Decision Made - After Judge Hearing
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keesio
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From what I understand, they do indeed have some leeway. I'm not sure how much.
If there is NO question of fact, that is, if it is established that the applicant is ONE DAY short of the requirement which applies to the applicant (such as one day short of 1095 days physical presence for applications made on or after October 11, 2017), NO, a Citizenship Judge has NO DISCRETION to nonetheless approve the grant of citizenship for an applicant the facts show has NOT MET THE REQUIREMENTS.
Indeed, if an applicant sends in an application with a presence calculation which shows, on its face, a total of 1094 days physical presence, or less, the application WILL BE RETURNED and not processed, no interview, no referral to a CJ, no exercise of discretion.
WHERE SOME CONFUSION TENDS TO ARISE IS VARIATIONS IN OUTCOME WHEN THE APPLICANT CLAIMS TO HAVE MET THE MINIMUM THRESHOLD AND IRCC'S REVIEW CONCLUDES OTHERWISE.
As long as there is a question of fact, a question to be determined, as to whether or not the applicant met the minimum threshold, that is a question which gets referred to a Citizenship Judge, and it is for the CJ to decide if the applicant has presented sufficient evidence to support a conclusion the applicant met the minimum. A CJ has rather wide discretion in deciding what the facts are. There is a very wide range of REASONABLE INFERENCES that can influence the decision.
But if the CJ concludes, as a matter of fact, that the applicant was SHORT, even by a day, there is NO LEGAL AUTHORITY to approve a 5(1) grant of citizenship. (The Minister has discretion to grant citizenship under other authority in Section 5 of the Citizenship Act. This is rare, and only available in very unusual, compelling circumstances.)
Example: applicant applies with presence calculation showing 1103 days presence. IRCC has evidence to believe the applicant was absent at least an additional 9 or more days. Applicant still thinks, and asserts, that even taking away some days he still was present for at least 1095 days. Case goes to CJ. CJ hears the applicant's side and decides whether to accept the applicant's version, and if so, the CJ has discretion to approve the applicant for a grant of citizenship. (IRCC citizenship officer can appeal if the officer concludes the CJ's decision is not reasonable.) BUT if the CJ concludes the applicant fell short, by JUST ONE DAY or more, the CJ does NOT have discretion to approve.
ANOTHER SOURCE OF CONFUSION DERIVES FROM FOUR DECADES OF CASES WHEN THERE WAS A "RESIDENCY" REQUIREMENT AND CRAZY-BROAD DISCRETION.
Applications made prior to June 11, 2015 were processed based on a RESIDENCY requirement. Most cases were decided based on a physical presence test BUT CJs had legal authority to employ other tests, residency tests, pursuant to which some applicants were approved and granted citizenship even though they were SHORT of the then 1095 day physical presence test . . . indeed, more than a few were barely IN CANADA five or six hundred days, way, way short of the 1095 day threshold. Many years there were probably hundreds of SHORT-FALL cases decided by CJs, many of which were to approve a grant despite the short-fall.
So there are scores of anecdotal reports of applicants being short and getting citizenship. But they are applicants who applied prior to June 11, 2015.
AND THERE IS SOME POSSIBILITY THAT IRCC IS APPROACHING SOME BILL C-24 APPLICATIONS (applications made between June 11, 2015 and October 10, 2017) AS IF THE BILL C-6 PRESENCE REQUIREMENT APPLIES.
To be clear, I DOUBT this. The only indication of it, so far, are some isolated reports that applications sent before October 11, 2017, using the Bill C-24 requirements version of the application and presence calculator (thus requiring 1460 days physical presence during six years) which were not received until after October 10, 2017, MIGHT be processed pursuant to the 3/5 rule rather than the 4/6 rule. This would not surprise me much, but of course that would be a rather small number of applicants (since news of the October 11 implementation date for the 3/5 rule was well enough in advance that anyone cutting-it-close relative to the 4/6 rule more likely waited to apply as of October 11, as indeed it is clear many thousands did).
