Property Default is an Offence?

[arambi]

I'm not sure what's worse...your arrogance or your ignorance. You obviously either didn't read or understand Dpenabill's response. Either way, let me spell it out for you without using any big words so that you can understand it.

Using the UAE as a proxy for the Middle East (you will find it probably has the most liberal laws out of any of the other countries), bounced checks are clearly considered Fraud:

"However, funds that are insufficient to pay the dues will implicate the debtor to a criminal offense known as Check Fraud as indicated in the UAE Federal Law of 1987 – Penal Code, asserting that “Detention or a fine shall be imposed upon anyone who, in bad faith, gives a draft (cheque) without a sufficient and drawable balance or who, after giving a cheque, withdraws all or part of the balance, making the balance insufficient for settlement of the cheque”"

Fraud is a criminal offence in Canada as well.

So, no matter how much you think you know about Canadian law given your limited time here, you clearly don't understand all the issues. So perhaps you should refrain from providing erroneous advice because you want to try and appear intelligent.

Torontosom,
I hope you are not selectively blind or illiterate. The OP Grehmad said lawyer was contacted and lawyer advised that this is a civil matter NOT A CRIMINAL MATTER OR OFFENSE. So the OP now has a definitive answer from a professional lawyer... and that answer is in line with....
You see, when I advised someone on this forum, my advise is not just based on the letter of law (as you seem to approach the law), but also on the SPIRIT and the PRATICE of the law. And these are the 3 fundamentals that professional lawyers take into account when advising customers. They read the LETTER of the law (like you partially did) , they understand the SPIRIT of the law (you clearly had no clue here) and they capture the PRACTICE of the law (how the law is actually interpreted in legal settings).
Whenever you want to opine on a legal matter, go through this checklist first: LETTER, SPIRIT, PRACTICE. That will help you.
Any further thoughts?

 

[torontosm]

Torontosom,
I hope you are not selectively blind or illiterate. The OP Grehmad said lawyer was contacted and lawyer advised that this is a civil matter NOT A CRIMINAL MATTER OR OFFENSE. So the OP now has a definitive answer from a professional lawyer... and that answer is in line with....
You see, when I advised someone on this forum, my advise is not just based on the letter of law (as you seem to approach the law), but also on the SPIRIT and the PRATICE of the law. And these are the 3 fundamentals that professional lawyers take into account when advising customers. They read the LETTER of the law (like you partially did) , they understand the SPIRIT of the law (you clearly had no clue here) and they capture the PRACTICE of the law (how the law is actually interpreted in legal settings).
Whenever you want to opine on a legal matter, go through this checklist first: LETTER, SPIRIT, PRACTICE. That will help you.
Any further thoughts?

Yes, if you go back to your original post, you'll see that you were baselessly opining on things you obviously don't understand. You never suggested that OP contact a lawyer, but rather proffered your opinion as fact.

And, since you asked me to brush up on civil vs. criminal, I'd like to point out that check fraud is a CRIMINAL offence in Canada as well, and property default in the UAE could easily be classified as cheque fraud as the OP's friend obviously knew his cheque could never be honoured.

https://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Obtaining_Property_by_False_Pretences

 

[arambi]

Yes, if you go back to your original post, you'll see that you were baselessly opining on things you obviously don't understand. You never suggested that OP contact a lawyer, but rather proffered your opinion as fact.

And, since you asked me to brush up on civil vs. criminal, I'd like to point out that check fraud is a CRIMINAL offence in Canada as well, and property default in the UAE could easily be classified as cheque fraud as the OP's friend obviously knew his cheque could never be honoured.

https://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Obtaining_Property_by_False_Pretences

So basically you now disagree with DEFINITIVE opinion OP receives from a professional lawyer... Interesting... Just wondering what makes you think you can a have a better opinion than one provided by a professional lawyer... From your previous posts, you clearly don't have much background in matters of law

 

[torontosm]

So basically you now disagree with DEFINITIVE opinion OP receives from a professional lawyer... Interesting... Just wondering what makes you think you can a have a better opinion than one provided by a professional lawyer... From your previous posts, you clearly don't have much background in matters of law

If you have ever dealt with lawyers, you will know that if you ask the same question of multiple lawyers, you will get multiple answers. Particularly if the lawyer if offering free advice. And especially if the lawyer is not providing any formal opinion that he/she will be held to.

I'm not disputing anything the lawyer said. I'm not a lawyer, and neither are you (accountant). The difference, however, is that I've been blessed with enough sense and intelligence to try and ascertain the truth myself, if for nothing else then purely for educational purposes. But, you seem to be one of the sheep who blindly believes everything he reads or hears.

