After 5 Years...Rejected!!!!!

[Ardi77]

Yeah.

What's more hilarious is that after 5 years process including a hearing with a judge, a master degree working in a bank doesn't understand yet which was exactly the miscalculation...

You can add my 3 levels of CFA into that list, if you would know what is this...

 

[troll2]

That is a mystery for myself....
I have a master in finance from a canadian university and I think I know how to use the calculator...

No, you don't. If I were you, I would ask university for tuition refund.

 

[neutral]

You can add my 3 levels of CFA into that list, if you would know what is this...

Yes I know what is it. You receive a book by mail full of finances theory after you paid like $1K or more and you have to study it to pass the online exams so you get CFA 1, then 2 and 3. What shows to you is that no matter how many degrees, certificates and titles a person has, he may face difficulties to count up to 3.

In fact, we have good and bad lawyers, good and bad doctors, and so on. Nowadays, to be graduated from the University means nothing.

 

[SenoritaBella]

Sounds like it's still not clear how you miscalculated your days.

1. Did you use CIC's online residency calculator? If you didn't, that explains how you may have made an error. That calculator would have told you when exactly you will qualify, assuming the dates you enter are correct.

Let's use your info to clarify it:
Became PR: Oct 2008
Citizenship Application: Nov 2010
4 years period:Nov 2007 - Nov 2010(Partly Student Visa)
Citizenship Test: March 2012 (Scarborough Centre)
Hearing with Aris Babikian: Oct 2014

Let's assume you became PR on Oct 5, 2008 and applied on Nov 10, 2010 (need to use specific dates because that's how the calculator works):

a) your qualifying period is Nov 10, 2006 - Nov 10, 2010.

b) the period from Nov 10, 2006 to Oct 4, 2008 (the day before you became PR), gives 694 days (using a regular calculator). Divide that number by 2 (since you only get half day credit for each day you were in Canada up to a maximum of 1 year) and you get 347 days. Based on the above numbers, you would be short the 1 year pre-PR credit by 18 days. If you also traveled during this period, you would be short more days.

c) based on b), you would have needed to apply well after Nov 10, 2010 to be eligible. Also, note that with each additional day beyond Nov 10, 2010 you automatically lose half day on the pre-PR time. That is, you will now need 2 days to make up for the loss of each half day on the pre-PR time.

I know this because I used the calculator before I was eligible to apply to see when I will qualify. I lost some pre-PR time and also traveled since becoming PR so ended up needing about 4 - 5 months extra to qualify.

You can now plug in your actual dates and follow the calculation above, and you should be able to understand how you were 56 days short.

 

[dpenabill]

I would be interested to know if the sub rosa changes that took place were something that had been in the air for a while, or were catalyzed by a particular event, such as the airlift of expatriate Canadians from Lebanon.

I would not say the changes were secret. They were not publicized. Aspects of them have been confidential, which is secret, but in terms of how this government evolved in its approach to pushing a physical presence test versus a residency test, as I said above, this is well illuminated in the course of CIC's arguments to the Federal Court over the years . . . these proceedings are open to the public, sometimes reported in local media but at the least are publicly published in multiple sources, at least two of which allow free access (I think my case links above include examples of the two I regularly review, both free).

That said, it is not as if the citizenship cases are widely followed or known outside those who are engaged in these matters (lawyers, consultants) or simply interested (like me). And in the meantime, the law did not actually change at all, and neither did CIC's information to prospective citizenship applicants . . . for example, CIC's FAQ about what happens if the applicant meets the basic residency requirement but has less than 1095 days actual presence remained largely the same for many, many years, while in fact citizenship's actual approach changed rather radically . . . CIC continuing to inform prospective applicants, right up to June 10, 2015, that if they were short of 1095 it was up to a Citizenship Judge to determine if they met the residency requirement. And it was referred to as a residency requirement, not a physical presence requirement.

In terms of the difference between what was simply not publicly broadcast versus what has been confidential or "secret," that difference is probably best illustrated by OB 407, which was implemented in April 2012. The general public was not informed. Most Operational Bulletins were published at the CIC web site but not all. (These days there are "updates" to the Program Delivery Instructions, accessible through the publications pages at CIC.) This one, OB 407, was not. All of a sudden, however, in May and June 2012, the forums were flooded by reports of newly issued RQ including a huge number of RQs issued before the test had been scheduled. Previously, pre-test RQ was extremely rare. Many forum participants soon made ATI requests trying to find out what was going on. At some point this led to the disclosure of OB 407 with large parts redacted (my memory of this is not precise . . . seems it was at least well into July before we knew about "OB 407" by name). OB 407 never was publicly published, and somewhat ironically even after it had been identified by name and there were numerous requests for it specifically, the responses to these requests varied, with a lot of inconsistency, some containing a lot more of the OB redacted than others (these should all still be available through CIC's completed information requests, which used to be far easier to access; now it appears the only access is through Canada's OpenData Portal, which is not user friendly, as there are literally tens of thousands of requests listed to search through, and I am not sure how to access those older than 2013, they are accessible still somewhere but the government does not organize this information in a way which facilitates browsing access . . . frankly, while cost-cutting is probably a factor in how these information resources have been reorganized, this has been part of a consistent trend in which access to information has been reduced and even when retained it has become more and more difficult to actually access).


