Examples of very recent cases, totally apart from those reported on in Nova Scotia, in which the government has appealed the approval for citizenship by the Citizenship Judge.
While the decision is dated nearly three weeks ago, just this week the Federal Court published another decision in which CIC appealed a CJ's approval and CIC won, the three individuals involved (mother and two children) all losing.
Not sure why all three were combined since the applications were all separately made at very different times -- because they were all family members, obviously, but each was its own case, application made at a different time, relevant four year periods were different, travel histories were different.
In any event, there is nothing particularly salient about these cases, just further examples of instances in which the Citizenship Judge gave approval but CIC appealed and won. The mother's case, though, does emphasize the significance a
missing Travel Document has, even if the applicant persuades the CJ the accounting of absences is complete and accurate.
See
the MCI and Bayani cases.
A more significant case representing a SUCCESSFUL shortfall application:
In contrast, in another just published decision (decision itself dated June 1), CIC (technically the Minister) appealed a decision by the CJ favourable to the applicant and CIC lost.
See
MCI v Patmore case.
THIS is a significant case. This is an example not only of a CJ applying the qualitative test set out in the
Re Papadogiorgakis case, finding that the applicant had
centralized her mode of living in Canada. This is the first such decision I have seen in a long while now.
The remarkable thing is the extent of the applicant's absences:
1183 days absent in four years; merely 277 days actually physically present.
This is the largest shortfall I have seen in a successful application in many, many years, by a huge margin.
Key factors: applicant was a minor when she landed as a PR with her parents and her absences were all attendant the continuation of her studies abroad. Justice Montigny cited a hefty list of cases in which absences due to pursuing studies
"should qualify as residency in Canada . . ." (see paragraph 18 in the decision)
In this regard, to some extent the decisions " piggyback the students’ residency on that of their families. So long as there is a strong family nexus and a state of dependency of the student . . ." Obviously this is about a situation where the student's family is well-settled, living in Canada, and the student's "home" is with the family in Canada despite being abroad for study.
This only matters now for applications already submitted.
Frankly, while I repeatedly emphasized that we did not know the extent to which CJs might still be approving some shortfall applicants, but also cautioned that it seemed rare, I was always cognizant that many hopeful PRs with a shortfall seemed to be looking at this through the proverbial
rose-coloured-glasses and not fully or even adequately considering the downsides for a shortfall application.
Despite this case, I have little doubt that the majority of shortfall applicants, and probably the vast majority, are likely to be denied. Thus, while I have consistently disagreed with those who have so emphatically asserted that there was a
zero chance for a shortfall application (this case shows that to be
not true), I understood that there is an inclination for nearly everyone to think their own case is special, one deserving of being the exception in which citizenship is granted despite a shortfall . . . when in fact, usually, there is indeed little reason to be optimistic.
Now that there will be
no more shortfall applications submitted (none which will pass initial screening anyway), I am less inhibited about being more frank about the positive chances some shortfall applicants probably still have. That is, I can refer to the more hopeful aspects of shortfall applications, for those already submitted, without fearing that I am encouraging others to make what were really bad applications. Most existing shortfall applications probably are bad applications, destined to be denied, but at least now a case like the
MCI v Patmore case can be discussed without indirectly encouraging more bad applications (since, again, the change in law eliminates eligibility for shortfall applications altogether).
