Crackdown on immigration fraud tied to health care benefits

Recent proposed changes to the Citizenship Act have highlighted concerns raised by some critics of the purported abuse of the medical health care system in Canada by various persons. It is suggested that so-called citizens of convenience come to Canada only to take advantage of the social and health care benefits, without contributing to their cost. The potential abuse of the health care system is not limited to immigrants or naturalized citizens, but also applies to natural-born citizens. As the population ages and the need for health care increases, the government faces more pressure to control costs. One way to control costs is to spend more on enforcing the rules on coverage eligibility, something Sayed Geissah and Souad Khalaf found out about recently.

A government-funded health care system has been a part of social policy in Canada since the 1960s. Each province is responsible for the delivery of health care under the constitution. Each province has its own laws governing how health care is delivered and paid for, and who is eligible to claim its benefits. The principal law governing health care in British Columbia is the Medicare Protection Act.

Under that law residents are entitled to medicare coverage. The law defines a resident as a citizen or permanent resident who makes his or home in British Columbia, and who is physically present in the province for at least six months in a calendar year or a shorter period set under regulations. It also includes a person deemed by regulations to be a resident, but does not include a tourist or visitor.

Detailed rules concerning deemed residency, absences for vacation or work, and extension of absences are set out in the Medical and Health Care Services Regulation. The rules are extensive. Deemed residency extends to various foreign nationals in British Columbia, including those here under study and work permits.

The Medical Services Commission is responsible for enforcement of the Medicare Protection Act. It will investigate cases where questions are raised about a person’s residence and their continuing eligibility for coverage. Such an investigation arose in 2009 for Mr. Geissah and Ms. Khalaf. They immigrated to Canada in 1994 with their three sons. By 2002 their sons had moved. They now live throughout the Middle East. Since 2002, the couple claimed to visit their sons and grandchildren for up to six months each year, before returning to live in British Columbia.

The couple was asked to provide evidence of their travels between 2002 and 2010, which they refused to provide. Based on the evidence available, including that the couple had made no health care claims during two years and infrequently in all other years, the Commission decided the couple had not met the residency requirement during those years and retroactively cancelled their coverage from 2002 up to June, 2010. A review by a delegate upheld the decision. A subsequent application for judicial review by the Supreme Court of BC was dismissed. In January, 2014, the BC Court of Appeal upheld that decision.

The appeal court dismissed all of Mr. Geissah and Ms. Khalaf’s arguments, upholding the finding that the Commission’s delegate could reasonably come to the conclusion, based on the evidence before him, that it was more likely than not that the couple did not meet the residency requirement. The court noted that the finding was limited to MSP coverage and was not a determination of eligibility for entitlement to benefits under federal programs such as Old Age Security. Fortunately for the couple, the province did not seek repayment of the costs of the medical services it paid for during the ineligibility period

In 2011 14 per cent of Canada’s population was 65 years of age and older. That is expected to rise to about 23 per cent by 20131 and will remain at about a quarter of the population for the following 30 years. An aging population poses more demand on health care. Either the government finds ways to decrease costs, or increases taxation to pay for the increased costs. Efforts are being made to improve health through alternative and preventative medical treatment.

I expect there will be continued political pressure on government to crack down on abuse of the medicare system. For the past 15 years provinces have been diligently enforcing sponsorship undertakings to recover welfare payments. With tighter tax dollars available, there will be greater enforcement of medicare eligibility requirements. The federal government’s changes to the Citizenship Act and its emphasis on investigating immigration fraud, is part of the larger concern about funding social benefits in Canada.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Navigating the labyrinth of immigration channels

Making an immigration application involves a complex process; from choosing the category to apply under, to completing immigration forms and then dealing with the government officials making the decision on an application. In the past several decades the government has attempted to make the process more transparent and understandable, as the government has shifted the burden of completing applications onto applicants. The government’s attempts at making the process easy to understand haven’t always succeeded. Sometimes decisions are made that are difficult to understand or appear to have been made arbitrarily.

Ralph Watzke, a Canadian citizen, found himself in such a situation when he applied for a certificate of citizenship for his son Jeffrey. Jeffrey was born in the Philippines in about late 2005. What you would think would be a straightforward process turned into a seven-year struggle to have his son come to Canada. Mr. Watzke, acting on his own, initially applied to sponsor his wife (Jeffrey’s mother) and son as immigrants. He was told that since his son would be a citizen (as his father was Canadian at the time of the birth), he did not have to be sponsored as an immigrant, but dealt with as a citizen.

