Proof of Residency if Case Destined for a CJ Hearing

[dpenabill]

Proof of Residency if Case Destined for a CJ Hearing:

[Note: The question addressed here arose in another topic but an answer there would be a tangent well astray of the subject in that topic (regarding CIT 0520 requests). Moreover, on one hand this is a subject which actually affects only a small percentage of applicants, but on another hand it is a question which haunts many who are issued RQ and who are waiting to see what happens next. The answer is not easy. Indeed, the answer varies a great deal from case to case. Frankly, for those affected, that small percentage of applicants on track for a residency hearing with a CJ, the best answer is probably to hire a lawyer.]

How is it even possible to determine residency to granularity of a day if there are no exit records at Canadian borders and ports ?

Again, please forgive me for not simply, directly answering this question up front, but I feel compelled to couch an answer in a way which emphasizes that very few citizenship applicants need to worry about this.

This question, about how to prove presence, might seem to be the critical question, but it is not because, first and foremost, the vast majority of applicants are not compelled to submit much proof beyond what the application requires and responding to questions in the interview.

Even most RQ'd applicants are not compelled to submit much more than documentation supporting their information about where they lived and where they worked or went to school (recognizing, though, that this is relatively extensive and the RQ is indeed profoundly intrusive into an individual's privacy).

So, in practical terms this issue, that of proving actual physical presence for all days declared, is limited to only a small percentage of cases, applicants whose applications or history or other information has led CIC to identify reasons-to-question-residency which have not been resolved (to CIC's satisfaction) by a response to RQ.

So this is not a general problem confronting citizenship applicants, but is a specific problem for those applicants who CIC has identified as, well, problematic, questionable.

In particular, the vast majority of applicants will not be faced with having to so-conclusively prove their declared presence in Canada.

Thus, the following applicants have little reason to be concerned about this level of proving presence:

-- routinely processed applicants

-- applicants issued a CIT 0520 but not RQ

-- most applicants issued pre-test RQ who timely, accurately, and completely submit a response to RQ

-- even many applicants for whom CIC's scrutiny and concerns are more elevated and there is a substantial post-test delay

Again, these are applicants who have little cause to worry about meeting what I would described as a heightened demand for proof of residency.


Cases in which CIC identifies reasons-to-question-residency

CIC's criteria constituting reasons-to-question-residency sets a rather low bar. Many qualified applicants have this or that circumstance which meets the criteria and are issued RQ, even though substantively there really is no significant concern, no substantive reason to question, let alone doubt, the applicant's qualifications for the grant of citizenship.

There is an even lower bar for issuing a CIT 0520 with a request related to residency (for applicants who have not already been issued RQ). While technically these applicants (issued CIT 0520 but never issued RQ) are no longer a routinely processed applicant, in practical terms the processing of their application remains much more like a routinely processed application than RQ'd cases, so long as (of course) no concerns or issues arise or are identified when or after the response to the CIT 0520 is examined. (Again, RQ'd applicants who receive a subsequent CIT 0520 are a different group, and frankly tend to be in the group of cases at higher risk for being problematic, questionable.)

Cases in which there are reasons-to-question-residency begin as RQ'd cases, and as previously noted are (in practical terms, not necessarily per a formal category) residency cases. Not all RQ'd applicants are identified or targeted as problematic or questionable, let alone as potential fraud cases. Indeed, last I have seen of some internal CIC information (a couple years old now however), CIC was categorizing possible fraud cases separate from residency cases.

In any event, many, if not the majority of RQ'd applicants, submit sufficient information and documentation in the response to RQ to satisfy CIC that the applicant met the residency requirement.


The problematic residency case

This, "the problematic residency case," is a general descriptive phrase, not at all an actual category of citizenship applications. In very general terms, these are cases in which the response to RQ does not satisfy CIC's concerns or questions about residency.

These are the cases which raise this question:

How is it even possible to determine residency to granularity of a day if there are no exit records at Canadian borders and ports ?

How does an RQ'd applicant know whether or not his or her case is among the more problematic, questionable cases? That is a big topic itself. Sometimes it is obvious. Any applicant in a long-haul RQ process (more than a year since the test and interview and submission of response to RQ for example), can probably guess that CIC is finding the application problematic if not outright questionable.

