An addendum of sorts, for reference; a bit of case law:
I mentioned that cases up to 2011 were dominated by shortfall cases, but that by spring 2011 it was increasingly apparent CIC was trending toward a more strict application of the actual physical presence requirement. In retrospect it is apparent this trend started at least a year or two, perhaps three, before 2011.
Going back longer, a case that has been described by some as reflecting a
beautiful people exception, there was the
HERIBERT WALTHER SEIFFERT case, where the Applicant was short by 772 days, his wife by 823 days, the eldest son (Mark-Oliver) by 787 days, and the youngest son by 893 days . . . and the Federal Court ruled: "I find that each of the Applicants has met the residency requirements of s.5(1)(c) of the Act. As a result, in my opinion, each member of the Seiffert family is entitled to Canadian citizenship."
That was in 2005. The members of this family spent a remarkably little amount of time in Canada (none so much as half their time spent in Canada). Hard to imagine a Federal Court justice ruling that way in the last four or five years.
That said, even in 2011 there was the
ALEXANDER DAVID CARDIN case, in which there was "no dispute about the fact that Mr. Cardin was away from Canada for 688 days in the four year period immediately prior to the filing of his application," and yet the Federal Court granted Cardin's appeal.
In the meantime, in 2011, while Justices Rennie and Snider were issuing decisions more or less telegraphing to CIC and CJs that it was OK to apply the strict 1095 days APP test across-the-board, with no consideration given to applying a qualitative test (a small number of other Justices, such as Justice Barnes, disagreed) fairly emphatically stating that was indeed the proper test to be applied, the underlying facts in the cases being appealed to the Federal Court that year were, I think, telling.
The following are all cases in which the applicant had been denied approval by a Citizenship Judge applying the strict physical presence test, and these individuals thought they had a strong enough case to warrant pursuing an appeal:
Mao Ye and MCI presence a mere 117 days (978 days short)
Sinanan and MCI presence a mere 584 days (short 511 days)
Luftar HYSA physically present for only 173 days, short 922 days
Fernando Martinez-Caro 689 days of presence, 406 days short
ANNE MARIE MURPHY 701 days presence
The mere fact these individuals thought it was worth appealing, even though they were all more than a year short, all of them present in Canada for less than two years, is a fairly salient indication about what immigrants and lawyers were
expecting then.
There were still decisions, in 2011, like
professor Ocla's case, where he had 996 days presence, was denied by the CJ but the appeal allowed by Justice Barnes.
In contrast, in the last two years, with only sporadic exceptions, the Federal Court decisions usually involve applicants claiming >1095 days APP and CIC and CJs being skeptical of the applicant's claims.
It may be a stretch, but my sense is that in recent years lawyers have told shortfall applicants, who have been denied approval, that prospects for success in an appeal are too minimal to warrant spending the money or making the effort to appeal. And, perhaps just a guess but my sense is that the number of shortfall applicants has decreased dramatically in the last . . . well, probably no longer ago than when Jason Kenney replaced Diane Finley at CIC.
More recent case law:
A bit of in-depth reporting about recent case law further illustrates the overall trend in the last several years, perhaps even putting an exclamation mark on how much tougher this government has gotten in citizenship cases. A comparison of 2014 and more recent cases with, for example, not only those like the
Mao Ye and MCI case, where the applicant was present in Canada a mere 117 days (an unsuccessful appeal which, in retrospect at least, was totally predictable), but with the successful appeals in
professor Ocla's case (three months plus short of 1095 days) and the
ALEXANDER DAVID CARDIN case, in which Cardin was away from Canada for 688 days in the four year period immediately prior to the filing of his application,
in contrast to more recent decisions.
In this regard, the 2011 rulings in which Justices Rennie and Snider decisively approved, as the "correct" test for residency, the APP test, have been cited extensively for that very proposition. Justice Rennie's decision in the
Martiez-Caro case, for example, in which Justice Rennie went to great lengths to justify and explain (despite three decades of case law otherwise) his
ruling that "residency means physical presence," has been cited in other citizenship cases more than two dozen times in the last three years.