Lebanon and other factors:

None of the information I saw specifically cited the Lebanon situation as a cause or reason, but it clearly was a factor in a number of changes, both in written policy changes and unwritten ones. Another big factor was the unraveling of (somewhat) widespread fraud connected to a number of both authorized and a larger number of unauthorized consultants, when CIC identified some particular addresses in Mississauga having been used for their "residential address" by literally several hundred citizenship applicants. So, yes, some of the changes were far more gradual until around 2009 and 2010. Note, for example, when I first began following citizenship fairly closely, in 2008, the typical timeline appeared to be around 8-10 months, and when some forum participants were reporting a timeline sliding past a year they were doing so with loud expressions of outrage. By 2011, the timeline generally had grown to well over a year, and then in 2012 the processing of citizenship applications came to a near standstill.

There were multiple threads of elevated scrutiny unfolding in that period 2009 through 2012 into 2013:
-- shortfall applicants (this had started earlier but because it was not apparent until reflected in Federal Court decisions, which are cases many years old by the time there is a published decision, we did not see actually happening until years after it had begun)
-- applicants who left Canada while the application was pending
-- particular suspicion aimed at applicants with U.S. Green Cards or work permits for the ME
-- heightened concerns if not suspicion toward applicants with extensive periods of unemployment, self-employment, or employed in a "consultant" capacity



But the overriding aspect for this thread, is that when Ardi77 applied, back in 2010, it was NOT widely known that CIC was acutely focused on physical presence rather than residency.

For many, many applicants then, the question was (1) did you meet the basic residency requirement (thus were you eligible for citizenship) and (2) did you maintain your residency in Canada for at least three years (with only half-time credit for time living in Canada prior to becoming a PR). If the answer to these questions was in the affirmative, it was time to apply for citizenship.

As I noted, back then PMM was among a very few suggesting otherwise. And as PMM is wont to do, there was no elaboration or explanation of reasoning, just the simple but, as it turned out, highly astute observation.

As I also noted, the transition in how CIC approached shortfall applicants started well before it was otherwise apparent, let alone obvious, again because it was not apparent until reflected in Federal Court decisions, which are cases many years old by the time there is a published decision . . . so it was not until 2010 or so (see references to the Sarvarian decision below) that the changes were becoming apparent (and to a large extent, that is in hindsight), and not definitively so until the decisions by Rennie, Snider, and other Feferal Court justices in the second half of 2011 reflected a big shift.

In fact, until Justice Rennie's decision in 2011, the trend seemed to be more toward an almost mandatory consideration of qualitative residency factors, see for example Ocla, a 2011 decision . . . which, it later turned out, was among the last leaning in that direction.

From cases like the oft cited Lam decision, and the oft cited Takla decision, continuing to when Justice Barnes issued his decision in Ocla, scores of official decisions repeated language similar to that of Justice Mainville in 2009, in the Takla decision:

The third jurisprudential school has become dominant with time and it is based on Madam Justice Reed’s analysis in Koo, above. This jurisprudential school maintains that the test is whether the individual has centralized his or her mode of existence in Canada.

The Koo test was adopted in this Court’s jurisprudence to the point that it is now, by far, the dominant test . . .

Considering the clear majority of this Court’s jurisprudence, the centralized mode of living in Canada test established in Koo, above, and the six questions set out therein for analytical purposes should become the only test and the only analysis.

Justice Mainville's conclusion, that the centralized mode of living in Canada should become the only test of residency, was not universally embraced, but almost all Federal Court justices then were recognizing the validity of its key premise: that the Koo test had become the dominant test of residency.

That was the environment in which Ardi77 applied in 2010.

But in 2010 Donald Rennie was appointed to the Federal Court, apparently with a mission since it was not long before he issued a ruling (not just an observation) totally in the opposite direction.