Without wandering too far down this tangent, recognizing again that this group is a rather small group, affecting only a quite small percentage of applicants, only a minority of RQ'd applicants even, if and when a citizenship applicant can discern or infer (based on time of processing and information obtained through contacts with CIC, such as via the call centre or an ATIP request or both) he or she is destined to be scheduled for a hearing with a Citizenship Judge, at that point the risk of being a case which CIC has targeted as problematic and questionable is high . . . and at that point it is time to get game-on.

Hiring a lawyer is not necessary, but for most who fall into this situation, that is probably the best option.


Simple answer to how to prove presence and residency:

Again, this is for that small percentage of applicants who reach a stage of the process in which it is apparent their risk for a CJ hearing is high, my take: time to hire a lawyer, a good lawyer.

Proof is very case specific. At this level of the process, it is not a matter of merely submitting evidence of entries, exits, place of abode, place of employment, definitive dates of in-Canada activities. The applicant does not reach this problematic case stage unless CIC has identified relatively concrete reasons to doubt the applicant's declarations. That is, at this juncture, for these applicants, CIC has focused on evidence undermining the applicant's case. Thus, a lot depends on what it is that CIC has identified as reasons for this. Whatever those are, the best proof is proof that dispels or answers those concerns.

Problem is that CIC rarely communicates to the applicant what those concerns are. CIC documents those in the referral to the CJ. So the CJ sees what is of concern to CIC before the CJ even meets the applicant. But the applicant does not know the specifics as to what these issues are.

These days, by the time an applicant is scheduled for a CJ hearing, the applicant is at a major disadvantage. The case against citizenship has been compiled by CIC and submitted to the CJ. The applicant only knows that the burden of proof is on him or her. For the applicant, why CIC opposes citizenship is not known in any detail; what specific concerns CIC has or what those concerns are based on, is not known in any detail.

Thus, it is very, very difficult to identify just what evidence the applicant can submit which will persuade the CJ that CIC's concerns are unfounded, mistaken, or otherwise not valid.


If I have time . . .

In another forum I have posted a lot about actual cases in regards to proving residency. Much of that is dated given the evolution of CIC's approach to citizenship applications, especially relative to proving residency. A few years ago, the focus of attention was on determining what the appropriate test for establishing residency was, with shortfall applications dominating the Federal Court decisions. In the last couple of years, the focus is more and more on cases in which the applicant declares actual presence for 1095+ days but CIC has, in effect, challenged the applicant's declarations. Moreover, since just August last year, the nature of cases going to a CJ hearing has changed significantly, from cases in which residency was more or less in question, to cases now which are predominantly opposed by CIC, the referral itself more or less (in effect . . . CIC would probably deny this) a memorandum arguing against approval.

In many respects, the Federal Court justices are only recently addressing in-depth the vagaries of proof and lack-of-proof as to actual presence. This was the subject of older cases on occasion, but no where near on a par with what has happened in the last few years (particularly since the advent of OB 407 in April 2012).

In any event, if I have time I may attempt to address and explore some relatively specific scenarios as illustrations of what evidence helps, to what extent it helps, and some pitfalls. I am not a Canadian lawyer, however, so obviously this will not be authoritative (beyond the citations to actual decisions made by the Federal Court in those specific cases). This is unfolding but only sporadically so. It is not clear what impact the new laws and new requirements will have. Clearly the focus will be almost entirely on proof of actual presence, but what that will mean practically is difficult to predict, and where in the scheme of CIC evaluating the individual case the intent to continue to reside in Canada clause will fit is yet a matter of more guesswork than forecasting.

 

[ItkExpert]

Hi
Please see my timeline below. According to what you are saying I can expect a citizenship judge hearing ?

 

[dpenabill]

Hi
Please see my timeline below. According to what you are saying I can expect a citizenship judge hearing ?

No one at a site like this can reliably advise a particular applicant what will happen in that applicant's case. There are various probabilities, and factors influencing those probabilities. But ultimately what happens is not a matter of probabilities, not a matter of percentages, but is determined by the particular facts and circumstances in the individual's specific case as assessed by the Citizenship Officer responsible for that application.

And CIC has been limiting our access to information more and more, so that it is ever more difficult to ascertain even what the probabilities are.

So I cannot say with any degree of confidence whether you will eventually be scheduled for a CJ hearing or will suddenly get a notice to appear for the oath. It could go either way.

