first place. 2- Perhaps. But even if imposed, that RQ, I think, wont be referred to a judge for assessment, if you can present enough evidence of physical presence. So it wont set you back for too long. 3- Almost never, if you have a convincing evidence of >1095 days of physical presence. CIC cannot refuse you, 'cause they loose it in the court and it costs them. So I guess in most of these cases, either the applicant is gonna be OK, or is set back 2-3 months in average. I am not sure if RQ is issued by Sydney or local office, or both. Maybe others can comment on this. |
Posted By: dpenabill
Date Posted: 03 Apr 2012 at 4:38pm
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I am not certain that Sydney never implements RQ but it is not the usual way RQ comes about. Sydney screens for eligibility . . . if the applicant is not eligible the application is returned to the applicant. If the applicant is eligible, the application is forwarded to the local office for further processing. While there is probably some information added to the file by Sydney, their processing is largely screening identity, status, security background, prohibitions, and basic residence eligibility. Other than return ineligible applications, or forward eligible applications to the local office, they do things like make fingerprint requests (for purposes of identity, security check, or screening prohibitions) or request status documents (if applicant is applying based on time in Canada prior to landing for example). RQ is handled at the local office. And, so far as I know (but it is possible otherwise), RQ is imposed either by the local office or by the Citizenship Judge (usually by local office but some applicants appear to receive the RQ long after the test interview in a context which suggests the CJ had questions and asked for RQ even though the CIC officer did not). Remember: eligibility only requires: > two years PR status > three years basic residence A PR who landed three years previous is "eligible" to be given citizenship even if the PR only stayed in Canada briefly. Such an applicant is not going to be granted citizenship, but is nonetheless eligible and thus such an applicant will have his or her application forwarded to the local office. ------------- 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: mero1984
Date Posted: 03 Apr 2012 at 5:34pm
Dpenabill I dont understand whats going on!!! in the case of Abduldaem Al Showaiter, here is whats written: [8] In a memorandum dated June 16, 2010, the Applicant expressed concerns that the Respondent had not been living in Canada as required. There was an issue related to his employment, given documents listing his name as “General Project Leader, Restructuring Tax Authority, Yemen Tax Authority” and “Director General, Tax Authority, Sana’a” for two United Nations Conferences on Trade and Development on October 30 – November 1, 2007 and November 21-23, 2005. ----- It means that they suspected he was LYING regarding his actual presence!!!!!! If they do its their right to investigate ... but if you have proof that you have been there the whole duration, then i dont see why they should make any trouble |
Posted By: EasyRider
Date Posted: 03 Apr 2012 at 5:48pm
No, he stated he was unemployed during this period, but at the same time he had represented “General Project Leader, Restructuring Tax Authority, Yemen Tax Authority” and “Director General, Tax Authority, Sana’a” suggesting he was project leader or director in Yemen. But the case was busted with inconsistencies from early stage:
Like the rest of lost RQ cases presented here-- shady and inconsistent. |
Posted By: dpenabill
Date Posted: 03 Apr 2012 at 6:54pm
Foremost, mero1984, you have said you are optimistic and I suspect you have good reason to be optimistic. Yes, if CIC has reason to think the applicant is not being entirely honest, yes they can . . . as you say "make . . . trouble". But they do not do that capriciously or arbitrarily . . . at least not any more than one might expect to encounter the occasional bad apple in a bureaucracy . . . probably very rare. For Al-Shwaiter, for example, they obviously had some indication that he was not really in Canada when he said he was, some indication he was employed abroad, or such, and they imposed RQ, then in the documents he produced (or perhaps in something someone else sent to CIC as an informant or such) they found evidence that contradicted some of the things he said. They caught him lying. The quote you take from the case is directly about that: as I recall Al-Shwaiter claimed to be retired and living in Canada and then CIC has these documents (again, either in the stack of stuff Al-Shwaiter gave them in response to RQ or from elsewhere) that indicate Al-Shwaiter was in Switzerland on this particular occasion and was there on behalf of, employed by, an employer in Yemen . . . not retired . . . not in Canada . . . rather, lying. Al-Shwaiter had an explanation. Explanations can and indeed will often fly, but of course whether or not they will fly depends on the overall perceptions of the person deciding whether or not the explanation will fly. If you have a strong case, and especially if you are living in Canada still, mero1984, you should have no worries. Again, CIC is not a draconian monster out to deny honest people their dream of being a Canadian citizen. I believe, very much so, that they will fairly assess citizenship applicants and fairly decide them. Not to worry. What EasyRider seems to overlook is that the majority of us are far from perfect and oft times have far from perfectly ordered lives, so stuff happens, we make mistakes, we have complications in life, not everything in our day-to-day existence is always perfectly on the same page, so this or that aspect of who we are and what we appear to be and what we have records of and what someone else might have records of, can get a little messy. For some people, it is a lot more messy than it is for others. Most people know what I am talking about here. Most people have an idea how messy things are in their own life, how complicated things might be. The stronger our case when we apply, the less there is to worry about. The better our records are, even if there are some things to worry about the less we have to worry about. If we know things are more messy than that, we do what we can to avoid making things worse. It is this last group that I am mostly addressing here in this forum. The rest of you do not need help. You are OK. Its the ones with messy stuff going on that need to step back, re-assess their situation, and from there on make the best decisions they can. Like the person given RQ: not a good idea to be living abroad while you have RQ pending. Mostly, do not worry. If you met the requirements, and you have said you did solidly, all should go well, no problems. ------------- 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: 03 Apr 2012 at 7:18pm
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One more note is worth making mero1984: As I understand it you have had your application pending for awhile and are somewhat concerned because of the discussion specifically about leaving Canada while the application is pending. Absences for a clearly temporary reason should NOT be problematic. As I posted elsewhere, of course how things go depends on the totality of the applicant's situation. The main thing for someone abroad for a temporary reason, but for a relatively extended time, is to try to be certain to get all communications from CIC so that they do not miss the test/interview date. Make that date and all should go well. Miss that date that will up the risk factor. Beyond that, even if there are other circumstances in your life that add up to getting RQ, not to worry even then if you met the actual physical presence test, and especially so if you have strong documentation to that effect. RQ might delay things but should not change the outcome. Again, all should go well. ------------- 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: 03 Apr 2012 at 11:58pm
If I look at dpenabills mentioned http://decisions.fct-cf.gc.ca/en/2010/2010fc1260/2010fc1260.html - Mariam Shubeilat v MCI case .
The other two rules would allow people that have less than 1095 days of physical presence. But with 1095+ days of physical presence there is no neet to looka at other factors. But it is still a bit unclear, if the CJ can deny applicants with clear 1095+ days of physicalk presence, but unclear residency. |
Posted By: dpenabill
Date Posted: 04 Apr 2012 at 6:46pm
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jogruni: Mostly agree. Nandre is indeed one of the more oft cited ones. That said, Justice Snider and Justice Rennie have been issuing multiple decisions articulating their position that there is only one valid way of interpreting the Act, and that involves applying the strict actual physical presence test. This seems to be a view that has gained prominence in the last year or so. Prior to that, going back (2009) to Justice Mainville's decision in Takla (these cases are all linked in the Residency: tests, proof, practice, policy topic so I am not going to bother with links here), which is another oft cited decision (and up to last year seemed to becoming the dominant approach), Justice Mainville acknowledged the three tests but said that the Koo criteria or qualitative test had become dominant . . . which, as I just pointed out, is no longer so, per Justice Snider and Justice Rennie and others) which some justices, such as Justice Barnes in particular, have taken a step further and ruled that if an applicant submits evidence of having a centralized life in Canada, the Citizenship Judge must apply the Koo qualitative test. (See Ocla, again, linked the Residency: tests, proof . . . topic.) All to be finally resolved, I tend to think (but do not know), by this government's soon to be forthcoming amendments to the Citizenship Act. So all the discussion about this or that test and how to apply it may become merely academic. Or not. Over the years there have been, after all, numerous bills proposed in Parliament to address and resolve the unclear residency requirement, and none has ever come even close to a final vote so far as I can recall. Bottom-line: applicants should (if at all possible) simply rely on the actual physical presence test and be certain that they meet this standard before applying.
