Effective date of Bill C24

[scylla]

Dear Friends:

Sorry for my ignorance. I have one simple question:
In the Residence Calculator one has to mention Absence 'From' and 'To' Dates.

My question is in form on an example: If I left Canada on the 12th afternoon and came back on the 29th evening, would the
'From' date be 13th and 'To' date be 28th .

Thanks in advance.
2015cad

No. The "from" date would be the 12th and the "to" date would be the 29th. You need to enter your actual days of travel.

 

[oldfriend]

Your signature date will be June 29, but you mail the package a few days earlier. Let's say you plan well so that your package will arrive in CIC office on June 29, is that not gonna work?

I checked by doing a hypothetical calculation and you're right, the page displayed for print out looks to be exactly the same whether you are putting in a future date or today's date. If you signed the document on a future date (and made sure your web browser didn't add the actual date to your printout) then I don't see how the agent could know (or care?) you'd signed it with a future date other than the application would be marked arrived the same day it was signed.

As for the courier service, I don't know where you are but it looks like for us on the west coast 3 business days is probably the best possible - as far as I can tell the main courier services don't do next day for such a long distance.

I think it is very risky and unwise to do this because the print out of the Residence Calculator will show the current date (which is assigned internally by the system) as a header and footer of the printed page and it must be the same as the date supposed to be the date of signing the application and the calculator report as well .

It looks like this

1/29/2015 Residence Calculator

 

[Aspat]

My application is dated 1st Feb. But I've already printed the res calculator (the printout obviously has the time and date on which I printed) and attached it to the application package which is also ready. Just waiting for Feb 1st to send the package.

Should I reprint the res calculator on the 1st to avoid unnecessary problems?

 

[screech339]

My application is dated 1st Feb. But I've already printed the res calculator (the printout obviously has the time and date on which I printed) and attached it to the application package which is also ready. Just waiting for Feb 1st to send the package.

Should I reprint the res calculator on the 1st to avoid unnecessary problems?

I think it is best to reprint it on Feb 1st and send it in with the application. This way you are adding more days to your total physical days while you are at it.

 

[Aspat]

Thanks, I'll do that.

 

[dpenabill]

A recent Federal Court decision has affirmatively applied the August 1, 2014 changes to a case in which a Citizenship Judge denied approval in 2013.

In the HAIFFA A A ALI ABDEL HUSSEIN case the Citizenship Judge's denial was set aside and the matter has been sent back for a redetermination to CIC, to the "decision-maker," rather than to another Citizenship Judge.

This case also has implications for proof of residency in terms of strict physical presence, warranting some attention and analysis.

But for purposes of Bill C-24 taking effect, and in particular those provisions which came into force as of last August (August 1, 2014), this is the first Federal Court decision I have seen actually applying the new law (I have seen other references to the changes, but no previous instance where the new law actually controlled what happened in the case).

What really perked my attention was the Federal Court's statement that the provisions which came into force on August 1, 2014 placed "the adjudication of such applications within the ambit of [the Minister] . . . "

What does that mean? I had previously understood the new section 14(1) (which came into force August 1, 2014) to still require a CJ hearing before an applicant could be denied for failing to prove residency.

Justice LeBlanc, however, sent this residency case back to CIC rather than to another Citizenship Judge, because the now applicable provision places the adjudication within the ambit of CIC.

The implications and possibilities are, well, one might say "interesting."

We need to see more information about this stage of processing before drawing any firm conclusions.

 

[bambino]

Sadly, after spending thousands of dollars on legal fees and waiting over a year to have the Federal Court decide her application, Ms. Hussein's victory will likely be Pyrrhic. I do wonder how Justice Rennie would have ruled in this case :

I just spoke to the lawyer who argued this case for the Minister. The idea behind that particular language re: the "decision-maker" is that under the new processing rules all cases go through a citizenship officer, and if he or she cannot make a decision, the case is referred to the CJ. What happens in Ms. Hussein's case is that it is being sent back on that new track, going to the citizenship officer first. The language in the Hussein decision does not preclude a hearing with a CJ. The citizenship officer may, and quite possibly will, still send it up the chain to the CJ.

