Declined

Hi Guys,

I don't know if anyone here can still recall me.  My story has come to a sad ending: I got declined for not having enough physical presence.

The main reason for this is the following:

1. I did not use my health card often enough (only used for maybe 3 times from 2002-2010);

2. One day trip to US was missed in my application form (which I put into the RQ form);

3. The US entry/exit record was not available before the officer made the decision (which was sent out dated May 2 from US and now I am in possession of this document);

4. Some other missing documents.

I have 1022 days physically in Canada by my calculation.  The decline notice did not name how many days were short.

I am going to appeal for this decision.

Any recommendations?

freemytax, I am sorry to hear about your case but with all due respect it sounds like your application was sloppy, incomplete and you were simply hoping that its shortcomings will get overlooked. I agree with Zhulinda that your appeal case is pretty thin. 

freemytax: The main reason for this is the following: 1. I did not use my health card often enough (only used for maybe 3 times from 2002-2010); 2. One day trip to US was missed in my application form (which I put into the RQ form); 3. The US entry/exit record was not available before the officer made the decision (which was sent out dated May 2 from US and now I am in possession of this document); 4. Some other missing documents. I have 1022 days physically in Canada by my calculation. The decline notice did not name how many days were short. I am going to appeal for this decision.

Foremost: see an attorney.

canuck25 might be right: best to re-apply when you more solidly meet the requirements.

Other observations:
-- Not using one's health card is no reason at all for rejecting a citizenship application.

-- A day trip to the U.S. did not need to be reported in the residency calculation, does not count in the residency calculation, and would not be a significant factor in determining whether you were resident-in-Canada.

-- Regarding "The US entry/exit record was not available before the officer made the decision:" something is lost here in translation; will address more below.

-- Regarding some other missing documents: the impact of missing documents depends on what is missing and on other factors; failure to submit supporting documentation should not, alone, be reason to deny citizenship, but rather would be about what the decision-maker infers from what has been submitted and what is absent, and what that decision-maker concludes based on those inferences.

Regarding the comment by zhulinda, the distinction is between days physically present versus days "resident-in-Canada." A person can be determined to be resident in Canada for days they were not physically present in Canada. A person who goes to the Caribbean for a ten day holiday remains resident in Canada while they are on the holiday. So, just because a person applies with less than 1095 days of physical presence that does not mean they will not be qualified for citizenship. Question is whether or not they prove being "resident-in-Canada" for 1095 days despite having been physically present for less, for 1022 days for example.


Here is what is a bit confusing:

The confusion can be cleared up if you actually went, in person, to a hearing with a Citizenship Judge and it was the CJ who made the decision. Otherwise:

You refer, freemytax, to the "officer" who made the decision to deny citizenship. Unless there is a determination that you are not even eligible for citizenship (subject to one of the prohibitions, failing to meet the PR requirement, and so on), for which the application is supposed to be "returned" to the applicant (not "denied"), which may be done by an "officer," the decision to grant or deny citizenship must be made (so far as I know) by a Citizenship Judge. That is, a CIC officer has no authority to deny a PR citizenship based on failing to meet the residency requirement.

I might infer that you are really talking about a Citizenship Judge but that would be incongruous with the timeline you indicate . . . the request for documents ordinarily preceding by many, many months any potential decision by the Citizenship Judge, so there would have been more than enough time to obtain U.S. entry records before the decision was made.

In any event, this is confusing, making it difficult to assess what has happened, why.

But the bottom-line: I am very confident that a lot more was "missing" or such than what you outline above.

In any event, if a Citizenship Judge made the decision, the CJ can apply a strict physical presence test and 1022 days of physical presence does not meet that test. So, after a hearing, a CJ could have denied your application on that basis. Most Federal Court justices, it now appears, will uphold such a decision on appeal. Some, apparently, are still requiring CJs to consider qualitative evidence of residence, of a centralized life in Canada, so depending on how the CJ stated the grounds for the decision, one of the latter Fed Court justices might grant an appeal (which would mean a different CJ would look at and decide the case).

If the CJ applied the qualitative test and still denied citizenship, that is nonetheless a tough appeal unless the CJ's decision fails to meet the formal requirements for stating the grounds of the decision.

If your application was indeed summarily denied by a CIC officer:

I do not know how this happens. If you failed to submit requested documents on such a broad scale as to warrant a decision that you had in effect "abandoned" the application, that would make sense. But you refer to specific grounds for denying citizenship.

I don't know. Again, see a lawyer.

