Immigration judge

[TObound]

My ATIP says that I was 15 days short of the required physical presence of 1195 days. So, a judge had to review my file. No hearing was required. At the end a positive decision was granted.

The strange thing is that I don't think CIC calculated my days properly. I had 39 days of absence. Most of them before I became a permanent resident. This, according to the residency questionnaire, means that those days should have been counted as 0.5 a day. So I have 1199 days of actual physical presence, not 1980 per CIC's calculations, as my ATIP shows.

The good news is that I am now in que to be scheduled for an oath ceremony. But lessons learnt is that CIC makes mistakes while calculating our residence requirements. Also, being 15 days short of the required 1195 for pre-June 9, 2015 applications might be an acceptable shortfall. In response to the RQ, I provided employment, volunteer, banking, OHIP and rental proof of presence during the required period. Hope this info would help you, ayncdn.

 

[Soopergal]

My ATIP says that I was 15 days short of the required physical presence of 1195 days. So, a judge had to review my file. No hearing was required. At the end a positive decision was granted.

The strange thing is that I don't think CIC calculated my days properly. I had 39 days of absence. Most of them before I became a permanent resident. This, according to the residency questionnaire, means that those days should have been counted as 0.5 a day. So I have 1199 days of actual physical presence, not 1980 per CIC's calculations, as my ATIP shows.

The good news is that I am now in que to be scheduled for an oath ceremony. But lessons learnt is that CIC makes mistakes while calculating our residence requirements. Also, being 15 days short of the required 1195 for pre-June 9, 2015 applications might be an acceptable shortfall. In response to the RQ, I provided employment, volunteer, banking, OHIP and rental proof of presence during the required period. Hope this info would help you, ayncdn.

Did CIC ask about your short fall at the interview? Have they reviewed your RQ before the interview?

In my case, my RQ is still waiting to be reviewed at the time of the interview. I do not think they looked at my dates properly.

 

[screech339]

I am wondering under the new law is that possible if asked to appear for oath and on oath day it is realized that you are short of days, the judge on the occasion can deny you the Citizenship Oath?

Just wondering if that can be possibility or Oath invitation means CO decision is final.

Any one

If your application reached to receiving oath invitation, despite being short of days, due to being "overlooked" by CO, then you got lucky. In extreme cases, your citizenship application could get denied even on day of oath, even after saying your oath, if they discovered an error in meeting total number of days.

There was a case whereby an applicant was denied citizenship even after the oath ceremony when a CO agent discovered that the applicant failed the written test at the ceremony. They even had the applicant's citizenship certificate ready. They refused to hand it over to the applicant. The citizenship judge who presided over the applicant, accidently "check" allowed grant of citizenship by mistake after reviewing a failed written test. The applicant went to court over it and eventually lost the case.

 

[janoo]

This is very rare case and if does happen someone is really very unlucky if number of days
issue officer and judge have the right to grant if few days are short if failed in written test
than judge have the authority to take verbal test and if feel that person can communicate
in this world than he will grant the citizenship..

 

[screech339]

This is very rare case and if does happen someone is really very unlucky if number of days
issue officer and judge have the right to grant if few days are short if failed in written test
than judge have the authority to take verbal test and if feel that person can communicate
in this world than he will grant the citizenship..

While it is a rare case, it doesn't change the fact that the applicant wasn't qualified for citizenship in the first place. So, if an error was discovered even on day of oath and after the oath was made, CIC still have a right to deny citizenship to applicant on the principle that the applicant never was qualified in the first place.

The applicant can take them to court over it but will likely lose the case since there has been a precedent made. The judge in the presiding case mentioned above, specifically stated that the denial was supported over the fact that the applicant didn't meet the qualification for citizenship one of which was passing the test. So if applicant took them to court, the applicant will lose on account that the citizenship qualification was not met.

 

[thecoolguysam]

If your application reached to receiving oath invitation, despite being short of days, due to being "overlooked" by CO, then you got lucky. In extreme cases, your citizenship application could get denied even on day of oath, even after saying your oath, if they discovered an error in meeting total number of days.

There was a case whereby an applicant was denied citizenship even after the oath ceremony when a CO agent discovered that the applicant failed the written test at the ceremony. They even had the applicant's citizenship certificate ready. They refused to hand it over to the applicant. The citizenship judge who presided over the applicant, accidently "check" allowed grant of citizenship by mistake after reviewing a failed written test. The applicant went to court over it and eventually lost the case.