Now, it is a separate question what guidelines those citizenship officers acting as decision-makers have to follow, and if they have the power to flat-out deny applications or need to refer to a CJ any file where they believe the applicant does not meet the strict physical residence requirement.

 

[dpenabill]

Sadly, after spending thousands of dollars on legal fees and waiting over a year to have the Federal Court decide her application, Ms. Hussein's victory will likely be Pyrrhic. I do wonder how Justice Rennie would have ruled in this case :

I just spoke to the lawyer who argued this case for the Minister. The idea behind that particular language re: the "decision-maker" is that under the new processing rules all cases go through a citizenship officer, and if he or she cannot make a decision, the case is referred to the CJ. What happens in Ms. Hussein's case is that it is being sent back on that new track, going to the citizenship officer first. The language in the Hussein decision does not preclude a hearing with a CJ. The citizenship officer may, and quite possibly will, still send it up the chain to the CJ.

Now, it is a separate question what guidelines those citizenship officers acting as decision-makers have to follow, and if they have the power to flat-out deny applications or need to refer to a CJ any file where they believe the applicant does not meet the strict physical residence requirement.

As I have suggested in another thread, I understood that new section 14(1) as I believe the language was intended to be understood, to mean that in residency cases the Minister's choice (as exercised by Citizenship Officers) is to either approve and grant citizenship, or otherwise make a referral to a Citizenship Judge for a hearing on residency. That is, only a CJ can decide to deny an applicant based on a failure to meet the residency requirement.

But the literal language in the Citizenship Act does not overtly state, in the declarative form, that applications must be referred to a Citizenship Judge for a hearing. (The language of new section 14(1) is essentially conditional, if . . . referred to a CJ. The language in the prior version of section 14(1) was that all grant applications shall be considered by a CJ.)

On the other hand, in another forum there has been a report of a residency case on track for a hearing with a Citizenship Officer in conjunction with an ATIP response indicating the FPAT has been completed. I initially assumed that this was actually a reference to a hearing with a Citizenship Judge. But the individual making that report has continued to report that it is about a hearing with a Citizenship Officer.

I do not know, but I believe it can be safely assumed that Justice LeBlanc referred this case back to CIC rather than to another Citizenship Judge at the request of the Minister (via a plea in the alternative), and that the language used by Justice LeBlanc derives from pleadings in the case submitted by the Minister's counselors (the lawyers representing CIC).

Not too much should be read into a single case, a single decision, especially during the period of transition. But the phrase that really jumps out is the reference to how Bill C-24, as now in force, has changed things:

". . . the manner in which applications for citizenship are to be determined [has been modified] by placing the adjudication of such applications within the ambit of [CIC]." (see paragraph 27 of the decision)

The outstanding question is whether this government intends to interpret the Citizenship Act, as amended by Bill C-24, to give CIC (the Minister acting through delegates, those being Citizenship Officers) the authority to:

-- grant or deny citizenship

or

-- to grant citizenship or refer the applicant to a CJs for a determination

That is, as you say, whether citizenship officers acting as decision-makers "have the power to flat-out deny applications or need to refer to a CJ any file where they believe the applicant does not meet the strict physical residence requirement."

Frankly, as a jurist, I think the language of Bill C-24 is a mess, rife with ambiguity and outright vagueness. This is why even when a single party has control over what legislation is adopted and made law, the democratic process demands a robust debate, an opportunity to fully vet the provisions proposed. That opportunity was quashed by the PM.

The reference to where the "adjudication" is to take place looms large. This will not be the final interpretation of what the Minister's authority is now, as of August 1, 2014, but it is definitely a huge clue as to what this government is advocating.

In this regard, to be clear, Ms. Hussein's case was already referred to a Citizenship Judge. It passed from CIC's hands into that of the Citizenship Commission, into the hands of a Citizenship Judge.

And, if the proper place for the adjudication of a citizenship application is now with the Minister, will applicants be entitled to seek leave for judicial review of that decision? even though CIC has in the meantime referred the matter to a CJ?

