Dicision made

Hi people,

Thanks for your response, which is quite upsetting! I was prepared for rejection, but wanted to try under the oldder rule. I have thought deeply before submitting my application, and found if the KOO method is employed, I have a great possibility as I meet the criteria strongly. I also know that the CJ can only consider the physical presence, which may contribute for rejection. Anyway, I still hope a positive result untill I get the letter. Thanks again.

S_A_L wrote: Below is my time line and seeking your advice: -Applied for citizenship in October 2014 -RQ received and responded in February 2015 -Finger print request received and responded in February 2015 -Citizenship Test on 19th May 2015 (I passed the test) As I don't meet physical presence (I have only 791 days presence, but social ties are very strong), the CIC officer informed me that I will have to meet the CJ for hearing. Since then I am waiting for the letter to appear before CJ. But today (10 July 2015) I checked on line staus of my application. I found, it says "decision made". When I click "decision made"it doesn't give any new message. It still gives update up to the call for citizenship test, which already done and passed. What does it mean? Did the CJ made decision without my appearance? Is it a positive decision? Will appreciate your thoughts. Thanks

Overall, Harrikon is probably right about the ultimate outcome, since the extent of your shortfall almost certainly will result in your application being refused. (Note, much of the rest of what Harrikon posts is way off, way, way off; the observations about Koo in particular have no basis in reality . . . for example Koo dates back decades, long before Harper even went into politics, let alone the forming of his Conservative government, and was incorporated into the operational guidelines by CIC while the Liberals formed the government.)

Thus, you may just want to wait until you see the letter itself before spinning your wheels any further. And even then, even if you are still on track for a hearing with a Citizenship Judge (which my best guess is that you are), your prospects are so poor it may not be worth spending much time (let alone money) focusing on what may be done on your behalf.



More in-depth response:

If you are interested, if you have the time, for your consideration:

My sense is there is still a good chance you will be scheduled for a CJ hearing before there is a final refusal, but again it is highly likely the ultimate outcome is not going to be favourable (rather obviously so).

If the issue is residency (rather than, say, a prohibition), your application MUST be referred to a Citizenship Judge before it can be refused.

CIC has taken the position, and its Program Delivery Instructions (PDI) specifically indicate, that Citizenship Judges may make even a negative decision without an in-person hearing with the applicant:

"Citizenship judges may make a decision on cases without the personal appearance of the applicant when an applicant does not meet the residence/physical presence requirement (unless procedural fairness dictates that a hearing should be held such as when there are credibility issues)."

(For the current procedure in referring applications to a Citizenship Judge, see the applicable Program Delivery Instruction (this is a link), which the above quote is from.)

The actual scope of this is as yet unclear. This is relatively new and there are thus no forum reports illuminating much, if anything, about how this goes. (Indeed, your follow-up report here about what the letter you receive says would be helpful information for others going forward.) In particular, it is hard to discern how the Baker procedural fairness requirements can be met without an in-person hearing since the law applicable to applications made before June 11, 2015 explicitly allows for the application of a qualitative test in assessing residency.

In particular, note what the PDI says about procedural fairness:

"In limited circumstances, decisions based on objective criteria can be made without the personal appearance of an applicant at a citizenship hearing. Nevertheless, procedural fairness and 'the right to be heard' dictate that an applicant must be given the opportunity to be aware of the case against them, and also be given the opportunity to respond and present evidence in their case. The right to be heard does not necessarily mean that an applicant has the right to a personal appearance before the decision maker."

My sense is that a hearing is still likely in cases like yours, but I am far from certain about this.

My sense is that the letter you receive will be, in part, a communication intended to make you aware of the case against you and some form of an opportunity to respond (or indicating you will be scheduled for a hearing at which you will have the opportunity to respond in person). I say this, however, without being familiar with the communication and RQ form you received (I am familiar with numerous versions of the RQ form in use between 2005 and 2014, but have not seen any new versions in use more recently), and thus with the recognition that changes to the RQ form and cover letter may have been made to satisfy the requirement to give notice of the case against the applicant and an opportunity to respond (at least to the extent CIC's current practices deem sufficient, subject of course to judicial review), that being the response to the RQ itself.      


If you are destined for a hearing still:

(and my sense is that you are)

In almost all cases destined for a hearing with a CJ, obtaining the assistance of a reputable, competent lawyer is strongly suggested. However, unless you have some compelling circumstances well beyond very strong social ties, the extent of your shortfall suggests you would be wasting your time and money. You appear to be familiar with the Koo criteria, so perhaps it is worth the effort (to you personally) to gather as much evidence in support of your case as you can, organize your evidence and your arguments, and go to the hearing prepared to make your best case, first to persuade the CJ to apply Koo rather than the strict physical presence test, and then to convince the CJ your life is centralized in Canada (to the exclusion of any other country) and how strongly you meet the Koo factors (explicitly highlighting what evidence supports a favourable conclusion regarding each of the factors) and deserve to be approved for citizenship.