The first part of this I agree with in practice but caution that for a small percentage of applicants this might miss the point. As to the second part, I do not think that it is unclear: Indeed, I do not think there is much, if any doubt at all: An otherwise qualified applicant is almost certainly going to be granted citizenship if the Citizenship Judge concludes that the applicant was actually, physically present for 1095 days or more. I would say "certainly" (no "almost" qualification) but for exceptions like the PR abroad after applying who fails to comply with the PR residency obligation while the citizenship application is pending, and ends up inadmissible and ineligible. See post by Confused3 just yesterday ( http://www.immigration.ca/forum/forum_posts.asp?TID=9524&PID=167255&title=pr-travel-document#167255 - linked here ) as to making precisely this kind of mistake (well, maybe not so much a mistake as a choice compelled by circumstance). I would go a step further: I think that if the Citizenship Judge believes the applicant was actually, physically present in Canada for at least 1095 during the relevant time period, there is not going to be any question about the outcome in terms of the residency requirement. The CJ will conclude the residency obligation was met. But I must be doing a very poor job illuminating how and when issues related to this might arise. The issue arises in cases in which there are circumstances or facts that are enough to raise questions and in raising questions to open the doubt door, and once that doubt door is open, what might induce the Citizenship Judge to not believe the applicant's case about being actually present. Just because an applicant reports being present for more than 1095 days, the travel documents the applicant presents are not inconsistent with the applicant's claims as to dates of exit and entry, the applicant submits proof of being present in Canada on a significant number of days, and the applicant submits proof of residential ties in Canada, does not preclude the Citizenship Judge from viewing this evidence and the applicant's representations skeptically, and does not preclude the CJ from making inferences based on other evidence in the file. As you have noted yourself, jogruni, the range of factors and circumstances that can influence a CJ's view of an applicant and the case is extensive, and individual facts and circumstances can have influence on how other facts and circumstances are interpreted. But, again, I doubt very much that a judge who concludes the applicant was actually present for more than 1095 days is going to do anything other than grant citizenship. There is no hint that CJs are doing anything other than granting citizenship in such circumstances. (Although there has been some speculation about whether applicants obviously residing abroad after applying are being subjected to much longer wait times in the RQ process . . . not something CIC is going to announce even if it was being done, and not something that can be discerned from anecdotal reports from a small percentage of applicants.) Sotade is perhaps the illuminating example: I'd bet the CJ doubted a lot more than just those eight days the CJ deducted. The CJ might not have even doubted those eight days in particular, but, again, I'd bet the CJ thought Sotade was not commuting and coming home to Canada every day that Sotade said he was . . . believing that Sotade was staying over in the States a lot more than he admitted to. I think the case would have gone the other way otherwise. But since the CJ did not believe Sotade was actually physically present in Canada > 1095 days, and otherwise did not have the commitment to Canada that is expected of someone wanting to become a citizen, the CJ (and Justice Snider I think it was) looked far enough into the details to find reason to deduct enough from Sotade's calculation to reject his citizenship. That is, they found grounds to conclude that Sotade had not been actually, physically present at least 1095 days, and rejected the application based on the actual, physical presence test. I do not think the CJ would have done this if the CJ believed Sotade had been actually, physically present at least 1095 days. No way to know for sure, but . . . that's my opinion anyway. These are rather extreme cases. Very, very few applicants have to worry about a draconian outcome. Moreover, all clues suggest that there is very little unfairness in the process (other than the inordinate delays some suffer). The legitimate, genuine applicant has virtually nothing to worry about in the long run. Even among those who foolishly applied falling short a bit, I bet that a majority of them are granted citizenship eventually, after a hearing with the CJ of course. And this goes to the crux of the actual, physical presence case, the part about whether or not the Citizenship Judge is persuaded that the applicant was physically present in Canada 1095+ days. That is the crux. What the CJ concludes. Once RQ has been imposed the applicant is asked to submit a large range of documents and information, much of which is more or less about the qualitative evidence of residence. The applicant claiming presence 1095+ cannot ignore this. Or, at least, not without the risk of peril. A minimal showing of qualitative evidence in response to RQ can lead to negative inferences: a lack of evidence of residence implies a lack of real presence. At what point what factors add up to this or that conclusion, well that is for individual CJs to decide in the particular facts of the case they are deciding. All we know is that some things can have this or that influence, lead to this or that inference, and be aware of how various factors can affect our own cases, in our particular situations, given our individual histories and so on. The RQ'd applicant who fails to show a centralized life in Canada in responding to the RQ just might find it hard to persuade the CJ that his or her claims and evidence of actual presence are credible and should be believed: the PR who is present in Canada 1095+ undoubtedly should have substantial evidence of a centralized life in Canada. The applicant who makes a case which will persuade the CJ the applicant was present 1095+, there is then no residency issue. The question is what can strengthen that case, and what might weaken it, what factors will influence the CJ to believe or disbelieve evidence as to actual presence. Therein lies the rub. ------------- 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: eli
Date Posted: 04 Apr 2012 at 11:15pm
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@dpenabill: I like to agree with you that the Sydney office does not issue RQs primarily. makes sense to me. I was just not quite sure because in the RQ discussions post, the user read_to_apply mentioned that his file was pre-flagged for RQ long before the interview. Was not clear when it was flagged. I am glad that our opinions regarding the effect of the post-application absences on Canadian citizenship is converging :))
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Posted By: jogruni
Date Posted: 05 Apr 2012 at 12:14am
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If you have 1095+ days of physical presence, the only question or problem is to have a rock solid proof for this and this is the only and biggest problem of all. What is a good proof for physical presence?!?! But in most of the decisions that have been refered here and in other threads, the applicant has a realy poor position. They ofthe have different days in application and RQ, so there is no wonder that this is like a homerun for the CJ to question the whole application. I think, if you are precise and consistent with the dates and the dates match the proof, than you are fine. I was just a bit surprised, that in one of the recent decisions, the judge focused on missing Canadian entry stamps. Even though everybody knows, than Canadian CBSA officers DO NOT ALLWAYS MAKE STAMPS!!! So I was a bit surprised, that they payed so much attention on this. But I guess it was because the applicant was questionable. I myself have a couple of reentries, without Canadian entry stamps and never have a German entry stamp. Which scares me a bit, but I think it should not be a problem, unless I start to mess up the dates. But I feel I have all airline tickets and most boarding passes, besides the other evidences... So I hope it'll work. |
Posted By: dpenabill
Date Posted: 05 Apr 2012 at 4:09am
It would not surprise me, not at all, that based on GCMS records, or other sources, that Sydney might make entries into the application file alerting the local office that additional information and documentation regarding residency should be requested from the applicant. Or, call it flagged. Regarding the converging of views regarding post-application absences: I no doubt have done a poor job illuminating the nature of how absences after applying are relevant. They are relevant. But of little import or impact to most, indeed of little or no impact except . . . in some circumstances, pertinent to only a few, but if and when those absences rise to the level of making any difference, they can make a huge difference. This is of little or no concern to the average applicant who travels abroad after applying, even if for a fairly extended stay abroad. Very much, though, a big issue for those who were game-playing the system. There is a large gap between these groups. I thought it was obvious. I did not do a very good job of distinguishing the cases in which the post-application conduct of the applicant would loom large. I hope I have adequately illuminated it, finally.
Probably no need to worry about this. Not that I can discern anyway (recognizing the obvious: this is just my unprofessional opinion). The whole missing stamps issue is one of those things in which I am quite sure the context looms very, very large. If not, I will for certain get RQ. I have made many trips outside Canada. I have no stamps in my passport since the day I landed. I am fairly confident that CIC officers have a good grasp of the vagaries in travel documents and what they show. I will be frank: they can recognize (though not always) the indicators of undisclosed travel a lot more than some give them credit, and I'd bet they are right a lot more than many would like to admit. The missing stamps thing is not a trap. There are, usually I'd bet, legitimate reasons underlying why they dig deeper and more closely scrutinize some applicants with what appears to be missing stamps.
I agree with this emphatically . . . recognizing, of course, that those dates must be consistent with meeting the requirements. Over and over again, it is apparent that it is when there are gaps, discrepancies, unclear or unsubstantiated representations, that is when questions arise and doubts grow and problems emerge. In the cases we see on appeal, they are almost all extreme cases. Many of them would cause most people here to exclaim, with little hesitation, that it is hard to grasp why that person had any hope of being granted citizenship. And this includes a few of those who did eventually get a grant of citizenship.
That is it. One does not really need "rock solid proof" but clear proof, objective documentation that is coherent and consistent, thorough, and covers the relevant time periods, and that should leave virtually no room for a negative outcome. Those who run into problems rising to the level of a rejected application almost universally are, indeed, applicants in "a really poor position." Among them are those who were playing meet the minium requirements game and then went back home to live and work, looking forward to getting the Canadian passport (for whatever reason they wanted one other than for the purpose of really settling down in Canada permanently). Going forward, at the least, those applicants should not be surprised when they run into Harper's wall. ------------- 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: 11 Apr 2012 at 2:12pm
The above quote is from last week, but a case decided the same day as that post compells me to step back a bit from what I subsequently posted regarding how clear it is that an applicant who shows "actual presence" 1095+ will be granted citizenship. It may indeed be, as jogruni suggested, unclear . . . or, it could actually be a major issue going forward. In particular, it is the Minister's appeal of the grant of citizenship to RUSHAD TEHEMTON UDWADIA, which appeal was granted ( http://decisions.fct-cf.gc.ca/en/2012/2012fc394/2012fc394.html - linked here ) that should sound some alarms, particularly in conjunction with what appears to be more indications that CIC has indeed increased the rate at which it is imposing RQ. Bottom-line: Dr. Udwadia's case signals an increased focus on the "establishing" of a residence factor . . . and while it appears to be a qualitative-test (Koo criteria) case, in point of fact, at least literally, the Federal Court justice rules that the establishing a residence question must be answered first before there is any assessment of days resident-in-Canada . . . and in particular, for Dr. Udwadia, the ruled that months of being actually present within the four year time period were NOT to be counted because they preceded the date the applicant proved to actually establish residence in Canada. In any event, while I discuss this in more detail in http://www.immigration.ca/forum/forum_posts.asp?TID=5523&PN=8&title=residency-tests-proof-practice-policy - Residency: tests, proof, practice, policy , this at least raises the prospect that "intention" can be looming larger in RQ'd cases and since post-application conduct (especially living abroad after applying) is looked at relative to assessing intention, it is my strong impression that applicants considering spending extended time abroad after applying should very seriously take this into consideration. ------------- 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: eli
Date Posted: 12 Apr 2012 at 2:06am
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@dpenabill
This applicant was present only 717 days. He was absent 378 days, and was trying to convince the judge to apply the Koo test. To counter that, CIC argues that with 717 days, he could not have established residence in Canada. The reason for this is that the CJ can apply any test that he wants; he just needs to be consistent in the chosen test. CIC cannot argue that since the person was short of physical presence, he has to be refused. The only remaining road is to challenge judge's decision in the application of the koo test. The koo analysis is useless IMO; you can always argue that someone has not established residence if he/she is short a (substantial) number of days. I am very interested to see if someone with >1095 physical presence days (and agreed by CIC) has ever been refused citizenship. In my view, the issue of residency involves the application of a two-step test. The judge must first decide whether the applicant has established a residence in Canada. If so, the next question is whether the applicant has met the required total days of residence. The analysis in Koo, above, applies to the second step. He seems to be bullsh*tting here; never heard of this two step process:))) Maybe he means establishing residence "3 years before applying" as he said later There was no evidence before the citizenship judge showing that Dr. Udwadia had established a residence in Canadathree years before he applied for citizenship This, I buy ! |
Posted By: EasyRider
Date Posted: 12 Apr 2012 at 9:28am
That was the point and I tried to explain it to dpenabill in another thread. The implied error was that the judge had failed to determine that the applicant had not started to live in Canada before application. And this makes a ton of sense considering the case context.