Does CIC again verify the application details (test score, residency days etc) on the day of oath? I thought that all the checks are done before the oath letter is sent?

The case that you have stated where the person failed the test, how come the person was scheduled for oath when he failed the test. Was he not informed about failing the test during the interview? If yes, I think he was supposed to get re-test notice rather than oath invite/

 

[screech339]

Does CIC again verify the application details (test score, residency days etc) on the day of oath? I thought that all the checks are done before the oath letter is sent?

The case that you have stated where the person failed the test, how come the person was scheduled for oath when he failed the test. Was he not informed about failing the test during the interview? If yes, I think he was supposed to get re-test notice rather than oath invite/

In the case mentioned above the judge marked "citizenship path" granted by MISTAKE after reviewing a failed citizenship test. The judge admitted to making that mistake. He meant to check "denied citizenship" instead of "granting citizenship".
The agent at the oath ceremony noticed in the applicant file that the applicant failed the test, despite judge "allowing" it by mistake.

So one of the requirements of getting citizenship was passing the test. If I'm not mistaken, the applicant not only failed the test but failed it the second time in front of judge. That was when the judge decided not to give citizenship. Judge marked the application wrong by mistake.

The judge does not have to inform the applicant on the spot that he/she passed the citizenship. In fact the judge may not have informed the applicant of this denial and let CiC officially deny the applicant. In checking the application wrong, the file got sent back to CIC for processing. Once CIC saw the "approval" of judge, it went ahead and gave oath letter.

 

[ZingyDNA]

I heard of that case. It's basically a typo by the CJ that caused a string of events that shouldn't have happened. That case is a rare exception that shouldn't be used as an example of anything..

In the case mentioned above the judge marked "citizenship path" granted by MISTAKE after reviewing a failed citizenship test. The judge admitted to making that mistake. He meant to check "denied citizenship" instead of "granting citizenship".
The agent at the oath ceremony noticed in the applicant file that the applicant failed the test, despite judge "allowing" it by mistake.

 

[screech339]

I heard of that case. It's basically a typo by the CJ that caused a string of events that shouldn't have happened. That case is a rare exception that shouldn't be used as an example of anything..

Yes it is rare case since it was a typo however it doesn't change the fact that it went to court and the court has set a precedent that an applicant must pass the qualifications to be granted citizenship first.

Just because it was all over a judge's "typo", doesn't mean you can ignore the court's ruling and it's precedent for future challenges.

So, if it ever come a time, however rare it is, CIC does have the authority to deny citizenship to applicant at any stage of the process, including day of oath until the certificate is handed over. If, at any point, an error or oversight on CIC's part was discovered in meeting qualification, they have a right to deny citizenship. (failing 1460 days under new rule or failing test under old rule (days short does not apply since applicant can qualify under basic residency rule)). Once the citizenship certificate is handed over in the applicant's hand, only then the applicant is officially Canadian.

 

[Msafiri]

I am wondering under the new law is that possible if asked to appear for oath and on oath day it is realiazed that you are short of days, the judge on the occasion can deny you the Citizenship Oath?

Just wondering if that can be possibility or Oath invitation means CO decision is final.

Any one

You raise an interesting scenario given that since July 2014 the Citizenship Officer approved 'CIC accepted' applications and referred 'CIC refusals' to the CJ. Its entirely possible that a shortfall applicant prior to the 4 year physical residence requirement of the new Citizenship Act (SCCA) could get to oath despite a days shortfall if the CO decided to approve. They could also get to oath and keep their citizenship if the CJ approved and CIC either did not appeal or the courts dismissed an appeal.

Post the 4 year physical residence requirement (after June 11, 2015) a shortfall in days means the applicant doesn't qualify and their application in theory shouldn't get to the 'In Process' stage. Sidney should pick up on this at the initial pre-check but if someone puts the wrong dates on the presence calculator (by design or in error) they get a pass. Its up to CIC to have the tools in place to verify declared dates.

As has been mentioned a certificate issued in error can be rescinded and the citizenship be null and void. The example given is a good illustration - the applicant failed language testing before the CJ. The CJ considered and refused recommendation for grant of citizenship. CJ mistakenly ticked the approved box. CIC clerk scheduling the oath placed the applicant in the oath list. On the oath day the Clerk administering the process noticed the error but applicant had oathed and certificate issued. Applicant was contacted the next day by phone and asked to return the certificate. Applicant went to court and CIC won the day. Same thing happens when someone is issued a Canadian Passport in error typically on the presumption that they are citizen by birth in Canada and then its found out their parents had diplomatic status at the time of the child's birth.

