RARE CASE CIC calculated days wrong and ECAS changed to DM after CJ hearing

[imbadevil]

Hello all,
Just wanna share my experience and ask for your opinions, hopefully this will help others too.
Became PR Oct 2006, Applied Apl 2014 with 1106 days under old rule, got RQ and send all required documents, all passport stamps in place.
Test Invite Dec 2014, passed test but the CO have questions regarding residence. " I cannot tell if you are established in Canada, you are not eligible for citizenship if you are not established." Then she said I would need a second interview.

Then I waited for another year, and got a notice to appear for a CJ hearing for Feb 2016 in Toronto CIC office. The judge started by asking many questions about before the relevant period, i.e. 2006-2010, where I spent most my time studying in a US university. He asked about where I lived when I landed in Canada, and where I go to during my summers and winters in university. It was 10 years ago and honestly I cannot recall all details about it. I was very honest to just say I cannot clear remember if I could not recall. He was just writing all my answers on his note.

Toward the end of the interview, though, the judge appeared to begin questioning my credit " I don't know if you are living in or just visiting Canada. That is something I have to decide. I still don't know what my decision will be. Please send me all the documents I required and I will make sure I look into every page of that." He also gave me the paper to send more documents, including all my credit card bills and transcription for UT and OREA courses. I did send him all the documents, and there are frequent activities in my bank/credit card statements that I was actually living in Canada during the relevant period.(Restaurants, phone bills, parking, supermarkets, etc.)

Then the judge said " They (CIC）found you xx days short of the required 1095 days." I was very surprised and challenged him immediately by saying that I was 100% sure that am not because I calculated my days carefully like a million times, there is no chance that I am short of days. Then he pulled out the FPAT and started going through every date of entry/exit on the FPAT with me. Everything was correct until the last date, instead of 04/02 which is April 02, FPAT showed 02/04, which is Feb 04. This lead to a reduction of 57 days of my residence and hence I was "xx days short". I immediately asked the CJ " Is that a mistake?" He immediately replied "I don't know, I will make sure I look into that later". It seemed to me that he was a little frustrated about it and did not want to talk about it any more though.

I have the following questions:

1. It appears to me that the CJ relied on CIC FPAT and presumed that I was short of days, so he chose to apply KOO test when conducting the interview. Or can he actually know CIC made the error and decided not to tell me before applying KOO at the interview? He did not even mention about my shortage of days at the beginning of the interview. I understand that a CJ could apply any of the three tests, but can the CJ still use KOO after he knows the applicant fulfills the physical and it was a human error by CIC? It is my understanding KOO applies only to those who are short of days and a CJ cannot blend tests to make decision, nor can he ignore the strong evidence that I did have enough physical residence just for applying KOO (Zhou. vs Canada 2013)

2. I have ALL US Entry Stamps and also I/94 Record, as well as ALL Canada Entry Stamps and CBSA entry record. They match 100% with my passport and information on my application and RQ. And FPAT did match my record EXCEPT for the last one. Are the dates on FPAT what CIC considered to be PROVEN? It they do, my understanding is that this counts as solid proof that I have fulfilled the physical residence. Am I correct?

3. I did have school transcripts and credit card/bank statements although I have never worked in Canada. The bank statements contains frequent activities in Canada, i.e., Restaurants, movies, parking, gas, pet store, grocery, etc. Are these enough to show I "customarily and normally lived" in Canada or do I have to be employed to prove that? Also my mother and brother lived with me together in Canada and they became Canadian. Most of my absences and short trips of 10 or less days back to my home country to visit family. Will these facts favor me of an approval if the CJ applies KOO?

3. If the CJ approves, what are the odds of t a CIC appeal? They calculated my days wrong on FPAT in the first place, would this make them feel less likely to win the appeal?

4. My Ecas was updated to DM on Apl 18, and no new line has been added when I click on it. It's about a month now. As I read on this forum, two other cases where the CJ rejected after hearing seem both to have a new line on ECAS " Decision has been made and you will be contacted in three months." and both received the rejection letter only a few days after DM. I was pessimistic about the outcome at first actually because the interview was not very smooth, but now I have more hope that the CJ may have approved my application. Am i correct?

It seems to me in that in my case, even if I got rejected, I will definitely appeal because of the following logic: Should the CIC got the dates right, they can of course still refer to a CJ for decision, But:
If the CJ did not know about the CIC mistake, then the CIC is responsible for KOO being applied. It's put additional burden on me.
If the CJ did know about the CIC mistake, he breaks procedural fairness and should have told me about the error by CIC in advance.