That surely would be interesting to see. |
Posted By: dpenabill
Date Posted: 12 Apr 2012 at 4:25pm
This question gets repeated frequently. My answer continues to be the same: I have not seen any case in which citizenship was denied where the CJ made a finding of fact that an applicant was actually, physically present in Canada 1095+ during the four years preceding the date the application was submitted, so long as, of course, other requirements were met. Perhaps as significantly (since the cases represent less than one in three thousand cases decided each year), I have never even heard of anyone denied citizenship if there was no doubt about their having been actually, physically present. There are, however, many applicants who have claimed to be physically present 1095+ days but who were denied citizenship . . . an essential part of the decision being that the applicant failed to prove actual presence 1095+. As to the "implied" error reference in Justice O'Reilly's decision. Maybe there is some miscommunication here relative to the meaning of "implied." To be clear, if the Justice says something explicitly it is not implied, it is explicit. And Justice O'Reilly is quite explicit. Which leads to this:
I smile and shake my head. A Federal Court justice "bullsh*tting" in a formal, written opinion? I have to ask, does Justice O'Reilly really seem to be doing that? . . . no, Federal Court justices do not bs in formal, written opinions and Justice O'Reilly may be a bit more blunt than many of the others (not so blunt though as, say, Justice Snider), and thus not couch what he says in legal niceties, no, no, really, Justice O'Reilly does not bs in his citizenship case formal decisions. I have no doubt, Justice O'Reilly means what he wrote. That said, there is the matter of context, and what his ruling means in context, and about this I have elaborated more fully in the Residency: tests, proof . . . topic. I was, I should say, wrong to infer that this explicit statement emphatically setting apart, as a first step in assessing residence, the establishing-a-residence question, was likely something the Minister is pushing hard on. I was wrong about that. In the Residency topic I said:
I did do that. I looked at a number of O'Reilly's earlier opinions. There are reasons I was thrown off track (for example, Nandre being his most oft cited case is better known for other reasons, for having stated that the qualitative test must be assessed if an applicant is short of 1095+ days physical presence). Bottom-line: O'Reilly has long been an advocate of a residency assessment that, indeed, begins with a determination as to when the applicant actually established a residence in Canada . . . but all of the cases I visited (read many but did not read all of his citizenship cases last night) in which this is discussed are qualitative or basic-residence cases, applicants who were short of 1095 days physical presence. The difference is that when he articulated this in the past (going all the way back to Nandre and the other decision he issued the same day), Justice O'Reilly clearly stated this in terms of an applicant who was in effect asking that days absent nonetheless be counted as days resident-in-Canada. Again, if I get time I will fill in more details regarding this in the Residency: tests, proof, practices . . . topic. In this case, for Dr. Udwadia, Justice O'Reilly does not couch his "view" of assessing residency, by first deciding whether the applicant has established a residence in Canada, in only the qualitative approach cases; indeed, Justice O'Reilly explicitly subsumes the Koo analysis under the more general step of assessing whether the applicant has met the required total days of residence step, the second step. That is, Justice O'Reilly does not say, in a Koo case the first step is to . . ." Rather, he explicitly (which is not at all merely implying) states that the issue of residency begins with the first step of deciding the establishing-a-residence issue. Nonetheless, yes, Dr. Udwadia's case is still a qualitative-test case, not an actual presence 1095+ case. Sitll, this language is different. How different? Is it a big deal? Or is it merely, as I suggested alternatively (but not thinking this was the case) in Residency: tests . . .: a rationalization to justify overruling a grant of citizenship the Justice thought was unwarranted because of the overall lack of time the applicant had been physically present? That is, is it a difference that might affect other cases, cases in which applicants have submitted demonstrative and direct evidence of actual presence 1095+? What I have tried to illuminate, though, is that the latter is not really a critical issue. I still have little or no doubt that the applicant who convinces a CJ that they were physically present 1095+ will have NO residency issue problem. The reason this language looms large to me is not because I anticipate any change in how 1095+ physical presence cases will be affected, but more about the direction the Minister is pushing things. And what I suspect is that the Minister is pushing for increased scrutiny and that the increased scrutiny is intended to result in more doubt about whether a given applicant was actually, physically present when the applicant claimed to be. That is, I anticipate more challenging of applicant's claims as to actual presence. As I said, I was wrong to attribute the language in the case to the Minister. In looking at O'Reilly's previous decisions, this is clearly simply an evolution of his long-held views. Remember, O'Reilly is one of the few Fed Court justices in the school of thought that holds that the Koo criteria MUST be applied if an applicant falls short of 1095+ days . . . most justices, apparently, still harbour the view that the CJ is free to choose which of the tests should be applied, and can apply the strict physical presence test if the CJ decides to do so . . . in which event an applicant ten days short can be denied citizenship . . . but Justice O'Reilly has been ruling, since Nandre that the physical test cannot be a basis for denying citizenship, that the applicant who is short is entitled to have his or her residency assessed on the basis of Koo, recognizing, of course, they must affirmatively show when they established a residence in Canada and only time after that can be considered.
I originally quoted this language (from paragraph 21 of the Dr. Udwadia case, http://decisions.fct-cf.gc.ca/en/2012/2012fc394/2012fc394.html - linked here again ) because it did indeed strike me as a far more explicit statement of the establishing-a-residence issue than I was familiar with . . . unlike eli I have indeed seen this before (though to some extent my memory was a bit fuzzy about it . . . until I revisited some of O'Reilly's earlier decisions and Nandre in particular, as I discussed above) and somewhere in the various topics here there was a discussion a year or maybe even two years ago wherein I took a position contrary to the conventional wisdom here as to how an applicant should answer item 6.B., regarding "When did you first come to live in Canada if different from [date of landing]?" if they initially came briefly to Canada to land, then returned later to actually settle in Canada. The conventional wisdom was that item 6.B. was only for those who came to live before landing, not later, and the reasoning was grounded in the fact that the online residency calculator (and similarly the form alternative) does not even allow one to enter a date, for coming to live in Canada, any later than the date of landing. I took the position, and still do, that those PRs who only came briefly initially, and only later returned to actually settle and live in Canada, should put the later date in response to 6.B. My reasoning was based on having, indeed, seen references here and there in the Federal Court decisions to precisely this "date of establishing residence" issue specifically discussed in terms of that date being sometime later than actually landing as a PR. And because that is the more accurate answer for a PR who did not settle in Canada soon after landing. I mention this to clarify that no, this language, this issue, did not come entirely out-of-the-blue and, indeed, I understood the underlying concerns when jogruni above mentioned that the issue of what constitutes "residency" remains somewhat unclear in this respect. This discussion has been around for a long while. It was not a prominent discussion because Justice O'Reilly's approach has not been embraced by many others. Even those who have explicitly agreed with him, like Justice Barnes (see Ocla), were focused on the aspect of mandating a Koo analysis, not the establishing-a-residence aspect. Justice O'Reilly does not populate his decisions with a lot of boiler-plate like reiterations of the Act's provisions and standard of review stuff. They are, thus, easier to read than those by many other Fed Court justices. In this case he made little or no mention of the arguments made by either party. Most other Fed Court justices go into a lot of detail about the respective positions argued. So we do not get to see in this case just what the Minister argued. I initially thought that the ruling made by Justice O'Reilly reflected the Minister's argument. Probably not I am guessing today (and yes, this part is largely a guess). I am guessing the Minister made the same argument we do see outlined in the other citizenship cases of this sort: an argument that the physical presence test should have been applied . . . although, the perspicuous solicitor representing the Minister may have understood that Justice O'Reilly would not buy that argument -- as I said, since his decision in Nandre he is among those who say a Koo assessment is mandatory -- but would open to an argument based on a failure to show that residence in fact was established on a date at least three years prior to the date of application. So maybe the Minister (the Minister's represenative of course) argued the date of establishing a residence issue but not because that is the Minister's approach, rather because the facts were open to that argument and the judge hearing the case, Justice O'Reilly was open to that argument. So, not so much can be read into the case regarding what the Minister's approach is these days. I should say, Justice O'Reilly's approach makes more sense to me than almost all the other approaches articulated by various Federal Court justices. It seems fair. It is a standard that PRs should be able to understand and rely on (if only it was the standard, which it is not . . . there still is no one standard, not by a long shot). It is consistent with the history of jurisprudence regarding residency determinations generally, to the extent there is a coherent history of such jurisprudence ("residency" has long been one of the more problematic issues in various legal contexts, ranging from taxation to benefits entitlements, from jurisdiction over estates to venue for criminal proceedings, from right to vote to right to run for office issues, and more). Finally, I should make the reminder: all of the underlying and related issues, relative to residence, is likely to be either resolved, or started afresh, by whatever amendments this government will be making to the Citizenship Act. They are coming, I think, but how soon we will learn the details I have no idea. ------------- 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: mach90
Date Posted: 12 Apr 2012 at 7:01pm
| Dpenabill: What do you think the changes to the Citizenship Act will entail? Where have you read something.... |
Posted By: dpenabill
Date Posted: 13 Apr 2012 at 4:24am
The one formal notice of direct change is not to the Act itself, but regulatory, pursuant to which they intend to add some regulation requiring applicants to include evidence of compliance with the official languages criteria in the original application for citizenship, for which the official notice was published last fall; the notice http://www.gazette.gc.ca/rp-pr/p1/2011/2011-10-15/html/notice-avis-eng.html - is linked here. Mostly, though, I am reading the tea-leaves . . . to a large extent extrapolating from various statements Kenney has made in various venues over the course of the last several months signalling some changes coming, and looking back at how consistent those signals are with previous proposals the Tories made but did not get adopted into law (back when they were a minority gov't). These have come in the context of a whole storm of changes they are planning for the immigration side of things, some of which have been announced (especially surrounding the FSW and Provincial nominee programs), combined with the escalation in enforcement measures (note the recent arrest of a lawyer and the lawyer's assistant in Windsor, not consultants but a licensed lawyer practicing law in Windsor, for facilitating immigration fraud). And of course, Kenney and Harper are first and primarily focused on reforming the FSW programs to address their economic agenda, and that dominates their speeches in various venues, so it is hard to look back through the various speaking notes and news releases and speeches to find the precise statements about Citizenship itself, apart from the flurry of changes coming in immigration generally. And I of course I do not know for sure if they will amend the Citizenship Act. One can just read the wind and watch their lips and, of course, look at what they proposed but did not get through to adoption when they were a minority government. In that regard, I do not know the status of what they previously proposed but it seems likely that a significant number of the amendments they previously proposed in what was then called Bill C - 37 (from a couple years ago and titled "Strengthening the Value of Canadian Citizenship Act" which title seems to still be the tone, the message, underlying various statements by both Kenney and Harper) will be included in their proposals (if they formally propose a bill, which I think is likely, the bigger question being when?), when they make them public. . . . Bill C-37, you may recall, included a variety of proposed amendments, including an amendment of 5(1)(c), which includes the residency requirement (changing it to a strict physical presence requirement). Those proposed amendments also included, for example, additional prohibitions . . . one being for any criminal conviction outside Canada that would be an indictable offence if in Canada, for three years prior to the date of applying and throughout the time of processing the application . . . which is total prohibition and thus significantly more onerous than the current prohibition for offences occurring in Canada. There were many more proposed amendments But, in any event, I suspect the formerly proposed Bill C-37 is probably at least somewhat of a roadmap for many of the changes we might expect this government to again put on the table in the not too distant future (they have a lot on their plate at the moment, so . . . who knows when). ------------- 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: mero1984
Date Posted: 13 Apr 2012 at 9:11am
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dpenabill, can you summarize the major points seen after this long thread?? your discussions guys are very much informative Thanks
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Posted By: dpenabill
Date Posted: 13 Apr 2012 at 3:33pm
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My response in the other topic probably covers most of what you are interested in, mero1984. I think the points I emphasize in previous posts are fairly clear, so maybe you could revisit those and if you have specific questions as to this or that specific thing, query. Bottom-line: more than 1095 days of actual physical presence should result in a grant of citizenship, but does not necessarily preclude RQ along the way. ------------- 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: mero1984
Date Posted: 13 Apr 2012 at 3:35pm
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Gotcha. I read your informative reply on my other thread. you gotta love this forum ------------- Toronto Downtown- Sent - Nov 25, 2011 |aknldgmt ltr - Dec 19, 2011 |proc Jul-12-12| transferred local office 17-Aug-2012|test notice 11-Apr-13|Test 6-May-13| oath notice 29-May-13|Oath 12-Jun-13 |
Posted By: flifca
Date Posted: 09 May 2012 at 4:42pm
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Hi Depandill Please do you know if people can travel after submitting an RQ documents or not? Cheers
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Posted By: dpenabill
Date Posted: 10 May 2012 at 12:05am
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Yes they can travel. There is no prohibition. None at all. Residing abroad, or working abroad . . . well, that's all been discussed in this and other topics at length. Again, there is no prohibition. And it cannot deduct from the residency calculation of days actually, physically present. Someone reported that CIC suggested they not go to live abroad while waiting to see the Citizenship Judge. There are reasons for this. Again, I have discussed them at length above. But ordinary travel abroad . . . not a problem (of course one needs proper, valid travel documents depending on the mode of travel and countries to be visited, but that has nothing to do with having a citizenship application pending). ------------- 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: sajc
Date Posted: 04 Jul 2012 at 11:50pm
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Posted By: jogruni
Date Posted: 05 Jul 2012 at 1:11am
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Just use your common sense: If I would be in your situation and I did not get RQ or have to go to a CJ hearing, I would wait for the oath invitation and do every possible effort to attend the oath. Unless the citizenship is not that important for you. |
Posted By: dpenabill
Date Posted: 05 Jul 2012 at 1:14am
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Depends. Really, there are many, many factors in play. Can you be sure to get notice of when you are scheduled for the oath and return in time? Postponements can raise questions, cause problems. What likelihood of RQ is there for you? (A very, very difficult thing to assess for many.) If you get RQ, and you are living and working abroad, that is going to make it more difficult (not impossible though) to reach a successful conclusion. Bottom-line: if they schedule you for the oath and send you notice and you show up for the oath when scheduled, odds are very, very high all will go well. That, though, entails some relatively big IFs. ------------- 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: sajc
Date Posted: 05 Jul 2012 at 1:14am
| true but this is my only job offer I have till date and I am graduating this sept...so kinda fixed! |
Posted By: dpenabill
Date Posted: 05 Jul 2012 at 1:18am
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I agree with jogruni, yeah, personally I would wait . . . but I am older, no inclination to seek work outside Canada, firmly committed to spending most of the rest of my life in Canada, and being a citizen of Canada is important to me, a very, very high priority in fact. So what I would do personally is, well, what I would do, which does not necessarily say all that much about what someone else should do. ------------- 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: sajc
Date Posted: 05 Jul 2012 at 1:21am
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Posted By: sajc
Date Posted: 05 Jul 2012 at 1:25am
| I have no inclination to work outside Canada too.. I would love to stay here.. but the job market is down...well still trying to get something here...but if not.. just checking what are my options!! |
Posted By: eli
Date Posted: 05 Jul 2012 at 1:55am
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if you had the test already, my guess is it is no problem to leave. They do not check your passports again. And RQ, 90% of the time is given before or during the test. Just make sure to have your mails forwarded to you somehow. You may get the oath notice before you leave, or in 2012.