Regardless, I just wanted to show you that you were clearly wrong when you stated that check fraud is merely a civil matter in Canada. But instead of accepting this, you seem to be trying to twist my words to make yourself feel better. And for that, I'm done with this conversation and done with you. enjoy the rest of your day!

 

[arambi]

If you have ever dealt with lawyers, you will know that if you ask the same question of multiple lawyers, you will get multiple answers. Particularly if the lawyer if offering free advice. And especially if the lawyer is not providing any formal opinion that he/she will be held to.

I'm not disputing anything the lawyer said. I'm not a lawyer, and neither are you (accountant). The difference, however, is that I've been blessed with enough sense and intelligence to try and ascertain the truth myself, if for nothing else then purely for educational purposes. But, you seem to be one of the sheep who blindly believes everything he reads or hears.

Regardless, I just wanted to show you that you were clearly wrong when you stated that check fraud is merely a civil matter in Canada. But instead of accepting this, you seem to be trying to twist my words to make yourself feel better. And for that, I'm done with this conversation and done with you. enjoy the rest of your day!

You should be ashamed of yourself knowing that there is professional lawyer out there agree with my opinion on this matter... It's not just me. And repeat after me: letter, spirit, practice.
Just some final parting thoughts

 

[neutral]

I agree with torontosm in this. "A lawyer" is just a lawyer. The OP needs a very good SPECIALIST lawyer.

Yes, also, there are good and bad doctors, painters, actors, etc.

 

[arambi]

I agree with torontosm in this. "A lawyer" is just a lawyer. The OP needs a very good SPECIALIST lawyer.

Yes, also, there are good and bad doctors, painters, actors, etc.

Just wondering... Do you know the lawyer that advised the OP? What makes you conclude that the lawyer contacted by the OP is not a "very good SPECIALIST lawyer"?

 

[neutral]

Just wondering... Do you know the lawyer that advised the OP? What makes you conclude that the lawyer contacted by the OP is not a "very good SPECIALIST lawyer"?

No, I don't know as he has not mentioned his/her name.

What makes you conclude that I concluded that the lawyer contacted by the OP is not a very good specialist lawyer?

I have not qualified him. I didn't say he's good neither he's a bad lawyer.

 

[NN74]

That's the point dpenabill....My sense is that these ME fraud cases fall into the latter group. That is, that CIC and in turn immigration lawyers have wrestled enough with these cases that there is a general consensus regarding the equivalency assessment. As I previously noted, the ME fraud charge based on a default has often come up in assessing the admissibility of those applying for PR visas. So I am quite confident this is an issue with which many immigration lawyers are familiar.

In UAE bank loan (any type - card, mortgage, personal or business) default is considered no-offence as long as it is within the bank and customer. When out to Police, its treated as fraud. Because banks in UAE give loans based on your job-standing, salary, perks, years-of-stay, and off course, a blank un-dated security cheque. Now many UAE banks have hired 3rd party agencies in Canada for their loan recoveries.

In such default cases, if an applicant goes to Dubai Police for character certificate, he/she wont get. This situation gives better idea even when immigrant visa is not granted by CIC then how come citizenship!

In revoking citizenship, CIC has worked with UAE immigration authorities where a person is flagged for bank-default or absconding situation. So those applying for citizenship & hiding such defaults, would always be on risk either activated by UAE authorities or someone complains for misrepresentation any time in future. Also, if you travel to UAE/ME with bank default using Canadian passport, it is highly likely that you will be caught for past fraud.

So I suggest consult a lawyer as they are fully aware of such cases.

Further clarifications:

Offences outside Canada which must be disclosed versus those constituting a prohibition:

To be clear, relative to offences outside Canada, there is an important distinction between what applicants are required to disclose versus what constitutes a prohibition.

In particular, not all offences abroad will give rise to a prohibition. In fact, only those offences which would constitute an indictable offence if committed in Canada, pursuant to Canadian law, will give rise to a prohibition.

That does not mean the applicant can decline to disclose a foreign criminal offence based on the applicant's judgment it would not be an offence if committed in Canada.

As noted, I have not seen the form which applicants with applications already in process are being required to complete attendant the test/interview or preceding the taking of the oath. It undoubtedly reflects the changes which took effect June 11, but what it specifically requires depends on the language in the form itself. As best I can recall, the form I signed at both my interview and immediately preceding the oath (early 2014; had to sign both times even though I took the oath less than 48 hours after the interview) was more general, an overall affirmation that I knew and understood the prohibitions and that none applied to me. That is, I had to affirm the absence of any prohibition.