Bringing the historical context to the present, while not a residency case, the recent decision in the
TSERING GYATSO case, which seems at the least a bit harsh to me, particularly illustrates that this government is taking a very tough approach to granting citizenship. This is a failed language case. There is a discretionary exception available for individuals who otherwise are settled in Canada who lack the intellectual capacity to learn a second language. In this case, an individual with a very difficult background,
NO formal education (he had lived a nomadic lifestyle in Tibet until his 30s), a now fifty-year old refugee who has been living in Canada since 2002, and an individual with clearly limited learning abilities, who had applied for citizenship
four times, who submitted the requisite medical and psychological opinions from qualified professionals regarding his limited learning abilities, was ultimately denied a discretionary waiver of the language requirement because, despite his learning disabilities, he tried and was able to actually pass the knowledge test using an interpreter . . . and this was deemed conclusiveness enough evidence that he could learn a second language to overcome all the previous efforts to do so which failed and the documented evidence submitted by qualified professionals regarding his limited learning abilities. It was as if he was being punished for trying.
Illustrative of the current approach to residency issues, the companion cases of
SARITHA SUSAN THOMAS and
THOMAS THOMAS VIJAYAN, each decided by Justice Mosley, also reflect the extent to which this government is a lot tougher now than it was five years ago and before.
The THOMAS case:
In the
THOMAS case, the CJ granted approval and CIC appealed. The timeline is interesting and perplexing. The CJ hearing was in October 2013. At that time (and up to August 1, 2014), the law allowed the CJ sixty days to make a decision. But in this case the CJ did not issue a decision until June 30, 2014, a full eight months after the hearing. No explanation for this.
The CJ found the applicant "very credible," and that she had "provided sufficient evidence of her physical presence," and approved the application. CIC appealed.
CIC focused on an alleged lack of evidence to document the applicant's presence for a three-four month period of time in 2008, a period of time it should be noted during which the applicant herself declared extended absences (mostly to the U.S.), and thus not amounting to that large a discrepancy even assuming CIC's suspicions.
What is interesting about this case is just the fact that CIC appealed. The alleged
potentially additional absence occurred early in the relevant time period, and again could not have reduced the applicant's total presence by much, in contrast to the applicant having well-documented being settled in and living in Canada since that time (among the evidence, 55 claims for OHIP use . . . that's five or six times what I, an elderly person, have had in the six years I have had OHIP), her and her children living in a home they
own in Oakville (a very expensive home).
Among the
problems CIC had with her application, was the lack of
stamps in her passport reflecting re-entry to Canada (two stamps for six times re-entering Canada). Huh? I re-entered Canada at least two dozen times while I was a PR and
never showed my passport to Canadian officers at the border even once, always presenting my PR card, never asked to show a passport. This is typical for PRs with status in the U.S. driving into Canada from the U.S.
The real issue (my opinion)
CIC had with this applicant was suspicions about her husband, who had more absences from Canada.
The THOMAS THOMAS VIJAYAN case:
Thomas Vigayan, the husband of Mrs. Thomas, attended a CJ hearing the same day, but a separate hearing, as Mrs. Thomas. The CJ
also approved his case. CIC also appealed his case. Justice Mosely set aside the CJ's approval.
This is technically a review of a CJ's decision to
apply the Koo criteria even though the applicant claimed APP > 1095 days. That said, Justice Mosely essentially found, by his calculations, that the applicant had only 1094 or 1093 days APP, possibly fewer, and that the CJ's conclusion the applicant had at least 1095 days APP undermined the CJ's application of the
Koo criteria.
There is no doubt this applicant traveled frequently. He had continuing business interests in the ME and he is a well-known wildlife photographer who frequently travels on assignment. He asserted, nonetheless, having had 1,154 days APP in the relevant time (in an earlier declaration of travel he claimed fewer absences, adding up to 24 more days APP). The vast majority of his travels were for a week or less.
The CJ's reasons were actually quite detailed and comprehensive. Most of CIC's concerns were rooted in factual circumstances which, indeed, might
raise questions, that is, which would be
reasons to question residency. But there is a difference between having questions about residency and making a factual determination based on the evidence.