BUT, for example, perhaps (a long shot at best is my sense) someone who applied prior to October 11, 2017, applying under the 4/6 rule, but it turns out actually fell short a bit, a few days, of the 1460 day threshold, MAYBE, and ONLY MAYBE (again, I guess NOT), IRCC is allowing such applicants to be processed under the 3/5 rule.
The latter would NOT be a Citizenship Judge decision. It would have to be a Minister approved IRCC policy. And given the explicit terms of the transition provisions (see Bill C-6), which specifically state that applications made on the date prior to when the new 3/5 rule took effect are to be processed according to the law in effect the day before, that is according to the 4/6 rule, I seriously doubt the Minister has legal authority to do this (but I am not sure of this; this falls in the range of interpreting legislation).
Otherwise: If there is a way to consider the application made as of a date on or after October 11, even if signed and sent before that, that is a different deal. The law which applies depends on the date the application is deemed "made," and IRCC has some discretion in deciding how to decide when applications are deemed made.
I have the same case right now. I applied as per the 1460 days law in Aug 2017 and fell one day short because of a mistake in the entry in the physical presence calculator. application referred to a CJ as of Dec 2018. I read online that the CJ needs to make a decision in 60 days.
I have a similar case. application referred to CJ as of Dec 2018. What happened with your application?
Citizenship Judge needs to make the decision within 60 days of THE HEARING. That is, the hearing itself is what triggers the 60 day requirement.
There are only a very few reported cases in which the CJ failed to make a decision within this time period. But it warrants noting that in those cases there was eventually a CJ decision, and the decision was either upheld or otherwise set aside on OTHER grounds in which event the case went back to be decided again . . . which suggests there is no effective remedy available in the event the CJ fails to make a decision within the prescribed time.
Is there a reason why you have not applied again under the 3/5 rule which took effect October 11, 2017? I ask this because the odds are very high that you easily meet the requirements which took effect October 11, 2017 UNLESS you have been mostly outside Canada since you applied in August 2017. And if you have been mostly outside Canada since August 2017, that MIGHT make it a lot more difficult to persuade a CJ that you were NOT one day short. (Reminder: for the CJ to approve you for a grant of citizenship the CJ must determine, as a matter of fact, that you were actually, physically present in Canada at least 1460 days during the relevant six years; one day short will NOT suffice.)
If you have not yet had the hearing, hopefully you are being represented by competent legal counsel.
Either way, your report about the hearing . . . and the outcome . . . will be appreciated. We get very few anecdotal reports of processing at this stage. While there is a big difference in requirements, the process and key principles are largely the same, so despite the differences in particular requirements your report would be informative and expand the forum's collective knowledge about the process.
Edit Following Reading Other Post with More Information:
Note: If you are represented by a lawyer, I defer to the lawyer.
If you are not represented by a lawyer, here are some further observations:
Whether or not an applicant met the physical presence requirement is a question of fact. The referral of the case to a Citizenship Judge indicates that a Citizenship Officer has CONCLUDED your application FAILS to sufficiently prove you met the physical presence requirement.
It is very possible that this is specifically about falling short just ONE DAY. As I have noted, failing short one day means the applicant is NOT qualified for a grant of citizenship, as of the date the application was made, in which event there is NO LEGAL AUTHORITY to grant citizenship. Again, if the Citizenship Officer concluded you were short by ONE DAY, the law REQUIRES the Citizenship Officer to either DENY the application or refer it to a Citizenship Judge.
I cannot guess if there is much chance a CJ will, in effect, conclude the evidence is sufficient to show 1460 days presence despite the questioned day. If there is little or no doubt you fell short by one day, that does NOT leave the CJ much if any room to approve the application.
It is possible the CJ could make a decision without a hearing. There have been NO reported cases of this I have seen (I have slipped some in recent months in keeping up with Federal Court decisions). It does NOT seem likely to me. But according to the PDIs it is possible for the CJ to make a decision without a hearing.
In the meantime, IT IS ALSO FEASIBLE OR EVEN LIKELY THAT THE CITIZENSHIP OFFICER HAS CONCLUDED IT IS POSSIBLE YOU WERE OUTSIDE CANADA ADDITIONAL DAYS AND THUS YOUR PROOF HAS FALLEN SHORT BY MORE THAN JUST ONE DAY.