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Posted By: jogruni
Date Posted: 05 Jul 2012 at 1:57am
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I do not really see the problem. Okay it is going to be a bit more difficult, but as long as you are prepared for the possible RQ and maybe get your document package ready - be prepared. Make sure, that you ALLWAYS MAINTAIN PR STATUS !!! (I hope you understand what that means) Maintain a Canadian mailing address and make sure mail is immediately forwarded. Be ready to come to Canada on a short notice to attend CIC appointments, if required and come to the oath. If that is possible, so why not do the 2 year contract. And it will improve your french language skills. BTW are you EU citizen, so you can work there? Well I would do it then. |
Posted By: sajc
Date Posted: 05 Jul 2012 at 2:00am
| Thanks guys! no jogruni.. I am not EU citizen.. need to take a work visa....yeh...started learning French... should have done when i came here :) |
Posted By: eli
Date Posted: 05 Jul 2012 at 2:01am
| in other words, in the unlikely case that you do not get notified before Oct, you might be better off to stay until Dec, until, hopefully, beign granted citizenship by then. If you get RQ (not likely), you may choose to leave because it's a long process. So stay until December |
Posted By: sajc
Date Posted: 05 Jul 2012 at 2:09am
| thanks eli! |
Posted By: akella
Date Posted: 05 Jul 2012 at 8:00am
You can also try this though it probably does not fully apply to your situation: http://www.cic.gc.ca/english/resources/manuals/cp/cp13-eng.pdf - http://www.cic.gc.ca/english/resources/manuals/cp/cp13-eng.pdf Section 10. Policy on urgent application cases 10.2. When a case is urgent Applications for proof of citizenship, search of citizenship records for Canadian citizens, resumptions, and applications for grant of citizenship are expedited if documents support the need for urgency in the following situations: • a request is received from the office of the Minister of Citizenship and Immigration Canada; • the applicants need to travel because of death or serious illness in the family and cannot obtain a passport in their present nationality (which includes the Canadian passport); • the applicants have been in Canada for 1,095 days or more and face loss of employment or employment opportunity because they are not Canadian citizens; • the applicants are Canadian citizens and face the loss of employment or employment opportunity because they are not in possession of a document establishing Canadian citizenship; • an application delayed due to an administrative error; • an applicant for grant of citizenship whose appeal to the Federal Court is successful; • any situation in which not expediting the citizenship application harms the applicant, such as the need to renounce foreign citizenship by a certain date; • the applicants need a citizenship certificate to access certain benefits such as a pension, Social Insurance Number or health care. |
Posted By: eli
Date Posted: 05 Jul 2012 at 8:52am
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@akella. This is a doubled-edge sword. I think this triggers RQ automatically. My understanding is that this is for employment inside Canada for Canadian Security Intelligence Service Agency or a similar agency which requires you to be a citizen. Employment must be in Canada and, on the other hand, I do not see any jobs in Canada, except those mentioned, to require citizenship. This is like telling them I have the intention to go/work abroad and you give me a passport. Leaving Canada after or before applying is major RQ risk factor |
Posted By: akella
Date Posted: 05 Jul 2012 at 10:16am
Fair enough. There is, however, a practical barrier to any intelligence and/or federal jobs - security clearance. Even the lowest level cannot be obtained without 5 years of continuous residence in Canada or a limited list of other countries they can request police certificates from directly based on mutual agreements. So then - is it a moot line item in their manual? I wonder if someone willing to enlist with Canadian Military will qualify. I think they don't take PRs these days. |
Posted By: INDIANRUNNER
Date Posted: 05 Jul 2012 at 7:01pm
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Don't leave Canada without your Passport ! If you even leave just after applying for citizenship, it will be very risky and you will very probably get an RQ. The timeline for the RQ process is very very long. It may reach 44 months from the date you applied for citizenship and even more.The end of the process is almost a hearing with a Judge. In very rare cases, it ends with an oath taking. Think a thousand times before leaving without your passport in hand. I was RQued before.
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Posted By: dpenabill
Date Posted: 05 Jul 2012 at 7:14pm
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Urgent processing is, according to my understanding, for unusual circumstances. I concur with eli: the urgent processing option is not about job opportunities outside Canada. Opposite effect is the likely impact. Leaving Canada to work or live elsewhere before actually taking the oath increases the risk of RQ . . . but in the situation here, test taken, plan to leave is several months off, odds are things will get resolved one way or another before the time to leave arrives. Probably no RQ, but rather the taking of the oath, and all is well. But if there is RQ, there is RQ, and the applicant, sajc will have to make a judgment call . . . which, as I emphasized already, is dependent on many, many factors relating to how strong the underlying case for citizenship is. ------------- 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: muchmuch
Date Posted: 10 Jul 2012 at 8:56pm
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Hi everyone, I have a few questions regarding maintaining a Canadian address if move to the US after applying for citizenship. I live in Vancouver and applied for citizenship last year. I just received RQ recently (before invited for a test/interview), and plan to send it in soon. I'm moving to the US in two months. Below are my questions: 1. I am asked to submit the RQ documents to the Vancouver CIC office, does it mean my file has been transferred to that local office already? 2. My family lives in Ontario and they would be the best people to receive mails for me. However, I am worried that if I change my address to an ON address, my files will be transferred there. This would delay the process a lot further. Is my concern valid? (Alternatively, I could have Canada Post to forward my mails to ON, but I'm worried about the length of time it takes to forward mails, and that my mails may get lost.) 3. I'm thinking of using a Vancouver lawyer office as my mail address and pay a fee for the service. Do you think it would be a good idea? Thanks.
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Posted By: netghost
Date Posted: 20 Oct 2012 at 7:06pm
Changing address to ON would indeed most likely cause the case to be transferred, so you should probably keep your correspondence going to a Vancouver address. I'm not sure if CIC marks their correspondence with "Do not forward" (in which case Canada Post does not forward and returns to sender). I wouldn't recommend using your lawyer's address or any other business address that offers mail forwarding service, as this might trigger extra scrutiny. I think the address should be residential. You can ask your lawyer, perhaps he/she would agree to have your mail going to their home address? |
Posted By: dpenabill
Date Posted: 24 Oct 2012 at 2:31am
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This is an extension of a discussion in the Montreal timeline topic.
Is living outside Canada after applying for citizenship a problem? a big deal? It is hard to put this sort of thing into context, and I have indeed fumbled some with this in other topics specifically addressing the issue. Note, however, to be clear: the issue is not about ordinary, incidental travel abroad. It is not about absences for clearly temporary purposes. It is about extended absences involving residential or employment ties in another country, and usually about applicants who are living abroad after applying for Canadian citizenship. While it is hard to clearly explain the how or why or in what way this may affect the process, in the more general context, though, it is fairly straight-forward: extended absences from Canada after applying are among the criteria CIC pays attention to, and extended absences from Canada after applying may be (probably are in at least some circumstances) looked at as a risk indicator. This is apparent in the Appendix to CP 5 for example but is illustrated more in reports and case law, the latter including the case recently cited by akella in RQ discussions in which it is apparent that the applicants' extended absence from Canada after applying was, at the least, a key element in how their RQ proceeded, and was eventually the reason they were issued Removal Orders that prohibit them from becoming citizens even though they apparently established having met the residency requirement during the relevant period. One of the things it is difficult to be clear about is trying to give some quantitative weight to this consideration. And what we do not know is whether or not there is some practice at CIC to deliberately put applicants thought-to-be living outside Canada into an inquiry/examination queue that inherently takes a lot longer to process than other cases. In this regard, it could simply be that such applicants, those known to be living outside Canada, or those thought-to-be living outside Canada, are simply designated hearing required residency cases (meaning residency cases which will be queued for an in-person hearing with the CJ) which appears to inherently entail the much longer RQ process. Indeed, it is the latter that I most suspect. But your doubts, SK are well-founded: we do not really know a whole lot about the practical, how CIC really handles applicants living abroad (or thought to be living abroad). It is worth noting that living abroad after applying does NOT disqualify the applicant (except, if they fail to be in compliance with the PR residency obligation, any time right up to the day they take the oath, and are issued a Removal Order, then they become ineligible to take the oath as they would then fall under one of the prohibitions specified in the Act). Living abroad after applying does NOT directly affect the residency calculation. Mostly it is a factor which appears to significantly increase the risk of RQ and/or trigger other investigations/inquiries/examinations. And there are many indications it is associated with stalled applications (again, the latter I suspect has to do with the nature of CIC assessment process for residency cases designated hearing required and the queue waiting for the CJ to actually assess the case). There is no way to quantify that risk. No way to even guess what the odds are. Moreover, the risks, the odds, are undoubtedly entangled in the particulars of each individual's circumstances and case, depending on the duration of time abroad, reason for going abroad, nature and extent of other ties abroad, and of course the strength of the evidence documenting one's ties in Canada, and so on. But, to be clear, there are many indications that extended absences after applying increase the risk of RQ, and increase the risk of having RQ that is destined to be a hearing required residency case, adding up to a significant risk of it taking a lot, lot longer to reach a final decision.
