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Continuing prior post:]
For clarification; some further observations about shortfall applications:
(Again, this is only about applications made prior to June 11, 2015.)
What is a shortfall application? A shortfall application is a pre-June 11, 2015 application in which the applicant had less than 1095 days actual physical presence but who met the basic residency requirement and who claims to have been resident-in-Canada for three full years. While it is more complicated, subject to many nuances, in general the successful shortfall applicant is someone whose life was centralized in Canada for more than three years but who had temporary absences from Canada such that the total number of days actually present in Canada totaled less than 1095.
Basically, a resident of Toronto remains a resident of Toronto even when he is on a business trip to Ottawa, or Montreal. And likewise if the trip is to New York or Paris. If he remains a resident of Toronto, thus a resident of Ontario, is he not still a resident of Canada, during that time, as well?
That is probably a relatively easy call for a small number of business trips and a brief holiday or two abroad (in which event, however, it would have been stupid to not wait those extra days so as to meet the residency requirement based on at least 1095 days of actual physical presence). However, the circumstances in the lives of immigrants tend to vary greatly and are often a lot more complicated than that. Moreover, given the statutory language for how days were to be calculated, many legal authorities, including numerous Federal Court justices, argued or, in the case of Federal Court justices
ruled, that for purposes of the citizenship residency requirement, only days actually physically present counted toward meeting the residency requirement. Since the decision of one Federal Court justice is not binding on other Federal Court justices, conflicting standards developed.
While it is more complicated, basically there were two different standards or tests which could be applied:
-- actual physical presence test requiring 1095 or more days physically present in Canada to meet the old 3/4 residency requirement
-- centralized mode of living in Canada residency test (actually there are multiple versions of this) which, if applied, would allow someone to be granted citizenship even though they had less than 1095 days of actual presence
In particular, in many, many cases, CJs applied a strict physical presence standard, and would not even consider a shortfall case. In some cases, however, CJs applied a qualitative residency test pursuant to which some shortfall applicants were approved, and became citizens.
The shortfall application is, thus, dependent on persuading a CJ to apply a qualitative residency test rather than the physical presence test. Shortfall applications were very common until a few years into the period of time when Harper was the Prime Minister. By 2008 or 2009, or so, it became apparent that under Harper, CIC (as it was then) was pushing the strict presence test approach, thus pushing for the denial of shortfall applications generally. During that period (up to August 1, 2014), Citizenship Judges decided ALL citizenship applications (subject to the right of appeal, which both applicants and CIC had . . . unlike now, IRCC having a right to appeal a CJ's approval but the applicant does not have a right to appeal being denied, just the right to make an application seeking leave to, in effect, appeal).
Now, in shortfall cases IRCC can grant citizenship or refer the case to a CJ.
It warrants remembering and emphasizing that a CJ can apply the strict presence test without even considering a qualitative residency test. A very recent Federal Court decision affirmed that the CJ can do so without any explanation for why the strict presence test is applied. If this test is applied, a shortfall applicant will be denied citizenship. Period. In such a case, it is likely that no leave for judicial review will be given, but even if an appeal is granted, the odds of succeeding in the appeal are very, very low (unless the CJ committed some other error).
Overall, for many years the shortfall application was a long shot, usually a very long shot. Especially in the later years of the Harper government, when a high percentage of CJs were Harper appointees and CIC was rather aggressively advocating that shortfall applications be denied.
Whether the institution of a Liberal government has changed the odds much, is hard to guess.
There were three quite recent Federal Court decisions in shortfall cases:
-- in one, the shortfall was quite small but the CJ applied the strict physical presence test; while leave to obtain judical review was allowed, the Federal Court upheld the CJ and explicitly ruled that a CJ can apply the strict test without even considering a qualitative test, without any explanation or reason for choosing to apply the strict test (sorry, I do not have the cite or a link handy for this case)
-- the other two involved very substantial shortfalls, but in both cases the CJ granted approval and IRCC appealed. Justice Shore granted one appeal. Justice Elliott denied the appeal in the other.
see
http://decisions.fct-cf.gc.ca/fc-cf/decisions/fr/item/233859/index.do for the Aman case (decision by Justice Shore, Minister's appeal granted and case to go back to another CJ for reconsideration; in this case, applicant
present a mere 420 days, a shortfall of 675 less than the 1095 day threshold)
see
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/233847/index.do for the Saddique case (decision by Justice Elliott upholding CJ's approval, shortfall applicant to become a citizen; this applicant, who should be a citizen by now, was
only present for 177 days)
These two cases are reminescent of the pre-Harper days, when there were scores of shortfall applications, many succeeding despite falling way short of 1095 days actual presence. Even well into Harper's terms, until 2011 or so, a shortfall applicant could be granted citizenship without being referred to a CJ hearing unless the days physically present were less than 900 days. (CJ approval was still required, and by 2010 the odds of a CJ hearing were high for virtually any shortfall, even though the formal policy (internal policy, as revealed through ATI applications) did not mandate a hearing unless the applicant had less than 900 days.)
My guess: most if not nearly any shortfall application still in process is still likely to go to a CJ hearing. While how it is likely to go then is really unknown, my further guess is that the odds against the shortfall application are still high. But obviously, some pre-June 2015 shortfall applicants are successful.