But I can say that those in the long-haul RQ process, particularly those who attended a test and interview and submitted a response to RQ, all more than a year previous, are obviously among those at higher risk for the case going to a CJ hearing. And that these days, being scheduled for a CJ hearing most likely means that CIC has prepared a negative referral which in effect, if not overtly, argues reasons to deny citizenship.

That said, given that you applied in 2012, your application is among the many thousands of applications made in that time period which became bogged down in RQ, creating a huge backlog which CIC has been making an effort to deal with . . . finally. This group of applicants (consisting of those who applied in the latter part of 2011 and through most of 2012, and given RQ) has suffered delays far beyond what other groups of applicants have, so the length of the delay is not as much an indicator as it would be for other applicants bogged down in the long-haul RQ process.

The hard part is not knowing.

At some point, though it may be a bit early for this, at least doing a consultation with a lawyer might be a good idea. As you approach the three year mark perhaps.

In the meantime, though, if you learn (call centre or ATIP or by notice) that you are going to be referred for a CJ hearing, then it is probably time to lawyer-up asap. If in contrast you get a notice to appear for the oath, time to celebrate.

 

[ItkExpert]

Thank you for your informative post.

Actually I am quite confident that CIC will approve my case. The reason is that my wife whom I sponsored to come to Canada has received her citizenship last year. She applied after me and also received RQ but since CIC gives higher priority to female applicants her RQ was assessed much quicker than mine I can't imagine CIC justifying in the court of law giving citizenship to the wife and not to the husband given a 90% overlap in documents submitted in response to RQ (bank statements etc...)

 

[dpenabill]

Thank you for your informative post.

Actually I am quite confident that CIC will approve my case. The reason is that my wife whom I sponsored to come to Canada has received her citizenship last year. She applied after me and also received RQ but since CIC gives higher priority to female applicants her RQ was assessed much quicker than mine I can't imagine CIC justifying in the court of law giving citizenship to the wife and not to the husband given a 90% overlap in documents submitted in response to RQ (bank statements etc...)

It is extremely unlikely that CIC processes applications differently based on gender. I am sure there is no priority for female applicants.

As I noted in my previous post, the timing of your application, in 2012, is a big factor. The number of qualified applicants bogged down in a lengthy RQ process was hugely disproportionate for those who applied in the latter part of 2011 through most of 2012. Scores and scores of us who applied later, in 2013, were processed through and took the oath well before many if not most of those processed even as a routine application but who applied in 2012. This was the OB 407 roll out disaster.

In the latter part of 2014 and continuing this year, CIC has finally made real strides in dealing with the backlog of RQ'd cases created in that period of time. CIC has promised to resolve this backlog by the end of this year. They do not release definitive numbers so we do not know for sure to what extent the 2011/2012 RQ'd cases are finally being resolved but reports in the forums seem to confirm that indeed many in this group of applicants are finally reaching the finish line, many scheduled for the oath, some going to a CJ hearing with what should have been predictable results (but see a recent discussion about an applicant stunned by how negative the hearing went . . . although as someone who had moved abroad while the application was pending, he should have been aware of the hurdles he would face at the hearing, and he should have gone with a lawyer).

You know your case. You know the facts. You know your history. You should be able to figure out what might cause a total stranger bureaucrat at CIC to harbour questions or doubts. So if you have objectively analyzed your case, and are confident of the outcome based on that, that is a very good sign.

As I previously noted, any day now you could be getting notice of when your oath is scheduled. Then it will be time to book the celebration.


The caveat:

If, however, you find out you will be scheduled for a CJ hearing (as I noted, whether by notice, or through a call centre rep, or by ATIP), you should recognize the possibility that you have been over-confident and really need to re-assess how to prepare for the hearing. And, again, if you are in fact scheduled for a CJ hearing, the odds are high CIC has submitted a referral which focuses on why the CJ should deny your application. This is relatively new . . . before OB 407, before 2012, most applicants scheduled for a CJ hearing were determined to be qualified and granted citizenship, and it was not until August last year that the policy was implemented pursuant to which ONLY cases CIC in effect has rejected are scheduled for a CJ hearing. But what this means, now, is that anyone who actually gets scheduled for a CJ hearing is, in effect, put on notice that CIC has made a case why the application should be denied. Such applicants should go to the hearing game-on, prepared to make their case. And since at this stage it is, for all intents and purposes, and despite its quasi-judicial nature, an adversarial adjudication, adversarial litigation, representation by a lawyer in the proceeding is well-advised.