 

[amazing21]

I passed my citizenship test last September and I have to see an immigration judge in July.

The reason is I had 115 days less than the required number of days because I had to leave Canada to attend graduate studies outside Canada: if I did not leave in time, my position as a paid graduate student would have been given to someone else and there was no opportunity like that in Canada. I have to justify why I have 115 days short.

What should I expect when I see the judge?
How can I make my case stronger so that they approve my citizenship application?

I disagree with some comments…I have heard a case of a guy who had 60 or so less days short and he won. He spent this time studying in an university in australia ( something about work experience) which he explained to the judge would help him out in canada because it was related to his graduation course he completed in Canada……

I think if you can do something similar..you need to convince the judge why this internship will be beneficial to you in canada..have all the docs from the internship program and show that you do wanna reside in Canada….show him the connection of the internship with your studies and the relevance of it……..and pray you get a nice sensible judge…..good luck

 

[neutral]

Yes it is rare case since it was a typo however it doesn't change the fact that it went to court and the court has set a precedent that an applicant must pass the qualifications to be granted citizenship first.

Just because it was all over a judge's "typo", doesn't mean you can ignore the court's ruling and it's precedent for future challenges.

So, if it ever come a time, however rare it is, CIC does have the authority to deny citizenship to applicant at any stage of the process, including day of oath until the certificate is handed over. If, at any point, an error or oversight on CIC's part was discovered in meeting qualification, they have a right to deny citizenship. (failing 1460 days under new rule or failing test under old rule (days short does not apply since applicant can qualify under basic residency rule)). Once the citizenship certificate is handed over in the applicant's hand, only then the applicant is officially Canadian.

I think that when the tests are being held the same thay than the oath ceremony, these kinds of mistakes could happen.

Anyway, it's ridiculous to take it to court when you can just wait to have a second test that is faster and cheaper that waiting to see the judge.

 

[screech339]

I disagree with some comments...I have heard a case of a guy who had 60 or so less days short and he won. He spent this time studying in an university in australia ( something about work experience) which he explained to the judge would help him out in canada because it was related to his graduation course he completed in Canada......

I think if you can do something similar..you need to convince the judge why this internship will be beneficial to you in canada..have all the docs from the internship program and show that you do wanna reside in Canada....show him the connection of the internship with your studies and the relevance of it........and pray you get a nice sensible judge.....good luck

The thing is if this same guy had a different judge, he could have been denied. This is part of the problem. It is all subjective to opinions and inconsistent across the board. This is the unfair part of the old rules. The new rule removes the subjective part and sticks to the objective measure of actual physical presence condition. Either you meet the days required or you don't . No grey area. No judges needed to determine whether you pass or not.

 

[screech339]

I think that when the tests are being held the same thay than the oath ceremony, these kinds of mistakes could happen.

Anyway, it's ridiculous to take it to court when you can just wait to have a second test that is faster and cheaper that waiting to see the judge.

Actually in the example I gave, the applicant failed the first test and had to redo the second test in front of the judge. The applicant still failed.

Even under the new rule, the applicant can still take a second test in front of judge if applicant failed the first time.

So don't be surprised if an applicant tried to take it to court if it has been determined that citizenship was issued by ERROR or MISTAKE.

 

[ayncdn]

First of all I want to thank everyone for their responses. Some mentioned a few points that I looked into and used and it really helped my case. I prepared well for the citizenship judge, so much so that the CJ asked me if I've ever thought of becoming a litigator! He was very pleased with my presentation.

SECOND:
I want to let everyone know that my citizenship case has been approved and I'll become a Canadian citizen on Sep 24th 2015.

Summary
I landed in Canada as an international student on Aug 6th 2005,
I became a landed immigrant on Aug 28th 2009 when my family came to Canada,
I submitted my citizenship application on Aug 28th 2011 when I had to leave to US for graduation studies,
I applied despite having 115 days less than the required 1095,
I wrote my citizenship exam in September 2014,
I was told I have to see a citizenship judge in July 2015.

I showed that I still have ties in Canada: financial, family, apartment, and had testimonials from people in industry and universities about my contributions to Canada while I was there.

After 10 years of coming to Canada, and 4 year struggle after submitting my citizenship application, ... DONE.