REMEMBER that the burden is on you to prove your physical presence AND that means proof for ALL 1460 days. Unless you overtly concede to the CJ that you were short by one day (or more, but more is not necessary), in which event the CJ is required to DENY approval, the CJ hearing is NOT just about that one day. It is about persuading the CJ your evidence proves, beyond a balance of probabilities, that you were in fact present for at least 1460 days. And in this regard, there is NO assurance that the CJ will infer your actual presence in Canada for all those days in-between your reported dates of entry and the next reported date of exit.
In any event, to avoid a negative decision the Citizenship Judge must be persuaded to conclude, as a matter of fact, that your evidence shows you were in fact physically present in Canada at least 1460 days in the relevant six years.
I am hesitant to forecast specific cases, but if you applied with exactly 1460 days claimed credit, it appears the odds are against approval, probably by quite a big margin.
If you have been staying in Canada in the meantime it is difficult to understand why you have not simply re-applied.
You can re-apply now without withdrawing your current application. If per chance the CJ approves your application and then IRCC does not appeal, so that you are scheduled for the oath, you could then withdraw the new application.
If your current application is denied, you are likely to get notice of that within a month or two of the CJ hearing. Otherwise, given leeway for communication and the time within which IRCC has to file an appeal, it could be three, four, or more additional months AFTER the hearing before you learn if you will be granted citizenship pursuant to the current application.
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Hi
1. Interesting here is a Federal Court decision where the applicant was 1 day short and the Judge approved the application, Citizenship and Immigration appealed to the Federal Court, the court allowed the application and it was referred back to CIC. https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do
KEY OBSERVATION derived from the HASHEM decision:
(see http://canlii.ca/t/hwwl2 or https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do)
This decision illustrates and emphasizes that a ONE DAY SHORTFALL cannot and will NOT support a decision to grant citizenship.
There are some wrinkles in the reasoning, as there almost always are, but the essential key to this decision is the principle that there is no legal authority to grant citizenship UNLESS the applicant meets the presence requirement. Any short fall, even just ONE DAY, means the application must fail.
The wrinkles have to do with whether or not the facts and circumstances can be analyzed in a way which does NOT result in any shortfall at all. As I previously observed:
Edit to add: it warrants recognizing that as much as it might be a surprise that IRCC would appeal the CJ's decision over a mere one-day short fall, the fact that the Federal Court rejected the CJ's decision is no surprise at all. One day short is SHORT.
LONGER OBSERVATIONS:
And, moreover, this case specifically illustrates why it is difficult to forecast outcomes even though there is a more or less obvious outcome based on applying the applicable rules. In this regard it specifically illustrates that the presence-in-Canada determination is a question of fact which can allow for some wiggle room if there is any wiggle room in assessing the facts.
It is such a good illustration it warrants a full citation and being linked again:
Citation and link:
Canada (Citizenship and Immigration) v. HASHEM, 2019 FC 9 (CanLII), <http://canlii.ca/t/hwwl2>
(alternative link https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do )
To be clear, this decision explicitly illustrates a principle I have emphasized repeatedly: IF THE APPLICANT IS ONE DAY SHORT, THERE IS NO LEGAL AUTHORITY FOR GRANTING CITIZENSHIP, AND THEREFORE THE APPLICATION MUST FAIL.
It warrants emphasizing that this is NOT a case in which a Citizenship Judge concluded the applicant was one day short and nonetheless approved a grant of citizenship. On the contrary, what the CJ did was apply an alternative approach to calculating presence, utilizing an alternative relevant six year period (starting not the date the application was signed but the date the application was received by CIC/IRCC) and based on that concluded the applicant did have more than 1460 days actual presence in the relevant six year.
Thus, to say this is a "decision where the applicant was 1 day short and the Judge approved the application" is misleading by omission, as it leaves out the fact that the CJ did not find the applicant was one day short and approved the applicant anyway. On the contrary, the CJ decided to apply a different approach to calculating presence, and pursuant to the way the CJ counted the applicant's presence in Canada, the CJ concluded the applicant had MORE than the minimum required (that is, was NOT short).