You are very welcome to share you opinions ,and again, hope my case could help others.
Fingers crossed, really hope that I can get approved and became a Canadian which has been a dream for years.

 

[arambi]

Using ATIP, request the following document and you will know whether you are approved or not.

Completed Form CIT 0065 (05-2015) B - Citizenship Application RECORD OF DECISION - s5(1)

Good luck

 

[links18]

If you applied under old rules, CJ can apply Koo regardless of whether or not you met physical presence test. Once you get to CJ all bets are off about what standard will be used and it sounds like CJ doesn't really want to approve you under whatever qualitative standard he wants to use. Now, that doesn't mean he won't defer to physical presence test if he sees evidence you actually met it. Also, since citizenship officers got the authority to approve for citizenship on their own in June 2014, they have generally approved on physical presence, so if they did make a mistake your case probably never should have made it to a CJ. I would dig up whatever evidence you have that this calculation of your physical presence by CIC was wrong and go see lawyer quickly....

 

[imbadevil]

Thank you. What evidence can I dig up? I saw the FPAT together with the CJ with my eyes, it was 100% wrong. CBSA record showed Apr 02, while FPAT was written Feb 04.

 

[links18]

Thank you. What evidence can I dig up? I saw the FPAT together with the CJ with my eyes, it was 100% wrong. CBSA record showed Apr 02, while FPAT was written Feb 04.

Do you have your CBSA entry records? Does the CJ have them? Did CIC have them? What evidence do you have of your PP in Canada from Feb to April? Bank records? Employment records? CC transactions? Sworn statements from people who saw you in Canada during this period?

In terms of procedural fairness, I don't know what directives citizenship officers have been working under regarding approving applicants with the required physical presence (regardless of whether or not they were "established" in Canada), but if you can show that the standard operating procedure was to approve all applicants with the required physical presence and they decided not to in you case than there may be a case. But it looks like this may be a case of a good faith error. If you pointed that out to CIC, could they pull the file back from the CJ and have a CO approve? That I don't know....

 

[imbadevil]

Do you have your CBSA entry records? Does the CJ have them? Did CIC have them? What evidence do you have of your PP in Canada from Feb to April? Bank records? Employment records? CC transactions? Sworn statements from people who saw you in Canada during this period?

In terms of procedural fairness, I don't know what directives citizenship officers have been working under regarding approving applicants with the required physical presence (regardless of whether or not they were "established" in Canada), but if you can show that the standard operating procedure was to approve all applicants with the required physical presence and they decided not to in you case than there may be a case. But it looks like this may be a case of a good faith error. If you pointed that out to CIC, could they pull the file back from the CJ and have a CO approve? That I don't know....

Yes I do have the CBSA records and Yes, both the CJ and CIC have it. CJ checked the FPAT with the CBSA together with me and it is absolutely clear that CBSA record showed Apr 02 exit however FPAT showed Feb 04 exit...（I assume the CO mistake 04/02 for 02/04) Also I do have CC and bank statements showing frequent activities during that period, including gas/grocery/food etc., and CIC and CJ have the statements too. It is very obvious that CO made an error. How can I leave Canada in Feb and leave again in Apl without an entry record on CBSA? Isn't it just impossible?

 

[links18]

Yes I do have the CBSA records and Yes, both the CJ and CIC have it. CJ checked the FPAT with the CBSA together with me and it is absolutely clear that CBSA record showed Apr 02 exit however FPAT showed Feb 04 exit...（I assume the CO mistake 04/02 for 02/04) Also I do have CC and bank statements showing frequent activities during that period, including gas/grocery/food etc., and CIC and CJ have the statements too. It is very obvious that CO made an error. How can I leave Canada in Feb and leave again in Apl without an entry record on CBSA? Isn't it just impossible?

Its not impossible, because the entry records are not always complete--such as at some border crossings with the US. I think its really doubtful the CJ would have the nerve to deny you with this set of facts, but you never know--given as it sounds like he was skeptical of your Canadian ties otherwise. If you have the funds, I would consult a lawyer to decide how to proceed. Your options before a CJ denial might be greater than after one....

 

[imbadevil]

Its not impossible, because the entry records are not always complete--such as at some border crossings with the US. I think its really doubtful the CJ would have the nerve to deny you with this set of facts, but you never know--given as it sounds like he was skeptical of your Canadian ties otherwise. If you have the funds, I would consult a lawyer to decide how to proceed. Your options before a CJ denial might be greater than after one....

