The suggestions and observations above are largely on point: probably a waste of time and money to apply with a substantial shortfall (less than 1095 days of actual physical presence) and relying on credit for time in Canada prior to landing.
Yes, you are
eligible but it is most likely (by a significantly high margin) that CIC will not approve the application and that a Citizenship Judge will determine you are
not qualified. In the current version of section 5(1) in the
Citizenship Act, not all eligible applicants are qualified for a grant of citizenship. The new law will do away with this distinction.
Thus, the reason "why" not apply is a practical one: because the odds are so high you will not be granted citizenship, but rather will have wasted your money and your time, and will have to apply again sometime after you become qualified under the
Act as revised by Bill C-24, that is no sooner than the fourth year anniversary of the date you landed.
I would further note that this is probably the consensus for any significant shortfall case. But it is especially applicable to a PR who has a shortfall and who is relying on credit for time in Canada prior to landing.
There continue to be sporadic reports of
some shortfall applicants being approved and granted citizenship, but the indications from all directions (anecdotal reports and official Federal Court decisions in particular) are that the availability of a qualitative test (rather than the strict physical presence test) is limited to
exceptional cases. This appears to eliminate all but those with a minimal shortfall (just days, not weeks let alone months).
But for an applicant with a shortfall
plus relying on credit for pre-landing presence in Canada, the odds of success are remote.
Overall:
To be clear: the current version of section 5(1) in the
Citizenship Act makes a PR
eligible for a grant of citizenship in circumstances which do not necessarily make the PR
qualified for citizenship. Meeting the
basic residence requirement makes a PR
eligible for citizenship, but to be
qualified for the grant of citizenship, the PR must also meet the requirement to be
resident-in-Canada for three years.
(Revised version to take effect some time this year, almost certainly well before October, will eliminate this distinction; that is, there will be no difference between being eligible and being qualified.)
A PR acquires basic residence time regardless of where the PR resides.
A PR only acquires credit for time
resident-in-Canada while actually residing in Canada.
Moreover, the standard test, the most often applied test, for determining credit for time
resident-in-Canada, is based on days actually physically present in Canada.
To succeed in a shortfall case, the CJ must be persuaded to
not apply the days physically present test, and instead apply a qualitative test which will allow the CJ to conclude that the applicant was
resident-in-Canada on days the applicant was physically outside Canada.
Most indications are that CIC will overtly oppose the grant of citizenship to an applicant with a shortfall case . . . with perhaps some rare exceptions in unusual cases.
An illustrative case:
For an applicant with a shortfall,
and relying on pre-landing credit, there are virtually no reports of success. There is, however, one reported case (
Bani-Ahmad) in which an applicant was approved by the Citizenship Judge, but the Minister's appeal was granted. I do not know the outcome when the case was re-determined by a different Citizenship Judge.
The facts of that case are worth some attention:
-- 1088 days of actual physical presence (shortfall 7 days)
-- living/residing in Canada for nearly ten years total prior to applying for citizenship (in Canada since 1999; became PR October 2006; applied July 2009)
-- immediate family lives in Canada; three children born in Canada
-- has extended family (mother and six siblings) well established residents in Canada
-- owner of home in Canada where he lives
-- owner of a restaurant in Toronto
-- restaurant is the only source of family income
As shortfall cases go, seven days short is a rather minimal shortfall.
There is no attention given, in the decision, to the fact that this applicant was relying on credit for time present in Canada prior to becoming a PR (obvious however because application was less than three years after landing), but why CIC went to the effort to appeal this decision is not revealed either.
CIC's argument, CIC's case, is largely based on a technicality, the failure (alleged failure I would say) of the Citizenship Judge to clearly articulate that a qualitative test was used to determine residency. I totally disagree with the Federal Court justice in this case, Justice LeBlanc, who agreed with CIC that it was "
not possible to infer from [the CJ's] reasons which test he may have applied."
To be clear, I will be blunt: that is malarkey.
Justice LeBlanc stated: "This is a clear case of a decision lacking in clarity, transparency and intelligibility."
Again, I will be blunt: that is malarkey.
It is clear the CJ applied a qualitative test and specifically cited the facts which established the applicant had centralized his life in Canada for more than three years in the relevant four, and did so specifically acknowledging the shortfall in actual presence (1088 days, thus short of 1095 by a week). The CJ obviously gave significant weight to how close to the 1095 day threshold the applicant came, and based on the extent to which the applicant was settled in Canada, had a life centralized in Canada, that was sufficient to show the applicant met the residency requirement.
CIC's characterization, adopted by Justice LeBlanc, is a blatantly tortured parsing of the CJ's words.
Indeed, Justice LeBlanc states: " . . . it is impossible for this Court to understand why and how the Citizenship judge reached his conclusion and to determine whether that conclusion falls within the range of possible outcomes."
Again, malarkey.
It is possible that a different CJ will also apply a qualitative test, be more articulate about it (all that needs to be added to reasons is the phrase "based on the criteria in
Koo . . ."), and also approve this individual. But it appears that most CJs are now strictly applying the actual physical presence test, and if that is the test applied this applicant will be denied and have to apply again . . . well over more than five years since making his first application.
Even if a different CJ decides to likewise apply a qualitative test, the question remains as to why CIC was opposed to this individual getting citizenship. (CIC did make an alternative argument as to the CJ's conclusions about the applicant's ties to Canada, claiming the CJ's conclusions were not supported by the evidence.)
I often caution that it is a mistake to read too much into particular case. And there are often elements lurking beneath the surface which, if known, would explain a lot. Credibility, for example, is often an issue which has much influence but is not overtly addressed . . . CIC simply does not believe the applicant, so goes after technical grounds to make a case opposing the grant of citizenship.
But I think this case is highly illustrative of the position that CIC has increasingly taken since the Conservatives have formed the government (going back many years now . . . I forget, has it been eight years?) and been dictating policy: an increasingly strong emphasis on applying the strict physical presence test, and in the last couple years vociferously opposing the grant of citizenship otherwise if there is an arguable basis for doing so.
Conclusion:
Odds are
not good (may be an understatement) for
any shortfall case.
Odds are far worse, approaching virtually no chance for any substantial shortfall case (more than thirty days).
Odds are far worse for any shortfall case in which the applicant is relying on credit for time in Canada prior to landing (prior to becoming a PR), particularly for any substantial shortall.
Of course this is largely an opinion. I believe, however, this is a well-informed opinion.