The how-does-CIC-know question is an entirely different question apart from how living abroad, or extended absences abroad after applying, might affect the processing of the citizenship application. But, make no mistake about this, the applicant is obligated to keep CIC informed as to where they are in fact living. So, for legitimate applicants not trying to game the system, the answer to this is easy: the applicant informs CIC that he or she is living abroad. For everyone else, well, there are all sorts of clues that may be identified in various ways throughout the process. Who is found out versus who is not, I do not know, and sure, many undoubtedly do play this game and are not found out. For those who do not keep CIC informed as to where they are living, and CIC ascertains (or otherwise suspects) that this applicant has been living abroad, one can naturely surmise that this elevates any other suspicions CIC might have. Is it fair? if, indeed, CIC practices, or policies, systematically make it difficult for applicants who moved abroad after applying?
Questions of fairness are not all created equal, and different people have different concepts about what fairness means. It matters, I think, who is affected, in what circumstances, and why. If there is no legitimate, genuine question about the applicant's residency, to cause delay for the purpose of making further inquiry or investigation into the applicant's residency is not fair, since that really is about deliberately delaying the process, not about making a genuine inquiry into a legitimate issue. For most applicants who have spent a considerable time abroad after applying, however, it is not nearly that clear cut. The extended time abroad raises questions about the permanency of their move to Canada in the first place, about the extent to which they truly had immigrated permanently to Canada, and pursuant thereto had established residence and maintained residence in Canada. In assessing this, in such cases, it is fair to look at all the various ties the applicant might have, and to compare the nature and strength and duration of those ties in an effort to discern whether or not, and for what duration, the applicant had proven establishing and maintaining residence in Canada. Does CIC take a lot longer to do this than they do for other issues? I do not know. How much more time is fair? I do not know. And, as I acknowledge above, we do not really know to what extent CIC does put applicants, those known to live abroad after applying, into processing tracks intentionally stalling the application. As I also said, I tend to think that if and when the applicant's circumstances are such that CIC determines the need for the case to go to a hearing with the CJ, that is what sends such cases into the long-haul RQ process. I do not know what the threshold is that results in this. I doubt that there is a fixed criterion applied. I think it is as many apprehend: extended absences abroad after applying elevate the risk, the more and/or longer the absences, the greater the risk, depending however on other factors like other ties, or the lack of other ties, as well as purpose of absence factors (two-year post-graduate program, obviously temporary, one thing; indefinite job or long-term business abroad, quite another; and so on). The take-away: again, this is not about every applicant who has gone abroad after applying. Quantifying the risk factors is not practical. But, at some point, extended time abroad after applying appears to significantly increase the risk of RQ, further inquiry, and in some cases the long-haul RQ process. Which leads to this: How long abroad tends to lead to an inference of living abroad? I do not know. As I said, the concern is not about ordinary, incidental travel abroad. It is not about absences for clearly temporary purposes. It is about extended absences involving residential or employment ties in another country. In some sense, it may be about absences that raise doubts about whether or not the applicant moved to settle permanently in Canada in the first place. I doubt there is any definitive quantitative tripping point. In the CP 5 appendix, merely having a stamp in the passport indicating a return to Canada just before being scheduled for the test is, for example, a risk indicator (indication declared residence may be in question). It is stated this way in http://www.cic.gc.ca/english/resources/manuals/cp/cp05-eng.pdf - the operational manual appendix (see page 17):
Note: the appendix to CP 5 may be, to some extent, outdated and has probably been replaced, or will be replaced, based on what is finally implemented after the process specified by OB 407, including the instructions and the File Analysis Template (which have not been shared with us publicly, as yet) has been evaluated and CP 5 amended accordingly. That said, while significant changes are being implemented, the gist of the process and the underlying concerns are generally the same. Very few applicants need to worry at all about this issue. Those who have moved abroad, are living abroad, while their application is in process, they mostly need to be aware that this can be a complicating factor and can result in the process taking a lot longer. ------------- 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: polarbear
Date Posted: 24 Oct 2012 at 11:48am
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i don't buy the fact that people get removal order's for their
extended absense from canada after their citizenship application.
"majority of permanent residents have their family and properties abroad" 3/4th of permanent residents are traveling abroad after their citizenship application, law says 1095 days for citizenship and 730 days for PR, giving a removal order doesn't make sense. removal orders otherwise called as deportation orders are normally given for only those who commit residence fraud, if you misrepresent in application, fraudulent documents, committing crime, securiy threat to canada, then yes you can be given a removal order. |
Posted By: akella
Date Posted: 24 Oct 2012 at 12:33pm
polarbear, you mean you don't believe this? One scenario that is missing from your post is the failure to comply with PR residency obligations. And this is exactly what happened with them. Here is my post with short summary, link to full text is there as well: http://immigration.ca/forum/forum_posts.asp?TID=19&PID=183903&title=rq-discussions#183903 |
Posted By: polarbear
Date Posted: 24 Oct 2012 at 12:55pm
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akella: yes, even i mentioned the same thing. as far you have 1095 for citizenship and 730 for PR you should be ok. i am only talking in favour of people who travel to their home countries on a temporary basis, and maintain 1095 or 730 as per rules. for people who don't even fullfil their residency requirements has to pay the price  |
Posted By: dpenabill
Date Posted: 24 Oct 2012 at 2:03pm
To the contrary: see : http://decisions.fct-cf.gc.ca/en/2012/2012fc88/2012fc88.html - MIC and Bousserghini and Kranfouli (read 'em and weep I believe the saying goes) akella has already referred to the discussion regarding this http://decisions.fct-cf.gc.ca/en/2012/2012fc88/2012fc88.html - MIC and Bousserghini and Kranfouli case , but it warrants some emphasis. As stated in that case, in pertinent parts:
The procedural complexities of the case obfuscate the import of the decision some, but this case clearly establishes the following: -- applicants met the residency requirement for citizenship (1095+ days actual presence during relevant four years) -- the credibility of the applicants is not questioned -- they attended an in-person hearing with a CJ September 2010 and the applicants were approved -- CIC appealed the CJ's decision (approving citizenship); as akella suggested when initially discussing this case in this forum, the primary motivation for CIC's appeal appears to be related to their observation that the applicants moved out of Canada while their applications were pending -- within two weeks prior to the scheduled appeal hearing in Federal Court (set for Jan 9, 2012) the applicants were issued removal orders because in the five years immediately preceding December 28, 2011 they had failed to be present in Canada for at least 730 days How this case ultimately turns out will be interesting, although the ultimate outcome may not be publicly revealed (depending on whether there are subsequent decisions on appeal); my impression is that the Federal Court justice in this case had mixed feelings about how the case should turn out. Bottom-line, though, is that these applicants will need to prevail on their appeal of the removal order in order to be granted citizenship; if the removal order is upheld on appeal, these individuals will lose PR status and not get citizenship; they will be deported. The Federal Court justice clearly gave them a chance, since if the appeal had been granted and sent back to another CJ, the pending removal order (even though not yet decided on appeal) would render them ineligible for a grant of citizenship. So, by dismissing the appeal, the applicants' fates were left in limbo, dependent on whether they could successfuly convince an IAD panel they were not in breach of the PR residency obligation or had There is another more recent case, however, that further illustrates this, the http://decisions.fct-cf.gc.ca/en/2012/2012fc995/2012fc995.html - ABED HADAYDOUN case , which I am sure I have discussed and linked in this forum already as well. HADAYDOUN was issued a departure order while his citizenship application was pending. He appealed that order and the appeal was pending when the applicant appeared before a Citizenship Judge for a hearing on his citizenship application. A critical part of the reason given for refusing the applicant was that the applicant
In this case, the Federal Court judge decided that the refusal based on residency was in error, but that given that the applicant was under a Removal Order the CJ was obligated to reject the application. It did not matter if the applicant was likely to win an appeal of the Removal Order. The court stated:
It is absolutely clear that applicants who are living abroad after applying are subject to losing PR status and being denied citizenship, even if they qualified for citizenship at the time of applying, if they fail to remain in compliance with the PR residency obligation. Also see cases discussed in preserving PR status forum regarding rejected applications for PR Travel Documents, including at least one case where an individual had been approved for citizenship and was scheduled to take the oath, but was denied a PR TD in order to return to Canada in time to attend the oath, losing PR status and not becoming a citizen. The question that has to be asked, and for which the answer is very apparent, is why these individuals had citizenship applications taking so long to process when they were qualified for citizenship in the first place? The apparent answer is that CIC deliberately, at the least, conducts further inquiries or investigations of such applicants, including imposing RQ, including designating the applicant as a residency case with hearing required. As I have attempted to illustrate and emphasize, this is not about every applicant who goes abroad for a significant period of time after applying: this is about applicants who are, or who appear to be, living abroad, that is, applicants who appear to have left Canada indefinitely and particularly those with substantial ties abroad. At what point the duration of post-application absences and strength of ties abroad tips the scales such that CIC takes the more strict, severe, if not outright harsh approach, is not at all clear. What is clear is that moving abroad after applying increases the risk of CIC taking the more severe approach to the applicant, thus risking, at the least, a much longer delay in processing than the applicant might otherwise face. In any event, additionally see cases like: http://decisions.fct-cf.gc.ca/en/2012/2012fc12/2012fc12.html - Abduldaem Al-Showaiter -- Citizenship Judge approved applicant; Minister successfully appealed to extent case was sent back for another CJ to decide. Key issue: evidence that applicant was employed by foreign company when applicant reported being retired and living in Canada, based largely on (it appears) a mere flyer indicating the applicant participated in a conference in Switzerland as a representative of a company located in the Middle East. http://www.iijcan.org/en/ca/fct/doc/2012/2012fc13/2012fc13.html - Dina El-Koussa -- CJ approved applicant; Minister successfully appealed to extent case was sent back for another CJ to decide. This case was explicitly based on the failure of the CJ to adequately state reasons for approving the applicant. It is noteworthy in the context of the issue addressed in this topic because CIC's concerns coalesced around the fact that the applicant moved to Lebanon in August, 2008, while the application for citizenship was still pending (application submitted August 1, 2007). This case, http://www.iijcan.org/en/ca/fct/doc/2012/2012fc13/2012fc13.html - Dina El-Koussa , is also noteworthy because in deciding to grant the appeal and send the case back to a different CJ for reconsideration, the Federal Court justice (Justice Near) made it a point to "remind" the Minister that nothing