His wife’s application was processed and she came to Canada. Mr. Watzke had been told by the Canadian Embassy in Manila that he would have to undertake a DNA test for his son to prove that he was in fact his son. Mr. Watzke then applied in Canada for a certificate of citizenship for his son, hoping the decision would be made sooner than if done through the embassy in Manila. The office in Canada contacted the embassy in any case, and advised Mr. Watzke in 2009 that he would still have to obtain a DNA test for his son. Mr. Watzke felt the decision was discriminatory and wrote back to complain about it. Correspondence was exchanged over several years. In 2011 the office formally refused the certificate of citizenship for the son. Mr. Watzke applied to Federal Court to review the decision.

In January, 2014, Justice Russell concluded that the decision to refuse the certificate was unreasonable. The government had requested the DNA test because Jeffrey was born at home, not in a hospital. It did not accept formal government birth documents filed in the Philippines as proof that Mr. Watzke was the father. The government gave no rationale why a home birth would have resulted in the requirement for a DNA test. In deciding the decision was unreasonable, Justice Russell noted “There is no evidence that the reason for this requirement was ever explained to the Applicants or that it was publicly available in the policy manual or elsewhere.” The court ordered that the decision be reconsidered and suggested that the government deal with it in a timely way.

Not all applicants are as successful or as determined as Mr. Watzke in pursuing issues. The case points out the complexity of applying for immigration and citizenship status, especially in the past two decades as immigration rules have become more complex and the number of ways to apply has increased to the dozens.

The immigration law recognizes three categories of immigrants – involving families, economic immigrants and humanitarian immigrants. Finding which category to apply under is the first step in the process of moving to Canada. The second step, which can be as difficult or more so to navigate, is understanding the labyrinth of procedures and forms necessary to make an application. Some categories require up to a dozen forms to complete.

The Immigration Department has 10 different manuals, some of which have more than two dozen chapters, to guide the government officials administering each category. This does not include dozens of operation bulletins issued yearly, or the manuals and guidelines used by provincial immigration officials. While the Department publishes guidebooks, they do not easily describe the process or address all the issues that may arise in an application.

For many applications, the final decision is made at a Canadian Embassy overseas near where the potential immigrant lives. Each office has to follow the guidelines and department manuals in processing the application. However, there may be many variations in dealing with an application, depending on the country where the application is made. These issues are not dealt with in any specific immigration manual and no public guidance is published on how an individual office may deal with issues specific to the applicant’s country of origin.

In Mr. Watzke’s case, he found out that Manila has issues about the reliability of government forms as proof of a child’s parentage. Fortunately for him, the Federal Court found that the visa office’s inability to explain why the documents were not reliable in his case was unreasonable. When setting out on a journey, knowing how to navigate the route is important. Sometimes you need a good pilot to help navigate difficult or unknown waters.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

Tougher citizenship laws miss mark on expatriate issues

Fifty years ago commercial jet transportation revolutionized the movement of people around the world. Increased passenger numbers pushed manufacturers to build larger jets, resulting in the Boeing 747 in 1970. The first purchaser of that jet predicted it would be a great weapon for peace. He probably did not envision how the global accessibility created by jumbo jets would lead to changes to immigration and citizenship laws, such as changes to the Citizenship Act announced Thursday by the government.

In the near 150 years of is existence Canada has had four acts governing naturalization and citizenship. The current Citizenship Act came into effect in 1977, just as the effects of increased global travel were starting to be felt. Since then immigration levels to Canada have increased, to a yearly average of about 235,000 for the past 20 years. The pattern of immigration has changed, from a Eurocentric majority to an Asiacentric majority. As more immigrants have come to Canada, more people have applied for citizenship.

Several million Canadians now live abroad, many newly naturalized citizens, raising questions about entitlement to citizenship and the obligations citizens owe to the country. Critics complain about “anchor babies” and “citizenship of convenience,” referring to migrants who stay in Canada only long enough to obtain citizenship and then live abroad, returning only when in danger or to take advantage of health care and other social benefits.