If the current form similarly requires only a general affirmation that there are no prohibitions, the applicant who is confident, that what is labeled a criminal offence abroad is not an indictable offence in Canada, can affirm the absence of prohibitions despite the criminal conviction or pending charge abroad.

On the other hand, if the form applicants are required to sign asks more specific questions regarding foreign criminal convictions or charges, the language in which the questions are asked determines the scope of what is a responsive answer. Again, I do not know what the current form specifically requires.

In contrast, I do know what the prohibitions part of the application now requests.


Prohibitions disclosure in current application:

Again, we know what the prohibitions part of the application now requests. This is item 8 in the current application. The pertinent parts are:

D. Are you now charged with, on trial for, or subject to or a party to an appeal relating to an offence committed outside Canada?

. . .

I. In the past four (4) years, have you been convicted outside Canada of an offence, regardless of whether you were pardoned or otherwise granted amnesty for the offence?

As is obvious, these items are not limited to foreign offences which will constitute a prohibition, but reference "offences" generally. Thus, there is little doubt that CIC is requesting disclosure of any offence abroad, which on its face is dependent on the characterization of it by the respective foreign country. As such, in terms of what is requested, even if the underlying facts would be a civil matter in Canada, thus not constitute a prohibition, CIC is still asking for disclosure.

The fact that CIC asks for disclosure makes the information relevant, but for an omission to constitute misrepresentation, the requested information must be material. More regarding this below.

Item 8 has a box for providing "details," and suggests attaching relevant court documents. This is where, for example, a foreign criminal conviction for an offence in that jurisdiction which would not constitute an indictable offence if committed in Canada, would be distinguished. CIC expects the applicant to disclose the offence and allows for additional information to show that despite the offence there is no prohibition. If the attached court documents satisfy CIC that the foreign offence would not be an indictable offence if committed in Canada, no problem; otherwise CIC could make further inquiries (including through its respective visa offices abroad) and conduct additional assessments to ascertain whether the referenced charge constitutes a prohibition or not.



Comparing application versus affirmation attendant interview or before oath:

(This is largely repetition to facilitate clarity.)

Again, I do not know what the language is in the form currently being presented to applicants at the interview or preceding the oath. Its language matters. It may ask for disclosure of any foreign offences. Or it may simply require the applicant to affirm the absence of any prohibitions (including prohibitions arising from foreign offences).

If it asks the former, for disclosure of any foreign offences, it is asking for disclosure regardless of whether the offence would be an offence in Canada. This is what the application requests.

If the form asks for the latter, requiring the applicant to affirm the absence of any prohibition (including relative to any foreign offences), the applicant can sign the form without disclosing a foreign offence that would not be an indictable offence if committed in Canada (that is, sign the form affirming there are no criminal offences abroad which constitute a prohibition).

The language in the form matters. The appropriate response depends on that language.



ME Fraud charges:

I do not purport to know the precise elements for what constitutes fraud in Canada, let alone what constitutes fraud in any other country, let alone the ME.

As I noted, my understanding is that defaults in the ME are often handled criminally based on charges of fraud.

And of course there are criminal fraud offences in Canada and these are indictable offences.

But the name or label for an offence abroad does not govern whether it would constitute a prohibition.

Just because the foreign jurisdiction labels a criminal offence with a label also used in Canada does NOT mean the foreign offence would be an offence if committed in Canada.

Thus, in particular, just because the respective foreign country labels an offence as fraud does not mean that it would constitute an indictable offence if the same acts were committed in Canada. In particular, if the same acts would constitute a civil matter in Canada, the fact that the foreign country charges fraud for those acts does not mean the foreign charges will constitute a prohibition . . . in fact, they will NOT.

What matters is the equivalency of elements. This gets complicated. Not even immigration lawyers specializing in criminal inadmissibility issues can always offer a definitive conclusion about whether a given foreign offence is or is not equivalent to an offence in Canada.

Sure, for some offences the equivalency is easy, particularly where the foreign country defines the offence in virtually equivalent language as the offence is defined in Canada . . . or where the acts constituting the foreign offence are clearly not criminal in Canada (again, there is the example of criminal homosexuality in some foreign countries, which clearly are not a criminal offence if committed in Canada).

But even where the language is different enough (which is of course typical for ME countries) to require a more thorough equivalency assessment, relative to many foreign offences it has been a common enough issue there is already at least a generally understood equivalency assessment.

My sense is that these ME fraud cases fall into the latter group. That is, that CIC and in turn immigration lawyers have wrestled enough with these cases that there is a general consensus regarding the equivalency assessment. As I previously noted, the ME fraud charge based on a default has often come up in assessing the admissibility of those applying for PR visas. So I am quite confident this is an issue with which many immigration lawyers are familiar.

