citizenship and maple card

Old Oct 5th 2003, 4:09 pm
  #31  
Vladimir Menkov
Guest
 
Posts: n/a
Default Summary of recent court cases

It's not generally considered polite to follow up one's own postings,
but I thought it appropriate to add more precise statistics, for what
it's worth, to my article.

    >>Andrew Miller wrote:
...
    >> >... Please review cases decided in 2002 and 2003
    >> > and you'll see that in many (if not most) cases filed court
    >> > upheld citizenship refusals based on not accumulating 1,095
    >> > days of residence in Canada.

    >In article <[email protected]> ,
    >Rich Wales <[email protected]> wrote:
    >>By any chance, do you have cites for some of these decisions?


One can read federal court decisions at
http://decisions.fct-cf.gc.ca/fct/
Just enter
"citizenship judge" and 2003
in the search box, with the "this boolean query" selector applied.

This gives 22 cases; after removing prior-year cases, as well as one
case that was concerned with admissibility of additional evidence,
rather than with the final decision, we have a sample of 19 cases on
which substantive decisions were made in 2003. Below I summarize some
statistics for this sample.

The 19-case sample sample includes 11 appeals brought by CIC seeking
to overturn the citizens the citizenship grant by the Citizenship
Judge; the federal court allowed all these appeals. The other 8 cases
are appeals by immigrants seeking to overturn the refusal of
citizenship by the Citizenship Judge; in 6 out of them, the court
denied the appeal, and in the other two, it allowed the appeal,
sending the citizenship application for rehearing by a different
Citizenship Judge. Overall, then, 17 cases out of 19 resulted
in citizenship refusal.

All 11 successful CIC appeals can be divided into the two categories:

Group (a): The 9 cases where the court had no trouble agreeing with
the Minister that the applicant's life was not centered in Canada. In
all these cases the deficiency in physical presence was quite serious:
in 8 cases, the actual days of presence in Canada numbered from 120 to
537 (less than 1/2 of the required 1095 days of residence).

The 9th case (2003 FCT 173: Canada vs. Simakov) was rather peculiar:
the applicant had claimed 576 days of physical presence, and was
approved by Citizenship Judge. A week after his interview with the
judge, CIC uncovered in its mail room a long-lost illiterate anonymous
letter, claiming that the person in fact had not been living in
Canada. Realizing that the Citizenship Judge could have taken a harder
look at the applicant if he had known about the letter, CIC promptly
appealed the citizenship grant. The Federal Court did not directly
ask whether the number of days had been correctly reported by the
applicant, but rather paid attention to the evidence presented
by the applicant to demonstrate the "quality of his connection to
Canada", and found it "inconsistent", allowing the Minister's appeal.

Individual Justices' policies on how to judge the applicants'
fulfullment of the residence requirement differ. For example, Justice
Pinard says:

"In my opinion, actual presence in Canada is by far the most
important factor to be taken into account when assessing whether an
applicant has met the residency requirements of the Act ...

As I have said many times, an extended absence from Canada,
though temporary, during this minimum period of time is
contrary to the spirit of the Act which already allows a
person legally admitted to Canada as a permanent resident not
to reside there for one of the four years preceding the date
of his or her citizenship application."

He then finds that a person who has been in Canada for only 537 days
does not meet the requirement:

2003 FCT 572: Canada (Minister of Citizenship and Immigration) v. Shafiq
http://decisions.fct-cf.gc.ca/fct/2003/2003fct572.html


Group (b): The 2 cases where, while the physical presence in Canada was
substantial, the court decided that the applicant has not established
residence in Canada before going abroad -- and, thus, could not be
considered "resident in Canada" during his or her absences.

For example, suppose a person one landed on Jan 1, 1998, left the
country on Jan 15, 1998, came back on July 1, 1998, then stayed in
Canada for 2.5 years and applied for citizenship on Jan 1, 2001. The
applicant is not likely to be granted citizenship: even if the
citizenship judge approves the application, CIC will appeal, and the
federal court will allow the appeal.

The court's reasoning is the following: for for the applicant to be
considered "resident" in Canada while physically away from the
country, s/he has to first establish bona fide residence in Canada --
and that's not possible to do in just two weeks. Thus his absence in
Jan-Jun 1998 cannot be counted as residence in Canada. Note that the
outcome could be different if the applicant had first lived in Canada
for 2.5 years, and then went abroad for several months.

One typical example of (b) is
2003 FCT 226: Canada (Minister of Citizenship and Immigration) v. Barker
http://decisions.fct-cf.gc.ca/fct/2003/2003fct226.html
where the court allowed CIC's appeal against granting citizenship to a
husband and wife who had spent, respectively, 813 and 892 days
in Canada.

Another similar case is
2003 FCT 650: Canada (Minister of Citizenship and Immigration) v. Nandre,
where the applicant had spent 763 days in the country.

Of course, some applications from group (a) suffered from the problem of
(b) as well.


I would venture a guess that court has allowed all these 11 recent CIC
appeals exactly because they were well-founded, i.e. clearly fell
into groups (a) or (b). I did not see any CIC appeals in this 2003
sample where the applicants physical presence day count was only a few
months short of 1095, and there was no evidene of type-(b)
situation. (I.e., the absences took place after residence had been
well established). My guess is that CIC knows the current
jurisprudence well enough, and does not usually appeal a citizenship
grant unless they believe the appeal is likely to succeed.

(On the other hand, perhaps such appeals did exist, but we don't find
them at the Court site because the citizenship applicants preferred to
simply reapply for citizenship, rather than to fight CIC in court).

Among the 8 cases where an immigrant appealed the denial of
citizenship by the citizenship judge, 2 appeals succeeded (the
application was sent for re-hearing by a different judge), and 6
failed. The two applicants who managed to convince Federal Court that
"Canada is the country in which he or she has centralized his or her
mode of existence" had, respectively, 564 and 783 days of presence,
along with good evidence of Canadian connections. (Wu v. Canada; Gao
v. Canada). The failed applicants typically had less presence (131 to
432 days), or failed the citizenship exam.

Again, I did not see any appeals resulting from the refusal of an
application with only a small shortage of physical presence; it is
reasonable to suppose that any applicants affected by such a refusal
preferred to reapply instead of wasting years in a court appeal.


--vladimir
 

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off


Contact Us - Manage Preferences Archive - Advertising - Cookie Policy - Privacy Statement - Terms of Service - Your Privacy Choices -

Copyright © 2024 MH Sub I, LLC dba Internet Brands. All rights reserved. Use of this site indicates your consent to the Terms of Use.