Observations about Citizenship Judge hearings and potential for CIC to appeal a ruling favourable to the applicant (approving the applicant for citizenship):
Note, overall, that given the change in government, under a Liberal government there are bound to be significant changes coming, going forward, at least in tone, probably in the degree of strictness. The extent of change is utterly unpredictable. The timeline for change is unpredictable. But changes are most likely coming.
There is some possibility this will affect cases already in the appeal phase. Many appeals are resolved by consent, no judicial hearing, no formal judicial decision. Whether under a Liberal government CIC will be more flexible, forgiving, or lenient, or simply conciliatory, toward already pending cases is not certain but is possible.
Reminder; suggestion to lawyer-up:
I have long suggested that anyone scheduled for a CJ hearing obtain the assistance of a reputable, experienced Canadian lawyer. In the last year or so I elevated this suggestion to more or less emphasize it is virtually imperative to be assisted by legal counsel.
There are multiple reasons for this, but since the spring of 2014 there has been one which looms largest: the referral to a CJ hearing almost certainly involves CIC's overt opposition to the grant of citizenship, with CIC's reasons to not approve the applicant explicitly argued in the referral. While these would not, ordinarily, have been prepared by a lawyer, the Citizenship Officer who does prepare the referral has the equivalent of a lawyer's training and expertise in these particular matters, and far more experience in the particular issues than almost any two or three lawyers combined.
That is, once scheduled for a CJ hearing, the applicant is going into a quasi-judicial venue, engaging in litigation, with a rather formidable adversary and advocate making a case against the grant of citizenship.
Even someone trained and experienced in the law would be better served having representation.
This is about getting lawyered-up BEFORE going to a CJ hearing.
This is about having a lawyer in order to:
(1) better assure the hearing is a fair procedure and the applicant has a real opportunity to make a case for granting approval
(2) make a better, more persuasive case to the CJ (this includes the likelihood a lawyer will better identify and grasp actual issues and how to address them -- issue-recognition is a particular skill characteristic of the best lawyers; it is not so easy as many think, even among quite experienced jurists let alone non-lawyers)
(3) clarify, for the CJ, the issues which must be addressed in the decision (so that a favourable decision by the CJ will be more or less appeal-proof)
(4) help make a record to preserve issues in the event there is an appeal, including either an appeal by the applicant if there is a negative decision, or if there is an appeal by CIC if the CJ grants approval
What happens if CJ approves and CIC appeals:
First, this is relatively common, especially now (although this is among things more likely to be affected by changes in approach under a Liberal government). As noted, just being referred to a CJ hearing most likely means that CIC opposes the grant of citizenship. Just like any party who loses a hearing, if there appears to have been any flaws in the hearing or decision, CIC is actually quite likely to appeal. Obviously CIC approaches these situations with the mindset that the proper outcome is a denial, and thus is inclined to see a CJ's approval as, for one reason or another, NOT a proper outcome. Thus, if there is any arguable flaw in the CJ's decision, CIC is likely to appeal (or at least this has been the case under a Conservative Minister).
This is not personal. But it does appear that in a high percentage of the cases that go in this direction, CIC perceives some reason to doubt the applicant's credibility. This is not always overtly expressed, but is readily apparent in the vast majority of these cases (I have read nearly every single published citizenship decision in cases appealed, by either an applicant or CIC, in the last five or so years, and a large percentage of the decisions older than that).
This goes back to half the reasons to lawyer-up before the CJ hearing, to increase the odds that a favourable decision by the CJ will withstand appellate scrutiny.
In any event, however, any applicant who receives notice that CIC is in fact appealing a favourable CJ decision, as those of you engaged in the process have done, it is absolutely imperative to lawyer-up (technically not necessary, but practically necessary) at that time if one is not already represented by legal counsel.
