But if "temporary residence" is still listed under 3/5 rule, CIC interpretation of denying a tourist pre-PR credit can still apply despite court 3/4 ruling that denied the person pre-PR credit due to being a "tourist". It's called setting a precedent.
Basically: No. No. And no. And no. (Kind of strange how totally wrong this is, almost as if deliberately. Channeling the T?)
There is no CIC.
Federal Court decisions are
NOT legal precedent (which is why there were three completely different interpretations of what the 3/4 rule required, none of the holdings in one Federal Court being binding on another, which is to say they do
NOT establish precedent).
Even under the 3/4 rule, the generally accepted interpretation of 5(1)(c) precluding counting days prior to in-fact residence was
NOT applied to those who established 1095 days of actual physical presence.
The 3/4 rule was explicitly a
residence requirement. To qualify, the applicant had to
"accumulate three years of residence in Canada."
In contrast, like the 4/6 rule currently in force, the 3/5 rule is a strict
"physical presence" requirement.
In particular, when it takes effect, the 3/5 rule will specifically prescribe, in Section 5(1)(c)(i), that to qualify for a grant of citizenship the applicant must be --
--
"[a permanent resident who has] been physically present in Canada for at least 1,095 days during the five years immediately before the date of his or her application."
The provision which will allow credit for time in Canada prior to becoming a PR explicitly refers to each day the person was
"physically present," including days physically present as a temporary resident.
To be clear, "temporary resident" status applies to any FN allowed to enter Canada temporarily, which includes FNs issued visitor visas (whether as a "tourist" or otherwise). In addition to Sections 20(1)(b) and 22(1) in IRPA, see Section 29 (1) in particular which states (emphasis added):
"A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.
For further clarification, IRPA provides for
classes of temporary residents, including the
visitor class, student class, and worker class. In addition to IRPA itself, also see the regulations, including in particular, for example, IRPA Regulation 179(a) which refers to applying for a temporary resident visa as a member of the visitor, student, or worker class. See Part 10, 11, and 12 in the Regulations which prescribe the three classes of temporary residents respectively, Part 10 for visitors, Part 11 for workers, and Part 12 for students. (Protected persons class are also provided for separately.)
By the way, for further clarity, "tourists" are not identified as such under Canadian immigration law. While visitors may be said to have the purpose of coming to Canada as a "tourist," that merely references one of many purposes a FN might have for coming to Canada and qualifying for entry into Canada as a visitor, which technically means the FN is admitted to Canada as a temporary resident in the visitor class, even if for a very brief visit.
Overall:
Under the 3/4 rule the
in-fact residency that was necessary to commence, in effect, time which would count toward the
accumulating three years of residence in Canada, was NOT about status.
It was about actually, in fact, establishing a place of residence in Canada. After all, regardless the various inter-conflicting standards for determining what "residency" meant in that version of the Section 5 in the
Citizenship Act, the essential requirement was to accumulate three years of
residence.
There is nothing in the provisions which will be in force when the 3/5 rule takes effect which would comparably support a similar in-fact residence requirement even if prior Federal Court decisions could be said to have established a precedent (which again, they do not).
All that said, there are practical obstacles which strongly suggest that a prospective applicant should not rely on time in Canada prior to becoming a PR unless and until the date the person has actually begun residing in Canada pursuant to formal immigration documentation of the entry and status. This is about how things work practically, not what the law technically specifies.
OK, all that said, I could have gone easier on you and just pointed out that "temporary resident" in Canadian immigration law is merely about legally being in Canada by someone other than a Canadian (not a PR and not a citizen), and that it has nothing to do with having residency or establishing an in-fact residency in Canada. But sometimes it needs to be emphasized that the way words and terms are used in law can be very different from their ordinary usage.