Less directly relevant to the issue of compliance with the PR residency obligation while the application is pending, but further illustrating the extent to which CIC appears to take a more harsh approach to applicants living abroad after applying, there is the http://decisions.fct-cf.gc.ca/en/2010/2010fc298/2010fc298.html - AREEJ HUSSEIN ELZUBAIR case . This is a credibility case, but the fact that this represents one more case in which CIC opposes and appeals citizenship for an applicant who was (or appeared to be) living abroad after applying does not appear to be incidental. The decision in this case not only granted the appeal, but quashed the CJ's decision. Applicant's only recourse then would be to make an entirely new application. And of course there is the oft cited http://decisions.fct-cf.gc.ca/en/2011/2011fc301/2011fc301.html - Sotade case. Technically the decision in this case turned on the fact that Sotade obtained GC status just 8 days before submitting the citizenship application, but this too is one more case in which CIC took a harsh approach to an applicant who moved out of Canada during the pendency of the application (did not sell and move out of his Canadian home until the year following submitting the application). ------------- 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: polarbear
Date Posted: 24 Oct 2012 at 3:48pm
| Can we request for CBSA travel history report for a specific time period (4 years) or they will provide the entire history from the day you land in Canada. |
Posted By: mero1984
Date Posted: 24 Oct 2012 at 3:59pm
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So CIC although those poor people stayed in canada, prolonged their application so they could remove them?!!??!?!?! this is so devious ... pure evil ------------- Toronto Downtown- Sent - Nov 25, 2011 |aknldgmt ltr - Dec 19, 2011 |proc Jul-12-12| transferred local office 17-Aug-2012|test notice 11-Apr-13|Test 6-May-13| oath notice 29-May-13|Oath 12-Jun-13 |
Posted By: jogruni
Date Posted: 24 Oct 2012 at 4:27pm
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One could believe, that the Minister is intentionally trying to delay cases, where there are indications, that an applicant intends to leave (or has already left) Canada, after getting citizenship. This delay would increase the risk, that an applicant may loose PR status, during the long haul of application process and appeal of a positive decision. I think most of us have no doubt, that the current government does not want to grant citizenship to individuals, that intend to leave Canada as soon as they have the Canadian passport. These latest decisions show, that not CIC, but the Minister is trying to target those individuals. Therefor I would not recommend to leave the country until the application process is gone through and you had your oath. I mean leave for an extended periode of time, not for vacations or even a few month. But it should be clearly just a temporars absence. Even though it is irrelevant for the application itself, it can affect dramatically the processing time and consequently the outcome of the application. I cannot repeat enough that applicants have to be aware, that they need to comply with residency requirement all the time during the whole process untill they have the oath ceremony done !!! Many applicants are not aware of this. |
Posted By: mero1984
Date Posted: 24 Oct 2012 at 4:33pm
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but what if someone applied for citizenship after fulfilling the 1095 requirement, then had to go abroad to train in a certain field on a visa that COMPELS him to go back to Canada (the country in need of that training)?? this person can prove that his status in the foreign country (USA for example) is totally contingent upon going back to canada and CANNOT stay in USA WITHOUT going back to canada to serve in what he trained in!!!! If this person is dragged the long haul and later removed from canada their future would be destroyed as they cannot stay in US and they cannot come back to the Canada.... They are destroying people's lives and future with this evil devious plan ------------- Toronto Downtown- Sent - Nov 25, 2011 |aknldgmt ltr - Dec 19, 2011 |proc Jul-12-12| transferred local office 17-Aug-2012|test notice 11-Apr-13|Test 6-May-13| oath notice 29-May-13|Oath 12-Jun-13 |
Posted By: polarbear
Date Posted: 24 Oct 2012 at 4:39pm
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guyzz, what is API/PNR ???? is this anyway useful for our citizenship application????  |
Posted By: akella
Date Posted: 24 Oct 2012 at 6:15pm
I think current government's attitude to this is very well expressed in this article: http://www.torontosun.com/2012/07/06/second-world-war-not-over-for-would-be-canadian It is on a different topic obviously... but you should expect the same line of thought on their end for your situation. |
Posted By: mero1984
Date Posted: 24 Oct 2012 at 6:18pm
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this is why we have lawyers for bigots and racists not to to destroy our peace of mind ------------- Toronto Downtown- Sent - Nov 25, 2011 |aknldgmt ltr - Dec 19, 2011 |proc Jul-12-12| transferred local office 17-Aug-2012|test notice 11-Apr-13|Test 6-May-13| oath notice 29-May-13|Oath 12-Jun-13 |
Posted By: akella
Date Posted: 24 Oct 2012 at 6:18pm
You should be including more context in your questions. http://www.cbsa-asfc.gc.ca/media/facts-faits/004-eng.html http://www.cbsa-asfc.gc.ca/security-securite/api_ipv-eng.html (this is not an answer, I am just providing links for others) |
Posted By: jogruni
Date Posted: 24 Oct 2012 at 7:57pm
And it is unclear, if those appeal decisions surfacing now are just "single" cases, or if it indicates an increase in questioning legitimit applicants, who leave canada after the application. Kenney does not want to give out Canadian passport for free and definitely would prefer, that people stayed in Canada and not leave Canada with a Canadian passport. So I feel they will appeal more, if they have indications, that a person has left after application and this will put those persons on another 1-2 year delay. To me it appears extremely unfair, that an applicant was granted citizenship by a CJ, and at that point the applicant was still well within PR requirements. But when the Minister appealed and the whole appeal process caused additional delays the applicant was suddenly short of the 730 days. That seems extremely unfair to me. The time in the appeal process should not count towards or against PR in this case. But there is no doubt, that an applicant has to keep up his PR status during the whole process. That is the law right now. I understand and know your background and maybe there is no reason to worry and you will get it before the PR status is lost, but I am on your side. It seems to be not really fair. |
Posted By: dpenabill
Date Posted: 24 Oct 2012 at 8:12pm
This states the crux of it. But, then, of course, there are those whose circumstances in life are not so easily wrapped into a nice package just for the purpose of more easily facilitating a citizenship application. Leading to this:
The circumstances you refer to have been bantered about some. I certainly do not know how such a case will go, but I strongly suspect that a lot of other factors may play a significant role. Again, it should be emphasized that we tend to see the more extreme cases, and we do not see what happens in the far larger number of borderline cases, or what tips the scales one way or the other for those applicants. Yes, there is probably cause to worry, some, and while it is hard to say how much, it is worth remembering that overall if the applicant met the 1095 day presence threshold and stays in compliance with the PR residency obligation, there should not be too much to worry about . . . . . . in particular, I really think that the whole picture and the individual's background and other factors play a big role, and my sense is that just being abroad to attend a degree-program is not what CIC is targeting (what the Minister is targeting, but CIC personnel are the ones implementing the Minister's policies in this regard). It is hard to clearly delineate who falls on the who-gets-the-harsh-treatment side of CIC's attitudes versus those who are not required to jump through hoop after hoop after hoop. But, I think CIC is fairly lenient toward most, almost generous for many, that most (but not all) of those who get the harsher treatment set the stage themselves. ------------- 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: mero1984
Date Posted: 24 Oct 2012 at 8:16pm
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yeah, they dont realize how they destroy lives of innocent hard working folks with these things I find it disgusting that they appealed the esteemed judge's ruling, just to prolong the time so they can deport that poor family ------------- Toronto Downtown- Sent - Nov 25, 2011 |aknldgmt ltr - Dec 19, 2011 |proc Jul-12-12| transferred local office 17-Aug-2012|test notice 11-Apr-13|Test 6-May-13| oath notice 29-May-13|Oath 12-Jun-13 |
Posted By: polarbear
Date Posted: 24 Oct 2012 at 11:11pm
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mero 1984: yes, i agree with you, when judge approved and said the applicant can be given citizenship, CIC officer intervening and appealing against the judges decision to reject the citizenship, i find the CIC officer disgusting. sadist  |
Posted By: dpenabill
Date Posted: 25 Oct 2012 at 3:44pm
While I agree with you in principle, some further observations are warranted. First, though, I want to emphasize that I really believe these sorts of cases are not common, that they involve a relatively small number of applicants, and mostly involve applicants who, in one way or another, have given CIC the impression that they were pursuing the Canadian passport and not genuinely seeking to settle in Canada permanently, no intention to live as Canadian citizens. The move abroad after applying is just one of the more obvious, salient factors which may make this impression on CIC. I doubt, and I very much hope, that CIC does not systematically delay processing for applicants who happen to have reason to be abroad, after applying and for even significant periods of time, but rather what happens is that if and when CIC apprehends (only partly based on the appearance of living abroad indefinitely after applying) that an applicant's underlying motives and intentions were not to become a citizen living in and a part of the Canadian community, but rather to obtain the benefits of a Canadian passport, that CIC then does what really just amounts to due diligence: impose more thorough and extensive inquiries, which in turn will inherently result in extensive processing delays. Again, I don't think, and I certainly hope, that this is not arbitrarily or capriciously imposed, that it does not unnecessarily drag a large number of innocent, legitimate applicants for citizenship into the Kafkaesque labyrinthe of RQ and related inquiries. In the case we are alluding to, the problem, I think, was that Bousserghini and Krafouli were way over-the-line, and were, to a large extent, the authors of their problems. Meeting the PR residency obligation, after all, is not that onerous for anyone genuinely seeking to become a citizen in Canada. I think they clearly failed the who-deserves-citizenship test. Foremost there is the who-deserves-citizenship factor. There is no formal "deserve-citizenship" qualification. There is no overt articulation of the who-deserves-citizenship factor, let alone a formal determination as to this. Indeed, there is no overt suggestion or hint that this is a factor. Thus, there are no easily enumerated facts, circumstances, issues, or concerns, which can be said to have bearing on how the who-deserves-citizenship factor influences the processing of any particular applicant. And, CIC might even adamantly disavow the influence of any so-called who-deserves-citizenship factor. But, the who-deserves-citizenship factor is obviously something that does have a significant influence on how a particular case is processed for applicants who do not appear to deserve citizenship. In particular, even though this is among the least quantifiable, most vague and difficult to define factors, and undoubtedly a wildly variable factor, it is probably safe to say that the tipping point is probably