My impressions:

I do not know if my impressions are anywhere near the ballpark, because, again, this "decision" by an "officer" without hearing (which is what you seem to be reporting), is outside the businesslines I am familiar with.

But, given the referenced reasons for the denial, I get the following impressions:
-- There is doubt that you centralized your life in Canada.
-- There is suspicion, or a belief, that you were not physically present in Canada for even the 1022 days you claim (they did not directly address this since, as you were short of the 1095 day physical presence test, all they had to do was decide you were not "resident-in-Canada" for at least 1095 days).
-- There is suspicion you did not accurately report all travel outside Canada
-- You had continuing, strong ties to the U.S.
-- You did not submit all that many documents directly evidencing a life in Canada during those periods of time you claimed to have been in Canada

In any event: consult with a qualified immigration lawyer. This should cost no more than having to go through the whole process again, and at the least you will know more.

Final note: if you could indeed clarify your timeline and the particulars of your process (when did you get RQ, a general idea of how you responded to RQ, if and when you had a hearing with a CJ, and so on) that would be greatly appreciated: virtually no one reports here about being denied, so we have very little information about what really does tip a case that far, to the point of denial . . . we have many report RQ and getting citizenship despite RQ. So you could really help others by giving us some information about the tipping point for a denial.

Note following post by EasyRider: I do not recall the previous posts by freemytax. If, indeed, freemytax claims to have been physically present 1122 days that would make a big difference and would point to some serious credibility concerns, since obviously that would mean they did not accept that freemytax was present in Canada as claimed.

Sorry to hear that. I don't think it is about 1022 days. Your issues is more complicated than that. Sorry again to tell you that but just to give you an idea when you apply next time. The CJ is not that bad if they saw there is a consequence and daily normal life in Canada for sure they will prove it .

freemytax:

OK. Makes more sense.

This is what I am getting:
You saw the Citizenship Judge in December 2011.
The CJ gave you an opportunity to submit additional documentation, such as your U.S. travel history. You submitted a letter regarding this but not the history itself. Decision came before you had opportunity to submit that history.
Despite claiming 1122 days of physical presence, the CJ denied your application.
Among reasons why the CJ did not believe you proved that you met the residency requirement:
-- lack of documentation evidencing your life in Canada, including, for example, minimal indications of use of health card
-- discrepancy in travel disclosure (while this is, on its face, for just one day, probably more or less about credibility as to travel history disclosures generally)

My impressions revisited:

For the most part, my previous impressions appear to be reinforced, including in particular:

-- There is doubt that you centralized your life in Canada.

-- There is suspicion, or a belief, that you were not physically present in Canada for the time you claim to have been present. (Even though you claim 1122 days.)

-- There is suspicion you did not accurately report all travel outside Canada (this is, of course, a corollary to the conclusions about days present)

-- You did not submit all that many documents directly evidencing a life in Canada during those periods of time you claimed to have been in Canada

You do not address the last of these. My impression is that you were relying largely on evidence based on or related to what shows your entry and exit dates, as if all the days in between those should be readily inferred to be "in" Canada or "outside" Canada (relative to entries and exits).

What I sense is that you have not fully grasped the nature of "proof" of residency or presence; that proof of entering Canada is not proof of being in Canada from that date to the next date there is proof you exited Canada.

And it looks like you did not submit much evidence of living in Canada and being present in Canada between the dates you say you entered Canada and the next date you say you left Canada. So the CJ concluded you failed to prove you were resident-in-Canada.

If my impression is at all in the ballpark, your chances on appeal depend on:
-- how well the CJ articulated grounds for the decision
-- how much evidence of your residence and presence (covering those days in-between date of entry and next date of exit) you submitted to the CJ or in response to the RQ

You really need a lawyer to fully assess this.
For many reasons this is something for a lawyer to consider, beginning with simply having a far better grasp on the relative parameters of what constitutes "proof" in these proceedings. (Of course, if you did not submit a significant amount of direct evidence of residing and presence, then as canuck25 and flifca both suggest, re-applying is probably your best way to go about this.)

By the way: your failure to appear for the scheduled test was also, probably, a big factor: they can take that to be an indication you were not at the address you had of record with CIC, suggesting lack of credibility and somewhat suggesting ties and presence outside Canada.

Probably totality of factors compromising your credibility led to this decision. Whether you have a good chance on appeal depends on what you submitted to show you really were present. Again, just the travel document indicators of entries and exits is not anywhere near enough to "prove" you were resident in Canada for more than 1095 days.