"Request for Documentary Evidence of Residence in Canada"
- Thread starter links18
- Start date
links18 said:
What CIC wants, for the vast majority of applicants, is physical presence. Under the current Act though, CJs have more leeway to assess continuing ties (i.e. "the Koo test"). Thus, a truck driver, whose family lives in Scarborough, who pays taxes in Canada, who attends a mosque/synagogue/church or temple in Scarborough every week, but who is physically in the USA 175 days a year because they drive between Mississauga and Florida for a Canadian company shaping maple syrup to Canadian snowbirds, could still become a Canadian citizen.
However, the new Citizenship Act will probably seek to change this by defining "residence" as "physical presence".
So, truck drivers and airline pilots, stewards or stewardesses, NHL hockey players who were PRs in Canada but got traded to the San Jose sharks, will be out of luck...
The application and use of the two different standards is very confusing. There is no way to prove physical presence with certainty. Not even the border records are complete or accurate all the time.
So, at what point does CIC stop looking at proof of physical presence and move on to "residence"? Is it only when it gets in front of a CJ? Does "balance of probabilities" come into play in evaluating physical presence or only when they looking at residence?
So, at what point does CIC stop looking at proof of physical presence and move on to "residence"? Is it only when it gets in front of a CJ? Does "balance of probabilities" come into play in evaluating physical presence or only when they looking at residence?
links18 said:
The courts have been complaining about this for years...its absurd that 2 applicants with the same profile can have different outcomes depending on what residence test the CJ uses. The Tories had a chance to make residence = physical presence via bill that was published but politics came to play as Parliament was prorogued for political expediency as I recall and all pending bills never saw the light of day.
Seems that CIC always go with physical presence first then failing this see if the applicant could fall into the other 2 non physical residence categories. Its effectively one non physical residence test really as alluded to by eileenf known as the Koo test (also referenced after the Lady Justice who decided the case) - its also known as the centralized mode test and considers 6 factors in assessing your residence. The other test is in reality a 'not present in body but in mind' approach but these cases where applicants with as few as 100 days of presence were approved were as far as I can tell effectively over in the mid to late 90s. If CIC form the view the applicants case is weak (likely to lose at FC appeal) then they refer the CJ with recommendation to refuse.
Central to the Koo test is that you must first establish residence by way of physical presence. This appears to be where most applicants fail - they land in Canada for say 1 week then leave only to re-establish patch work physical presence in the 4 year period. Case law shows you can't establish residence in 1 week or other 'short' stay. It seems landing long enough to be considered a non visitor/ liable to be a resident for tax and doing all the other things people do to customarily establish residence especially seeking and gaining employment could resolve this.
Canadian legal standards and tests are generally referred to by the names of the appellants or complainants in the case (like Chee Chow David KOO) not the Gentleman or Lady Justice who presided (and generally prefer to just be called "Justice Last Name", rather than Old Man Justice, Young Woman Justice, Brunette Justice, Overweight Justice, Latino Justice, etc).Msafiri said:
http://reports.fja-cmf.gc.ca/eng/1993/1993fca0436.html Here's the report on Koo's appeal. Koo lost. He was present in Canada for 232 days during 4 year qualifying period. How was he even still a PR?
No doubt and my bad missed out the 'also' bolded prefix in my now edited post. Justice Barbara Reed probably never expected her Koo decision to be the main standard for non physical presence residence. FC reports refer to the Presiding/Present Judge as Honourable Mr Justice or Honourable Madam Justice.eileenf said:
UPDATE:
The person I know who was given this form at their December test date just received a new letter from CIC dated less than three months after sending in the documents originally requested with the CIT-520 at the test date. Unfortunately, it was another CIT-520, this time requesting US border records.
The good news here is that it appears that it took less than three months for one of the slowest offices in the country to review the original documents. The bad news is that this is no guarantee the overall process will go any faster, as they won't hesitate to issue multiple and consecutive CIT-520s.
One wonders why they just didn't ask for the US Border records four months ago at the test date? Regardless, this person's application has now been pending 31 months and there is no telling when or if US border records will ever be received, so preparations are being made to contest CIC on this point. I will keep everyone posted.
The person I know who was given this form at their December test date just received a new letter from CIC dated less than three months after sending in the documents originally requested with the CIT-520 at the test date. Unfortunately, it was another CIT-520, this time requesting US border records.
The good news here is that it appears that it took less than three months for one of the slowest offices in the country to review the original documents. The bad news is that this is no guarantee the overall process will go any faster, as they won't hesitate to issue multiple and consecutive CIT-520s.
One wonders why they just didn't ask for the US Border records four months ago at the test date? Regardless, this person's application has now been pending 31 months and there is no telling when or if US border records will ever be received, so preparations are being made to contest CIC on this point. I will keep everyone posted.
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