For applicants who reach that stage, where a CJ hearing is actually scheduled, it warrants being aware that many, many applicants tend to pay more attention to what they see proves their residency and fail to look carefully for what a total stranger bureaucrat might see as a gap or a question. Many applicants see that they have submitted strong evidence documenting nearly all aspects of their residency, and feel confident about that, overlooking that there is that small gap, perhaps a mere 5% of the residency case, for which the evidence is not so strong. To prepare for a CJ hearing, the applicant needs to dig deeply through all the information and figure out, as best he or she can, what the flaws are that CIC may have focused on . . . and then go to the hearing prepared to affirmatively prove as much as possible but also to specifically address those flaws.

 

[ItkExpert]

I know it may sound far fetched bu I've been following the forums for almost two years and it Leeds to me to the following conclusion : male applicants are at much higher risk of experiencing processing delays than their female counterparts . I have seen many many stories like mine where the wife was granted citizenship and the husband didn't yet I only saw one which was the opposite ( husband gets it while wife is delayed). Only in this forum there are users which have the same case that I know of : vinapuri , jabuella and djoli. I have encountered cases where female applicants who declared to be homemakers were given citizenship with no problems as opposed to male applicants who were fully employed for the entire period and hence have much stronger evidence for residence in Canada who were handed RQ and experienced delays.

I'm not saying that there is any mallice on CIC part. Maybe based on their past experience they have identified that male applicants are more likely to make false residency claims than female ones. For example the husband works in a high paying job overseas while his family is in Canada. But that doesn't change the basic fact that according to the forums male applicants face a higher level of scrutiny and people should be aware of that.

 

[ABscientist]

I know it may sound far fetched bu I've been following the forums for almost two years and it Leeds to me to the following conclusion : male applicants are at much higher risk of experiencing processing delays than their female counterparts . I have seen many many stories like mine where the wife was granted citizenship and the husband didn't yet I only saw one which was the opposite ( husband gets it while wife is delayed). Only in this forum there are users which have the same case that I know of : vinapuri , jabuella and djoli. I have encountered cases where female applicants who declared to be homemakers were given citizenship with no problems as opposed to male applicants who were fully employed for the entire period and hence have much stronger evidence for residence in Canada who were handed RQ and experienced delays.

I'm not saying that there is any mallice on CIC part. Maybe based on their past experience they have identified that male applicants are more likely to make false residency claims than female ones. For example the husband works in a high paying job overseas while his family is in Canada. But that doesn't change the basic fact that according to the forums male applicants face a higher level of scrutiny and people should be aware of that.

Somehow eileenf and a few others will probably disagree with you.


Have you ever thought of the systematics when you come to a conclusion like this? How many female applicants participate in this forum? If we have 20% females and 80% males, it makes perfect sense if we see 80% delays in male applicants here. I

 

[vinaypuri]

Thank you for your informative post.

Actually I am quite confident that CIC will approve my case. The reason is that my wife whom I sponsored to come to Canada has received her citizenship last year. She applied after me and also received RQ but since CIC gives higher priority to female applicants her RQ was assessed much quicker than mine I can't imagine CIC justifying in the court of law giving citizenship to the wife and not to the husband given a 90% overlap in documents submitted in response to RQ (bank statements etc...)

Same, my wife to Canada after I did and she is a citizen and I am stuck with CIC rq

 

[ItkExpert]

Somehow eileenf and a few others will probably disagree with you.


Have you ever thought of the systematics when you come to a conclusion like this? How many female applicants participate in this forum? If we have 20% females and 80% males, it makes perfect sense if we see 80% delays in male applicants here. I

Regarding your reference to Eileen's I'm am not claiming that female applicants do not experience delays but only that there is less probability for this to happen and hence her case is not a contradiction. Besides she got her citizenship after 31 months roughly and not the 36+ timelines other (male?) applicants have been experiencing.