Ultimately there was evidence to show that this individual was outside Canada
more than he had declared. Given the nature, duration, and frequency of his travels, however, it was not unreasonable for the CJ to conclude that despite the discrepancies, the applicant's accounting of the facts was
credible.
In particular, the CJ found: "Applicant was credible in his testimony regarding his absences from Canada."
(While not explicitly stated, this thus implies a finding that, relative to the discrepancies, the applicant did not willfully make material misrepresentations.)
Here is where the case gets interesting:
The CJ explicitly concluded that despite the undeclared trips abroad, those probably only added up to an additional 60 days of absence, which would
NOT reduce the applicant's presence to a level resulting in a shortfall.
In particular, the CJ "found that there was no shortfall." (paragraphs 39 and 57)
In contrast, Justice Mosely found, as a matter of fact, that there was shortfall (by at least a whole day or two):
"The respondent had a shortfall in his physical presence in Canada but failed to declare it." (paragraph 51)
In particular, Justice Mosely revisited the CJ's math, calculating to the day, and concluded that allowing the undeclared absences totaled 60 days,
the applicant's total APP would be 1094 days. One day short. (paragraph 57) And in another part of the decision, concludes it was 1093 days APP. Two days short. (paragraph 84)
But the CJ did not rely on the APP test. The CJ applied the
Koo criteria, which Justice Mosely describes as a
"very cursory" analysis under
Koo (even though the CJ addressed each and every item of inquiry listed in
Koo, which is far, far more than CJs had done in the much older cases where the
Koo criteria were applied).
But here's why I find the analysis of the facts interesting: Given the frequency of the applicant's travels, it is obvious that all of the so-called undeclared trips had to have been book-ended by other trips, indicating a fairly limited window in time, a window indicating the maximum amount of time the applicant could have been abroad, which was undoubtedly not lengthy but more in the vein of what the CJ concluded, trips for an average duration of five days.
Frequent travel abroad may ordinarily indicate an individual with ties abroad contrary to having centralized one's life in Canada. But this frequency of travel (averaging significantly more than a trip per month), most of which was clearly for temporary purposes, is actually strong evidence of frequently being in Canada and leaving Canada only for brief, temporary periods . . . after all, he was obviously, unquestionably in Canada for some period of time following each entry.
What I am saying is that sure, frequent travel, and undeclared travel are a reason to question the extent to which a person was actually in Canada. But when you engage in that questioning, and look at the pattern of travel for this individual, it adds up to a life being lived in Canada and his being in Canada for nearly if not more than the 1095 day APP test,
sufficiently to render the CJ's decision reasonable, even if one disagrees with that conclusion.
And here's why I find the ultimate conclusions interesting:
This is obviously an individual whose family is well-settled in Canada (and soon to be, if not already, Canadian citizens), an individual with a very substantial investment in living in Canada (including owning a home worth many millions of dollars), who was clearly in Canada at least very close to meeting the APP test, and whose occupation clearly involves traveling on short term assignments abroad (not long term relocations abroad), and yet both CIC and the Federal Court justice went to rather extensive lengths to justify denying the grant of citizenship
despite the clearly judicious exercise of decision-making in favour of citizenship by the very person charged, under the law, with making that decision, the Citizenship Judge.
Compare these cases, especially the latter one above, with the
HERIBERT WALTHER SEIFFERT case (2005), or the 2011 cases for
ALEXANDER DAVID CARDIN and
professor Ocla.
And keep in mind that in
all these cases, from the
HERIBERT WALTHER SEIFFERT case in 2005, right up to the
THOMAS THOMAS VIJAYAN case, the applicable law, the governing statutory provision,
has not changed, not in the slightest.
It is remarkable, truly remarkable, how much the application of the law has changed when the law itself has not. Most people probably shrug, if not yawn. But this is the sort of thing that can keep a jurist up nights.
In any event, the law governing residency is about to change, dramatically so, the changes already adopted into law but not yet in force.