In my case, I don't think I have a problem with US entries. All my US entries are by air and all have stamps, accompanied by my CBP I-94 record. I also have plane ticket reservation to show that I flew to the US on Apl 02 via Toronto Airport. How can CIC argue with this solid fact? how justify the Feb 04 on my FPAT that showed me leaving Canada? Why not Feb 02? Feb 05? Feb 17？Can they just pick a random date and say I leave Canada on that day?

 

[links18]

In my case, I don't think I have a problem with US entries. All my US entries are by air and all have stamps, accompanied by my CBP I-94 record. I also have plane ticket reservation to show that I flew to the US on Apl 02 via Toronto Airport. How can CIC argue with this solid fact? how justify the Feb 04 on my FPAT that showed me leaving Canada? Why not Feb 02? Feb 05? Feb 17？Can they just pick a random date and say I leave Canada on that day?

I would say the evidence is on your side, if you are judged under strict PP. What you want to do is do what you can to make sure you are judged under strict PP and not Koo, given that your case is now in front of a CJ. I am not sure why CiC made the mistake they did, but they did and you might want to be proactive in dealing with it. Did you send a cover letter to the CJ with the docs he requested explaining all this?

 

[imbadevil]

I would say the evidence is on your side, if you are judged under strict PP. What you want to do is do what you can to make sure you are judged under strict PP and not Koo, given that your case is now in front of a CJ. I am not sure why CiC made the mistake they did, but they did and you might want to be proactive in dealing with it. Did you send a cover letter to the CJ with the docs he requested explaining all this?

Yes I did and he promised me at the end of the hearing that he will look into FRAP again carefully. Well the decision has been made one month ago so I guess there is nothing much for me to do other than waiting for the letter from CIC. Hoping for the approval as I think I should have received the rejection if CJ did deny. Or maybe CIC will appeal CJ approval, who know...

 

[links18]

Yes I did and he promised me at the end of the hearing that he will look into FRAP again carefully. Well the decision has been made one month ago so I guess there is nothing much for me to do other than waiting for the letter from CIC. Hoping for the approval as I think I should have received the rejection if CJ did deny. Or maybe CIC will appeal CJ approval, who know...

It sounds to me like an approval, but you just have to wait at this point to find out. Sometimes it can take months after DM to get an oath scheduled and I would imagine that if it was a denial, you would have heard by now, but no way to know for sure until you know for sure. If CIC appeals then I would really get a lawyer...

 

[dpenabill]

It is my understanding KOO applies only to those who are short of days and a CJ cannot blend tests to make decision, nor can he ignore the strong evidence that I did have enough physical residence just for applying KOO (Zhou. vs Canada 2013)

This is correct. And confirmed by multiple Federal Court decisions.

1095+ days Actual Physical Presence establishes meeting the residency requirement. Koo or alternative qualitative test not relevant if there is no short fall.

This is true despite the well-established law that the CJ is free to choose which of the tests to apply: 1095 days APP meets the residency requirement.


A big question, though, is whether the evidence actually sufficed to establish (prove) actual physical presence for 1095 days. Without regular employment, or some other regular activity to affirmatively show your presence on days in between dates of last entry and next exit, the door is open to concern, if not doubt, about how many of the days in-between travel dates were not affirmatively proved to have been in Canada. Burden of proof is on the applicant. To deny the application, neither CIC nor the CJ need to show you were absent any particular days, only identify days you did not affirmatively prove, beyond a balance of probabilities, that you were present.

I cannot tell if you are established in Canada, you are not eligible for citizenship if you are not established.

This comment by the Citizenship Officer may reference an oft overlooked rule of sorts: No time physically present in Canada counts until the PR has established actual residence in Canada.

Until somewhat recently, this was only applied in qualitative test cases, not in any case involving an applicant who had could show 1095+ days APP. In a recent case, however, a Federal Court justice (do not recall name of case off top of my head) stated that this rule applies in all citizenship residency cases.

Nonetheless, it would be unusual to see this rule applied against an applicant who meets the 1095 days APP threshold.

If it is applied, what it means is that any days spent temporarily in Canada prior to the date the applicant established his or her actual household in Canada do not count in the calculation.

If the CJ approves, what are the odds of t a CIC appeal? They calculated my days wrong on FPAT in the first place, would this make them feel less likely to win the appeal?

There is NO right of appeal anymore (since August 1, 2014). So the odds are not great. Now an applicant denied approval by the CJ must ask the Federal Court for permission to appeal. That is, make an application for leave to obtain judicial review.

Whether there are grounds to obtain judicial review will depend a lot on what the CJ states as reasons for the decision.

