There are three very recent Federal Court decisions reflecting the kinds of cases which will still involve the equivalent of a Residence Questionnaire under the new requirements (4/6 years, and 183 days X 4 CY, physical presence requirements).
These are, of course, cases decided under the old law (it is likely to be a long time before we see any Federal Court decisions applying the new 4/6 rule), but in all three cases the applicants applied based on meeting the actual physical presence threshold. One of these cases involves a CJ decision applying the
Koo criteria, but the applicant had, nonetheless, declared more than 1095 days of actual presence.
These are all cases in which the Minister appealed. As I have discussed in other topics, the overwhelming majority (almost all actually) citizenship decisions by the Federal Court now involve appeals by the Minister. There is no reason to think that applicants have ceased filing appeals (historically the number of appeals by applicants was, typically, more than the number by the Minister). The difference is that the Minister is entitled to review as a matter of right. Applicants are not. Obviously many applicants are seeking review but not being given leave to appeal.
The Minister won all three of these appeals. That is, the CJ's decision was set aside in all three cases.
One of the cases is straight-forward, that involving
MAHER BACCOUCHE, a decision by Justice LeBlanc. And it makes sense, given that the applicant barely met the APP threshold, declaring 1098 days APP, and the evidence of presence over a significant portion of the relevant time period was "thin," virtually no trace of his presence in Canada during the first half of the relevant period.
Whether the minimum presence is 4 years or 3 years, however, this scenario is bound to occur, as many applicants will make their application very soon after reaching the minimum threshold, among whom IRCC is likely to see reason to question the applicant's accounting of days present, and some of these will not have, or otherwise fail to submit, objective documentation (a paper trail) sufficient to prove their actual presence for all those days declared.
There are two take-aways which are similar to what I have stated, in various topics and in various ways, before:
-- wait to apply with a significant margin over the minimum
-- time making the application relative to individual circumstances to avoid lack-of-proof pitfalls
The first of these is obvious and reiterated by many participants in this and other forums.
The second is not so obvious nor so easy calculate, but what it amounts to is simple common sense: be aware that IRCC can request
objective documentation to show address, work, school, and other activities, and presence in general, and if for some reason it might be difficult to submit that evidence, take that into account when deciding it is time to apply for citizenship.
In any event, even under the 4/6 rule, there will continue to be applicants who apply with little margin, in circumstances triggering IRCC's concerns, and who have compromised ability to document their presence over the relevant time period. Those will be RQ cases, or
Physical-presence-cases, going forward.
The
case involving MINOU SHARMA, decided by Justice Fothergill is not so straight-forward, since the CJ applied the
Koo criteria notwithstanding the applicant's initial declaration of presence for 1,392 days during the relevant time period, and attendant responding to RQ declared presence for 1,356 days (absences for 89 days and 125 days respectively). Way over the minimum 1095 days threshold of actual physical presence required.
In addition to being a credibility case (given the discrepancies in the applicant's accounting of absences, and there were other inconsistencies), this was a lost passport case. Lost passport cases are bound to continue to occur in the future.
The case that piqued my concern however is the
VIRON QARRI decision by Justice Kane, which is another case in which the applicant applied with, purportedly, a very substantial margin: 1,310 days present.
This too is a lost passport case. Lost passport cases invariably (but not always) run into difficulty and commonly encounter CIC's opposition to the grant of citizenship. Will IRCC, under McCallum's reign as Minister, similarly approach these cases as did CIC under Finley, Kenney, and Alexander? I cannot say, but the absence of travel documents is still likely to at least trigger elevated scrutiny.
There are credibility issues, the missing passport, and a scarcity of evidence to document addresses, activities, or other indicia of presence in Canada for significant portions of the relevant time.
What bugs me some about this case is the somewhat artificial reasons for negative inferences and inconsistencies in both the Citizenship Officer's analysis and the Federal Court's analysis in justifying a finding that the CJ's analysis was inconsistent and unreasonable.
As for what, to my view, seemed to be artificial concerns, for example, the Federal Court focuses on the absence of an entry stamp for a trip to Cuba, and concludes, because of this, the dates of the trip could not be verified. But that does not suggest there is actually any reason to doubt the applicant's declared dates for that trip, for which, by the way, both his passport and the CBSA travel history confirmed the date of return to Canada.
Similarly as to two trips to Albania. Again, the return dates are confirmed by the ICES report (CBSA travel history). What is missing is merely stamps in the passport to confirm entry dates into Albania. And again, my question is so what? Is there any indication that he went to Albania (or anywhere else) prior to the date that he declared he left Canada on those occasions?
But the larger inconsistency is the Federal Court's focus on the period of time between August 16, 2006 and March 30, 2007, a period for which the applicant did not present a passport.
Some simple facts and arithmetic:
-- the number of days between these dates is 226
-- the number of days CIC
erroneously calculated to be between these dates was 246
-- the applicant declared absences during this period of time, totaling at least 37 days
-- thus, if that entire period of time is excluded, the applicant's declaration otherwise would still exceed 1095 days, at least adding up to 1,121 days (1,310 minus 189 days for the 226 days in the period, recognizing that at least 37 days in this time period were declared as absent)
Apparently the CJ did not conclude precisely how many days the applicant had been physically present in Canada, but concluded based on the evidence that the applicant "meets the residency requirement on a balance of probabilities."
And the CJ did so despite the erroneous information submitted to the CJ by CIC (such as that the number of days in that time period in question was 246 . . . an obvious error which CIC continued to advocate before the Federal Court).
Justice Kane states:
"It is not possible to speculate and to determine if the Citizenship Judge would have reached the same finding if this significant gap had been considered . . ." but Justice Kane does not explain how deducting even this entire period of time from the defendant's declared presence would affect the CJ's decision that the applicant met the presence requirement, since such a deduction would still have left the applicant with more than 1095 days of presence in Canada.
This is really a credibility case, and the doubts as to the applicant's presence go beyond that period of time between August 2006 and March 2007.
But the CJ had taken testimony from the applicant and made a finding that the applicant was credible.
I go into this detail because these kinds of cases will continue to arise under the 4/6 rule, and perhaps be even more common because given the longer period of time there is likely to be a greater incidence of lost or stolen passports, and more gaps in the records the applicants have. After all, six years is as long as CRA
suggests keeping records (which is longer than other taxing agencies in many countries, including the U.S.) and that is only for documents related to income and deductions, not all employment, home address, and other records which are requested when RQ is imposed.
Some of us learned to keep extensive records before we became PRs. Many immigrants, however, are not aware of the extent to which they might be required to submit objective documentation when they apply for citizenship. CIC has never even so much as suggested, in its communications to new immigrants, that they should retain exact records of the precise date they travel outside Canada. Even day trips must now be reported. Over the last several years I have seen scores of people report being stumped when they finally decide to apply for citizenship and discover they are required to document, by specifying the precise dates, every time they left and returned to Canada.
In contrast to the usual focus of attention regarding urging the government to change this or that rule, restore credit for pre-landing time, or remove the intent to reside requirement, or go back to the 3/4 rule, to my view it would be far more beneficial for the government to more fully and clearly communicate to new immigrants what the requirements for citizenship are and what sort of records and documents the immigrant should keep to support his application for citizenship.
