A lot of history . . .
SenoritaBella said:
Do you mind sharing what happened to change things in 2006? The only thing I can recall around that time is a change in the ruling party from Liberal to Conservative. Is this it?
Yes, the impetus for change was clearly concurrent with the Conservatives winning the election (for a minority government at that time) in 2006. While many of the changes were not immediate or overtly apparent while Diane Finley was CIC Minister, soon after Jason Kenney became the Minister more obvious changes were being implemented. This has been across the board in many aspects of immigration. And deception has been common. Jason Kenney announced, for example, a "
brief pause" in accepting parent and grand parent family sponsorship applications, but in reality had
terminated the program and more than
two years later CIC finally implemented a new program which is at most a mere shadow of the prior program. This is not to say that aspect of immigration did not need serious reform or to even criticize the program eventually adopted . . . it is to say, however, that the Minister of CIC overtly
lied about what CIC was doing. Try saying you did not report a two month (let alone two year) absence because you overlooked such a brief pause in your presence in Canada, and see how quickly your application for citizenship goes off the rails . . . or, even, potentially how many months you spend in jail for fraud.
on-hold said:
Without access to internal bureaucratic correspondence - which dpenabill, despite his general excellence, probably does not have -- there's no real way to know why an interpretation of regulations changed. That said, there is no reason to think that the change was independent of, and coincident with, the election of a Conservative government.
Actually, many of us have seen lots of internal CIC memos and other documents. There was one period, during the time period 2012 to late 2013, when in particular there were scores of ATIP requests for internal CIC documents, by many of us following the changes taking place, all of which are readily accessible to everyone else (once the request was complete) via a simple email to CIC requesting a copy (responses were sporadic, sometimes taking many months, but eventually I got all those I asked for).
Additionally, a number of people were sharing their personal ATI requests responses, which is how many of us eventually obtained a copy of the File Requirements Checklist containing the triage criteria for residency screening, something which CIC has gone to great efforts to not have publicly disclosed. (Because of CIC's efforts to conceal major aspects of their practices, the ATIP request responses were, thus, characteristically difficult to read given the extent to which parts were redacted.)
So many of us have indeed had access to voluminous internal CIC memos.
But more than that, there are the arguments made by CIC reflected in the Federal Court decisions over the course of many years. I do not purport to have read all citizenship decisions, but I have read nearly all that have been issued in the last five or so years, and a large percentage of those issued before that and since around 2000.
Perhaps it should be acknowledged that the Liberals were still the ruling party when the policy was adopted to screen applicants' passports looking for indications they had been abroad and were returning just in time to take the test or attend the interview (that Operational Bulletin came out in 2005), targeting applicants who were leaving Canada after applying. Indeed, that Bulletin appears to have initiated the first big wave of RQ and it did appear to start when the Liberals were the ruling party . . . but it was when Jason Kenney took the reins from Diane Finley a few years later, when the mpre draconian practices began to be implemented and, at the same time, transparency disappeared (2009, for example, is the last year we have a Citizenship Commission report detailing the work and decisions made by Citizenship Judges, cases appealed, cases subject to Mandamus, and so on . . . under Kenney's watch these reports and many, many more simply ceased).
But it is clear the applicant going abroad while the application is pending was really more a pet peeve of the Tories and here too it was not until 2011 or so that it became uncontestable that living abroad while the application was pending could lead to serious problems, despite the fact that time after applying is not relevant to the residency calculation itself (that said, I have seen some people still insisting, quite recently, there was no elevated scrutiny imposed on applicants because of extended post-application absences . . . notwithstanding the many many cases illustrating otherwise, and notwithstanding that including the "intent to reside" provision in the
SCCA was primarily motivated by this issue).
It should also be acknowledged that the internal CIC memos revealed that even in late 2012 the
formal policy regarding
shortfall applications was that the referral for a Citizenship Judge hearing was only mandatory for applicants who had
less than 900 days actual physical presence (that is, 190+ days short) . . . but by the time of those memos, it was already well apparent that actual practice in CIC was a lot, lot more strict toward shortfalls a lot smaller than that. In other words: it was readily apparent that CIC's formal policy did not reflect its actual practices.
The main indicators of change were referenced in Federal Court decisions citing arguments made by CIC. (Ironically, CIC's arguments in more recent cases appears to acknowledge the validity of a qualitative test . . . see the decision I linked in another topic just yesterday, CIC agreeing it was OK to apply a
Koo test . . . disagreeing with how it was applied, but still acknowledging the validity of the test itself rather than a physical presence test.)
And there was the transition in the Federal Court itself. Justice Rennie was still a rookie on the bench, in 2011, when he broke ranks with over three decades of precedents and ruled that the actual presence test was the only correct interpretation and application of section 5(1)(c) (the "residency requirement"), and Justice Snider soon agreed, and subsequently a number of other Federal Court justices soon followed . . . perhaps it is just a coincidence that Donald Rennie was appointed to the bench on Harper;s watch and that the vast majority of those agreeing with that decision came to the bench under Harper, or that Justice Rennie has so quickly been promoted to the Federal Court of Appeal.
I am not one of those who say there are no coincidences. But this was no coincidence.
In any event, the case law maps the transition over the years.
Compare, for example, the
SEIFFERT case, in 2005, and the
Martinez-Caro case by Justice Rennie in June 2011.