Disagreement about the facts is among the least successful reasons for an appeal. For example: You say you met the 1095 day threshold. CIC's FPAT says you did not. CJ considered your explanation and did not accept it. Went with FPAT. That would be a very tough case to win. Even if you persuaded a Federal Court justice you were correct, the CJ was wrong, that is not sufficient to win the appeal. Standard is not correctness.

My Ecas was updated to DM on Apl 18 . . . .

Largely concur with observation by links18 regarding this:

No guarantee, but this looks like good news . . . still a few days to go perhaps, but if you are denied approval the CJ must promptly send you a notice, including reasons for the decision. The amount of time passed now since the DM gives the impression the CJ likely approved your application.

Question now is whether the Citizenship Officer is satisfied with the CJ's decision. IRCC does have a right of appeal. (How fair is that, you do not have a right of appeal, but IRCC does?) If the Citizenship Officer believes the FPAT calculation is correct, that could lead to a decision by IRCC to appeal the CJ's decision.

All you can do now is wait and see. The longer it goes the more likely it is a matter of scheduling you for the oath, since IRCC only has a limited time within which to make an appeal (I forget if it is 30 or 60 days). Or you could be scheduled for the oath next week.

 

[imbadevil]

This is correct. And confirmed by multiple Federal Court decisions.

1095+ days Actual Physical Presence establishes meeting the residency requirement. Koo or alternative qualitative test not relevant if there is no short fall.

This is true despite the well-established law that the CJ is free to choose which of the tests to apply: 1095 days APP meets the residency requirement.


A big question, though, is whether the evidence actually sufficed to establish (prove) actual physical presence for 1095 days. Without regular employment, or some other regular activity to affirmatively show your presence on days in between dates of last entry and next exit, the door is open to concern, if not doubt, about how many of the days in-between travel dates were not affirmatively proved to have been in Canada. Burden of proof is on the applicant. To deny the application, neither CIC nor the CJ need to show you were absent any particular days, only identify days you did not affirmatively prove, beyond a balance of probabilities, that you were present.



This comment by the Citizenship Officer may reference an oft overlooked rule of sorts: No time physically present in Canada counts until the PR has established actual residence in Canada.

Until somewhat recently, this was only applied in qualitative test cases, not in any case involving an applicant who had could show 1095+ days APP. In a recent case, however, a Federal Court justice (do not recall name of case off top of my head) stated that this rule applies in all citizenship residency cases.

Nonetheless, it would be unusual to see this rule applied against an applicant who meets the 1095 days APP threshold.

If it is applied, what it means is that any days spent temporarily in Canada prior to the date the applicant established his or her actual household in Canada do not count in the calculation.



There is NO right of appeal anymore (since August 1, 2014). So the odds are not great. Now an applicant denied approval by the CJ must ask the Federal Court for permission to appeal. That is, make an application for leave to obtain judicial review.

Whether there are grounds to obtain judicial review will depend a lot on what the CJ states as reasons for the decision.

Disagreement about the facts is among the least successful reasons for an appeal. For example: You say you met the 1095 day threshold. CIC's FPAT says you did not. CJ considered your explanation and did not accept it. Went with FPAT. That would be a very tough case to win. Even if you persuaded a Federal Court justice you were correct, the CJ was wrong, that is not sufficient to win the appeal. Standard is not correctness.



Largely concur with observation by links18 regarding this:

No guarantee, but this looks like good news . . . still a few days to go perhaps, but if you are denied approval the CJ must promptly send you a notice, including reasons for the decision. The amount of time passed now since the DM gives the impression the CJ likely approved your application.

Question now is whether the Citizenship Officer is satisfied with the CJ's decision. IRCC does have a right of appeal. (How fair is that, you do not have a right of appeal, but IRCC does?) If the Citizenship Officer believes the FPAT calculation is correct, that could lead to a decision by IRCC to appeal the CJ's decision.

All you can do now is wait and see. The longer it goes the more likely it is a matter of scheduling you for the oath, since IRCC only has a limited time within which to make an appeal (I forget if it is 30 or 60 days). Or you could be scheduled for the oath next week.

Thank you very much for your analysis. What do you think of my second question? Is the FPAT considered to have been PROVEN in the eye of CIC? I think it matters a lot in my case, because I am 100% sure that FPAT has a human error, How could CIC justify coming up with a random date in Feb to say that I leave Canada on that day with the CBSA record showing no exit record on that day, also no Canada entry record later and a clear exit record in Apl again?

