The Ryeome Lee decision (this should link) is a fairly straight-forward ruling upholding the decision by the Citizenship Judge. This applicant was ultimately 21 days short (1074 days actual physical presence), even though she declared more days present in her application.
This was both a credibility case (Minister challenging the CJ's approval in part because there were, allegedly, unresolved credibility issues) and a shortfall case. Justice Southcott even suggested a different decision maker might agree with the Minister, or at least have reached a different conclusion than the CJ, but that is not enough to overturn a CJ's decision.
One interesting aspect of this case is that the CJ applied the Papadogiorgakis test for residency. That is one of the alternative qualitative tests that can be applied to applications made prior to June 11, 2015. For several years the qualitative test usually applied is that often referred to as the Koo criteria. Koo specifies far more specific parameters for determining if the applicant was resident-in-Canada for at least three years even if absent some of those three years. The Papadogiorgakis test is quite vague, the focus of inquiry on whether the applicant has shown that his or her life has been centralized in Canada.
In any event, Ryeome Lee was short, but the CJ found she was resident-in-Canada per the Papadogiorgakis test and approved her application. The Minister appealed, and lost.
Take aways from the Ryeome Lee decision:
As arambi stated, the case illustrates that some shortfall application are resulting in the grant of citizenship.
Since fewer than one in a thousand cases are typically appealed in any year (before 2010 it was fewer than one in three thousand; 2009 is the last year the statistics were reported in an annual report by the Citizenship Commission), the important take-away is that some CJs are still willing to decide shortfall cases based on qualitative criteria and grant approval for citizenship.
It might also appear, from this case, that the Minister is appealing shortfall cases even if the applicant only fell short by three weeks. I would not draw that conclusion for a couple reasons. One, the appeal in this case was clearly filed by Minister Alexander (the CJ's decision was in March of 2015), not Minister McCallum. Secondly, again there were significant credibility concerns in the case, and those alone may have been the real reason for the Minister to oppose the CJ's grant of approval.
The Tsai Chuan Liao decision:
The Tsai Chuan Liao decision (this should link) is, as the saying sometimes goes, a whole different kettle of fish.
It is not merely a shortfall case but a huge shortfall.
During the relevant period for calculating her residency, Tsai Chuan Liao was absent 692 days, only present 427 days, which is to say she was outside Canada by a lot more than she was present in Canada. Moreover, she had initially declared that she was present 703 days, a discrepancy of 276 days.
Huge short fall (short 668 days)
plus Credibility in issue
equals CJ grant of approval?
Who would have guessed that? For well over a year there have been participants in this forum proclaiming that there was no chance for any shortfall. (Not my view, but that is explained oft and typically in some depth in other topics.)
And then the Federal Court justice upholds the CJ's approval.
Wow. Good thing Chris Alexander is no longer the Minister, not only would his head be spinning, he'd be foaming at the mouth, and Harper's team would have had to figure out how to make two heads roll (the CJ's and the Federal Court justice).
This case would have been something of a rather big surprise ten years ago, let alone after the draconian efforts of Harper's team to all but shut down shortfall applications.
I have a faint suspicion there is a backstory here, something to do with Halifax, the Martime region, and some relatively (last couple or few years) history/interactions between CJs in that region and the Harper government, the Federal Court and the Harper government. But of course I do not really know.
In any event: The Tsai Chuan Liao decision definitely illustrates that at least some CJs have been willing to grant approval to at least some shortfall applicants, and that at least one CJ on one occasion was willing to do so for an applicant with a very large shortfall. I would not read much more into it than that, and indeed, I would still guess (yes it is just a guess) that the odds are still against applicants with a significant shortfall, and heavily against an applicant with a large shortfall.
Pattern of citizenship cases in Federal Court generally:
This is something I have been addressing, somewhat recently (a few weeks now), recognizing the impact of section 22.1 (1) versus 22.1 (3) in the Citizenship Act (this should link), as adopted by section 20 in the Strengthening Canadian Citizenship Act (SCCA, or Bill C-24).