In the meantime, though, observers like me should have but did not immediately fully grasp the significance of the situation reflected by the Ocla case. We had already seen the Sarvarian decision from the fall of 2010. The handwriting-was-on-the-wall so to say. Ocla was 99 days short. Sarvarian was 172 days short. But the underlying facts and circumstances in both cases were well within the range of what would qualify under the Koo test. In both these cases the respective Citizenship Judge applied the strict presence test and denied the applications. Ocla won his appeal. Savarian lost.

But what should have jumped out and tapped me on the forehead (my account of these cases in real time, back in 2011, is still in older pages of forum discussions at immigration.ca) was the fact both these individuals had been rather summarily rejected based on the actual presence test despite how clearly both were settled in Canada, and how clearly the reasons for time abroad were temporary and consistent with their lives in Canada (Ocla, for example, was a university professor who spent his summer months either participating in or teaching in programs at various universities elsewhere in the world, and who often traveled abroad for conferences during the school year, all closely related to his profession, adding up to being abroad slightly more than 1/4 the time, thus never quite reaching the 1095 days APP threshold). In early 2011 I did post a comment expressing some confusion regarding the Sarvarian decision, given again that at that stage it still appeared, as Justice Mainville observed in 2009, that the Koo test had become the dominant test of residency.

So all this blaming Ardi77 for applying before being qualified is malarkey. Ardi77 was eligible. Ardi77 appeared to be qualified pursuant to the then dominant test for determining residency. And for the ordinary person, "residency" is about maintaining a primary place of abode, not where one is necessarily physically located all the time. In 2010 there was virtually no source of information, not even these forums (unless one happened to post a particular question about this and PMM responded), informing prospective applicants like Ardi77 that it was a mistake to not wait until reaching the full 1095 days of APP threshold.





For further context:

CIC's internal practice guideline for assessing residency, CP 5 "Residence" (from at least 2005 until replaced outright last year by Program Delivery Instructions, and largely replaced in effect by OB 407 in 2012), specifically set out a version of the Koo test for assessing residency.


For many years many courts also cited Justice Thurlow's language (the other qualitative test, more general than Koo) in Papadogiorgakis:


It seems to me that the words "residence" and "resident" . . . are not as strictly limited to actual presence in Canada throughout the period . . . but can include, as well, situations in which the person concerned has a place in Canada which is used by him during the period as a place of abode to a sufficient extent to demonstrate the reality of his residing there during the material period even though he is away from it part of the time. ...

A person with an established home of his own in which he lives does not cease to be resident there when he leaves it for a temporary purpose whether on business or vacation or even to pursue a course of study.

As I have noted, scores of Federal Court justices, over the course of many years, often railed about the state of confusion in the law regarding the residency requirement. For example, back in 1999, in the oft quoted Lam decision, Justice Lufty referred to the law governing determinations of residency as "a scandalous incertitude in the law." At the time of Justice Lufty's decision, in 1999, it was expected that Parliament was about to amend the Citizenship Act to clarify the residency requirement (a Bill to do so was then working its way through the legislative process). Did not happen until 2014.

As noted, CIC's internal practice guideline for assessing residency, CP 5 "Residence" specifically set out a version of the Koo test for assessing residency. At some stage between 2006 and 2009, however, CIC began arguing (at least in cases before the Federal Court, but I suspect also in the training provided for appointed Citizenship Judges and in referrals to CJs for residency hearings) that this was not an alternative test so much but rather a test which could be applied in extraordinary circumstances as an exception. That is not what the Federal Court cases articulating either of the qualitative tests had ruled. That is, however, what obviously became the in-practice dominant approach by around the time that Ardi77 applied . . . even though the law itself had not changed, and without any hint from CIC to the public about this.

 

[AUTO101]

By any chance, did you read the part that I got rejected after 5 years : I don't have any problem with the rejection, so please read my story carefully....

If I had my rejection letter right after I applied 5 Years ago, I could call that day the best day in my life over past 5 YEARS.

Thanks for being a concerned citizen....

I did read it thoroughly and yet I am disappointed that you have been here for 5 years and still living like it's your birth country. You are the one at fault to submit an application early, you don't get to complain about CIC not getting back to you right after. They have thousands of applications not just yours. And they don't decline or return an application if a person is short of days, the citizenship judge makes the final decision which was not in your favor.

That is a mystery for myself....
I have a master in finance from a canadian university and I think I know how to use the calculator...
....
May be we should stop blaming each other for tax dollar, and start blaming ourselves for the fact that we are fine with whatever the governmenr is doing with your tax dollars...

Please post the name of this Canadian university that is handing out master degrees to people like you. Because sure as hell, you are not comfortable with calculator or dates. It's scary.

Government didn't do anything wrong or unfair in your case. You didn't meet the minimum requirement so they rejected your application. I hope you don't do the same mistake again and learn from this and move on.