I do not know what that consensus is. There are many indications that CIC concludes the ME fraud charge, based on a default, would not be an offence if committed in Canada . . . and therefore does not make a Foreign National inadmissible and presumably would not constitute a prohibition for grant citizenship purposes. (I couch the latter as presumable because, again, the law regarding prohibitions based on foreign offences is brand new, without precedents . . . however it is safe, I think, to infer that the equivalency assessments will be consistent with those done in the FN admissibility context, for which there are decades of precedent.)



Distinction between relevant information and material information:

I hesitate to delve into this distinction because it is technical, not much explored in case law relative to citizenship application processing, and generally it is foolish for applicants to split this hair in deciding how to respond to requests from CIC. Generally, the best approach to answering requests from CIC is to fully and accurately respond to the request. There is no need to elaborate or to offer more than what is requested, but generally it is best to fully respond, to not omit any relevant information even if that information is not material.

That said, for purposes of what constitutes a misrepresentation by omission, generally the information omitted must be material, meaning information which could affect the outcome of the matter, before it constitutes fraud or grounds for imposing consequences for making a material misrepresentation (such as denying the application regardless of the merits otherwise).

Again, this is a technical distinction. For example, information which could affect the outcome is far broader than information which will affect the outcome. There are few precedents in the citizenship context, but many in other immigration application contexts. Trying to draw a hard line between what is relevant (if CIC asks, the information is by definition relevant) versus what is relevant but not material, is very, very tricky. In the citizenship context, though, there is a precedent where the applicant used a residential address other than where he actually resided, on the advice of a consultant (purportedly to obtain an advantage due to faster processing timeline in the local office for the address used in the application). This was deemed a material misrepresentation despite a showing that the applicant nonetheless lived in Canada, albeit at a different address. Thus, the accurate information would not have changed the outcome of the application. The Federal Court upheld the refusal based on this misrepresentation.

I bring this up because some people may take some chances to avoid potential delays in processing; for example, one might ask what is the consequence for failing to disclose a foreign criminal conviction if that conviction was for acts which would not constitute an offence in Canada? Since the foreign conviction would not constitute a prohibition, how is the failure to disclose it a material omission?

That is, some are likely to be tempted to not disclose a charge they are confident does not constitute a prohibition, in order to avoid potential delays in processing.

I suspect how CIC approaches this may depend on the particular circumstances of the case. The applicant who does not disclose a conviction for engaging in homosexual activity in a country where that is criminalized, I would suspect probably will not see CIC go after him if CIC discovers the charge later (whether in the processing of the application or after citizenship has been granted). In contrast, if the foreign charge is for fraud or theft but based on acts which would be a civil matter in Canada, I am not sure how CIC will handle this if it is not disclosed and later discovered. I suspect it could vary depending on the particulars.

There is also a probable difference between CIC discovering it in the course of processing the application versus discovering it after citizenship has been granted. In the latter situation, an offence clearly not constituting a prohibition probably does not get pursued. If the issue arises during the processing of the application however, there is probably a greater risk CIC would deem this a misrepresentation constituting grounds to refuse the application. That is big since that in turn will constitute a prohibition for another five years. The applicant's only recourse would be to seek judicial review of CIC's decision to refuse the application on the grounds of misrepresentation. An uphill battle I am afraid.

In other words: applicants will be wise to fully respond to the requests as made and not quibble about the materiality of this or that information.





A passing observation:

You know, the better objective underlying observations here is to provide, as best the forum participants can, a helpful response to the OP and to otherwise advance our collective understanding about how things work. Getting sidetracked by who is right or wrong as to particular propositions tends to detract rather than contribute to this endeavor. Sure, some erroneous statements need to be identified as such, but it is usually better to do so with some tact and in a manner which advances the discussion. I know I make too many errors, and I am always grateful when they are pointed out (the object, after all, is to get it right). On the other hand, however, personal insults are almost never helpful.

 

[dpenabill]

That's the point dpenabill....My sense is that these ME fraud cases fall into the latter group. That is, that CIC and in turn immigration lawyers have wrestled enough with these cases that there is a general consensus regarding the equivalency assessment. As I previously noted, the ME fraud charge based on a default has often come up in assessing the admissibility of those applying for PR visas. So I am quite confident this is an issue with which many immigration lawyers are familiar.

In UAE bank loan (any type - card, mortgage, personal or business) default is considered no-offence as long as it is within the bank and customer. When out to Police, its treated as fraud. Because banks in UAE give loans based on your job-standing, salary, perks, years-of-stay, and off course, a blank un-dated security cheque. Now many UAE banks have hired 3rd party agencies in Canada for their loan recoveries.

