Bigudi said:
Right... silly me thinking lawyers could me hold accountable for their mistakes.
To be clear, my post was about the need for applicants to maintain control of their information. This is an important reminder. This is not about moral imperatives to be honest. This is about the practical import of getting the facts right. The best way to navigate the system is to get the facts right. And
only the applicant is in the best position to make sure the facts are right.
Lawyers can and often are held accountable for their mistakes.
And yes it can be difficult to have a lawyer held accountable for the lawyer's mistake.
But an error in the residency calculation is the applicant's mistake, not the lawyer's.
My post was to emphasize that individuals are the ones responsible for the facts. And the residency calculation is essentially the
applicant's account, or testimony, of the facts.
The proverbial imperative is to
read what you are signing
before you sign it. In reality, in practice, we sign scores of documents rife with boilerplate information without reading the boilerplate.
In contrast, however, there is very little boilerplate in a citizenship application. The residency calculation is almost entirely testimonial. The information in the application and in the residency calculation are provided by the applicant, and if someone else physically enters the information for the applicant, the truthfulness (the accuracy and completeness of that information) is absolutely, unequivocally still the applicant's responsibility to verify. The applicant's signature constitutes a formal affirmation that the applicant attests to the truthfulness of that information. The import of this should not be understated.
Anyone who obtains assistance in compiling or composing or otherwise preparing these documents should be cognizant of this.
"It was the lawyer's fault," flies like a lead balloon.
That the risk of jail time, for making material misrepresentations, is not on the lawyer, is no oversight, no injustice.
To be frank, even under Jason Kenney's virtually draconian reign, ordinarily CIC has been rather flexible, oft times lenient, sometimes even quite generous in how it approaches
discrepancies . . . minor discrepancies readily shrugged off as inconsequential mistakes, even rather significant discrepancies oft addressed only to the extent of essentially discounting that particular erroneous information. In contrast, this forum, and the Federal Court cases, are rife with examples of residency calculation
"mistakes" in the range of weeks and months. Who
mistakenly overlooks being abroad for
weeks, let alone months within just the previous four years? I'm old, and my memory is not much to brag about, and I had dozens of trips abroad when I applied for citizenship . . . I cannot imagine failing to remember a whole week abroad, let alone two months. No one should expect a scrutinizing bureaucrat to buy that errors amounting to more than a week were due to mere oversight, forgetfulness, or the fault of a lawyer's secretary.
I am reminded of the participant in this forum who complained bitterly that CIC instructed applicants that the key source of information for declaring travel abroad was stamps in the passport, and then held him accountable (as I recall, issued RQ) because he had failed to disclose a couple trips not reflected by stamps in his passport and was off by a day in some others.
First, CIC never instructed applicants of this. Rather CIC's instructions made it abundantly clear that the applicant's obligation was to report
all travel abroad (except day trips for applications made prior to June 2015).
CIC had oft argued, to the Federal Court, that CIC relied extensively on passport stamps in the process of
verifying the applicant's travel declarations, with no hint at all that it relied on passport stamps to provide a
complete accounting of travel. CIC also oft argued that, in some cases, there were indications of undisclosed travel not indicated by passport stamps, clearly indicating it did not rely on stamps to be a complete reflection of all travel.
Secondly, this participant also took umbrage with CIC's attention to the date stamped in his passport as the date of return, when in fact he had arrived the night before but by the time they debarked the plane and got through the POE line, it was after midnight, so it should have been OK that he declared arrival in Canada the day before the stamp.
So much for his purportedly relying on the passport stamps to declare dates of travel!
The overriding import of this goes precisely to the OP's object in starting this topic: to emphasize to applicants the importance of not applying until they have for sure passed the minimum presence threshold!
The responsibility for this is solidly on the applicant. It is just and proper that it is the
applicant who is held accountable if there is a failure to do this.
This remains even more true now that there is no leeway at all relative to eligibility, the minimum physical presence threshold (now 1460 days in 6 years) is an absolute minimum.
I would be remiss in making these reminders, in the context of the topic's subject, if I failed to also note that very recently, as I cited and linked in another post here, in the
Abdul-Sattar Q Mahdi 2015 FC 1318 case, in discussing the import of potential concern about undisclosed absences a Federal Court justice described
43 days more than the physical presence requirement, as
"only slightly over the minimum requirement for physical presence in Canada,".
Thus, my take is that the object of
stone8198's admonition is indeed an important one. Yes, it is largely a reminder. Yes, most are already well aware of this. But among the most frequent errors seen, leading to problems, is the applicant's failure to accurately and completely declare all travel abroad. So a reminder that this is the applicant's obligation, the applicant's responsibility, and that it is important to get these facts right, and indeed to have a decent buffer margin over the minimum, is a reminder worth making.