Regarding your comments about the 80% male ratio in the forum , due to the lack of further information we have to assume the default assumption which is 50% (as a scientist you probably know that). If you open the issue of gender ratios this brings to mind another subject: from reliable and publically available sources I know that an overwhelming majority of citizenship and immigration officers are female . This is based on knowledge and not on guesses. That might not mean anything at all but if you keep an open mind you can't really rule out the possibility that it affects the treatment of applicants based on gender. While there are specific guidelines how to handle applications I am certain that some room of personal judgment is given . Personal judgment opens up the door for giving some applicants preferential treatment based on similarity to self and one of the aspects of that similarity could be gender. Now I am not saying that that I know for certain that this is the reason for the gender based discrepancy I have seen in the processing times but it is one out of many possible explanation.

I am not doing it to ran about gender discrimination I am only want to inform future applicants. The take home conclusion for them should be that if you are a male applicant you need to be more dlligent in checking your application and make sure you have supporting evidence - this is a good suggestion regardless. I might be wrong but there is no harm in doing that

 

[eileenf]

Somehow eileenf and a few others will probably disagree with you.

Have you ever thought of the systematics when you come to a conclusion like this? How many female applicants participate in this forum? If we have 20% females and 80% males, it makes perfect sense if we see 80% delays in male applicants here. I

There might be a grain of truth in it, in that many immigrant men seem to continue to work overseas or travel frequently for work while their partners stay in Canada with the kids. The key reason that the traveler might get an RQ is not their gender, but the facts of their case. Also, did they have a work visa (especially one that looks to still be valid) in the country that they're frequently traveling to? That's not gender-based. That's based on the specific triggers of the case.

Like AB says though, you can't draw a conclusion that covers hundreds of thousands of cases based on 3 people. And certainly my case doesn't disprove anything either. That's not how statistics works. Knowing 1 or 3 cases out of 300,000 is a hell of a lot less than 1% and it's not a reliable basis for a conclusion.

There's some irony in the idea that women get priority from CIC, considering the many posts on here from husbands who decide to apply individually because their kids/wife off might slow them down because they're "only a housewife," or "complicate things."

Regarding my case: I wasn't "expedited" because of my gender! It was because a wayward PR officer returned my citizenship file and RQ to a citizenship officer's desk rather than the Archives. Per my ATIP results.

There was a brief note in my file though that someone on the political side inquired about expediting my file because I was giving interviews. That didn't go through, but if you want to speed things up, try talking to the press rather than bemoaning one's gender.

Also, it took 34 months. I applied on 20 July 2011 and received my citizenship 27 May 2014. Longer than most, shorter than some.

Good luck to all!

 

[bambino]

There might be a grain of truth in it, in that many immigrant men seem to continue to work overseas or travel frequently for work while their partners stay in Canada with the kids.

Bingo!

I am not sure that CIT 520 applicants do not have much to be concerned about. CIT 520 may be a less intrusive request for documents, but there have been reports of people getting an RQ after their response to CIT 520 was received.

I think I had mentioned before, that during one of my conversations with a citizenship officer at the Edmonton office, he indicated that CIT 520 was really just meant to give the examining officer some peace of mind as to the general picture, and to be able to say with a certain degree of confidence "yeah, there is nothing in these documents that raises red flags, I'm-a-gonna approve this person." So yes, that does give credence to the idea that a person is not yet a residence case, but it can well lead to it becoming one.

There are also apparently CIT 520s and CIT 520s. Some are indeed just a matter of some perfunctory verification taking place. Others, as I think was my case, were more in the vein of a residence case. First, once my docuements were received, they were just put on a shelf for nearly 7 months, while a person I know, at the same local office, was invited for an oath within a couple of weeks of submitting hers (Although I note, ItkExpert, that she is blonde, pretty and quite perky, LOL). I have to think that my file was destined for the desk of an officer who specializes in residence cases. The fact that my file was transferred to Motreal, an office which I now have confirmed is not "just another local office" but rather a specialized one apparently dealing with residence cases, further confirms that.

As I have written before, as of late, citizenship judge hearings do not generally end well for applicants. It may well be that the majority of residence cases get approved by an officer, and the ones that end up with a hearing before a CJ are in fact problematic. I have, however, seen several recent CJ decisions that are quite troubling in their bias and lack of good-faith effort to assess the applicants' residence. I would very strongly urge anyone appearing before a CJ to bring in as much documentation, including travel records, to the point that they prove conclusively, to the extent it is even possible, that they were in Canada for the days they had claimed. It is not fair to have to do that, the standard is supposed to be "on the balance of probabilities", but it is what it's come to, sadly.

