stone8198:
Overall note: It appears I misinterpreted the extent of your shortfall. I still am not entirely sure how many days physical presence you declared. I originally thought you reported physical presence for 910 days. In recent years this would be considered a very large shortfall and the odds would not be good, but as I previously posted, in this situation there would be no harm riding the process out to see how it goes.
dpenabill said:
There is no harm in following the process through, so there is no compelling reason to withdraw the application unless you are ready to apply again under current law. Many applicants have reported the CJ strongly suggests, at the time of the hearing, withdrawing the application. Whether or not to do so at that stage is a personal choice.
But your clarifications in subsequent posts appear to indicate you were 910 days short of the 1095 day physical presence threshold. That is, your physical presence was between 450 and 185 days (depending on your total basic residence, which has to be at least 1095 days and could be as many as 1460). Even at the high end, 450 days actual presence, that is just about off the charts, just plain outside the scope of any reasonable prospect of success
except in extremely unusual circumstances (none of which are so much as hinted in the circumstances you report; and actually the opposite, meaning your circumstances, like lack of family ties in Canada, appear to push the scales in a negative not positive direction).
This is not to say I am advising you to withdraw. That is your choice. There is no harm in following the process through,
so long as, of course, you are truthful in all the information you submit to IRCC and a Citizenship Judge.
But the odds are so much against success it probably is not worth expending much effort or money to pursue this application. For example, I typically would strongly suggest obtaining the assistance of a lawyer, but frankly unless you are in a financial position such that you could essentially throw away several thousand dollars,
probably not worth it.
In any event:
stone8198 said:
Hey Guys,
Quick update on my file.. got ATIP report.
I have been referred to Hearings. I guess with the Judy. Due time for my application was july 2016, now it has been extended to Feb2017.
I had submitted my RQ quickly, and the office prepared my file for the Judge as he could not make a decision.
Anybody with Judge Hearing experience?
There are several topics in this forum in which the hearing process itself is discussed.
Including my observations, such as in a post partially quoted here:
dpenabill said:
Hearing Preparation In Particular:
Prepare to make an affirmative case but then be considerate, polite, in making that affirmative case:
NOTE: Yes, lawyer Recommended. The assistance of a lawyer is a good idea. But even an experienced lawyer may have some difficulty making an affirmative case at a CJ hearing (which is an indicator of how difficult it is for a non-lawyer). Moreover, a lawyer cannot change the facts. And at this stage most of the facts are in the record.
Most reports of CJ hearings indicate they are usually conducted relatively informally, more or less in the style of an interview, the CJ usually asking questions . . . the CJ in control.
There is much more in that topic, and again there are multiple topics here which go into varying degrees of detail about the process at this stage.
Researching actual cases:
If you want to see actual cases, official accounts of actual cases, they are fairly easy to research at the CanLII website, found here: http://www.canlii.org/en/ca/fct/
Put "citizenship act" in quotes and hit the search button. After reading a few you can probably identify some additional terms to narrow the search results. You can select an option to list cases by date, beginning with the most recent.
Mostly look at cases dated between 2012 through 2014. It is important to look at the more recent cases (after 2011), as there was clearly more flexibility or leeway prior to 2010/2011; the older cases do not reflect the approach more recently taken by CIC/IRCC, CJs, or the Federal Court. On the other hand, the most recent cases, those beginning in 2015 to present, barely represent the kind of cases which would be of interest to you because these are overwhelmingly appeals filed by CIC, not applicants, since the right to appeal was taken away as of August 1, 2014 (part of the Bill C-24 changes). That said, the most recent cases, those appealed by CIC, do illuminate important aspects of how residency issues are approached, but for your purposes those in the 2012 through 2014 range probably best illustrate the dynamics of residency cases.
I cite and link a sample of cases below.
Some General Observations About Your Case:
Timeline to CJ Hearing
I am not sure you can definitively discern from the response to an ATIP request there will be a referral to a Citizenship Judge, but given the facts in your case such a referral is indeed likely. If this happens soon this would appear to be a record-breaking timeline for CJ hearing referrals, by a big margin (years sooner than any other reported, including in the hundreds of official cases reflected in the Federal Court).
It is possible of course, and indeed it could be that a Citizenship Officer readily identified your case as one which should be promptly denied, and since all
Residency cases must go to a CJ before they can be denied, they fast-tracked it.