The problem:
Technically the standard on appeal is the same regardless which party appeals. Practically, however, CIC's position tends to have the advantage even in those cases it is appealing. This is not something easily explained, but it is at least in significant part related to the fact that CIC's referral to the CJ (prepared using the File Preparation Analysis Template, or FPAT) typically frames the issues and do so in a manner favouring CIC's position regarding the issues. This again goes back to reasons why it is better for the applicant to be represented by legal counsel before going into the hearing.
The Citizenship Officer is more likely to approach the process carefully following formal procedure and pursuant to the technical elements (and the FPAT itself helps the Citizenship Officer structure the referral to comply with technicalities). CJs have traditionally been relatively informal in their decision-making, more focused on making judgment calls than in precise technicalities. The CJ, for example, can be more focused on whether he or she simply believes the applicant, and if so, grant approval. Among those CJ decisions which are overturned, many (if not most) are overturned not because the substance of their decision was deemed wrong, but because there are technical flaws in the form of the decision.
I have not compiled a formal count of appeal outcomes, but my strong recollection is that CIC prevails far, far more often than applicants, and this is again regardless which party is the one who appeals. That is, that most decisions uphold a denial by the CJ, while in contrast many if not most cases appealed by CIC result in a decision setting aside the grant of approval.
Sorry. That is to say the odds are not good. Really bad odds for anyone who appeals a CJ decision denying approval. But not so good odds, either, for someone who was approved by the CJ but CIC appeals.
However, frankly the odds are not that important. What matters are the facts of the particular case. CIC does lose at least a significant number of its appeals. They may even lose more than half of those cases it appeals (again, I have not kept exact track of the outcomes, I just recall that CIC wins many and possibly most of these, however maybe just many but not most).
Again, however, the facts in the particular case are what matters most. It may seem glib to state that a good case has a lot better odds than a bad case, but this should convey the gist of what matters most. Regarding this, however, many applicants are not very good at being self-objective. This is part of why a lawyer can make a big difference, a trained eye looking at the facts from a stranger's point of view.
Lawyer's familiarity with FRC:
By the way, it is not surprising that lawyers taking a citizenship case are not as fully informed about the specific items in the File Requirements Checklist or what they mean. The FRC is about internal CIC processing, not the elements of the formal decisions made. Lawyers are more engaged with the formal level of decision-making. I agree that they could do a better job if they were more thoroughly informed about such details, but the jurist's terrain is laws, regulations, rules, and formal decision-making procedure. And there probably isn't enough money in drilling deeper into the bureaucratic process. Moreover, what ultimately makes the difference is at that formal level of decision-making, applying the laws, regulations, and rules to the facts of the particular case.
Moreover, most of what we (forum participants) know about the FRC derives from perhaps a single, apparently accidental release of a copy of the FRC to one individual who shared it on the internet (three years ago now, and subsequently widely distributed at least in quotes of certain contents, like the triage criteria), understood in conjunction with a number of internal memos at CIC (heavily redacted and fragmented memos) obtained through the ATI process, in conjunction with personal experience and reports based on personal ATIP results. The FRC continues to be a confidential document.
A practical note:
Not all lawyers were created equal, and not all lawyers are equally diligent.
Not all cases were created equal.
So actual results will vary.
Oft times it is difficult to accept the loss of control and sense of resignation, but once a case is in a lawyer's hands, where it goes and how things turn out, is indeed in the lawyer's hands. Few people totally trust their lawyer. But in litigation the client and lawyer are a team, and as a team player the best the client can do is support the team captain, the lawyer running the case. This can pose difficulties, particularly if there are any problems in communication, especially if conflicts arise. But its a bit like going up in a small plane, until the plane is safely back on the ground you need to stick with the pilot you have. Cockpit struggles in midair rarely have a positive outcome.
That is, follow the lawyer's advice.
Sure, there are occasions when a lawyer drives or allows things to go off the rails, and needs to be fired. Never a good scenario. Pray you never fall into such despair. If you do not believe in God, hope there is a God anyway and then pray you never fall into such despair.
Stated otherwise: the time to find a new doctor, for example, is before you are on a stretcher being wheeled toward the operating room.