The outcomes are interesting, Seiffert and family having huge shortfalls . . . the primary applicant short of 1095 days by 772 and the others by even more . . . and the Federal Court overruling the CJ's denial of approval for citizenship, versus the 2011 Rennie decision regarding an applicant who only had 689 days actual presence (306 days short of 1095), in which Justice Rennie upheld the CJ's denial of citizenship.
But what looms large in the comparision is the underlying reasoning and description of the governing law.
To be clear: in the meantime there was
NO change in the law regarding grant citizenship, none at all regarding the residency requirement. None.
Justice Rennie did not mince words, and despite three decades of precedents to the contrary, Justice Rennie ruled:
" . . . the interpretation of the residency provision of the Citizenship Act is subject to the standard of correctness and . . . residency means physical presence in Canada."
This did not just fly in out of the blue in 2011. This was more than two years prior to when I applied for citizenship, but I was already
eligible for citizenship then, by several months. Back in 2009 I briefly thought I would apply in early 2011 or soon thereafter, but PMM and a couple others (in another forum . . . I assume it is the same PMM however) alerted me that CIC was already taking a tougher stance on actual physical presence. There was no consensus in the forums then. Many doubted that was really the case. Shortfall applications were still very common. The vast majority of RQ cases were about shortfall cases, big shortfalls, shortfalls by several hundred days.
I still do not know how PMM knew, in 2009, what very few others were seeing or knew. But then in 2011 Justice Rennie ruled there was only one correct interpretation and application of the residency requirement, not based on
residency at all but based on actual physical presence. This was not, still is not, binding in other cases . . . but many Federal Court justices have followed suit.
Justice Snider, in particular, soon followed suit.
A more profound dichotomy is revealed in comparing Justice Snider's decision in the
Mueller case, in 2005, and her decisions in the 2011 cases regarding
Sinanan and
Mao Ye.
In the 2011
Sinanan decision, Justice Snider stated her concurrence in Justice Rennie's interpretation,
as if in over three decades, and scores and scores of decisions wrangling with the residency requirement, Justice Rennie was the first to actually apply the law governing statutory construction. Justice Snider stated:
In my view, the matter has come a long way towards resolution through the decision of my colleague, Justice Rennie, in Martinez-Caro, above. His decision differs from the others cited because, for the first time, a judge of our Court conducted an exacting analysis of s. 5(1)(c) using well-established modern principles of statutory interpretation. Justice Rennie concluded that application of these principles supports the physical presence test, and not the qualitative approach. Even if I might quibble with his characterization of the standard of review as correctness, his analysis and conclusion are compelling. I adopt his reasons and conclusion on this question.
Again, it is not the outcomes in the respective cases which looms so large, but rather the discussion about the applicable law.
In point of fact, the law itself had not changed at all, not one whit. The ruling government and its arguments, though, had changed. And the relationship between the Conservatives and Justice Rennie can, perhaps, best be summarized in his decision that not only is a grant of citizenship a privilege, but citizenship itself,
even for those born in Canada, is a privilege which Parliament has the authority to confer or
not, essentially at its will (see Justice Rennie's decision in the Galati challenge; and, by the way, I do not know, but I have a hard time seeing this aspect of Rennie's decision prevailing in the long term, as there is a huge difference in
granting citizenship, which many judges have said is a privileg, versus the status of citizenship itself, which a core, fundamental part of any person's identity).
The main thing, however, is that there was clearly a transition over the course of the last decade, culminating in the SCCA which finally adopted the rule of physical presence as law.
But CIC, under the Conservative government, under Diane Finley and Jason Kenney (and to a lesser extent, Minister Alexander, who has more or less been a stand-in for Kenney, at least until recently) moved the goal posts a long time prior to Bill C-24 even being tabled, and they did so while still informing the public as if nothing had changed and that it was up to a CJ whether or not "residency" meant residency and if the applicant had been resident in Canada for 3+ years the CJ would decide whether the applicant got citizenship. (Unless CIC objected, something CIC declined to inform prospective applicants.)
That was the world when the OP here applied, back in 2010. PMM was warning people before then, but that warning was unusual. And while most of us were already getting the sense it was tougher, there was no shortage of contrary opinion being expressed in the forums, that there was no problem applying with a shortfall so long as the applicant had really been residing in Canada. In the meantime, the number of RQ cases was on the rise and the timeline for RQ'd cases was growing longer and longer. But CIC was not letting people know, barely a hint, what applying based on residency (rather than waiting to meet the physical presence test) really meant.
As I said, a big pile of our hard earned tax dollars have been wasted because of this . . . with much more to be wasted, as again I am sure scores, if not thousands of PRs applied with a shortfall this spring . . . while in the meantime local offices have been closed (ours was, and our "local office" is now over a 1,000 km away), CBC's funding has been deciminated, among so many other abuses of taxpayers' contributions.
Sorry if this comes across as a bit of a rant, but over the years I have watched many, many people come to this and a couple other similar forums, confused about the residency requirement, more confused when contrary to what it said all along at the CIC web site they were told it was foolish to apply based on meeting the basic residency requirement . . . .
but I have been living in Canada all this time . . . so why wouldn't the CJ rule in my favour?
Because, despite what the CIC site said, CIC was opposing shortfall applicants, and appealing those CJs were approving.
And again, I am quite sure that despite how many participants here posted
dont' do it in response to the same old question,
I am short, but . . . , the number who went ahead and applied is large. And I think CIC is mostly to blame for this, for failing to be honest with their clientele.