In such default cases, if an applicant goes to Dubai Police for character certificate, he/she wont get. This situation gives better idea even when immigrant visa is not granted by CIC then how come citizenship!

In revoking citizenship, CIC has worked with UAE immigration authorities where a person is flagged for bank-default or absconding situation. So those applying for citizenship & hiding such defaults, would always be on risk either activated by UAE authorities or someone complains for misrepresentation any time in future. Also, if you travel to UAE/ME with bank default using Canadian passport, it is highly likely that you will be caught for past fraud.

So I suggest consult a lawyer as they are fully aware of such cases.

Obviously I agree with the suggestion to consult with a lawyer, as I too have repeatedly suggested consultation with a lawyer.

This is a civil matter not a criminal or offence. Advised by a lawyer. However this is not a problem..

The OP's friend, apparently, did obtain the advice of a lawyer. Unfortunately the OP's post does not indicate whether the lawyer advised the "matter" is civil in Canadian law, the law of the respective ME country, or both. Nor did the OP illuminate the nature of the lawyer's advice: in a formal, paid for consultation, or in a telephonic conversation, or, whether it was an immigration lawyer, a Canadian lawyer experienced in criminal defense or prosecution, or . . .

Leaving room for nonsensical argumentative ping-pong more about making points than advancing understanding.

The ping-pong games aside, there are multi-faceted questions involved with some unknowns, so it is not as if anyone here can offer a definitive opinion, and the very general statement that this is "a civil matter" (by a lawyer) does not fully resolve all issues raised by the OP's question.

To be clear: this is about a form that is to be signed immediately prior to taking the oath, and we do not know the precise content of that form. The precise language in the form is undisclosed here, but what that is makes all the difference.

Assuming the OP's friend consulted with a lawyer in a professional setting, so that the lawyer reviewed the relevant documents not just the OP's description, and that lawyer also is familiar with the form to be signed, the lawyer's conclusion, "this is not a problem," seems to resolve the issue for the OP's friend.

That answers the OP's original query, that is, the questions: is this an "offence" which will stop the OP's friend from getting citizenship? and the answer is no.

Unfortunately, however, that does not illuminate whether the OP's friend has to disclose the ME matter in the form, the answer to which depends as much on what the form asks as it does whether the foreign case would constitute a prohibition.

In particular, it warrants remembering that having to disclose a matter does not mean that matter is necessarily a prohibition. The current application, for example, clearly, unequivocally requires applicants to disclose "foreign offences," not just those foreign offences which will constitute a prohibition.

Thus, for example, for another PR with a similar ME matter, a property default with an open ME country criminal case pending, who is filling out the current citizenship application form, a lawyer would likewise advise: this is a civil matter . . . not a problem. But also still advise the applying-PR that it should be disclosed in Item 8 (for prohibitions), marking "yes" for an offence abroad, and then giving details in the box, and including relevant documents with the application. Thus, if the foreign offence would constitute a civil matter in Canada, CIC should examine and assess the relevant information and conclude it is no problem . . . NOT a prohibition.

That is, confirming the lawyer's advice that it is a civil matter (in Canada) and thus NOT a problem . . . even though it needs to be disclosed.


What the current pre-oath form requires?

I do not know what the current pre-oath form requires. I would like to see someone who is taking the oath, or who has taken the oath since June 11, clearly state what the current affirmation of no prohibitions form actually says. We have seen some clearly erroneous accounts, such as that the form now requires all those taking the oath to affirm an intent to reside in Canada. But we have seen no reliable accounts of what the new form actually prescribes.


The language of the form matters; indeed, it makes all the difference.

As best I can recall, the form previously required the applicant to simply affirm the applicant knew and understood what the prohibitions are, and affirm there is no prohibition.

If the current form is similar to this, just referencing the expanded scope of prohibitions which took effect June 11 (expanded time frame plus inclusion of foreign offences), the applicant can sign the form affirming NO prohibitions despite the foreign offence, so long as the applicant is confident the foreign offence would not be an indictable offence if the same acts were allegedly committed in Canada.

In contrast, if CIC is sending a form to applicants who applied prior to June 11 asking them to, essentially, complete a new version of the section in the application for prohibitions, that is, to disclose any foreign offences and give details, then the applicant is indeed required to disclose the foreign offence (as characterized by the jurisdiction where the charge is made), and CIC will assess that to determine if it constitutes a prohibition.

There is some indication that the new form is NOT the latter.

See discussions in which the following post came up:

It is hard to believe but it is true. The e-cas system was updated just today, and it mentioned that they have sent the notice to appear letter yesterday (Jul 11) for me to appear for the oath ceremony. My revised oath ceremony is on Saturday, Aug 22, 2015.