For clarity, the pertinent subsections of section 21.1 in the Citizenship Act state:
(1) An application for judicial review with respect to any matter under [the Citizenship Act] may be made only with leave of the Court.
. . .
(3) The Minister may make an application in respect of a decision of a citizenship judge.
What I overlooked in 2014, when the SCCA was tabled and voted on in Parliament, these particular provisions taking effect August 1, 2014, was the important difference between an application for leave, as referred to in subsection 22.1(1), governed by subsection 22.1(2), and an application as referred to in subsection 22.1(3). And in all the various discussions by critics, too often focused on inane red herrings like the unfounded criticism that the intent to reside clause somehow interferes with naturalized citizens' mobility rights as protected by the Charter of Rights, none illuminated this distinction, not the Canadian Bar, not Rocco Galati, not Lorne Waldman (CARL), not the British Columbia Civil Liberties Association (which along with Waldman promised to challenge Bill C-24 but in the press release did not so much as mention the changes to the right of judicial review let alone that this would be challenged -- see this link, assuming it works).
Anyone following Federal Court decisions in citizenship cases will have readily observed the impact: at least nine out of ten, if not nineteen out of twenty cases decided by the Federal Court, are now appeals by the Minister. Historically the number of appeals by applicants was roughly comparable to the number by the Minister, somewhat more by applicants. There is no reason to think that the number of applicants who seek review by the Federal Court, or at least think they have grounds to appeal, are any less now, but it is clear the vast majority have not been granted leave to appeal. So only the government, the Minister, is effectively getting to challenge Citizenship Judges' decisions in Citizenship Cases.
The availability of appeal, a right to appeal, is one of the critical elements of a fair process. Restricting access to judicial review has a far, far greater impact on the process than merely what the outcome is in those relatively very few cases appealed.
The right of appeal is a fundamental check in the system. It is what helps to keep the process fair generally, for all parties involved and affected by the process. It has a profound effect on decision-makers: they know their decision is subject to higher scrutiny for its reasonableness.
The right of appeal is also a key element in government transparency. Appellate proceedings are public. Federal Court decisions inform the public not only what the law is, but how it is interpreted and how it is applied, and what factors influence the outcome. A huge, huge share of the information I have shared in multiple forums like this is directly derived from the official accounts of actual cases reflected in the Federal Court decisions published over the course of many, many years.
I wonder where the so-called leading advocates of rights for immigrants and refugees, like CARL and the BCCLA, Lorne Waldman, and Rocco Galati, are on this truly important issue.
What we nonetheless are learning from the government's appeals:
Some appear to be worried that the number of appeals by the Minister indicate a high probability that the Minister will appeal any CJ approval. I cannot begin to guess what the probabilities are, or what criteria is being used to decide which CJ decisions the government will appeal. BUT I can extrapolate, based on the number of cases seen, that actually only a relatively few CJ approvals are being appealed by the Minister, and that probably the vast majority are not appealed.
Moreover, the appeals currently being decided and decisions published were all appeals initiated by Minister Alexander (well, technically, in practice by his delegates), while the Conservatives were still the ruling government. Minister McCallum is quite likely to continue to appeal some cases, especially since the decision to appeal is really being made by a delegate who was quite likely hired or promoted to his or her position by the Conservative government, but also because CJs are not infallible, they make errors, and the recourse for correcting such errors is appellate review (which now only the Minister has a right to, not applicants). But I suspect the nature and extent of appeals by the Minister will not be on the scale employed by the previous Conservative Minister.
We can readily discern why the government would appeal both of the cases referred to above, that is the Tsai Chuan Liao decision and the Ryeome Lee decision. The Tsai Chuan Liao case involved a shortfall greater than the amount of time actually present, and CIC long advocated that less than 50 percent presence was strong evidence against the applicant being resident-in-Canada despite other factors. The Ryeome Lee case involved, in addition to a shortfall, very significant discrepancies between information the applicant submitted and the actual facts, raising very serious concerns about the applicant's credibility.