It is important to not be distracted by the fact the CJ reached that conclusion via a sequence of analysis recognizing the one day shortfall as assessed pursuant to CIC/IRCC guidelines. (See paragraph 16 in the decision.) That was merely a step taken in the CJ's decision to NOT assess the applicant's physical presence pursuant to CIC/IRCC guidelines. (See paragraphs 17 & 18 in the decision.)
The approach employed by the CJ is interesting, and sounds reasonable, and the Federal Court left open some possibility that it might be reasonable if supported by an explanation justifying it (based on the law not just a factual, equitable explanation). That possibility is very small. It is NOT much if at all likely that there will be a sufficient explanation to justify the CJ's approach to identifying the relevant six year time period.
KEY TAKE-AWAYS:
(see http://canlii.ca/t/hwwl2 or https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do)
This decision illustrates and emphasizes that a ONE DAY SHORTFALL cannot and will NOT support a decision to grant citizenship.
There are some wrinkles in the reasoning, as there almost always are, but the essential key to this decision is the principle that there is no legal authority to grant citizenship UNLESS the applicant meets the presence requirement. Any short fall, even just ONE DAY, means the application must fail.
The wrinkles have to do with whether or not the facts and circumstances can be analyzed in a way which does NOT result in any shortfall at all. As I previously observed:
This case is one more example, among many, many examples, which emphasizes the importance of WAITING to apply with a GOOD MARGIN over the minimum.
Edit to add: it warrants recognizing that as much as it might be a surprise that IRCC would appeal the CJ's decision over a mere one-day short fall, the fact that the Federal Court rejected the CJ's decision is no surprise at all. One day short is SHORT.
LONGER OBSERVATIONS:
This very recent case is an excellent example and the reference is much appreciated.
And, moreover, this case specifically illustrates why it is difficult to forecast outcomes even though there is a more or less obvious outcome based on applying the applicable rules. In this regard it specifically illustrates that the presence-in-Canada determination is a question of fact which can allow for some wiggle room if there is any wiggle room in assessing the facts.
It is such a good illustration it warrants a full citation and being linked again:
Citation and link:
Canada (Citizenship and Immigration) v. HASHEM, 2019 FC 9 (CanLII), <http://canlii.ca/t/hwwl2>
(alternative link https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do )
To be clear, this decision explicitly illustrates a principle I have emphasized repeatedly: IF THE APPLICANT IS ONE DAY SHORT, THERE IS NO LEGAL AUTHORITY FOR GRANTING CITIZENSHIP, AND THEREFORE THE APPLICATION MUST FAIL.
It warrants emphasizing that this is NOT a case in which a Citizenship Judge concluded the applicant was one day short and nonetheless approved a grant of citizenship. On the contrary, what the CJ did was apply an alternative approach to calculating presence, utilizing an alternative relevant six year period (starting not the date the application was signed but the date the application was received by CIC/IRCC) and based on that concluded the applicant did have more than 1460 days actual presence in the relevant six year.
Thus, to say this is a "decision where the applicant was 1 day short and the Judge approved the application" is misleading by omission, as it leaves out the fact that the CJ did not find the applicant was one day short and approved the applicant anyway. On the contrary, the CJ decided to apply a different approach to calculating presence, and pursuant to the way the CJ counted the applicant's presence in Canada, the CJ concluded the applicant had MORE than the minimum required (that is, was NOT short).
It is important to not be distracted by the fact the CJ reached that conclusion via a sequence of analysis recognizing the one day shortfall as assessed pursuant to CIC/IRCC guidelines. (See paragraph 16 in the decision.) That was merely a step taken in the CJ's decision to NOT assess the applicant's physical presence pursuant to CIC/IRCC guidelines. (See paragraphs 17 & 18 in the decision.)
The approach employed by the CJ is interesting, and sounds reasonable, and the Federal Court left open some possibility that it might be reasonable if supported by an explanation justifying it (based on the law not just a factual, equitable explanation). That possibility is very small. It is NOT much if at all likely that there will be a sufficient explanation to justify the CJ's approach to identifying the relevant six year time period.