The government’s response is Bill C-24. The Bill makes dozens of substantive changes to the law, relating to who may claim to be Canadian, how to qualify for citizenship and how citizenship may be revoked.

Proposed changes will recognize certain persons, recently referred to as “Lost Canadians,” born before 1947 (or before April 1, 1949, in cases involving Newfoundland and Labrador), as citizens.

For immigrants seeking citizenship, residency requirements will be increased so an applicant must be physically present in Canada for four years in a six-year period and applicants must be in Canada for at least 183 days per year in four of the six years. It still falls short of the five-year requirement that was in effect before 1977.

As well, applicants must have filed income tax returns during four of the years. Time spent in Canada as a non-permanent resident during the qualifying period will no longer count. Finally, applicants must show at the time of application and up to the time they take the oath of citizenship, an intention to continue to reside in Canada.

The ages required for applicants required to show language proficiency in English and French, and pass a knowledge test, is changed from 18 to 54, to 14 to 64. The government announced it will increase the fees for citizenship applications from $100 to $300, with an additional $100 right-of-citizenship fee for successful adult applicants.

Failed applicants will no longer have a right of appeal to Federal Court. They will have a right to apply for judicial review, with leave of the Federal Court. These changes will decrease accessibility for many applicants who cannot afford help to navigate the court rules for judicial review.

Under the proposed law the citizenship minister will have the power to revoke citizenship, without an oral hearing, based on  grounds of the person obtaining their citizenship or permanent residence on grounds of fraud or misrepresentation. Cases involving security, human or international rights violations, or organized criminality will involve a Federal Court hearing. The Minister will also have the power to revoke citizenship of any dual citizen convicted of terrorism, high treason, treason, or spying offences, depending on the sentence received. Similar grounds will prohibit applicants from receiving citizenship. The changes to ministerial power will likely be subject to  Charter challenges.

Persons who represent or advise on a citizenship application or hearing for a fee will have to be a lawyer or a member of a designated regulatory body. This mirrors changes to the immigration law in 2002 that resulted in the creation of an immigration consultants regulatory body.

In a news release concerning the Bill, Citizenship and Immigration Minister, Chris Alexander, said the government is strengthening the value of Canadian citizenship, which is a pledge of mutual responsibility and a shared commitment to historical values. The government expects new processing procedures will eliminate the backlog of outstanding applications within a few years, so applicants will not have to wait the several years it now takes for applications to be completed.

As long as Canada offers health care and other social benefits, there is a legitimate political question about the tax contribution of the several million Canadians living abroad to pay for those services should they return. The government may say the proposed changes help address the problem, but the changes are window dressing. The real change would come with amendments to tax laws, which would be much harder to sell politically. 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Perils involved in citizenship adoption applications

When then-immigration minister Diane Finley announced in 2007 the start of changes to the Citizenship Act allowing children adopted abroad by Canadian citizens to obtain citizenship, the new law reduced the differences in treatment between children adopted abroad and children born abroad to a Canadian parent.
Applicants would have to prove the adoptions were legal and genuine, and were not entered into mainly for acquiring status in Canada - a challenge Kulwinder Kaur faced when she applied for citizenship as an adoptee several years ago.

Ms. Kaur’s maternal aunt (massi) and her husband purportedly adopted her in 2002 in Punjab when she was 13 years old. Her aunt in Canada had two sons. She and her husband wanted a daughter. They discussed their desire with her sister and brother-in-law, who agreed to give Kulwinder Kaur up for adoption.
Indian adoption law sets rules as to who may be adopted and who may adopt. Unlike Canada, where all provinces require court approval for adoption, the law in India allows people to carry out their own adoption. The main formality is a giving and taking ceremony, when the child is physically handed over to the adopting parents by the natural parents.

The aunt and uncle thought they had gone through all the formalities necessary to adopt Kulwinder Kaur. A giving and taking ceremony was performed. Notice of the adoption was published in a newspaper. To provide written proof of their action, the aunt and uncle, together with the natural parents, registered a deed of adoption with a court in India.

Unfortunately for Kulwinder Kaur, her new parents took no action to bring her to Canada until 2010. She remained in India, though the new parents appointed a guardian to be responsible for her, while they provided support from Canada.