 

[dpenabill]

I concur in the post by eileenf, but especially this part:

[The key reason that a] traveler might get an RQ is not their gender, but the facts of their case. Also, did they have a work visa (especially one that looks to still be valid) in the country that they're frequently traveling to? That's not gender-based. That's based on the specific triggers of the case.

This connects to an important aspect of objectively self-assessing one's own case, especially for any applicant in a long-haul RQ process, an applicant with a residency case even after CIC has evaluated the response to RQ, which is to say, an applicant with an elevated risk for being referred to a CJ for a residency hearing (in other words, a member of that small group of applicants this topic is really about).

The key element in such an applicant's case is fact-specific, based on the history and circumstances and facts specific to the individual.

It is not luck. It is not about ethnic, gender, religious, or racial bias. It is not random. What triggers the actions of CIC in these cases is not arbitrary or capricious.

Many may challenge and contest the legitimacy of the criteria CIC employs, and relative to screening applicants for issuance of RQ there are indeed reasonable arguments that CIC's criteria is overly broad (albeit not so dramatically so now as it was in 2012), tending to sweep far too many qualified applicants into the mire of non-routine processing with all its attendant inconveniences, delays, and for RQ'd applicants an examination which is profoundly intrusive into the individual's privacy (to be far more so if the information sharing provisions in Bill C-51 become law, which they are on track to be).

But it is a criteria-based decision-making process. Not about luck, gender, religion, ethnic or racial background.

And this holds true in the decision-making attendant CIC's evaluation of a response to RQ. The majority of those issued pre-test RQ, for example, will be scheduled for the oath. A significant number, however, will be dragged into a long-haul process, their application and RQ submission eventually scrutinized and intensely evaluated using the File Preparation Template. Those among this group of applicants, these residency cases who are subjected to the more thorough examination by a Citizenship Officer, can still be scheduled for the oath, or referred to a Citizenship Judge for a residency hearing. Who is scheduled for the oath, versus who is referred for a CJ hearing, is, again, a criteria-based decision, not about luck, or gender, or religion, or ethnic or racial background.

It is true, sure, that coincidences and incidental circumstances can populate the particular facts and circumstances which trigger CIC's inferences and decisions in this process. As noted, the criteria for issuing RQ, for example, is undoubtedly overbroad. The facts and circumstances which can lead to a CJ referral, rather than CIC granting citizenship, can be legitimately explained or even be totally innocent.

But the decision itself is criteria-based. Not gender based, not . . .


Why recognizing this is important:

To be clear, I recognize and acknowledge that there are many, many reasons why CIC, and CIC's decision-making processes, deserve harsh criticism. Many of the criticisms I emphatically agree with (current lack of transparency high on my list).

And I do not mean to disparage or dismiss sincere expressions of criticism aimed at CIC.

But for those applicants who have reached the stage in which it is apparent that the RQ submission has been reviewed, and the case is not resolved but is, rather, at least likely to be in queue for the more thorough evaluation done attendant use of the File Preparation Template, the criticisms of CIC are a distraction, of no help. For these applicants, those who are actually qualified anyway, it is time to focus on the facts and circumstances of their case. It is time to get game-on, to be real and practical, to focus, to do the homework, to engage in a brutally objective self-examination. Time to dig deep into the facts and history and circumstances, and time to put together the kind of case a zealous advocate would put together . . . not one whose agenda is bombastic, political rhetoric, but one who is engaged in putting together the building blocks which will make the case, which will make a winning case.

Or not. (The "or not" option being for those who do not care much about the outcome.)

. . . as of late, citizenship judge hearings do not generally end well for applicants.

This echoes not just a main point of my posts above, but is at the core of this topic.

Last year the process underwent a huge change, little talked about, when CIC obtained authority to process the vast majority of applications to a final conclusion, leaving only contested residency cases to be referred to a CJ. While this transition took place officially last August 1st, when the relevant provisions in the SCCA came into force, giving the Minister this authority, it is clear that CIC had begun preparing for this earlier in 2014 in the way it was handling a large portion of the 2011/2012 RQ'd cases backlog, issuing CIT 0520 to many who had well before already submitted responses to RQ. (As noted, the CIT 0520 has multiple purposes, and this practice, sending the request for documents to applicants in a post-RQ'd stage, is different in kind, in a general sense, than the use of the CIT 0520 for applicants who have not (as yet anyway) been issued RQ; see, for example,

I. Request for documents, CIT 0520, Is NOT RQ-lite . . . The form is precisely what it says it is, a request for specific documentation. While the documentation requested is often relevant to residency, the form is used for many purposes . . .

and discussions about the CIT 0520 in that topic.)

