CAVEAT: This discussion is relevant to only a small percentage of applicants.
THE VAST MAJORITY OF APPLICANTS DO
NOT NEED TO WORRY ABOUT FULL BLOWN RQ.
. . . just want to ask what did you mean by "full-blown RQ which can lead to very lengthy delays or even, depending on the facts, mean the application is in jeopardy." What jeopardy, how...
The burden of proof is on the applicant. These days it appears that full-blown RQ means IRCC likely has significant, perhaps specific concerns if not outright suspicion about the applicant's presence declarations. (Otherwise, even when IRCC has questions or some degree of concern about the applicant's accounting of presence in Canada, other forms of requests for information or documents, such as the CIT 0520, are made of the applicant; RQ appears to only happen, now, in the more seriously questioned cases.) That is, perhaps not always but (probably) usually, getting CIT 0171 means the applicant's information is formally being questioned if not outright challenged, and the RQ is, in effect, notice to the applicant of this, giving the applicant an opportunity to submit the evidence necessary to meet the burden of proving actual physical presence FOR ALL THE DAYS THE APPLICANT HAS DECLARED HE OR SHE WAS PRESENT IN CANADA.
(Not just 1095 days, but
ALL the days.)
If the applicant fails, IN THE VIEW OF THE RESPONSIBLE CITIZENSHIP OFFICER, to submit sufficient evidence to SATISFY the CITIZENSHIP OFFICER that the applicant has PROVED ACTUAL PRESENCE for
ALL THE DAYS THE APPLICANT HAS DECLARED HE OR SHE WAS PRESENT, the Citizenship Officer will NOT grant citizenship (unless the Citizenship Officer is otherwise satisfied the applicant met the minimum notwithstanding some unreported absences). The case will then be referred to a Citizenship Judge (a CJ). The referral will include a formal assessment of the case by the Citizenship Officer. There is a form, a "template," which is used for this. In effect it is comparable to a structured brief arguing why the Citizenship Officer has concluded the applicant has not met the burden of proving actual presence. The CJ reviews this referral, this statement of facts and conclusions from the Citizenship Officer, and then, usually, the applicant is allowed a "hearing" (sometimes called an "interview") with the CJ, which is the applicant's last opportunity to make the case that the applicant has met the burden of proof.
All of this I have discussed in-depth often, in numerous topics, going back nearly a decade now, recognizing that over the course of this decade the requirements have changed considerably and the nature and scope and role of RQ has also evolved significantly (including key changes pursuant to which CIC then IRCC has implemented alternative approaches to requesting more information or evidence related to showing physical presence, trending toward what appears to be a more limited use of RQ to more or less those cases in which IRCC has significant concerns or suspicions).
For now, here, it mostly warrants a reminder that my emphasis on MEETING THE BURDEN OF PROOF is deliberate and important. To quote the character in an Oscar-winning performance by Denzel Washington, in the movie
Training Day, "
It's not what you know, it's what you can prove."
Which leads back to the observation that RQ is the applicant's opportunity to submit sufficient evidence to PROVE ACTUAL PRESENCE for ALL THE DAYS THE APPLICANT HAS DECLARED HE OR SHE WAS PRESENT. Sure, proof the applicant was actually present for 1095 or more days meets the minimum actual presence requirement. BUT what constitutes such proof is not so easily or simply defined. And what many applicants might not appreciate or anticipate is that once they declare they were present for a certain number of days, the credibility of that declaration depends in significant part on proving they were in fact present
ALL THOSE DAYS. OR, at the least illuminating reason to trust the applicant's account enough to conclude 1095 or more days presence notwithstanding some questions about some of the days reported as present in Canada.