KEY TAKE-AWAYS:
-- Again, this case illustrates that failing short one day means the applicant is NOT qualified for a grant of citizenship, as of the date the application was made, in which event there is NO LEGAL AUTHORITY to grant citizenship. This case is perhaps the best explicit illustration of this.
-- However, the presence calculation is a QUESTION of FACT, so if there is a reasonable basis for a finding of fact that does not result in ANY SHORT FALL, a Citizenship Judge might be persuaded to make a finding that on a balance of probabilities, the applicant has provided sufficient documentary evidence to prove his/her physical presence in Canada and has met the residency requirement. To be clear, this requires a factual basis for the CJ's conclusion and the CJ's analysis must also reasonably be within the applicable statutory provisions.
-- This case signals a more or less strict approach in what I tend to call cutting-it-close cases.
-- However, the presence calculation is a QUESTION of FACT, so if there is a reasonable basis for a finding of fact that does not result in ANY SHORT FALL, a Citizenship Judge might be persuaded to make a finding that on a balance of probabilities, the applicant has provided sufficient documentary evidence to prove his/her physical presence in Canada and has met the residency requirement. To be clear, this requires a factual basis for the CJ's conclusion and the CJ's analysis must also reasonably be within the applicable statutory provisions.
-- This case signals a more or less strict approach in what I tend to call cutting-it-close cases.
-- -- And, suggests (at least in this instance) IRCC is NOT taking a soft approach to 4/6 applications given the change to the 3/5 rule, notwithstanding cutting-it-close.
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Wow interesting. This could lead to some potential policy changes by IRCC.
@dpenabill you MAY want to copy and paste it on your RQ page as it is relevant to residency calculation.
I agree the decision is interesting. And very informative. (See my post above.)
I do not see any prospect it will lead to IRCC policy changes. (IRCC might bolster its guidelines to more specifically prescribe how the date-the-application-is-made is determined, but the current guidelines are rather clear, an application is not made unless accepted for processing but that once accepted the date-it-is-made is based on the signature date.)
Just the fact that the Citizenship Officer was not willing to accept the applicant's calculation so as to, in effect, overlook a mere ONE day short fall (remember, in this case the applicant claimed 1466 days, which is NOT a short fall), and thus made the referral to a Citizenship Judge, tends to highlight how strictly IRCC is approaching the cutting-it-close cases.
Add to that the fact that the Citizenship Officer did not accept the Citizenship Judge's decision and proceed to schedule the applicant to take the oath, but rather made a decision to challenge it in an appeal to the Federal Court, emphasizes the Minister is taking a strict approach.
To be frank, a strict approach in this way is what the law actually mandates. Again, there is NO LEGAL AUTHORITY to allow a grant of citizenship to an applicant who did not meet the minimum physical presence requirement AS OF THE DAY THE APPLICATION WAS MADE. As much as we see, in the real and practical world, all sorts of instances in which decision-makers will find ways to reach outcomes consistent with an equitable assessment of the facts even though a technical application of the rules dictates a different outcome, WHERE THERE IS LITTLE OR NO DOUBT, AS A MATTER OF FACT, THAT THE APPLICANT WAS SHORT, THE APPLICATION WILL MOST LIKELY BE DENIED . . . EVEN IF THE SHORT FALL IS JUST BY ONE DAY.
And this case (Canada (Citizenship and Immigration) v. HASHEM, 2019 FC 9 (CanLII), <http://canlii.ca/t/hwwl2>) illustrates this. Emphatically.
Hi, my apologies for the delay to reply to your email. I received the decision by the CJ. I was refused for the two days I was short of 4 years out of six years under bill C-24. During the Citizenship ceremony for my wife and three kids, I met the CJ who had made the decision on my case. She was very nice and open about it. She said she has refused people with one day short of the 4 out of six years or 3 out of 5 years under new legislation.
I would suggest to all who applied with being under the required physical residency to be ready to get a negative decision and reapply. I reapplied on Nov 28. And a suggestion for those who have not applied to make sure they have a few days more than the physical residency days required under the new bill-C-6. I hope this helps and answer your questions. I am sorry for the delay to reply to your question.
I was refused for two days. I reapplied. Just passed the test. Security clearance ongoing and waiting for the oath.