And, why didn't Justice LeBlanc consider remanding the matter to CIC with an order to grant citizenship? Justice LeBlanc assessed the record and found no credible basis supporting a finding that Ms. Hussein failed to meet the residency requirement. Why does CIC get a second bite of the apple?

Under previous law, the Federal Court could not order the grant of citizenship given that only CJs had the authority to approve applicants for the grant of citizenship. But that is no longer the law which applies.

It is not uncommon for the language of new law to raise a range of issues and questions which will require litigation and judicial review over the course of years to resolve. And even before this decision, there were more than a few obvious issues likely to involve matters of statutory interpretation and invoke appellate litigation. But I am afraid the language in this decision derives from a direction in interpretation being pursued by the current government which will spill the proverbial can-of-worms.

By the way, there is little doubt about how Justice Rennie, or Justice Snider, or Justice Zinn, would have ruled in this case, leaving Ms. Hussein to re-apply. Which, I suspect, would leave Ms. Hussein a PR (my guess is that she has spent a lot of time abroad since applying for citizenship, and that is an unstated element underlying the case . . . although, CIC has long taken a very harsh approach to applicants who lacked a passport for any of the relevant period, and that was a factor in this case).


Ultimately: This decision foretells a quagmire of appellate litigation even without considering the impact of the new residency elements, such as the "intent to reside" clause. Moreover, clearly the stark dichotomy between routine application processing and how things go for those applicants deemed to have a residency case will obviously continue to have a big impact on processing timelines (less than a year for those routinely processed, years for those deemed a residency case) and on the extent to which there is a profound intrusion into the private affairs of the residency-case-applicant (including the applicant's thoughts, given the import "intent" will have).

 

[dpenabill]

As I have posted in the topic specifically about Galati's challenge, Justice Rennie's decision has been published and it is a total loss for Galati et al. Galati et al to pay costs no less.

See Justice Rennie's decision: at http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/100806/index.do

Justice Rennie states:
"Parliament must enjoy exclusive and unqualified legislative competence over citizenship, subject only to constraints of the Charter of Rights and Freedoms."

The concept of jus soli is all but utterly rejected.

 

[screech339]

The concept of jus soli is all but utterly rejected.

What are you talking about? You still get automatic Canadian Citizenship by jus soli when you are born in Canada. That hasn't changed.

 

[dpenabill]

What are you talking about? You still get automatic Canadian Citizenship by jus soli when you are born in Canada. That hasn't changed.

I am talking about what Justice Rennie ruled in the Galati challenge.

See statements in the decision like the following:

". . . even if jus soli was a common law principle, it had long been displaced by legislation, and that in the 190 years since Doe on the Demise of Thomas v Acklam, no Canadian or UK court cast doubt on the ability of Parliament or Westminster to do so. Indeed, the legislative history and jurisprudence establishes the opposite. Nationality and citizenship are entirely statutory constructs."
(emphasis added)

Thus, according to Justice Rennie (not me), there is no inalienable right to citizenship by virtue of being born in Canada. Thus, there is (again, according to Justice Rennie, not me) no constitutional right to citizenship based on being born in Canada. Citizenship by birth is merely statutory, status which Parliament can grant or can take away.

Even though the issue before Justice Rennie was whether the cause itself was justiciable, and if not should be dismissed, and if not then the merits of the underlying claim was not before the court, Justice Rennie nonetheless issued a decision as to the underlying merits. The decision was thus internally incongruous if not utterly inconsistent, Justice Rennie ruling the cause was not justiciable, therefore its merits were not before the court, and yet he went on to rule on the merits.

Obviously Justice Rennie also signals that Parliament could, thus, implement law limiting who became a citizen by birth . . . which is usually brought up in the context of the so-called anchor-baby issue.

It is correct, at least according to Justice Rennie, that nothing changed, Justice Rennie saying essentially that the common-law principle of jus soli was displaced (as in replaced) a long time ago in Canadian law.

 

[screech339]

I am talking about what Justice Rennie ruled in the Galati challenge.