This in turn should be understood in context with a largely unspoken, unwritten analytical element, one which I have repeatedly explained, which underlies virtually every Presence/Residency Case despite the fact it is NOT overtly or literally spelled out in the Federal Court decisions or in CJ conclusions (to the extent these are quoted in Fed Court decisions). This is the INFERENCE that an applicant was present in Canada from a known date of entry to the next reported date of exit. Almost all applicants benefit from this inference. In contrast, once a processing agent or Citizenship Officer perceives that it is POSSIBLE (and only just POSSIBLE) the applicant might not have been present in Canada all the days in-between reported dates of entry and next reported date of exit, what that really means in analytical terms is that IRCC is questioning, or outright challenging, whether the applicant should benefit from such an inference.
Without that inference, actually proving physical presence can be a lot more difficult than many recognize.
INFERENCE OF PRESENCE DAYS IN-BETWEEN REPORTED ENTRY AND NEXT REPORTED EXIT:
Again, almost all applicants benefit from the INFERENCE that an applicant was present in Canada from a known date of entry to the next reported date of exit.
In contrast, scores and scores of PRs presume that establishing a date of entry and a date of exit sufficiently proves presence the days in-between. NO. NO. NO. This is merely an INFERENCE. Establishing a date of entry only directly proves the PR was present in Canada THAT DAY. Not the next. Let alone a week or month or more later.
In most cases, in most contexts, it is reasonable to infer that a PR was present in Canada the next day after the date of entry, and the next day after that, the next week, and so on, until there is a known or reported date of exit.
It may be the only reasonable inference if all the other information and evidence indicates presence and there is NO information or evidence that suggests otherwise.
BUT once there is some reason to question the validity of this inference, once there is something to indicate it is POSSIBLE (in a functional or practical sense, not merely hypothetically possible) the applicant was NOT actually present all those IN-BETWEEN days, the balance-of-inquiry tips toward assessing all the other information and evidence, such as: proof of having maintained a place of residence, a household in Canada during all those days; proof of activity in Canada during all those days (employment history being the most common and often best proof of this); proof of other residential ties (children attending Canadian schools for example); other direct proof of presence (dates the PR accessed Canadian health care, visited a dentist, met with a lawyer or accountant, or such).
A critical aspect of this is that if and when IRCC perceives a factual POSSIBILITY the applicant was NOT present when the applicant declared he or she was present, that opens the window to questioning
ALL the applicant's accounting of presence.
And the burden of proof is on the applicant. Even applicants who purported to have one or two HUNDRED days margin over the minimum have crashed and burned due to falling short in their proof. For sure, the smaller the margin, the bigger the risk that IRCC will DOUBT the applicant has sufficiently proven the minimum. But even large-margin applicants can and do fail to meet the burden of proof and consequently can be denied citizenship.
To deny the application IRCC does NOT NEED to PROVE ANYTHING. If IRCC concludes there is enough of a POSSIBILITY to doubt the applicant was present at least 1095 days, IRCC can and typically will NOT GRANT citizenship, AND THEN it is up to the applicant to persuade a Citizenship Judge to conclude otherwise, to conclude the applicant has submitted enough evidence to overcome IRCC's doubts. A failure to meet this burden of proof will result in the application being denied. Again, "
It's not what you know, it's what you can prove."
That is the "jeopardy" I was referring to: that the outcome could be the application is denied.
TO BE CLEAR: THE VAST, VAST MAJORITY OF QUALIFIED APPLICANTS NEED NOT WORRY ABOUT THIS.
These are unusual cases. Only a small percentage of applicants now get the full blown RQ. But when there are two hundred thousand or more applications being made each year, a small percentage means many hundreds if not thousands do get the full blown RQ. And, for those who do, the challenge is on. They really do need to make a diligent, concerted, intelligent, and timely effort to provide the information and documents requested, and if there are any gaps, to do what they can to provide alternative forms of proof to cover those gaps. Thus, for example, if an applicant cannot document employment for a period of time, even if just a couple months, the RQ'd applicant should seriously consider what other evidence he or she can submit which will show his or her actual presence in Canada during that period of time.
IRCC is NOT LIKELY to go digging for proof of presence. The burden is on the RQ'd applicant.
(Edit to correct typos.)