When Kulwinder was 21 years old, she applied for Canadian citizenship based on the new rules that came into effect in 2007. In 2012 a citizenship officer at the Canadian High Commission in New Delhi interviewed her, along with the guardian and her natural parents. She failed to prove to the officer that a giving and taking ceremony was performed, and that her adoption was genuine. Her only remedy was to apply for judicial review of the decision. That review was held before the Federal Court in Vancouver last month. Justice Michael Phelan, who heard the review, rendered his decision within a week, upholding the officer’s refusal.

A judicial review is a limited form of appeal. Justice Phelan could only consider the evidence that was considered by the citizenship officer. He could only overturn the decision if he found the officer’s conclusions were unreasonable. Based on the evidence before the officer, Justice Phelan decided the decision was reasonable.

When interviewed by the officer in New Delhi, neither Kulwinder Kaur nor the others gave clear evidence that a ceremony took place. The officer was not satisfied about explanations for the lack of visits by the adopting parents and communication with Kulwinder Kaur, and why it took eight years before taking action to have her come to Canada.

The law holds that an applicant must prove they qualify for citizenship. An officer making a decision is not required to find a way for someone to qualify. An uninformed applicant is at a disadvantage, not knowing what evidence is important to show an officer, especially when it deals with legal issues like a giving and taking ceremony. For example, it is the usual practice in Punjab, when registering a deed of adoption, to have all the parties present, including the child being adopted, who will be physically given and taken before the court registrar.

Had Kulwinder Kaur been aware of the importance of this, she or one of the other persons could have told the officer. What is unfair is that the officer probably did not ask about it, though the officer should have been aware of the practice. The Immigration and Refugee Board upheld the Indian court practice as proof of a giving and taking ceremony over 17 years ago (see [1996] I.A.D.D. No. 1032 (QL)).

While Kulwinder Kaur may have proven that she was properly given and taken, the lengthy delay in joining her adoptive parents raised serious questions about the adoption’s genuineness. Getting good advice before starting on such an important matter can help avoid disappointment later on. As shown in this case, an inadequately prepared application cannot be cleared up after the decision is made. 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com. 

HELPING YOU GET WHERE YOU WANT TO BE

Immigration enforcement snares misleading residents

When Janilee Reyes, a permanent resident, married in the Philippines in January, 2008, she probably did not consider that it would lead to her removal from Canada. However, earlier this year the Federal Court confirmed a decision to remove her from Canada. What had she done wrong? She had made a misrepresentation when applying to sponsor her husband to Canada, making her removable.

Before June, 2002, a permanent resident could only be removed for misrepresentation if it related only to receiving their own permanent resident status. Since then, under the current immigration law, the grounds for removing a permanent president include misrepresentation for any immigration matter.

It took about six years before the Canada Border Services Agency took someone to court under the new law, about the same time Ms. Reyes committed her misrepresentation. When she married in January, 2008, Ms. Reyes signed a false declaration claiming that she had lived with her intended husband for five years in order to expedite her marriage by avoiding the need to obtain a marriage licence. That action made her marriage void from the start, so she was not entitled to sponsor her husband to Canada when she submitted an application for him in March, 2008.

A month after Ms Reyes filed her sponsorship, the Border Agency brought Fakhar Niaz before the Immigration and Refugee Board to remove him for failing to disclose a bigamous marriage. He had married a second wife in Canada after he marrying his first wife in Pakistan, who he subsequently applied to sponsor to Canada.

When the Border Agency learned of the second marriage it started an admissibility hearing to determine if Mr. Niaz should remain in Canada. Admissibility hearings involving permanent residents are held before a member of the Immigration Division of the Immigration and Refugee Board. When the case was heard in 2008, the board member dismissed the case, holding that the law did not apply to cases involving misrepresentation beyond their own application for status.

On an appeal by the government in 2009, the Immigration Appeal Division reversed the decision, holding the new law applied to misrepresentation in any immigration proceeding. Fortunately for Mr. Niaz, that board member found sufficient humanitarian reasons to let him remain in Canada. Ms. Reyes was not so lucky. The same board member in her case decided she would not face any hardship if she returned to the Philippines. Her last hope was to apply to the Federal Court for judicial review. In January this year, Justice  Hansen upheld the decision, finding the board member’s interpretation of the law to be reasonable.