Thus, in contrast, I would not extrapolate from these cases that the Minister is prone to appeal just any CJ approval of a shortfall application, but will appeal some.
This was both a credibility case (Minister challenging the CJ's approval in part because there were, allegedly, unresolved credibility issues) and a shortfall case. Justice Southcott even suggested a different decision maker might agree with the Minister, or at least have reached a different conclusion than the CJ, but that is not enough to overturn a CJ's decision.
One interesting aspect of this case is that the CJ applied the Papadogiorgakis test for residency. That is one of the alternative qualitative tests that can be applied to applications made prior to June 11, 2015. For several years the qualitative test usually applied is that often referred to as the Koo criteria. Koo specifies far more specific parameters for determining if the applicant was resident-in-Canada for at least three years even if absent some of those three years. The Papadogiorgakis test is quite vague, the focus of inquiry on whether the applicant has shown that his or her life has been centralized in Canada.
In any event, Ryeome Lee was short, but the CJ found she was resident-in-Canada per the Papadogiorgakis test and approved her application. The Minister appealed, and lost.
Take aways from the Ryeome Lee decision:
As arambi stated, the case illustrates that some shortfall application are resulting in the grant of citizenship.
Since fewer than one in a thousand cases are typically appealed in any year (before 2010 it was fewer than one in three thousand; 2009 is the last year the statistics were reported in an annual report by the Citizenship Commission), the important take-away is that some CJs are still willing to decide shortfall cases based on qualitative criteria and grant approval for citizenship.
It might also appear, from this case, that the Minister is appealing shortfall cases even if the applicant only fell short by three weeks. I would not draw that conclusion for a couple reasons. One, the appeal in this case was clearly filed by Minister Alexander (the CJ's decision was in March of 2015), not Minister McCallum. Secondly, again there were significant credibility concerns in the case, and those alone may have been the real reason for the Minister to oppose the CJ's grant of approval.
The Tsai Chuan Liao decision:
The Tsai Chuan Liao decision (this should link) is, as the saying sometimes goes, a whole different kettle of fish.
It is not merely a shortfall case but a huge shortfall.
During the relevant period for calculating her residency, Tsai Chuan Liao was absent 692 days, only present 427 days, which is to say she was outside Canada by a lot more than she was present in Canada. Moreover, she had initially declared that she was present 703 days, a discrepancy of 276 days.
Huge short fall (short 668 days)
plus Credibility in issue
equals CJ grant of approval?
Who would have guessed that? For well over a year there have been participants in this forum proclaiming that there was no chance for any shortfall. (Not my view, but that is explained oft and typically in some depth in other topics.)
And then the Federal Court justice upholds the CJ's approval.
Wow. Good thing Chris Alexander is no longer the Minister, not only would his head be spinning, he'd be foaming at the mouth, and Harper's team would have had to figure out how to make two heads roll (the CJ's and the Federal Court justice).
This case would have been something of a rather big surprise ten years ago, let alone after the draconian efforts of Harper's team to all but shut down shortfall applications.
I have a faint suspicion there is a backstory here, something to do with Halifax, the Martime region, and some relatively (last couple or few years) history/interactions between CJs in that region and the Harper government, the Federal Court and the Harper government. But of course I do not really know.
In any event: The Tsai Chuan Liao decision definitely illustrates that at least some CJs have been willing to grant approval to at least some shortfall applicants, and that at least one CJ on one occasion was willing to do so for an applicant with a very large shortfall. I would not read much more into it than that, and indeed, I would still guess (yes it is just a guess) that the odds are still against applicants with a significant shortfall, and heavily against an applicant with a large shortfall.
Pattern of citizenship cases in Federal Court generally:
This is something I have been addressing, somewhat recently (a few weeks now), recognizing the impact of section 22.1 (1) versus 22.1 (3) in the Citizenship Act (this should link), as adopted by section 20 in the Strengthening Canadian Citizenship Act (SCCA, or Bill C-24).
For clarity, the pertinent subsections of section 21.1 in the Citizenship Act state:
(1) An application for judicial review with respect to any matter under [the Citizenship Act] may be made only with leave of the Court.