There is a foot note in my e-CAS that mentions that some oath ceremony events are scheduled on Saturdays and Sundays. I just hope that there are no more surprises - so there is no ask from them for Police clearance certificates for my in-process application prior to Jun 10th.

It is still not clear from the exchanges there what is precisely in the new form affirming the absence of any prohibitions. However, since IN888658S is again scheduled for the oath, it appears that CIC is not sending a request to pre-June-11 applicants to disclose particular information . . . thus suggesting CIC is merely requiring an affirmation that the applicant knows and understands the current prohibitions and an affirmation that there are no prohibitions.

Thus, for the OP's friend, if a lawyer has confirmed that the foreign offence would be a civil matter in Canada, the OP's friend can sign the affirmation that there is no prohibition . . . despite a pending charge (or conviction) in a ME country for fraud based on a default in a property matter.

Caution: a couple reports here or there does not confirm what CIC is requiring, and what matters is what is in the paper put in front of the applicant. It is critical to always, always, always follow the instructions and respond appropriately to the paperwork and questions the individual himself or herself actually receives from CIC.

 

[NN74]

Thanks dpenabill, based on this point:

In contrast, if CIC is sending a form to applicants who applied prior to June 11 asking them to, essentially, complete a new version of the section in the application for prohibitions, that is, to disclose any foreign offences and give details, then the applicant is indeed required to disclose the foreign offence (as characterized by the jurisdiction where the charge is made), and CIC will assess that to determine if it constitutes a prohibition.

there raises few concerns:

1. What if someone is having property in ME worth less than CAD$100,000 at the time of immigration but slowly appreciated over period of time?

2. Due to less than CAD$100k compliance such property is not reported during initial tax returns, how it could be reported later when appreciated?

3. Because of that mortgage, when it's on bank loan, then applicant cant cancel his/her UAE residence visa (hence staying in Canada but fulfilling UAE residency requirement by visiting the place within 6 months duration) what could be repercussions during CIC citizenship interview?

4. Could mortgage be a genuine reason for retaining UAE residence visa while remaining in Canada & applying for citizenship fulfilling 'intent to reside' obligation?

Obviously I agree with the suggestion to consult with a lawyer, as I too have repeatedly suggested consultation with a lawyer.


The OP's friend, apparently, did obtain the advice of a lawyer. Unfortunately the OP's post does not indicate whether the lawyer advised the "matter" is civil in Canadian law, the law of the respective ME country, or both. Nor did the OP illuminate the nature of the lawyer's advice: in a formal, paid for consultation, or in a telephonic conversation, or, whether it was an immigration lawyer, a Canadian lawyer experienced in criminal defense or prosecution, or . . .

Leaving room for nonsensical argumentative ping-pong more about making points than advancing understanding.

The ping-pong games aside, there are multi-faceted questions involved with some unknowns, so it is not as if anyone here can offer a definitive opinion, and the very general statement that this is "a civil matter" (by a lawyer) does not fully resolve all issues raised by the OP's question.

To be clear: this is about a form that is to be signed immediately prior to taking the oath, and we do not know the precise content of that form. The precise language in the form is undisclosed here, but what that is makes all the difference.

Assuming the OP's friend consulted with a lawyer in a professional setting, so that the lawyer reviewed the relevant documents not just the OP's description, and that lawyer also is familiar with the form to be signed, the lawyer's conclusion, "this is not a problem," seems to resolve the issue for the OP's friend.

That answers the OP's original query, that is, the questions: is this an "offence" which will stop the OP's friend from getting citizenship? and the answer is no.

Unfortunately, however, that does not illuminate whether the OP's friend has to disclose the ME matter in the form, the answer to which depends as much on what the form asks as it does whether the foreign case would constitute a prohibition.

In particular, it warrants remembering that having to disclose a matter does not mean that matter is necessarily a prohibition. The current application, for example, clearly, unequivocally requires applicants to disclose "foreign offences," not just those foreign offences which will constitute a prohibition.

Thus, for example, for another PR with a similar ME matter, a property default with an open ME country criminal case pending, who is filling out the current citizenship application form, a lawyer would likewise advise: this is a civil matter . . . not a problem. But also still advise the applying-PR that it should be disclosed in Item 8 (for prohibitions), marking "yes" for an offence abroad, and then giving details in the box, and including relevant documents with the application. Thus, if the foreign offence would constitute a civil matter in Canada, CIC should examine and assess the relevant information and conclude it is no problem . . . NOT a prohibition.

That is, confirming the lawyer's advice that it is a civil matter (in Canada) and thus NOT a problem . . . even though it needs to be disclosed.


What the current pre-oath form requires?

