- Jan 23, 2010
- 8
- 124
- Category........
- Visa Office......
- new delhi
- NOC Code......
- 4131
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- july 2009
- Doc's Request.
- sep 2009
- AOR Received.
- nov 2nd 2009
- File Transfer...
- sep 9th 2009
- Med's Request
- feb 01 2010
- Med's Done....
- feb 8th 2010
- Passport Req..
- feb 1st 2010
- VISA ISSUED...
- STATUS CHANGED TO DECISION MADE ON JULY 1ST
- LANDED..........
- july 21st 2010.
Citizenship Act says that to be eligible for citizenship one must accumulate 3 years of "residence" out of the 4 years immedeatly preceeding the application, based on a formula where generally residence before becoming a PR counts for 1/2 time
HOWEVER the term ``Residence`` is not defined
The result:
As Canada is has a common law system, over the last 30 years these definitions have evolved through case law, ie through decisions made by the judges on the meaning of residence.
At the moment there are 3 schools of thought on the definition of residence:
I. Re Pourghasemi (1993), 62 F.T.R. 122
A person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time
II. Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.)
Residency entails more than a mere counting of days. Residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant's linkages suggest that Canada is his or her home, regardless of any absences from the country.
III.Re Koo, [1993] 1 F.C. 286 (T.D.)
The question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. This involves consideration of several factors:
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
2. Where are the applicant's immediate family and dependents (and extended family) resident?
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
4. What is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive?
5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
The general principle is that the quality of residence in Canada must be more substantial than elsewhere.
It is important to note that these 3 approaches are applied to determine if a period of time in or outside Canada counts as ``maintained`` residence only after residence has been ``established``
Then it is open to a citizenship judge to apply any one of the three conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, the decision should not be disturbed.
The onus or burden of proof in residence cases lies with the applicant - not the government. The burden of proof on the applicant for establishing the residence requirements under paragraph 5(1)(c) of the Act is the mere civil evidence burden, proof by a balance of probabilities.
HOWEVER the term ``Residence`` is not defined
The result:
As Canada is has a common law system, over the last 30 years these definitions have evolved through case law, ie through decisions made by the judges on the meaning of residence.
At the moment there are 3 schools of thought on the definition of residence:
I. Re Pourghasemi (1993), 62 F.T.R. 122
A person cannot reside in a place where the person is not physically present. Thus, it is necessary for a potential citizen to establish that he or she has been physically present in Canada for the requisite period of time
II. Re Papadogiorgakis, [1978] 2 F.C. 208 (T.D.)
Residency entails more than a mere counting of days. Residency is a matter of the degree to which a person, in mind or fact, settles into or maintains or centralizes his or her ordinary mode of living, including social relations, interests and conveniences. The question becomes whether an applicant's linkages suggest that Canada is his or her home, regardless of any absences from the country.
III.Re Koo, [1993] 1 F.C. 286 (T.D.)
The question before the Court is whether Canada is the country in which an applicant has centralized his or her mode of existence. This involves consideration of several factors:
1. Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?
2. Where are the applicant's immediate family and dependents (and extended family) resident?
3. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?
4. What is the extent of the physical absences - if an applicant is only a few days short of the 1095 day total it is easier to find deemed residence than if those absences are extensive?
5. Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted temporary employment abroad?
6. What is the quality of the connection with Canada: is it more substantial than that which exists with any other country?
The general principle is that the quality of residence in Canada must be more substantial than elsewhere.
It is important to note that these 3 approaches are applied to determine if a period of time in or outside Canada counts as ``maintained`` residence only after residence has been ``established``
Then it is open to a citizenship judge to apply any one of the three conflicting lines of jurisprudence, and if the facts of the case were properly applied to the principles of that approach, the decision should not be disturbed.
The onus or burden of proof in residence cases lies with the applicant - not the government. The burden of proof on the applicant for establishing the residence requirements under paragraph 5(1)(c) of the Act is the mere civil evidence burden, proof by a balance of probabilities.