The Federal Court decision confirms the Border Agency’s power to start removal proceedings against permanent residents who make misrepresentations in any immigration matter. While the cases that have been decided so far have dealt with family class sponsorships, the law could be applied in other kinds of situations, including job offers for temporary workers, permanent residents and provincial nominees.

The Border Agency saw its immigration enforcement spending increase from $91-million in 2010-11, to $150-million in 2012-13.  The government plans to spend $140-million on enforcement in both of the next two years. The government sees this as part of its program to improve the integrity of Canada’s immigration and refugee programs, aimed at reducing the abuse of the refugee determination system, and combating immigration fraud and human smuggling. In 2012, the Border Agency removed about 18,800 persons from Canada, a 27-per-cent increase from 2009.

The increased enforcement fits the current government’s self-portrayal as being tough on crime and having a strong law-and-order approach. In the past three years the government introduced several amendments to immigration law under the such subjectively named titles as the Faster Removal of Foreign Criminals Act and the Protecting Canada’s Immigration System Act.

The former Immigration Minister, Jason Kenney,  touted the government’s initiatives in fighting fraud on numerous occasions. In July, 2011, he announced measures by the government to combat citizenship fraud by increasing the number of citizens who would have their citizenship revoked, with a tip line set up in September that year. Last year he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.

The Border Agency has also involved itself with the controversial infotainment program “Border Security: Canada’s Front Line,” which it views as a means of educating the public about its mandate to enforce immigration laws. Given the ongoing budgetary support, the Border Agency will continue its stepped-up enforcement action to remove unwanted persons from the country, including permanent residents who mislead immigration officials in any matter, those who take part in fraudulent marriages and those who lie about meeting the residency requirements for citizenship.

Misrepresentation is viewed as a serious matter attacking the integrity of the immigration system. Permanent residents who get caught committing such acts will face removal from Canada, unless they can show compelling reasons why they ought not to be removed. Few cases will be viewed with sympathy, either by immigration appeal judges or the public. These matters require strong, effective legal representation.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

New Immigration Minister to face continuing challenges

On July 15 Prime Minister Stephen Harper announced the appointment of Chris Alexander, MP for Ajax-Pickering in Ontario, as the new Minister of Citizenship and Immigration, replacing Jason Kenney. Mr. Kenney had been the Immigration Minister since October, 2008, the longest tenure for an immigration minister since Charles Stewart held the position in the 1920s.

Mr. Alexander has publicly acknowledged that he has “big shoes” to fill, as Mr. Kenney has left large imprints on the immigration ministry and immigration policy. Mr. Kenney hasn’t left the field entirely as he will still have an impact through the implementation of the Temporary Foreign Worker Program as part of his responsibilities as the new Minister of Employment and Social Development.

During his tenure Mr. Kenney was responsible for several significant legislative changes to immigration legislation and regulations, many under the guise of public safety and crime protection issues. In 2010 Parliament passed the Balanced Refugee Reform Act which tightened the procedures for determining refugee claimants and removing failed claimants. Amendments in 2011 provided for greater regulation of immigration consultants. Under the 2012 Safe Streets and Communities Act immigration officers are empowered to refuse work permits to workers in vulnerable occupations subject to abuse. The Protecting Canada’s Immigration System Act in 2012 made further changes to the determination of refugee claimants in Canada and imposed restrictions on persons who arrive in Canada through organized smuggling. Finally, last month Parliament passed the Faster Removal of Foreign Criminals Act which makes it possible to deport permanent residents without appeal if convicted of serious criminal offences and sentenced to at least six months in prison.

Much of immigration policy is carried out through regulations. Under Mr. Kenney’s watch the regulations have been amended for various reasons, including eliminating some health services for refugee claimants and the creation of conditional visas for spouses in an attempt to reduce marriage fraud. He has been responsible for changes to eliminate the backlog of permanent skilled worker applications, wasting years of wait for many applicants.

The restrictions on health services for refugee claimants generated significant backlash, particular in the healthcare community. Fraud has been a major focus of the Immigration Department and the Canada Border Services Agency for the past few years, whether it be marriage fraud, misrepresentations made during immigration applications, and fraudulent claims of residency in citizenship applications.

Mr. Kenney’s last significant act was to announce proposed rule changes, to come into effect in 2014, that will restrict the ability of citizens and permanent residents to sponsor parents, and to limit the age of dependent children who may accompany immigrants to Canada under all categories to age 18 and younger.