 

[links18]

How can anyone know what CIC thinks? It sounds like an error and if someone pointed it out to them they might concede or maybe they have even conceded already? You can find out if you were approved or denied by ordering your GCMS notes through a Privacy Act request. It usually takes 30 days to get them, so you might get an oath letter or other communication from CIC before getting them, but what can it hurt to order them?

 

[dpenabill]

Ultimately the facts are determined (decided) by the Citizenship Judge. The CJ weighs the evidence and decides what the facts are. It is the CJ who decides whether the evidence "proves" this fact or a different fact. This is especially so when there are conflicting accounts of what the facts are in the record.

Generally, with some exceptions which for present purposes would be more distraction than helpful information, the CJ's findings of fact will stand and not be overturned on appeal . . . even if the judge deciding the appeal would have decided the facts differently. Again, the standard is not correctness. The CJ's determination as to the facts do not need to be found to be correct to be upheld.

So if after hearing your side of things, the CJ concludes the FPAT account of travel dates is correct, and finds as a matter of fact that you were short of the 1095 day actual physical presence test, that is not something you could ordinarily argue about on appeal (again, there are exceptions, such as where the CJ overtly failed to consider relevant evidence bearing on this conclusion).



The FPAT is the form used by IRCC to make the referral to a CJ:

The FPAT is IRCC's assessment of the facts. It is, essentially, an explicit account of what CIC or IRCC thinks. It is IRCC's conclusions.

It is up to the Citizenship Judge to look at the record, consider all the information and documentation the applicant has submitted, consider the applicant's response to questions in the hearing and any further submissions made by the applicant, and decide what the facts are and what conclusions to reach based on those facts. The FPAT is IRCC's submission to help the CJ identify issues and relevant evidence in the record.


The actual structure and content of FPATs are confidential (which opens another wide open issue about fair procedure and why applicants are not provided a copy before the CJ hearing, or even in the appeal process for that matter, but I see no one arguing for more access), both in terms of what the template itself consists of, and in terms of a completed FPAT. This is the form of the "referral" IRCC gives to a CJ when a residency case is given to a CJ.

FPAT stands for File Preparation Analysis Template. What it amounts to, as best I can discern (again, its actual structure and content is not public information), is a structured brief (like a court brief) outlining the essential facts and inferences and conclusions, and probably some of the law the inferences and conclusions are based upon, making up IRCC's total assessment of the issues the CJ examines and decides.

It is not itself proof. It is more like a memorandum, or argument, citing the facts (probably with reference to specific parts of the file which show those facts, the evidence in the file so to say) as IRCC has determined them, and applying those facts to the issues and elements in assessing residency.

Your response to the RQ was, largely, your side of the written submissions. Indeed, the RQ really is the applicant's primary opportunity to make the residency case.

Neither (FPAT or RQ submission) is proof. More like submissions, a combination of evidence (such as the content of the documents you submitted in response to the RQ), and testimony (your account of essential facts: dates of travel, information about address and work history and so on) which is another form of evidence. Some applicants will also include narratives or other forms of argument or analysis of their case. In any close or complex or difficult case doing this is a wise idea.

Your RQ obviously did not satisfy a Citizenship Officer. Hence the referral for a CJ hearing.

The CJ hearing is the applicant's opportunity to (1) directly answer questions the CJ has, which in addition to the information itself also gives the CJ an opportunity to assess the credibility of the applicant personally. And (2) to otherwise make your case. From most reports it appears that CJs tend to focus on number (1), engaging in what is more or less an interview of the applicant. Otherwise some applicants have reported resistance from the CJ if and when they attempt to go beyond answering questions and try to make affirmative submissions, but the hearing is an opportunity for the applicant to affirmatively present his or her case, including submission of additional evidence.

In any event, the CJ hearing was your opportunity to argue the facts. The CJ is the one who decides the facts. The CJ's decision as to what the facts are is not subject to review as such. On appeal neither IRCC nor the applicant get a second shot at arguing what the facts are. I forget how the standard is phrased precisely, but basically if the CJ considered the issue and made a finding of fact, unless it is more or less a blatantly unreasonable conclusion, neither party gets to re-argue what the facts are in an appeal. Thus, for example, if in looking at the record, the Federal Court justice would agree with your account of the facts, that is a so-what, and oft times the Federal Court justice will essentially say so: that even if he would have come to a different conclusion, that is not for the court to decide in an appeal.

It is not whether the CJ got it right or wrong. It is whether the CJ properly considered the record and made a decision based on reasons consistent with the applicable law and standards.