 

[Ardi77]

I did read it thoroughly and yet I am disappointed that you have been here for 5 years and still living like it's your birth country. You are the one at fault to submit an application early, you don't get to complain about CIC not getting back to you right after. They have thousands of applications not just yours. And they don't decline or return an application if a person is short of days, the citizenship judge makes the final decision which was not in your favor.

So please explain to me what was the point to see s judge if ha can't accept my 5 years presence here in Canada for those 58 days absence....( and yes I have proofs for 5 years)

And please respond politely, since being rude it is easiest choice to go for EVERYONE...

 

[screech339]

So please explain to me what was the point to see s judge if ha can't accept my 5 years presence here in Canada for those 58 days absence....( and yes I have proofs for 5 years)

And please respond politely, since being rude it is easiest choice to go for EVERYONE...

As zardoz has mentioned in earlier post, you were using pre-PR days towards citizenship qualification and still came up short 58 days. Remember you can only use 2 years of Pre-PR days towards it, not 3 years. If you were short 58 days as PR towards citizenship and never used any Pre-PR days, you may have had a chance to get citizenship. But since you were using pre-PR days, any days short is pretty much a likely denial for citizenship.

 

[LostinCalgary]

So please explain to me what was the point to see s judge if ha can't accept my 5 years presence here in Canada for those 58 days absence....( and yes I have proofs for 5 years)

Correct me if I'm wrong, but I think you believe that just because you had a hearing with a judge, that meant you were supposed to be granted citizenship 100% guaranteed. You were not. No matter what proof you presented, the judge was not satisfied with it.

The whole point to see a judge was to give you a chance, to see if in spite of the shortcomings of your application, they would give you an exemption. Unfortunately for you, they did not, but as part of the process, the hearing with the judge was not pointless.

 

[LostinCalgary]

He even asked for my police report 2 months ago and then after he received it, he declined my case.

What was the result of your police report if you don't mind me asking?

 

[Ardi77]

What was the result of your police report if you don't mind me asking?

I guess it was clear because he failed me for not being in Canada for 1098 days. And I know that I have not done anything against the law....

 

[jhjeppe]

So please explain to me what was the point to see s judge if ha can't accept my 5 years presence here in Canada for those 58 days absence....( and yes I have proofs for 5 years)

And please respond politely, since being rude it is easiest choice to go for EVERYONE...

People are not being rude, they are being blunt since you are not "getting it"...

It seems like it's the only way to get it through your head (which now seems to not work either)

You now need to stop whining and listen up real good;

1. You lacked the residency requirement to apply for Citizenship.
2. You were called for a test and to see a judge because that is the procedure... Even though you didn't meet the requirement, you might still be granted citizenship depending on your case and your situation, this is assessed on a case by case basis... You did not qualify, neither did the judge think that your situation were worthy of forgiving the miscalculation...
3. You now have the opportunity to reapply (if you do meet the new residency requirements)

Now please stop wasting everyone's time and stop acting like a child that has been grounded....

 

[OP_POP]

People are not being rude, they are being blunt since you are not "getting it"...

It seems like it's the only way to get it through your head (which now seems to not work either)

You now need to stop whining and listen up real good;

1. You lacked the residency requirement to apply for Citizenship.
2. You were called for a test and to see a judge because that is the procedure... Even though you didn't meet the requirement, you might still be granted citizenship depending on your case and your situation, this is assessed on a case by case basis... You did not qualify, neither did the judge think that your situation were worthy of forgiving the miscalculation...
3. You now have the opportunity to reapply (if you do meet the new residency requirements)

Now please stop wasting everyone's time and stop acting like a child that has been grounded....

You summed it up pretty well in your post.

 

[neutral]

It's still missing the University name ...

 

[Rayan14]

Thanks for your help, I wish I was aware of this forum long time ago.....Actually I asked couple of time from CIC call centre if I should withdraw and apply again, and unfortunatelly they tole me if I do I would be going through the same process again...


I came to Canada from my home country because ppl wouldn't be respected or heard by the government... I came to Canada because I taught they would treat me based on respect and fairness.... I guess I wasn't thinking straight to some extent...

You 'thought' wrong. And yes the system is unfair and biased. If it was fair or square, CIC staff and all immigration lawyers would be unemployed. They have to keep you and I on the backlog (created by Jason Kenney) as a way to keep their existence relevant. I fully hear you. And yes it is outrageous to make you wait 5 full years to tell you NO. They could've said NO before you took the test.
Now what should not have been done is now done. Consult a decent lawyer, re-apply and hopefully you'll get the desired result this time faster. Good luck and don't get riled up by rude comments here since a few feel 'brave' hiding behind a computer keyboard.