The government’s purported priorities are job creation and the economy. Immigration policy, particularly under the current government, has changed – to use immigration as a means of meeting Canada’s economic needs. There has been less emphasis on family and humanitarian immigration categories. There has been a shift to meet short-term employment needs through temporary foreign workers. Some critics argue the changes have gone too far, with not enough public resources spent on job retraining of existing Canadian workers. They wonder why Canada continues to import more temporary foreign workers when the unemployment rate for young Canadians remains high.

The government faced political heat over two cases in the news since last year, with the proposed hiring of Chinese miners at the HD Mining site in Northern British Columbia and the Royal Bank of Canada’s training of foreign workers in Canada for future outsourcing of jobs. The government has yet to announce the results of its review of the temporary foreign worker program undertaken as a result of public outcry over these two cases.

Part of the problem is that job retraining is considered a matter of provincial responsibility and the provinces have not agreed what role the federal government should play. Until that is sorted out and political decisions are made on spending public monies to retrain Canadians, the federal government will probably continue to use temporary foreign workers as a solution for worker shortages in many occupations or to meet regional economic requirements.

While the immigration department and the border agency have increased resources for enforcement issues, the government has downloaded the cost of immigration selection to provinces by allowing them to select more immigrants. The government has centralized more immigration processing to fewer offices. Federal selection programs require applicants to spent more money to provide objective proof of their occupational and language qualifications. In an attempt to operate more efficiently there is less face-to-face contact with applicants.

There continue to be problems with citizenship applications and legislation. Conflicting decisions of the Federal Court over the residency requirement for grants of citizenship have existed for the past 20 years creating uncertainty and unfairness for applicants. Parliament has twice failed to pass a new citizenship law in the past 14 years. The government faces calls to restore or grant citizenship to persons born before 1947, who would otherwise be citizens if they were born after 1946.

Mr. Alexander will face all of these issues as the new Minister of Citizenship and Immigration. Some issues, such as the use of temporary foreign workers, require agreement with several federal departments as well as the provinces and is not something he can resolve alone. I expect he will face a growing backlash over the proposed age limits on dependent children. The rule change will result in decreased parental sponsorship and a shift in the age range of potential economic immigrants, as fewer immigrants in their 40s with children older than 18 will likely apply to come to Canada. Given Canada’s aging demographics that may be the government’s intention. Mr. Alexander will have to use his skill as a former diplomat to navigate his way through the public perception that the government’s immigration policies are too focused on economic goals.

William Macintosh started practising immigration law in 1984. You can reach him for advice at 778-714-8787.

Parliament and Federal Court fiddle while conflicting residence tests burn

Lawyers have known for years the unfairness of the three disparate tests applied by citizenship judges in deciding whether an applicant meets the residency test for citizenship under section 5 of the Citizenship Act. The inequity of the situation was recently highlighted in a decision handed down by Chief Justice Crampton of the Federal Court. In Huang v Minister of Citizenship and Immigration, 2013 FC 576, the Chief Justice said, “This case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country.” His remarks are slightly more temperate than the comments of Justice Muldoon, who, as early as January, 1998, in Re Ten, 1998 CanLII 7296 (FC), said the situation created “a scandalous uncertitude in the law.” The irony of Justice Muldoon’s comment is that he helped create the incertitude in the law.

The scandalous situation involves the interpretation of “residence” in paragraph 5(1)(c) of the Citizenship Act. That provision requires that a citizenship applicant have three years of residence in Canada within the four years before applying. The term is not defined in the law, so it was left to Federal Court judges, on appeals from citizenship judges, to determine what the word meant. In 1978, in Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, then Chief Justice Thurlow decided residence meant where an applicant had centralized his mode of living. In 1992, Justice Reed decided in Re Koo, [1993] 1 FC 286, that residence was where an applicant regularly, normally or customarily lived. Finally, in 1993 in Re Pourghasemi (1993) 62 F.T.R. 122, Justice Muldoon, certain his interpretation was correct and the others were, as he later described,  “ignoring the law,” decided residence meant physical presence. Comity, or unity of judgement in the Federal Court on the issue, has since yet to be found.