I do not know what the current pre-oath form requires. I would like to see someone who is taking the oath, or who has taken the oath since June 11, clearly state what the current affirmation of no prohibitions form actually says. We have seen some clearly erroneous accounts, such as that the form now requires all those taking the oath to affirm an intent to reside in Canada. But we have seen no reliable accounts of what the new form actually prescribes.


The language of the form matters; indeed, it makes all the difference.

As best I can recall, the form previously required the applicant to simply affirm the applicant knew and understood what the prohibitions are, and affirm there is no prohibition.

If the current form is similar to this, just referencing the expanded scope of prohibitions which took effect June 11 (expanded time frame plus inclusion of foreign offences), the applicant can sign the form affirming NO prohibitions despite the foreign offence, so long as the applicant is confident the foreign offence would not be an indictable offence if the same acts were allegedly committed in Canada.

In contrast, if CIC is sending a form to applicants who applied prior to June 11 asking them to, essentially, complete a new version of the section in the application for prohibitions, that is, to disclose any foreign offences and give details, then the applicant is indeed required to disclose the foreign offence (as characterized by the jurisdiction where the charge is made), and CIC will assess that to determine if it constitutes a prohibition.

There is some indication that the new form is NOT the latter.

See discussions in which the following post came up:

It is still not clear from the exchanges there what is precisely in the new form affirming the absence of any prohibitions. However, since IN888658S is again scheduled for the oath, it appears that CIC is not sending a request to pre-June-11 applicants to disclose particular information . . . thus suggesting CIC is merely requiring an affirmation that the applicant knows and understands the current prohibitions and an affirmation that there are no prohibitions.

Thus, for the OP's friend, if a lawyer has confirmed that the foreign offence would be a civil matter in Canada, the OP's friend can sign the affirmation that there is no prohibition . . . despite a pending charge (or conviction) in a ME country for fraud based on a default in a property matter.

Caution: a couple reports here or there does not confirm what CIC is requiring, and what matters is what is in the paper put in front of the applicant. It is critical to always, always, always follow the instructions and respond appropriately to the paperwork and questions the individual himself or herself actually receives from CIC.

 

[dpenabill]

there raises few concerns:

1. What if someone is having property in ME worth less than CAD$100,000 at the time of immigration but slowly appreciated over period of time?

2. Due to less than CAD$100k compliance such property is not reported during initial tax returns, how it could be reported later when appreciated?

3. Because of that mortgage, when it's on bank loan, then applicant cant cancel his/her UAE residence visa (hence staying in Canada but fulfilling UAE residency requirement by visiting the place within 6 months duration) what could be repercussions during CIC citizenship interview?

4. Could mortgage be a genuine reason for retaining UAE residence visa while remaining in Canada & applying for citizenship fulfilling 'intent to reside' obligation?

Short answer: I do not know.


Longer answer:

So far, CIC has not disclosed much at all about how it will approach the intent-to-reside requirement beyond:

1) including the three-options checkboxes in item 10 in the application, which in pertinent part simply states: "I intend, if granted citizenship, to continue to reside in Canada . . . " (plus other options not applicable to the vast majority of applicants), to which the applicant checks either "yes" or "no" or "I have a mental disability [precluding forming the requisite intent]"

2) a restatement of what the statute prescribes in a Program Delivery Instruction, with only the following statement of clarification: "This intent must be held from the time the applicant applies until the time they take the Oath of Citizenship."

It will probably take years for CIC to more or less fully reveal how it approaches the intent-to-reside requirement in particular factual scenarios.

You are probably right that retaining residential status in another country could at least complicate things, and possibly pose a significant risk. That said, status is one thing, actual residence is another, and indicators of intent include other factors as well. Could be messy.

Personally my sense, but I am guessing some, is that CIC's focus will be:

-- on the declaration made by the applicant

-- on any indication of actually residing abroad while the application is pending (with some exceptions, I expect CIC to move to deny applicants who, after applying, live abroad, or are abroad long enough to infer they are living abroad)

-- on any indication of plans to leave Canada soon (acquiring residential status abroad, for example, as compared to maintaining status already attained; acquisition of a job abroad for another example; rest of family already living abroad)

-- utilizing the intent-to-reside requirement as a tool to expand the scope of RQ and impose RQ with more teeth (that is, requiring disclosures and submission of documents which previously the RQ'd applicant might not have submitted in response to the RQ)

To what extent CIC might go beyond the above and begin weighing evidence of various ties abroad, toward reaching a conclusion about the applicant's intent which might be contrary to the applicant's declared intent, is anyone's guess. I doubt CIC has firm plans in this regard as yet.