very high up the scale. In other words, I doubt this is a factor which plays much of a role unless the applicant's circumstances or history or, behaviour otherwise, really pushes the envelope. The Federal Court judge in this case alluded to an illustrative example: someone who stayed in Canada just long enough to meet the qualifying requirements and sent in the application on their way to the airport with little or no intent to return to live in Canada for the foreseeable future. Sure, absolutely, it is difficult to see how a bureaucrat could reliably, accurately, perceive this sort of thing. How could CIC reliably/accurately identify such applicants? For one thing, it is unlikely that anyone actually packs their bags and compiles the citizenship application the same day, and in fact posts the application on their way to the airport. In many of the cases I previously linked, it was many months or more between the day they applied and the date they moved out of Canada to live elsewhere. And as I have emphatically said: the purpose and inherent duration of the move is probably important. Again, this is not so much in a formal assessment sense, since what the applicant does after applying really cannot change whether or not the applicant qualifies for citizenship (unless the applicant does something that results in a prohibition, such as being arrested for a crime or being given a removal order). It is more about overall impression. And, again, I think it takes a lot to tip the scales so that this becomes problematic, something that triggers the sorts of additional inquiries or investigations that CIC might impose, which will in turn inherently result in long delays in processing. But, to be clear, if CIC perceives that an applicant has moved out of Canada with no real intent to return to live in Canada permanently in the near future, sure, this is likely to cause problems. Such an applicant is wearing a sign that says: I want a Canadian passport even though I have no intention of being a real Canadian citizen. Such applicants are not going to find much sympathy among Canadians. Indeed, they are more likely to encounter disapproval, if not disdain or perhaps even outright contempt. I really do not think that someone whose overall history and circumstances and presentation indicate that they have gone abroad for a degree-program (even generally, let alone one integral to that individual's career path in Canada) will tip the scales in this way. In contrast, in the case referred to, these applicants clearly moved back to their home country with, quite apparently, an intention to live outside Canada for the indefinite future. The fact that CIC would impose difficult and time-consuming hurdles for such applicants really should be no surprise. And, as I said, most Canadians approve of this and not find it disgusting at all, meaning that many would applaud CIC for doing this. That said, I emphatically agree with those who feel as though the filing of the appeal was unjust. It is one thing to impose formal hurdles for applicants whose circumstances warrant the exercise of due diligence. It is quite another to engage in what amounts to, it appears, frivolous dilatory litigation based on a ruse. That said, though, as jogruni quite clearly pointed out earlier in reference to this case: these applicants were in control and could have stayed in Canada sufficiently to remain in compliance with the PR residency obligation. Note, though, the Federal Court has given them their best avenue to success. If, for example, the Federal Court referred the case back for reconsideration by another CJ, their applications would then be rejected -- see the ABED HADAYDOUN case, linked in a previous post. And the Federal Court justice even suggested what the justice thinks are, perhaps, strong arguments in the applicants' favour relative to the appeal of the Removal Order: the extent to which the CJ found they were present in Canada and that they qualified for citizenship, and were approved for citizenship by a CJ, so their Removal Order should be set aside by the IAD. That said, how this will procedurally unfold for these applicants is not at all clear. If the Removal Order appeal was actually heard and decided, the decision could be published in IAD decisions and we would see more -- but to date, nearly a year after these Removal Orders were initially issued, there is no IAD decision, regarding either of these individuals, that I could find published. This is a clarification/correction regarding my previous observations about an aspect of the Bousserghini & Kranfouli case relating to the issuance of the Removal Order itself. I thought, perhaps, and suggested, that the Removal Order issued in late December 2011 was issued the same day the applicants attempted to return to Canada in anticipation of the Federal Court hearing scheduled for early January 2012. In reviewing the case again, apparently the 44 report was issued previous to the date the Removal Order was issued, so I am not at all sure about the circumstances which brought about the issuance of the 44 report. In any event, the five years relevant to the PR residency obligation period dated back from October 26, 2011 -- how or why that is the date I do not know. This may be important, however, relative to what we speculate about CIC motiviation. If, indeed, these individuals had been flagged in FOSS and and thus the 44 report was issued at a POE upon their attempt to return to Canada, as I had initially suspected, it seems more likely that the Removal Order itself would have been issued the same day. I should emphasize the "likely" aspect, meaning not necessarily. Meaning there is no way of knowing based on what is reported in the Federal Court decision. That is, ordinarily the Removal Order would have been issued the same day. It was not. Obviously there was some sort of local office decision-making involved. Unless there is a published IAD decision, however, we will not know such details. ------------- 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: 25 Oct 2012 at 4:13pm
Not CIC is appealing, it is the Minister, who appeals. I think in the cases refered to futher up in this thread, I am quite positive, that CIC recomended to grant citizenship and the CJ followed that after evaluating the situation and the resicency requirements. So I think CIC was done with the case. This decision of the CJ is then sent to the Minister of Immigration and Citicenship, Honorable Mr Kenney. And the Minister is appealing the decision, not CIC. Most likely not in person, but someone from his office. So Minister of IC is appealing a decision made my CIC/CJ, not CIC appealing it. |
Posted By: dpenabill
Date Posted: 25 Oct 2012 at 5:50pm
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I am not sure what is entailed in the Minister's review once the CJ has decided a residency case, but (1) if CIC had essentially approved or recommended approval (in whatever way this is phrased or couched in the referral to the CJ), it is almost guaranteed that there will be no appeal by the Minister; and (2) not sure, but I believe it will be essentially the same people who review the CJ's decision after an approval, although alternatively it will be a separate reviewing officer but one who is, nonetheless, another career employee in CIC, and in either event, such a review is not likely to be critical of the CJ's decision unless the CJ's decision is contrary to CIC's position initially, and thus not likely to result in an appeal unless CIC is and has been opposed to the grant of citizenship back to the time of the referral. Whether the case is then handed up another rung in the ladder for a final yea/nea on actually making the appeal, I do not know. But, sure, the guidelines for what cases to appeal, when, are undoubtedly dictated from the Minister's inner circle. ------------- 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: 26 Oct 2012 at 2:41am
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I have to admit, you might be correct. It is a bit unclear, who formally makes the appeal. Wheather it is coming from within the Minister's office or if the appeal comes from the Minister's delegate, who is (I assume) a CIC officer in a specialposition. But I do agree the guidelines for these appeals are dictated by the Minister's inner circle. |
Posted By: dpenabill
Date Posted: 26 Oct 2012 at 11:59am
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And, it should be noted, the Minister only appeals . . . well, the latest numbers I have seen still go back to 2008/2009 . . . less than one-tenth of one percent of CJ decisions (a few dozen out of 160,000 to 175,000 approved applications). Which reinforces and serves to emphasize, as I have said, this is an issue which does not severely impact very many applicants -- although, a significant number of applicants probably face delayed processing times due to extended absences (so long as to give the appearance of having moved abroad) after applying. This is why I try to distinguish the case where someone has returned to a different country (often but not always the home country) to work, has substantial ties in that country including, say, immediate family, and has retained minimal ties in Canada, giving the impression that his or her primary purpose was to obtain a Canadian passport rather than to settle permanently in Canada and be a contributing member of Canadian society, versus, for example, someone who has gone abroad for a degree-program in circumstances which do not create the appearance of being primarily interested in the passport versus living as a citizen in Canada. Obviously, there are many shades of grey in-between these, and it is impossible to discern what particular facts or circumstances will tip the scales toward making things more problematic, and even though I cannot say definitely, I really think that generally CIC's approach is more understanding than many here give CIC credit. I believe they connect the dots and do so accurately most of the time. Not all the time. Not always leniently. But mostly so, I believe, meaning that those whose agenda is genuinely rooted in becoming and being Canadian citizens really have very little to worry about. But this does mean, as well, that I think that CIC can and will connect the dots (again not always, but usually) and identify those applicants whose agenda is primarily to get the passport with little intent to be contributing members of the Canadian community for the indefinite future, and sure, if there are any holes in this applicant's case, CIC is likely to at least up the ante considerably, compel proof, make more inquiry, resulting in, at the least, a much longer timeline. Where, for example, an applicant's situation raises questions (such as the applicant who has gone abroad for an extended time while the app is pending), I believe certain factors can then loom very large: if, for example, such an applicant has residential property or a business interest in their home country, and particularly if that is something they have had since before coming to Canada, the obvious question is: did they intend to change their place of residence? The nature, number, strength, and duration of ties a person has are often looked at in residency issues of other sorts, and of course these factors can play a role in the citizenship residency case if there are questions about the applicant. ------------- 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: 26 Oct 2012 at 7:30pm
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I just read closely through the http://decisions.fct-cf.gc.ca/en/2012/2012fc88/2012fc88.html - MIC and Bousserghini and Kranfouli and so from my understanding the Court dismissed the appeal. Meaning the CJs decision is valid. But now the applicant has lost PR status and will not get citizenship. But if the decision would not have been appealed (which was dismissed), they would have had their oath and passport way before their PR "expired". To me that is really a strange situation and I just hope that the IAD appeal will dismiss the removal order and reinstate the PR status. If the outcome of this delay would be that they have lost PR and citizenship, that would be an unfair outcome, considering that the Federal court fount the CJs decision was correct in the first place. Even though I have to say, that I have my concerns, with applicants leaving the country for good after applying, but still the law does not forbid that. |
Posted By: jogruni
Date Posted: 26 Oct 2012 at 7:39pm
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I just want to add, that I think this ruling of the Federal court seems very well thought and well explained ruling. In opposite to some other recent ruling recently surfacing, which were questionable. |
Posted By: Roca
Date Posted: 31 Oct 2012 at 12:32pm
Can this case be used as a precedent for any future application?