In any event, since last August the cases being referred to a CJ for a hearing are only cases in which CIC has determined it is not satisfied the residency requirement was met.

In all these cases CIC has prepared the referral using the File Preparation Template. This template is specifically designed to facilitate enumerating and highlighting residency issues, residency concerns. While no one I know has seen a copy of this template (redacted in all ATI and ATIP responses I have seen), and it is a "protected document" so that it does even get included in the official CTR (the Certified Tribunal Record) transferred to the Federal Court in cases which are appealed, there is no doubt that in the practical sense it amounts to a brief or memorandum which is submitted to the CJ and which most likely consists largely of CIC's arguments why citizenship should be denied.

That is what residency case applicants who are referred to a CJ hearing are up against: by the time of the hearing itself, the CJ has already read CIC's argument, with citation to CIC's accounting of the facts, as to why citizenship should be denied.

I have serious qualms about the fairness of this process. I really do not understand how (1) CIC's decision to, in effect, deny citizenship is not itself a decision subject to fair procedure including the opportunity to respond to negative evidence CIC is taking into consideration in making this decision, and looming even larger, (2) why the applicant is not entitled to see CIC's argument, CIC's accounting of facts, in time to prepare to respond at the hearing.

Imagine being charged with the crime of theft, and all the charging document says is that the crime occurred in the City of Toronto during sometime in 2014, and you have to go into court to convince a judge of your innocence, that judge having already read a brief as to what was stolen, from whom, when and where, but none of that information is given to you.

For the residency case applicant the time period is larger than just a year, it is at least three if not four years. CIC has submitted its argument (after spending years to put this together) that at some time during those three or four years, the applicant was possibly not present when the applicant has declared he was . . . the applicant is not told which days are challenged, barely informed (if at all) of some reasons why his declared days present is questioned (unreported day trips were the focus in the case where one applicant was denied citizenship; failure to present a copy of a passport retained by the government which issued it when a new passport was issued is another focus of doubt arising in many cases), and the applicant then has to convince the CJ he was indeed actually present all days declared to have been present.

. . . I have, however, seen several recent CJ decisions that are quite troubling in their bias and lack of good-faith effort to assess the applicants' residence. I would very strongly urge anyone appearing before a CJ to bring in as much documentation, including travel records, to the point that they prove conclusively, to the extent it is even possible, that they were in Canada for the days they had claimed. It is not fair to have to do that, the standard is supposed to be "on the balance of probabilities", but it is what it's come to, sadly.

There is indeed a great deal of misunderstanding about the CJ's role, the CJ's decision-making. I have tried to illuminate this above.

Make no mistake: do NOT expect a CJ to make "a good-faith effort to assess the applicant's residence."

That is NOT the CJ's job.

The CJ's job is to assess the evidence submitted to determine if the applicant has PROVEN residency.

As noted, the CJ has been given a detailed memorandum (the referral prepared using the File Preparation Template) enumerating concerns and questions, quite likely overtly arguing how and why the applicant has failed to prove residency, and this means CIC has poked holes in the applicant's case as set out in the application and RQ response. The CJ gives the applicant an opportunity to prove residency notwithstanding the holes in the applicant's case identified by CIC. The applicant hardly even knows what those holes in the case are, so it can be very difficult to resolve those to the CJ's satisfaction.

As is, this process is flawed. I suspect this will take a good deal of litigation to address . . . but the problem is that CIC is in virtual total control of what cases get litigated in the Federal Court. All CIC has to do is concede, grant citizenship, to any applicant whose case could illuminate, for the courts, the underlying and inherent unfairness of the process.


In the meantime, though, there are qualified applicants, real people, headed for a CJ hearing . . . and for them, arguments about the fairness of the process are of little or no comfort. They want to be granted citizenship. They do not want to spend many thousands of dollars, and years, pursuing recourse in the Federal Courts.

Those destined for a CJ hearing should get the message: again, time to get game-on, lawyer-up, do the homework, get prepared.