I am speculating a bit in that assessment, but given your circumstances it is easy to envision a Citizenship Officer concluding the case against approval is obvious,
clear-cut so to say, no chance a CJ might be persuaded otherwise, an easy call, thus a relatively easy referral, do it, get it done.
As I already noted, in a previous post by me it appears I misunderstood just how much short of the 1095 days of physical presence threshold you were when you applied. I interpreted your account to mean you had been present in Canada 910 days, rather than were short by 910 days. My bad.
dpenabill said:
Even back when CIC was not so strict about physical presence (before Jason Kenney was Minister and there was an avalanche of RQs 2010 to 2013), internal CIC memos revealed that the absolute cutoff for CJ referrals was 900 days. (It is apparent that the practical cutoff has been much higher for a long time, and 910 days would have likely gone to a CJ hearing even when CIC was more flexible and lenient.)
But based on later posts by you, I now apprehend that you are 910 days short of the physical presence threshold. Even without discrepancies (mistakes) in disclosing your travel history, this much of a shortfall seems well beyond the range of any chance for a positive outcome. The errors/mistakes almost certainly eliminate whatever slim chance there may have been.
You report that you know someone who took the oath even though he applied with "barely 700 physical presence days," and suggest that the difference between his situation and yours is minimal. But there are obvious differences of major import, like the mistakes. Those loom very large. Very large.
The earlier time span for that individual also looms large.
But there are also numerous other details which are probably different and which can also make a real difference in how things go. You indicate, for example, that individual was in Canada working on a work permit way longer than you. That detail probably entails a number of major differences, the biggest one being the extent to which he had firmly established his primary residence in Canada
before (or at the beginning of) the time that counted toward citizenship.
All that said, while indeed some applicants with substantial shortfalls have been approved and taken the oath,
those are the EXCEPTION, NOT the rule, not the way it goes very often at all. And the more recent the case, the more unusual it is for a big shortfall case to be successful.
Some particulars:
stone8198 said:
People get RQ with 1400 physical and basic residence too, and the same RQ that i received.
stone8198 said:
Secondly, if you are referring to Residency obligation, i met residency obligation, but not the physical requirement. Under old rules, residency requirement needs to be met, not physical presence. Without residency obligation the file would have been returned to me without processing any further.
All
Residency Case applicants have been given the same RQ form (CIT 0171) for many years (recognizing that there have been periodic changes to the form, so the details in the form depended on the date RQ was issued; biggest changes came in 2012), including those which eventually were pursued as
possible residency fraud cases.
You mean you met the
basic residency requirement, not the "residency obligation." The old law effectively provided that PRs could be
eligible for citizenship even if they were
NOT qualified.
Indeed, under the old law a PR became
eligible for citizenship, at minimum, three years and a day after landing and becoming a PR, even if he or she spent virtually no time in Canada (and PRs who had been living in Canada prior to landing could become
eligible as soon as two years and a day after landing).
To meet the residency requirement, however, the PR must have been
resident in Canada for at least three of the four years preceding the date of application. Regardless how long the PR has been a PR, to be
qualified for a grant of citizenship, the PR must meet this residency requirement as of the day before the application is made.
What
resident-in-Canada means was
never fully resolved. Three different tests were developed and applied. The primary test is the physical presence test. Under this test,
resident-in-Canada is interpreted to mean, in effect, physically present in Canada. Thus, under this test the PR must have been physically present in Canada for at least 1095 days within the four relevant years (calculated on the basis that a day after landing counts as a day, while a day in Canada prior to landing only counts as half a day).
This test can be applied to any applicant without explanation or justification. If this test is applied, one day short means the applicant must be denied. Indeed, there was a recent case in which the CJ approved the applicant but had decided the case based on the physical presence test; since it was clear in the record, however, the individual was a few days short of 1095 days physical presence, a Federal Court set aside the CJ's decision. The CJ could not approve an applicant short by even a few days if the CJ used the physical presence test.