. . .
(3) The Minister may make an application in respect of a decision of a citizenship judge.
What I overlooked in 2014, when the SCCA was tabled and voted on in Parliament, these particular provisions taking effect August 1, 2014, was the important difference between an application for leave, as referred to in subsection 22.1(1), governed by subsection 22.1(2), and an application as referred to in subsection 22.1(3). And in all the various discussions by critics, too often focused on inane red herrings like the unfounded criticism that the intent to reside clause somehow interferes with naturalized citizens' mobility rights as protected by the Charter of Rights, none illuminated this distinction, not the Canadian Bar, not Rocco Galati, not Lorne Waldman (CARL), not the British Columbia Civil Liberties Association (which along with Waldman promised to challenge Bill C-24 but in the press release did not so much as mention the changes to the right of judicial review let alone that this would be challenged -- see this link, assuming it works).
Anyone following Federal Court decisions in citizenship cases will have readily observed the impact: at least nine out of ten, if not nineteen out of twenty cases decided by the Federal Court, are now appeals by the Minister. Historically the number of appeals by applicants was roughly comparable to the number by the Minister, somewhat more by applicants. There is no reason to think that the number of applicants who seek review by the Federal Court, or at least think they have grounds to appeal, are any less now, but it is clear the vast majority have not been granted leave to appeal. So only the government, the Minister, is effectively getting to challenge Citizenship Judges' decisions in Citizenship Cases.
The availability of appeal, a right to appeal, is one of the critical elements of a fair process. Restricting access to judicial review has a far, far greater impact on the process than merely what the outcome is in those relatively very few cases appealed.
The right of appeal is a fundamental check in the system. It is what helps to keep the process fair generally, for all parties involved and affected by the process. It has a profound effect on decision-makers: they know their decision is subject to higher scrutiny for its reasonableness.
The right of appeal is also a key element in government transparency. Appellate proceedings are public. Federal Court decisions inform the public not only what the law is, but how it is interpreted and how it is applied, and what factors influence the outcome. A huge, huge share of the information I have shared in multiple forums like this is directly derived from the official accounts of actual cases reflected in the Federal Court decisions published over the course of many, many years.
I wonder where the so-called leading advocates of rights for immigrants and refugees, like CARL and the BCCLA, Lorne Waldman, and Rocco Galati, are on this truly important issue.
What we nonetheless are learning from the government's appeals:
Some appear to be worried that the number of appeals by the Minister indicate a high probability that the Minister will appeal any CJ approval. I cannot begin to guess what the probabilities are, or what criteria is being used to decide which CJ decisions the government will appeal. BUT I can extrapolate, based on the number of cases seen, that actually only a relatively few CJ approvals are being appealed by the Minister, and that probably the vast majority are not appealed.
Moreover, the appeals currently being decided and decisions published were all appeals initiated by Minister Alexander (well, technically, in practice by his delegates), while the Conservatives were still the ruling government. Minister McCallum is quite likely to continue to appeal some cases, especially since the decision to appeal is really being made by a delegate who was quite likely hired or promoted to his or her position by the Conservative government, but also because CJs are not infallible, they make errors, and the recourse for correcting such errors is appellate review (which now only the Minister has a right to, not applicants). But I suspect the nature and extent of appeals by the Minister will not be on the scale employed by the previous Conservative Minister.
We can readily discern why the government would appeal both of the cases referred to above, that is the Tsai Chuan Liao decision and the Ryeome Lee decision. The Tsai Chuan Liao case involved a shortfall greater than the amount of time actually present, and CIC long advocated that less than 50 percent presence was strong evidence against the applicant being resident-in-Canada despite other factors. The Ryeome Lee case involved, in addition to a shortfall, very significant discrepancies between information the applicant submitted and the actual facts, raising very serious concerns about the applicant's credibility.
Thus, in contrast, I would not extrapolate from these cases that the Minister is prone to appeal just any CJ approval of a shortfall application, but will appeal some.