From that point onward citizenship judges have had three different standards to choose from. As new judges are appointed, they fall into one school of interpretation or another and any applicant with less than three years physical residence is left with the randomness of which judge they appear in front of. Relief through Federal Court was uncertain, depending on which school of thought the judge hearing an appeal sat in.

Normally an appeal court could sort out conflicting decisions. However, the Federal Court has the last word on the matter as the Citizenship Act expressly prevents an appeal from that court. So long as judges of the Federal Court hold conflicting opinions on the issue, applicants before a citizenship judge face unequal treatment under the law, depending on which judge decides their fate. Hence Chief Justice Crampton’s plea that Parliament should amend the Citizenship Act to expressly define residence. However, the government has attempted twice to change the law, in 1998 and 2010, without success.

Beside an amendment by Parliament, Chief Justice Crampton suggested that a citizenship judge bring a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act. That could be appealed to the Federal Court of Appeal, which could finally settle the different interpretations in the Federal Court that have lasted for the past 20 years. I would be surprised if a citizenship judge took the initiative to start such a reference.

I suggest it may be possible for an applicant to seek a remedy by means of judicial review through a provincial superior court or possibly the Federal Court, following the Supreme Court of Canada decision in Kourtessis v. MNR, [1993] 2 SCR 53. The court upheld a judicial review of a search warrant, from which the Criminal Code allowed no appeal, where a Charter right is at stake and no other effective remedy is available for vindicating it. Citizenship applicants are denied due process under section 7 of the Charter of Rights and Freedoms  by the unequal treatment of law due to conflicting decisions. An appeal to Federal Court under the Citizenship Act does not provide an adequate remedy. If the review court accepts jurisdiction, an appeal could lie to a higher court that would settle the issue once and for all. Of course, all of this depends on finding an applicant willing and able to take their case through the courts. It is an point worth giving further consideration.

Government gives second chance to take citizenship test

Citizenship and Immigration Minister Jason Kenney announced Monday changes to test rules for citizenship applications in hopes of reducing the growing backlog of applicants awaiting approval. Under the changes, applicants who had failed the required knowledge test will be given a second opportunity to write the exam, instead of awaiting a retest before a citizenship judge.

Under the Citizenship Act applicants for citizenship must pass a language test and a knowledge test. The tests are administered by a citizenship officer. If failed, applicants have to redo the tests before a citizenship judge. The Minister also announced that it will approve family members on their own merit. Previously, when one member failed a test, all the other family members would have to wait for the one member to pass the test before allowing them to continue on the process. The next step after passing the tests is an oath ceremony before a citizenship judge, at which time the applicants are formally granted Canadian citizenship.

According to the National Post, there is currently a backlog of 350,000 citizenship applications, with waits up to 29 months for a final hearing before a citizenship judge in Montreal and Vancouver.  The government processes up to 200,000 citizenship applications a year. Under new procedures, applicants who fail the knowledge test will be informed of the decision immediately and given a chance to rewrite the exam within four to eight weeks. The new procedure will apply retroactively to persons who have already failed the test.

The policy of treating family members separately is a belated recognition of the legal fact that under the Citizenship Act, each spouse has their own right to a decision that is not dependent upon the other spouse. Treating them together was an administrative practice and an unnecessary hurdle, inconsistent with the law. Prior to the change, an applicant could write to separate their application, usually providing a compelling reason why they should be treated separately. That will no longer be necessary and it avoids the burden of applicants applying to Federal Court for an order to compel a separate decision.

Part of the increased delay in processing applications has been due to the government’s crackdown on fraudulent applications by applicants who do not meet the residency requirement under the citizenship rules. In the past year the government has sent out detailed residency questionnaires to more than 20,000 applicants, to assess whether or not they meet the qualifications. The residency test is not settled in law and there are many factors, beside physical presence in Canada, that a citizenship judge may consider before deciding if an applicant be granted citizenship. Failing approval from a citizenship judge, an applicant may appeal the refusal to the Federal Court.

I provide advice or assistance with completing a citizenship application, particularly if you are concerned about meeting residency requirements. Early assistance with an application may save time and money, and avoid future court applications to determine your right to obtain citizenship.

William Macintosh is an immigration and citizenship lawyer, with experience since 1984. He may be contacted at 778-714-8787 or by e-mail at wjmacintosh@hotmail.com.

HELPING YOU GET WHERE YOU WANT TO BE