Justice Mosley's decision
in the Ojo airline pilot shortfall case:
There was an anecdotal report about an airline pilot who spent a great deal of time abroad and had somewhat recently been granted citizenship. If that report was accurate that would not be this case, even though it bears a lot of resemblance to the one reported, since this airline pilot was
approved by the Citizenship Judge but CIC appealed, so there was (so far)
no grant of citizenship. CIC has won the appeal at least to the extent that the CJ's decision has been set aside and the case has been sent back to CIC to be determined anew.
The significance of these
shortfall cases is fading, of course, given that for all new applications (since June 11, 2015) there is no leeway for shortfalls allowed at all in the law. But there are probably hundreds if not thousands of shortfall applications still in process. Indeed, there was probably a rush of shortfall applications just before the change in the law.
In that context, this case is significant in a few respects:
-- some CJs are still willing to apply a qualitative test; that is, some applicants with a shortfall are still being favourably treated by CJs
-- while Justice Mosley hangs the decision on what I would describe as more or less a hyper-technicality, as if reaching for an excuse to rule against the pilot, Justice Mosley also goes out of his way to emphasize that he is in no way suggesting how this case should be decided upon reconsideration
-- and it affirms the admissibility and relevance of an
affidavit (in this case from the spouse)
This case involves a huge shortfall, the pilot absent nearly twice as much as present in Canada (590 days short of 1095 in the relevant four years; absent 955 days in the relevant four years; present just 505 days). The reason for the absences was not just employment abroad, but employment for a non-Canadian employer. So this reflects a remarkable exercise of discretion by the Citizenship Judge, willing to even consider let alone approve an applicant who spent well less than half his time in Canada.
For those with a shortfall application in the pipeline, I expect this case to offer a glimmer of hope.
Submission of an affidavit in support of residency:
While I find the other aspects of this decision interesting, the almost in-passing discussion of a tendered affidavit is, to my view, important.
This part of the decision is not dependent on old law versus new law. So this is a discussion relevant to all future applications, particularly applications in which CIC questions residency (technically to be "presence" for new applications going forward) . . . and especially if CIC is challenging the applicant's account of residency or presence.
Justice Mosley did not consider the proffered affidavit. That, however, was explicitly based on when the affidavit was proffered and the rules of procedure governing appeals. The affidavit was not before the CJ, so it could not be considered in the appeal either.
Justice Mosley did, however, explicitly address the admissibility and relevance of the proffered affidavit:
"In this proceeding, the parties debated the admissibility of evidence which Mr Ojo attempted to introduce as exhibits to an affidavit sworn by his spouse. I did not consider any of the evidence which had not been placed before the Citizenship Judge, since the law is settled that a reviewing court must confine itself to the evidentiary record that was before the decision-maker. . . .
. . . now that the decision will be reconsidered, I can see no obstacle to Mr Ojo’s submitting this evidence directly to the Minister or bringing it to an eventual hearing with a Citizenship Judge, should one be convened.
It is not apparent what CIC actually argued in regards to the spouse's affidavit, but it appears to have been more than just the technical restriction regarding what is considered in appellate review . . . since Justice Mosley explicitly commented on the future admissibility of the affidavit.
It is, however, apparent that CIC has long tended to dismiss the significance, if not the relevance, of affidavits submitted on behalf of citizenship applicants . . . except those from professionals or other objective sources (doctors, lawyers, accountants, and so on, submitting statements about contacts/activities with the applicant). Why this has been so is obvious enough: for those willing to engage in fraud, composing affidavits affirming the applicant's declarations is easy.
There is no hint in the Residence Questionnaire (probably will be renamed to be a "Physical Presence Questionnaire" in the future, like the online "Residency Calculator" has already been replaced by an online "Physical Presence Calculator") that in addition to the documents requested that the applicant can or should submit additional evidence including testimonial statements from family or friends or colleagues. Such evidence appears to be inherently
suspect in CIC's view, at the least self-serving and deserving minimal weight.
In contrast, however, in almost all other contexts, testimonial evidence, even that from family or friends, is recognized as competent and relevant, and entitled to a presumption of validity unless there is controverting evidence or an explicit reason to doubt the credibility of the source or the evidence itself.
In all the discussions about what to submit in response to RQ, testimonial affidavits, let alone unsworn statements (like letters), are rarely mentioned. And, to be frank, it seems that including letters or affidavits from family or friends is not likely to make the difference in most cases. But, in close cases it could, and in any event it would augment the evidence supporting an appeal if it comes to that.
And, in watching for this particular issue for years, this decision by Justice Mosley is the best statement so far that supports the applicant's right to not only submit affidavits in support of his or application, but to do so at the time of appearing for a hearing with a Citizenship Judge.
Justice Mosley's observation relies specifically on the respective
Regulation (section 28), which CIC could all too easily change, but there are also fair procedure requirements which in practice mandate the opportunity to submit evidence at a hearing.
(Note: the use of affidavits or testimonial letters in support of the application is something others and I discussed in depth years ago in the immigration.ca forum; the focus of the discussion then relied extensively on non-citizenship cases, there being only a very small number of references to such evidence in any citizenship case that any of us could find, at least in searching the cases going back to around 2000. This discussion took place in 2010/2011, around the time it became apparent that CIC was more aggressively challenging applicants who declared 1095+ days APP, not just shortfall cases.)
Technical requirement to determine date in-fact residence established:
The technicality I describe as a hyper-technicality is the requirement, stated in a number of Federal Court decisions and particularly applicable to a shortfall case, that the date the citizenship-applicant establishes in fact residence must be determined and only residency after that date be considered. In fact, the rule (of sorts) is that the residency issue cannot be assessed until there is a finding as to the date in-fact residence was established. This is (as Justice Mosley noted) often
implicit. I would say actually it is usually implicit (at this stage I have read over a hundred of the most recent citizenship decisions and this particular finding has been addressed in only a small percentage of the cases). This is so even in most shortfall applications (where this requirement really matters).
While the application asks applicant's to state the date on which they came to Canada to live (which would be the date of establishing residence), in practice this is either the date PR status was obtained or an earlier date, not the date the individual actually came to settle into a residence in Canada. In fact, the online Residency Calculator would not even allow the applicant to enter a date later than the date PR status was obtained.
A large percentage of immigrants, however, often take a year or two or even more (after landing) to actually make the move to Canada and establish residence in Canada.
The reason I describe this as a hyper-technicality in this case is that, again, in most cases there is no explicit finding of this date, as it is apparent from the facts of the case when the applicant came to live in Canada and there is little or no reason to question the residency determination relative to that . . . and that appears to have been the case here, notwithstanding the pilot's initial lengthy absence.
This issue is not worth a great deal of attention, as it is not a particularly common issue.
However, while not exactly in the same vein, my sense is that the underlying issue in this is consistent with why I think
shortfall applications relying on pre-landing credit have virtually no chance of success.
I suspect that more than a few, perhaps a majority, of the last-minute rush of
shortfall applications were made by applicants relying on pre-landing credit. These are the ones who faced the longest additional wait by the change in law, taking away the credit for pre-landing time. From various forum queries, it is clear that a large number were looking at the choice between waiting up to
two more years under the new law, or applying before the change with a
shortfall, and despite dominant discouragement from forum participants, many appear to have made the application anyway. I am afraid the odds for this group are extremely poor.
Perhaps the odds for all
shortfall applications made before the change are poor. They are no good, that seems clear. We do not really know what their chances are. As in most things, however, not all
shortfall cases were created equal. For those who made a
shortfall application
and relied on credit for pre-landing time in Canada, again I am afraid there is little or no hope.