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Posted By: akella
Date Posted: 31 Oct 2012 at 1:18pm
Federal court judges have been expressing conflicting views on how residency should be counted and what exactly residency is (i.e. strict physical presence test vs. establishment in Canada via ties etc.) and referring to the previous judgements they like - so if they have not been able to resolve that for years, you probably should not expect much from this ruling - it is a drop in the bucket. In any case, I am not positive on the final outcome of this - even though Minister's appeal was quashed, there are likely no grounds to have their deportation order removed. After all, they are in breach of their residency obligations they were supposed to adhere to - irrespective of potentially shady tactics used by CIC to delay their citizenship case, as citizenship process is separate from maintaining PR. |
Posted By: jogruni
Date Posted: 31 Oct 2012 at 1:40pm
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I am very curious to see the outcome here, but I agree, the outcome could be that they still loose their PR. On the other side, this could impose H&C grounds, as there was a delay in the process caused by the appeal, that was beond the applicants influence. But yet, they could have returned to Canada to avoid RO. Anyway, I'd like to see what happens! |
Posted By: dpenabill
Date Posted: 01 Nov 2012 at 3:53pm
This is in reference to http://decisions.fct-cf.gc.ca/en/2012/2012fc88/2012fc88.html - the MIC and Bousserghini and Kranfouli case . As akella and jogruni both observe, the ultimate outcome of this case is unknown. As akella points out, in citizenship appeals what one Federal Court justice rules is not necessarily binding on another Federal Court justice deciding another case. So, there is no binding precedent in that sense. There is generally, however, considerable weight given to decisions on questions of law by peer judges, and to the extent this is formally recognized it is referred to as "comity," which is not mandatory but a sort of acknowledgement of and respect for a peer court's decision. The question, though, is what particular question of law your query is about, that is, as to what particular issue you are asking whether or not this decision constitutes a "precedent." Note: Most of this decision is tangled in questions of fact more than questions of law. Decisions on questions of fact have the effect known as res judicata, meaning the fact has been decided, but that is only applicable to the specific parties and issues in the particular case, having no effect on anyone else. (That said, one can glean a bit about how decision-makers are likely to assess certain facts and issues from such decisions, but since there are always many variables there is some science involved in this sort of analysis -- it is what jurists do and is akin to any high-functioning professional task, be that engineering or medicine or scientific research.) There are a couple salient questions of law addressed in the case. One has to do with whether or not PRs must continue to comply with the PR residency obligation while a citizenship application is being processed. The answer to this question of law is yes. Whether this judge's decision regarding this question of law is a "precedent" or not, is practically of little import: this interpretation of the law, that yes a PR must continue to comply with the residency obligation right up to the day of taking the oath, is fairly well established. All clues indicate that CIC and CBSA are uniformly interpreting and applying the law this way. Thus, whether considered to be a precedent or not, the court's statement on this question of law is pretty much the law that is applied and will continue to be applied. Related to this question, there is the question of law about whether there is a "lock-in date" based on the date the application was submitted. Here too, regardless of this judge's decision, there is a "lock-in" date in reference to what is the relevant period of four years during which the applicant must be resident-in-Canada for at least three years in order to qualify for citizenship. That is the only "lock-in" date. That has to do with the residency calculation itself and does not affect the application of prohibitions -- for example, an applicant who is incarcerated or on probation is not eligible to take the oath; similarly, and more relevant to this case, a PR who is under a Removal Order cannot become a citizen while under the Removal Order. Even if these conditions arise after applying, or, indeed, even after the Citizenship Judge has approved the grant of citizenship, they effectively prohibit the applicant from becoming a citizen (so long as the prohibition exists). That is, the date of applying does establish the relevant four years during which the residency calculation, as to the required three years, is applicable, and that four year period remains the applicable residency calculation time frame no matter how long it takes to process the case. There is, however, no lock-in date of eligibility generally; the applicant must remain eligible (not subject to any prohibitions) through the processing and right up to the time the oath is given. There is, though, another question of law addressed in this case regarding the burden of proof. In particular, to my view the most important, general question of law addressed in the case, has to do with the necessary findings and reasons that a Citizenship Judge needs to make and how the standard of review is applied to those findings. Unfortunately, no, Justice Harrington's decision in this regard is not binding precedent. It should guide CIC and Citizenship Judges, but if CIC or a CJ does not follow this the way Justice Harrington has ruled, the only recourse is to appeal and if that appeal is heard and decided by a different Federal Court justice, that justice is not bound to apply the law the same way that Justice Harrington did. In any event, this question of law is of no impact in the abstract but depends on its application to the particular facts of a given case, so Justice Harrington's decision that "the Minister imposes an excessive burden on the respondents" (relative to the required extent of proof) cannot be easily applied to another applicant's case, even if it was precedent (which it is not, though it should be given the weight ordinarily given via "comity"). The thing about this last issue, though, is that it is not of much import unless and until a case is in the stage where it is being decided by the Citizenship Judge pursuant to an in-person hearing, and even then it is really more about the issues relevant in an appeal. So, this is not a pressing issue for most participants here, who I assume are genuine, legitimate, generally well-qualified applicants, whose concerns about RQ have more to do with how long the process is going to take than with the jurisprudence which will determine the final outcome (since, for such applicants, the final outcome is almost certain to be favourable, the issue being how long it will take to get there). Reference: http://decisions.fct-cf.gc.ca/en/2012/2012fc88/2012fc88.html - MIC & Bousserghini/Kranfouli case I initially thought that these individuals were probably subjected to POE examinations upon returning to Canada shortly before the date the appeal in their case was scheduled to be heard. I subsequently posted a clarification/correction, and noted that the relevant date for examining whether they had met the residency obligation was a date in October. This continues to be confusing because the section 44 report itself was indeed issued on December 28, 2011, and the Removal Order issued that same day (see paragraph 9 of the decision); yet the relevant dates for assessing compliance with the residency obligation were periods of time ending on October 26, 2011. There is no explanation for why this day is the date used in calculating their presence in Canada. I am periodically checking IAD published decisions to see if this case pops up. I am not sure what time frame there is for such appeals. I thought these did not take so long as other immigration related appeals to the IAD, but I have not studied decisions anywhere near closely enough to identify timeframe patterns. We do not know, even, whether or not either of these individuals actually appealed the Removal Order they were issued. While I am also curious about the ultimate outcome for these individuals, that is largely due to mere curiosity. The facts of the case are fairly limited. And, as jogruni pointed out, they could have returned to Canada sufficiently to avoid being in breach of the PR residency obligation. The ultimate outcome for these particular individuals will not have much, if any effect, on how other applicants are treated by CBSA or CIC. ------------- 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: 01 Nov 2012 at 4:27pm
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The bad taste this case leaves behind is mainly the following. The Faderal Court clearly confirmed the decision made by the CJ. So the appeal was denied. I think there should be an obligation to set back the status to the status before the appeal. From a common sense and fairness point, I would say if an applicant appeals a removal order, the time since the removal order does not count toward residency during the process of the appeal. If the appeal in such a case is denied the PR will be removed from Canada. So any delay caused by the applicant (appeal) is counted against the applicand and in favour of the CIC. Now here the delay caused by an appeal from CIC/Minister, again all delay caused by this process is again against the applicant and in favour of CIC. I personally think in sich a case the status of the beginning of the appeal process should be kept until the appeal is decided. I think it is unfair, that CIC was able not just to deny citizenship, but also get rid of a PR. This is not fair IMHO. But yes, the applicants, if they were well informed, could have easily avoided this situation. But there is a question, if the applicants were informed about their rights and obligations when they received the notice of an appeal and what to do during the process of the appeal. Also it is quite unclear for an applicant how long this process might last, as they have no influence on that, and consequently they were not really able to make arrangements and preparations during the process. But from a legal point of view it is quite clear and maybe the only way is based on H&C. Which again makes them dependant on the mercy of a single decision maker, without a clear rule how to decide in such a case. |
Posted By: Roca
Date Posted: 04 Nov 2012 at 9:11am
| Well, I guess there is no solution. If CIC doesn't want you to become citizen, you will not be even if you have complied to all the rules necessary! Personally I like to live in a country where I have some sort of rights. I don't think Canada is such a country... |
Posted By: chudir bhai
Date Posted: 20 Dec 2012 at 2:04am
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http://www.canadavisa.com/canada-immigration-discussion-board/canadian-citizenship-september-test-results-t90176.0.html this guy applied for citizenship, went to usa for job, came back just for the test, admitted that he gives a damn about Canada during the interview and got his oath without any problem. the law says 1095 days of physical presence , plain and simple. no mumbo jumbo. so yes you can leave, come back for the test and oath. but make sure you do not miss anything |
Posted By: jogruni
Date Posted: 20 Dec 2012 at 4:20pm
That was in September 2011 !!! Rules and processes have dramatically changed since then. CIC and Miniter of Citizenship and Immigration are more challenging peopel that leave after application and just return for the test, as they suspect that these individual do not have made Canada their residence, as the fact of leaving after application indicates, they just want a Canadian passport ant then they're gone. Also recently detected fraud, where thousands of citizenshipd might be revoked, lets CIC implement more investigation, even outside the 4 year period. It has been widely discussed here, that this seems questionable be not correct, but CIC seems to challenge the fact of establishing "residence", even in cases of 1095 days of physical presence. Besides this, you have to make sure to maintain PR status until the oath, meaning on any "test day", you need 730 days of physical presence in the 5 year periode of that "test day". |
Posted By: chudir bhai
Date Posted: 20 Dec 2012 at 5:55pm
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well that is too bad cause 2 of my friend got their citizenship test this month and last month ( one is an early pre-test RQ) and both of them left our beloved Canada after the applied for citizenship. No problem with interview and test and as told it may take 2-3 months for the oath should they pass the test. |
Posted By: vefabuyuk
Date Posted: 20 Dec 2012 at 6:00pm
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chudir bhai,
Sorr if you already posted this. When was your friend's RQ letter date, date of RQ submissin, test date and office? ------------- From the Phillipines. In Canada since 2003. Architect. Landed in 2008 March. |
Posted By: chudir bhai
Date Posted: 20 Dec 2012 at 6:19pm
he got RQ on late April 2012, cannot remember the exact date , test date is december 20th. He sent the RQ with CBSA report late May 2012. |
Posted By: dpenabill
Date Posted: 30 Jan 2013 at 4:15pm
There is a lot of discussion about various aspects of this above, going back to the beginning. There are at least two other topics where absences from Canada after applying are discussed in some length. Bottom-line: absence after applying does not directly affect the residency calculation itself. Problem is that RQ means that CIC wants to verify residency, and wants objective evidence to document it, not just your declarations. How that factors into a particular case, including one like yours, really depends on many, many, many factors. Too many to try to reiterate them all here. How solid the actual presence case is, though, looms big, so long it is corroborated by direct evidence of establishing and maintaining residency in Canada. So a lot can depend on when, for example, you began to develop ties in the States. If not much until after you applied for Canadian citizenship, and you otherwise have solid objective documentation to show where you lived, where you worked (or what else you did in Canada) and so on, it should go OK . . . Just might take a very, very long time for it to get sorted out and decided. In any event, read the above. Consultation with a lawyer before responding to the RQ is a good idea if you can afford it. Not just any lawyer. A good, Canadian immigration/citizenship lawyer preferrably. ------------- 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: 30 Jan 2013 at 4:32pm
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Some might also depend on the timing. Did you have your citizeship test done already? If the RQ was after the test, CIC would have checked your passport during the test. And If the passport does not contain a US Visa (I assume the US Greencard is still under processing). You might still be able to respond to the RQ without mentioning your intend to move to the US, which anyway could for whatever reason be not happening. If until now (when you respond to RQ) everything is fine, I'd proceed with collecting documents and respond to RQ soon, befor you get your Greencard. But this is my very personal oppinion!!! You need to decide on your own what to do. But still getting consultation is definitely a good idea. J |
Posted By: mightyman
Date Posted: 30 Jan 2013 at 5:18pm
If I remember correctly, the first question on the RQ form is whether you have obtained or in the process of obtaining a permanent resident status in a country other than Canada since your CIT application. |
Posted By: Lulu
Date Posted: 30 Jan 2013 at 6:11pm
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Thanks all! I have not had the citizenship test yet, nor obtained the Green Card, and so far it seems that the citizenship interview will occur before the green card. Mightyman is right, there is a question in the RQ form whether you are "in process of obtaining a permanent resident status in a country other than Canada", this is what got me worried. I don't think I can simply avoid mentioning the US, since I have travelled there every year for vacations (although the duration of the visits does not screw up the physical residence requirement in Canada). Otherwise, though, I have lived in the same address for the last 8 years, have not even been in my native country since 6 years and consider myself Canadian ... besides, I really can't afford to lose my legal ties to Canada since my children will be returning here for vacations with dad. So I guess ... lawyer sounds like a good idea :( |