See statements in the decision like the following:

". . . even if jus soli was a common law principle, it had long been displaced by legislation, and that in the 190 years since Doe on the Demise of Thomas v Acklam, no Canadian or UK court cast doubt on the ability of Parliament or Westminster to do so. Indeed, the legislative history and jurisprudence establishes the opposite. Nationality and citizenship are entirely statutory constructs."
(emphasis added)

Thus, according to Justice Rennie (not me), there is no inalienable right to citizenship by virtue of being born in Canada. Thus, there is (again, according to Justice Rennie, not me) no constitutional right to citizenship based on being born in Canada. Citizenship by birth is merely statutory, status which Parliament can grant or can take away.

Even though the issue before Justice Rennie was whether the cause itself was justiciable, and if not should be dismissed, and if not then the merits of the underlying claim was not before the court, Justice Rennie nonetheless issued a decision as to the underlying merits. The decision was thus internally incongruous if not utterly inconsistent, Justice Rennie ruling the cause was not justiciable, therefore its merits were not before the court, and yet he went on to rule on the merits.

Obviously Justice Rennie also signals that Parliament could, thus, implement law limiting who became a citizen by birth . . . which is usually brought up in the context of the so-called anchor-baby issue.

It is correct, at least according to Justice Rennie, that nothing changed, Justice Rennie saying essentially that the common-law principle of jus soli was displaced (as in replaced) a long time ago in Canadian law.

That must be a shock to those who believed the Charter protected their right to be Canadian Citizen forever besides the one who voluntarily renounced it themselves.

 

[dpenabill]

That must be a shock to those who believed the Charter protected their right to be Canadian Citizen forever besides the one who voluntarily renounced it themselves.

Foremost, ATR (according to Justice Rennie's decision) the Charter does continue to play a role in protecting the status of Canadians, including Canadian citizens as well as Canadian Permanent Residents. It is not as if the government can arbitrarily or capriciously strip Canadians of their status, or the rights they have attendant their status per the Charter.

But ATR there is no constitutional or extant common-law right to citizenship, period, not even for those born in Canada.

Frankly, while I am not at all well versed in Canadian constitutional law, my sense is that Justice Rennie's decision is overreaching. And, as I noted, actually he ruled that the cause before him was not justiciable, so technically the merits of the cause were not in issue (I wonder to what extent the actual merits were even briefed or argued, since what was before Justice Rennie was essentially a motion to dismiss based on Galati not having standing and the cause not being ripe). This, it seems to me, means this part of the ruling may be essentially editorial, little more than gratuitous commentary, of no formal force or effect, and not a precedent, not binding law.

It may be apparent in my previous posts (especially in other forums, going back years) that I am no fan of Harper appointee Justice Donald J. Rennie. Three years ago he started issuing decisions contrary to more than three decades of judicial decisions by literally dozens of other Federal Court justices, giving judicial support to an interpretation of the Citizenship Act which was created by CIC after the Conservative Party formed the government, going back to at least the reign of Diane Finley at CIC. This interpretation constituted a major detour from how the residency requirement in the Citizenship Act had been applied for decades.

That said, while the outcome, the decision to dismiss Galati's application, was no surprise, the scope of Justice Rennie's ruling is indeed surprising, if not shocking.

It has long been held that the grant of citizenship was a privilege, not a right, but Justice Rennie's decision that even for those born in Canada citizenship is entirely a statutory construct is indeed rather startling.

Even if Justice Rennie's conclusions are correct (as I noted, since the cause was not justiciable, the merits not in issue, my sense is that Justice Rennie's proclamations largely dismissing jus soli are not law, just editorial commentary), the practical impact is undoubtedly very limited due to the specific rights afforded by the Charter. And Justice Rennie does at least acknowledge that the power of Parliament is limited by the Charter.

 

[na123]

Any new news guys?

It seems everybody thinks it will be July 1st, but some think it will be June 1st. It will make a big difference for me, because I can apply either June 1st 2015, or July 2017 on the new law.

 

[kiwi1959]

Hi Guys

I recently heard from an immigration lawyer: it will take effect on Friday Jule 10th 2015 or last day is 10th July

Good luck