Shortfall applications revisited Part I:
Mostly: do not do it. That said . . .
(breaking my observations into two posts, this is the first)
morteza2062 said:
Dear friends,
dpenabill mainly talked about basic residence requirement. What if someone has some days short of physical presence and already accumulated 1300 of basic residence.
My wife first came to Canada in August 2010 but landed as a PR on June 17th 2012 and considering her trips abroad she will accumulate the 1095 days of "physical presence" on June 22nd 2015 but some rumors say that the effective date would bu June 19th 2015, so she would be 4 days short and she will accumulate 1093 days by June 19th 2015.
I have two options I guess.
The first one would be waiting until June 22nd 2015 for her to be eligible to apply for citizenship and just hope that the law doesn't come into effect any sooner and avoid going to a Judge and probably a citizenship questionnaire (which is a real pain in the B).
The second option is applying a few days before June 19th to make sure she has applied in case the law comes into effect on June 19th.
Some people even say she can probably even do both. meaning she can apply before June 19th knowing that she is a few days short and make a case that she deserves citizenship and ask for those few days to be granted to her and then if the law doesn't come into effect on June 19th she can the apply again on June 22nd with enough physical presence day but I guess she can't do that since you can not have more than 1 citizenship application.
Could you please shed some light on this problem and let me know which one is the more applicable option to go for? :-\
Thanks
MasterGeek said:
What if it means waiting TWO more years, since I accumulated pre-PR days ? Would it justify applying with 1095 basic days but lacking 8-9 weeks physical presendays under the old law ?
. . . .
She could withdraw the first application and apply again if she accumulates enough physical residence days
Because technically a shortfall application can still
legally succeed, there is indeed an open question about applying with a shortfall.
To be clear, however, the advice most participants here will offer, and most those who are otherwise fairly well informed will offer, is
to wait, to wait until having at least, the very least, 1095 days of actual physical presence.
And that is almost certainly the best advice.
I personally tend to avoid giving advice and but rather attempt to offer information which will (I hope) help individuals best make their own decisions.
So, relative to this particular issue, my observations may tend to understate the high hurdles facing a shortfall application. My comments may leave some with the impression the window is open wider than it really is.
Overall, though, the shorfall application is most likely, by a substantial margin, going to fail, to be denied.
There are likely to be exceptions. At the least, exceptions are
possible.
But this is not like betting on a roulette wheel. Not like buying a lottery ticket. Who is among the
exceptions is not a matter of chance or probabilities (although a fair amount of luck may be necessary). The exceptions are likely to be based on unusual circumstances of a compelling nature sufficient to persuade a Citizenship Judge to apply a qualitative test in the first place.
It may be a matter of luck in whether the Citizenship Judge who decides the case is even the least bit open to applying a qualitative test. Many will not be. Perhaps most will not be. If the CJ making the decision is not at all open to applying a qualitative test (and most Federal Court justices will uphold this approach by a CJ), there is
no chance, no matter what, of a shortfall application being approved.
Even if a CJ who is open to applying a qualitative test is the one deciding the case, however, in order to persuade the CJ to actually apply a qualitative test, the applicant's circumstances will need to be compelling. The applicant will need to be persuasive, just to get the CJ to consider applying a qualitative test, and even more so in getting the CJ to decide that the residency requirement is met.
Even then, if the CJ fails to clearly base approval on sufficient grounds for finding residency despite the shortfall, CIC appears likely to appeal the CJ's decision. (and while some may find their case before a sympathetic justice in the Federal Court, others will find their case being decided by Justice Rennie or Justice Zinn, for example, and that means it is likely to be a tough case)
bambino said:
Parliament (well, the Conservative Government) has telegraphed its intentions in the summary to Bill C-24:
"Amendments to the eligibility requirements include
(a) clarifying the meaning of being resident in Canada"
The summary, however, is in regards to the law adopted by Bill C-24, and thus clearly indicates the intent to define residency based on actual presence, and on four years minimum presence, and on more than a half-year presence for at least four calendar years. That has
nothing to do with what was intended over three decades ago when the current law was adopted, which has been interpreted (in literally hundreds of Federal Court decisions) to allow for residency tests
other than physical presence.
Even as to what the revised residency definition is, however, the summary is not part of the law adopted. The summary no more telegraphs the intent of the law than what the specific provisions themselves provide. Only if the language in a provision is ambiguous will other sources (such as the summary, content of debates in Parliament, or such) be at all relevant in interpreting the provisions themselves.
There are occasions in which legislation is adopted which is specifically intended to clarify existing (previously adopted) law. That would not be indicated in the summary, but would be indicated (implicitly if not explicitly) in the text of the adopted law.
That is not indicated in the text of Bill C-24, and moreover section 31.(1) (of Bill C-24) explicitly states that applications made
before the date the revised section 5.(1) (of the
Citizenship Act) comes into force, are to "be dealt with and disposed of" in accordance with the [in effect current provisions].
Thus, relative to residency, what is stated in Bill C-24 does not,
cannot be directly applied to a grant citizenship application.
And it has not been. There have been numerous Federal Court decisions regarding the residency requirement for citizenship since Bill C-24 received Royal Assent, including some decisions in which Bill C-24 has been referred to, and even one which has applied provisions in Bill C-24 which came into force last August, with
no citation of Bill C-24 relative to or in any way clarifying what tests a CJ may apply in assessing residency, these cases all (to the extent the appropriate test for residency is addressed) affirming that a Citizenship Judge can apply a qualitative test.
All of which, however, falls within the scope of what I said above, that while this information is correct (that a qualitative test may still be legally applied), it should not be taken to encourage making a shortfall application.
bambino said:
I think at some point they will take an even harder stance, and argue that the Citizenship Act as it currently is already requires actual physical presence. The argument being that the recent amendments do not change the definition of "residence" but are merely clarifying it. Never mind that the confusion being addressed had persisted for decades, and one could ask why the hell they didn't do that back when the jurisprudence split into conflicting schools of thought.
Of course the point I was making is in the same vein as your observations, that the extent to which a shortfall application might be approved is almost certainly diminished given the adoption of Bill C-24.
That said, no, there is no basis to argue that the "recent amendments do not change the definition of "residence" but are merely clarifying it." In fact they do change the definition, in multiple respects. The big one is that which affects prospective applicants like
nadeem55, such that presence in Canada on temporary status is no longer defined as residence in Canada for purposes of qualifying for grant citizenship.
I smiled to read "one could ask why the hell they didn't do that back when the jurisprudence split into conflicting schools of thought." Many did ask, including numerous Federal Court justices, repeatedly, often.
It warrants noting that at least a few Federal Court justices
already argue that "the
Citizenship Act as it currently is already requires actual physical presence." This includes Justice Rennie and Justice Snider, with some others leaning this way. But even Justice Rennie and Justice Snider, last of their decisions that I have seen, still acknowledge that the current law (given the long-standing interpretations of section 5(1) of the
Citizenship Act) allows Citizenship Judges to apply a qualitative test. (And yes, this inherently embraces a contradiction. But so it is.)
CIC itself does not (so far as I have seen, including in its arguments to the Federal Court so far as these are reported in the published decisions), arguing rather that the primary test is the actual physical presence test and that a qualitative test should only apply in unusual circumstances constituting justification for the exercise of discretion as an exception.
And, more than that, CIC still informs prospective applicants that a shortfall application merely requires the approval of a Citizenship Judge to succeed, barely hinting of the hurdles such an application faces, not at all hinting that CIC is likely, itself, to oppose the grant of citizenship.
Which leads to further comments . . . to be continued in a second post about the viability of shortfall applications.