A big part of your problem, however, is that unless you are primarily abroad while working for, and assigned abroad, by a Canadian business, or your time abroad is due to the continuation of an education program, the extent of your absence is a huge negative under Koo . . . obviously, the more time you are abroad, and particularly if the reason for the time abroad is not itself Canadian, the less your life is centralized in Canada.



Prospects for shortfall applications generally:

Some shortfall applications are still being approved and citizenship granted (for applications made prior to June 11, 2015 of course). Just this week, there was a report in another forum of an applicant getting his citizenship even though he had a shortfall (less than 1095 days Actual Physical Presence (APP)), and indeed there was no Citizenship Judge hearing in his case. But the shortfall was minimal, just four days. And all other factors were extremely strong.

Last November, for another example, a Citizenship Judge (in Halifax I think) approved an applicant with merely 505 days APP (nine months or so less than you). But CIC appealed and won the appeal (largely, however, based on a technicality . . . the CJ's failure to make a finding as to the date the applicant in fact established a residence in Canada), and while the Federal Court explicitly said it was not suggesting how the case should be decided when reconsidered (thus, that applicant, like you, still has some chance of success upon reconsideration by CIC and another CJ), the odds of a successful outcome are probably small, perhaps remote.

The latter is the Ojo airline pilot case (this is a link) which I discussed more extensively in the topic "Residency: tests, proof, practice, policy (this too is a link). There is extensive analysis of many shortfall cases in that topic, with numerous links to actual, official Federal Court decisions in such cases.




For the record, regarding observations (erroneous observations) by Harrikon:

Harrikon wrote: No way in hell are they granting people czship with that large of a shortfall. You need to be here physically for at least 183 days in every 365 day period, and also be living here for minimum of 4 years (total).

This references law applicable to applications made since June 11, 2015 and not applicable to your application.

Harrikon wrote: Outright missing the requirements is no way to go.

This is correct but likewise does not apply to your situation. If you met the basic residency requirement, you were eligible for citizenship. The question is whether or not, given less than 1095 days APP, a Citizenship Judge will apply a test other than the strict physical presence test, and if so, if the CJ applies a qualitative test (Koo being the most common one applied), whether the CJ will conclude you meet the requirement to have been resident in Canada for three years (despite absences).

Harrikon wrote: The infamous Koo criteria was never intended to help people get citizenship. Indeed it was a way for the conservative government to deny genuine citizenship applicants based on a loop hole in the old citizenship act. As you can see, Koo criteria is a cook-up of this Conservative government. It was intended to deny people citizenship, not make it easier. People who apply now cannot be questioned under the Koo criteria, but have to prove physical residency which is easier in my opinion, rather than worry about needless and arbitrary questioning from a judge.

This is largely nonsense. Again, the Koo criteria date back decades, as they were articulated by a Federal Court justice in a 1992 Federal Court decision, which was largely a decision refining what a previous Federal Court justice ruled more than a decade prior to that. The Koo criteria are actually carefully drawn and reasonable criteria for assessing the extent to which an individual is actually residing in Canada rather than merely maintaining a residential address in Canada. They became the dominant test for residency, for many years, for applicants who applied with less than 1095 days actual presence . . . a very large percentage of applicants until around five or seven years ago. The criteria were incorporated into CIC's guidelines for assessing residency while the Liberals formed the government.

It is true that it is now easier to know if one meets the residency requirement, since actually it is no longer a residency requirement but rather a physical presence requirement (thus, new applicants use a "physical presence calculator" rather than a "residency calculator"). That does not make it easier to meet the requirements, far, far from it.

As for the approach adopted by the Conservatives: the Conservatives have been pushing the application of the strict physical presence test for many years. This test makes it easy for the government to deny citizenship to any applicant who falls short of the 1095 days APP threshold, regardless of how centralized in Canada the applicant's life has been. For example, truck drivers for Canadian trucking companies whose job included regular routes into the U.S., for example, who were thus outside Canada only during their respective work weeks while making U.S. deliveries, who averaged two days in the U.S. a week making such trips, and otherwise completely rooted in Canada, have been denied citizenship based on the physical presence test. If the CJ would apply Koo in their case, they would meet the residency requirement easily.   

Now of course all that matters (for applicants since June 11) is the total number of days physically spent in Canada . . . and that number has increased by 365 days, to 1460 minimum compared to 1095.

That said, the ratio of time in Canada to outside Canada is more flexible:

-- old law required three days in Canada for every day abroad (3/4 years)
-- new law only required two days in Canada for every day abroad (4/6 years)

Dear all,

I wanted to reply to your post and answer additional questions you have. I have been largely absent from this forum, but your case made me want to comment and elaborate on previous posts, mostly by dpenabill.

1. If your application status says "decision made" it is most likely a denial given the shortfall in your physical presence.

2. The CIC letters can arrive within 2-4 weeks, though there have been shorter and longer delivery periods.

With respect to suggestions, if you are truly eager, you can file for an ATIP report, which basically will furnish you with a copy of your immigration file / printout from the CIC's own internal systems. This will have the answer to your question, however ATIP requests take 30 days to process and as such you will likely have your letter in hand before you can receive the reply to your ATIP inquiry.

Good luck.