In this regard, while I think that those headed for a CJ hearing would indeed be well advised to do as bambino suggests:

. . . I would very strongly urge anyone appearing before a CJ to bring in as much documentation, including travel records, to the point that they prove conclusively, to the extent it is even possible, that they were in Canada for the days they had claimed.

I don't think that is enough. Again, the applicant who has overwhelming proof as to almost all the time resident in Canada is still vulnerable if there is any possible gap in the evidence, and it should be remembered that if CIC can identify any reason for considering the applicant's credibility to be compromised (and whose life is absolutely anomaly-free?), that is not a mere gap but a huge hole through which CIC can drive its arguments against the grant of citizenship.

One of the most important reasons to lawyer-up for the CJ hearing is that the lawyer is an officer of the courts and can provide a credible account of what happened in the hearing if that becomes an issue (and it often does . . . especially in cases where the CJ asks virtually no questions which illuminate CIC's real concerns, questions which if asked would facilitate the applicant's response to those issues, and the applicant is arguing on appeal the process was unfair because the applicant was not given a proper opportunity to respond to negative evidence in the case). Moreover, just the lawyer's presence will tend to elevate the CJ's attention to the applicant's version of the case (I wince in saying this, as it should not be so, but people are people, and CJs are people, and it is just too easy to brush off the arguments made by someone without a mantle of authority).

 

[dpenabill]

Note: typo above in reference to the File Preparation Template being a "protected document" and the Certified Tribunal Record (CTR) transferred to the Federal Court when there is an appeal: the referral created using the File Preparation Template is NOT part of the CTR.

This boggles my mind. Not only are applicants precluded from this information when appearing before the Citizenship Judge, they are still precluded from it during the appeal process. The Federal Court judge does not get to review it, but rather CIC will submit an "affidavit" as to what was alleged in the referral. Boggles my mind.

Frankly, while I cannot say I am well familiar with Canadian litigation generally, I can think of no other context which so thoroughly precludes a litigant having access to information like this except in the realm of very serious security threat cases (those involving threats of terrorism).

Sooner or later this is bound to be contested more zealously.

 

[ItkExpert]

Note: typo above in reference to the File Preparation Template being a "protected document" and the Certified Tribunal Record (CTR) transferred to the Federal Court when there is an appeal: the referral created using the File Preparation Template is NOT part of the CTR.

This boggles my mind. Not only are applicants precluded from this information when appearing before the Citizenship Judge, they are still precluded from it during the appeal process. The Federal Court judge does not get to review it, but rather CIC will submit an "affidavit" as to what was alleged in the referral. Boggles my mind.

Frankly, while I cannot say I am well familiar with Canadian litigation generally, I can think of no other context which so thoroughly precludes a litigant having access to information like this except in the realm of very serious security threat cases (those involving threats of terrorism).

Sooner or later this is bound to be contested more zealously.

I am not claiming that the decision whether to eventually grant citizenship is affected by gender. What I am claiming is that being a male applicant is a risk indicator that CIC factors in when deciding which applicants it wants to subject to higher level of scrutiny. It makes perfect sense if you consider the cases where men were working overseas while their family is in Canada.
I agree that the number of samples my claim is based on is rather small but on the other hand the evidence for existence of a gender based bias is quite conclusive.
I am also not here to crticize CIC and its policies like some other people I am only trying to educate future applicants from my own experience. Male applicants are better off ordering CBSA reports prior to sending their applications to see that all their entries are there. Bambino has reported knowing a female applicant who has lost her whole passport (!) yet CIC was able to process her application within a month after requesting a CIT0520. Allow me to guess that if a male applicant had lost his passport he would have been immediately issued a full blown RQ.

 

[eileenf]

I agree that the number of samples my claim is based on is rather small but...the evidence for existence of a gender based bias is quite conclusive.

Itk: If there isn't enough evidence, the evidence cannot be considered conclusive.

A few anecdotes is not statistically significant.

And picking out gender as the relevant "RQ trigger" is overlooking 100 more likely explanations in order to focus on a random one.

You're confusing correlation with causation. Yes, you are male and you got RQ. Yes your wife is female and she did not get RQ. That doesn't mean that gender was the cause of the RQ, or the salvation from the RQ.

There is ZERO documentary evidence, or documentary hint that "Male" is one of the triggers.

There is ZERO evidence that males should send extra "secret" documents not on the document checklist.