(See the VENERA DEMUROVA decision http://canlii.ca/t/glp84 in which CJ approved applicant who was just
two days short, but Justice Shore granted CIC's appeal because the CJ approved the applicant based on the
Pourghasemi physical presence test, and as a matter of law two days short fails that test. In contrast, however, an applicant who was just two days short and was denied approval by the CJ, based on the physical presence test, won an appeal based on a denial of fair procedure arguing that the RQ requests suggested a qualitative test would be used; see JEAN JACQUES MUKULA MIJI decision at http://canlii.ca/t/gjdd7 .)
It appears that since sometime around 2008 to 2011, CIC began pushing for the physical presence test in nearly all cases.
Thus in the last five years or so, right up to the adoption and implementation of the new law imposing a strict physical presence requirement with no exceptions, it has been increasingly apparent that
any shortfall case was at risk for being rejected, and that those with a large shortfall (more than 100 days short) have particularly poor odds. There have been exceptions, and apparently you know one in person. Again, these have been the
exception.
The physical presence approach is often referred to as the "
Pourghasemi" test. It is undoubtedly the primary approach taken to assessing residency under the old law. That is, it it the test most commonly applied. And again, falling short by one day fails this test.
The CJ is the one who gets to decide which test to apply.
Alternative, qualitative residency tests:
The other two tests for assessing whether the residency requirement has been met are qualitative tests. The most common one is known as the
Koo test, applying what is typically referred to as the
Koo criteria. (There are at least 400 Federal Court decisions referring to
Koo.) In applying this test there is a specific set of criteria assessed against the facts in the applicant's case. (Names of the various tests derive from the Federal Court decisions first articulating the respective test; for the
Koo decision see http://canlii.ca/t/4gqw and the specific criteria are listed in the decision, as well as in many dozens of other subsequent decisions.)
The other qualitative test sometimes applied is typically referred to as the
Papadogiorgakis test. This is a more generalized test, typically referred to as the test based on the PR having centralized his or her mode of living in Canada. Under this test it is recognized that an individual maintains his or her
residence in Canada while temporarily absent from Canada.
While the
Koo test applies specific criteria, ultimately both qualitative tests tend to focus on the extent to which the individual's life was centralized in Canada and the extent to which time absent from Canada should be considered to nonetheless be time
resident-in-Canada.
Since you have a shortfall, any chance of success you have is dependent on persuading the Citizenship Judge (1) to apply one of these qualitative tests, and (2) based on that, to conclude you were resident-in-Canada for at least 1095 days (any credit for pre-landing days still being one-for-two)
within the four years prior to the day you applied.
From the perspective of CIC there was a presumption, of sorts, that a PR spending less than half the time in Canada is not resident-in-Canada.
That means, anyone with less than 730 days actual presence would be
presumed to not be resident in Canada.
Some sample cases:
Most postive cases (note, again, these really are rare exceptions, extremely unusual cases):
http://canlii.ca/t/gn3st (TSAI CHUAN LIAO)
427 day shortfall, but CJ applied
Koo and approved citizenship; CIC appealed but Federal Court dismissed CIC's appeal.
http://canlii.ca/t/gjfvp (PATMORE)
merely 277 days physical presence, but CJ applied the
Papadogiorgakis centralized mode of living in Canada test and approved applicant for citizenship; CIC appealed and lost the appeal
Some additional sample cases:
http://canlii.ca/t/gn38v (RYEOME LEE) 21 days short -- CJ denied; lost appeal
http://canlii.ca/t/g8fv9 (FIONA JANE EDWARDS) 892 days present -- CJ applied physical presence test and denied approval -- Federal Court upheld CJ's decision
http://canlii.ca/t/gp2g6 (Villaumé) just 218 days presence in Canada; CJ approved; CIC appealed; Federal Court set aside the CJ's decision
http://canlii.ca/t/gjnkn (AKINTOMIWA OLADAPO OJO) case stating that date of establishing physical residency in Canada must be determined before
Koo criteria can be applied to time in Canada
after that date (thus counting such time as
resident-in-Canada notwithstanding absences)
http://canlii.ca/t/gdt30 (SHUO QIN) is another case in which the CJ's approach, not applying
Koo, was determined to breach procedural fairness
http://canlii.ca/t/gfvgt (Arwas & Wachter) 866 days presence for one; 879 for the other; CJ denied both; Federal Court upheld denial for both
The above just scratch the surface of actual cases and the decisions made by various CJs as reviewed by various Federal Court justices.