So much is still up in the air, unknown, it is impossible to parse a particular fact scenario and predict how it will influence CIC . . . and in this regard, remember, CIC does not look at facts in isolation but in context, relative to all the other facts and circumstances in the case. Two different applicants could have the exact same facts as you outline, but each have other circumstances which could tip the scales either way. Some might then say, well consider all other things being equal, what then? But all other things are rarely equal, and a lot is still likely to depend on what those other factors are.

The question might be framed in terms of how much suspicion the applicant is likely to encounter given these facts (the ME property mortgage et al), but it is still just a guess, a guess with very little guidance to work with. Like betting on a poker hand before the first card has been dealt.

 

[dpenabill]

CAUTION:

Re prohibitions listed in form those scheduled for the oath must sign:

I have finally gotten a copy of the prohibitions form sent to those who are scheduled to take the oath.

Long story short: if an applicant has been convicted of what a ME country describes to be a criminal offence, or has such a charge for such an offence pending, the applicant cannot legitimately sign the no-prohibitions form required prior to taking the oath, but must contact CIC and disclose the details.

This appears to be the case even if the foreign offence is clearly not an indictable offence in Canada, and thus clearly does not constitute a prohibition pursuant to Section 22 of the Citizenship Act.

The declaration the applicant must sign prior to the oath is very broad. It requires more than the applicant's affirmation that there are no prohibitions applicable to the applicant, but requires the applicant to declare that none of what the form lists as prohibitions describes the applicant. What is listed is broader than what the statutory prohibitions specify. For example, references to offences outside Canada are broadly to any offences outside Canada, not just those which would be indictable offences if committed in Canada.


To be clear: the form requires the applicant to declare:
"I declare I am not described in any of the above listed prohibitions.

The "above listed prohibitions" include:


4. Are you now charged with, on trial for, or subject to or a party to an appeal relating to, an offence outside Canada?

14. In the past 4 years, have you been convicted of an offence outside Canada, regardless of whether you were pardoned or otherwise granted amnesty for the offence?

The description obviously includes summary offences and offences which would not even be an offence in Canada (such as a civil default matter).


I posted the longer story in another topic where this issue, about the impact of the new, expanded prohibitions, on those who already had applications in process prior to June 11, 2015.

I have finally gotten a copy of the prohibitions form sent to those who are scheduled to take the oath.

Multiple participants in this forum have referred to the form in general terms without quoting its precise language. It is possible that there are various versions of the form and thus that the copy I have received is not the same as has been discussed by others in this topic and in other topics.

But I think the copy I have is the one being currently used by CIC generally: CIT 0039 (05-2015) E (French version is CIT 0039 F).

It is stated in discussions/posts above that the form only requires the applicant to affirm that "none of the prohibitions apply."

That glosses over some key language in the form. In particular, the form ends with a declaration, to be signed by the applicant, in which the applicant is required to "declare I am not described in any of the above listed prohibitions."

This is not a declaration that the applicant has read and understands the prohibitions, which are prescribed by Section 22 in the Citizenship Act. This is a declaration that none of the fourteen listed items in the form describe the applicant.

Note, for example, the following items:

1. Are you now, or have ever been in the last 6 years:
-- On probation?
-- On parole?
-- An inmate of a penitentiary, jail, reformatory, or prison?

4. Are you now charged with, on trial for, or subject to or a party to an appeal relating to, an offence outside Canada?

14. In the past 4 year, have you been convicted of an offence outside Canada, regardless of whether you were pardoned or otherwise granted amnesty for the offence?

All three of these is significantly more broad than the prohibitions prescribed by statute. Indeed, there are many potential instances in which the true answer to these questions would be "yes" but the reason for the yes does NOT constitute a prohibition.

The obvious example, often discussed example, is an offence abroad that would be a summary offence if committed in Canada, or perhaps even a mere civil matter if it occurred in Canada. If there was a conviction for that offence abroad, "yes" is the truthful answer to item 14. If such a charge has been made and is still pending, "yes" is the truthful answer to item 4.

Additionally, the applicant who had been on probation imposed by a foreign court for a minor offence which took place more than four years previous, but was technically on probation within the previous six years, would have to acknowledge that item 1 in this list describes him or her.

Thus, an applicant is obligated to not falsely declare he or she is "not described" in the listed prohibitions if the applicant was on probation five years ago, as imposed by a foreign court for, say, a minor offence (item 1); if the applicant has a charge pending abroad for what would be a summary offence in Canada or even a mere civil matter in Canada (item 4); or has been convicted outside Canada for what would be a summary offence in Canada or even a mere civil matter in Canada (item 14) . . . Even though none of these would constitute a prohibition pursuant to section 22 of the Citizenship Act.