Lily2011 said:
Hello,
My husband and I applied under the old law. We had basic residence of over 1400 days but applied the day he was eligible (exactly 1095 physical days) with no buffer after listening to our lawyer's ill advice. We received pre-test RQ, a letter to attend the test in Jan 2015 (we found out then that CIC re-calculated my husband's days and he is now about two weeks short) then we received a post-test RQ. We never had an interview with an officer but did mail in letters explaining the reason for the lack of days. The CIC agent told me that they received at least one of them
I was hopeful when I heard that March 31st 2016 is set to finalize all old applications. And was told by a phone agent that we qualify then told by another that we didn't.
From what I read on the board here, we will likely receive a date for a CJ hearing. Any advice from the experienced members?
I kept all documentation sent to the CIC and updated relevant ones too. I also found a good lawyer after firing the old one and planning to ask him to attend. I really hope that we wont get a hearing and finally catch a break and move to oath after all what we've been through. But we had the worst luck so far, and I don't think it will change now
Also, any idea if the occupation or CRS score counts in a CJ hearing? We obtained our PRs as skilled Federal worker and had a score of over 1200. We also both studied and graduated from Canada and we own two properties.
If any one has experience with CJ hearings please share. We are in London, ON.
Foremost, as I already noted, preparing for a hearing with a Citizenship Judge is a big topic.
There are many, many individual details which factor into what makes a better case versus what is difficult to overcome in a given case.
That said, the real opportunity to prepare for a
Residency Case hearing with a Citizenship Judge was in the submission of a response to CIT 0171, the RQ (Residence Questionnaire), and frankly how the case turns out will be in large part dictated by what has already been submitted.
And, as you allude, whether or not to obtain the assistance of a lawyer is indeed a key question, the answer to which depends as much on your finances as it does the merits of the case. If you can afford a lawyer, then going to the lawyer to prepare for the hearing, and hiring the lawyer to accompany you to the hearing, is a good idea. Better than getting your information here.
Which, however, brings up your earlier posts. For reference, including dates, I have also quoted a post from nearly two years ago (appended to the end of this long post). The background is a significant consideration. It appears that you did indeed get some good information from
Msafiri back in 2014. And there is indeed a lot of good information to be found in the forum. But it is nonetheless limited and no substitute for professional assistance.
Preliminary Issues:
There are some preliminary issues, like whether or not you will actually be scheduled for a hearing or whether you might still suddenly be scheduled for the oath. The latter is still a possibility, despite how long and apparently how skeptically CIC then IRCC (IRCC being the new name of what was before CIC) has apparently approached your application.
The thread from two years ago suggested there was a question about complying with the PR Residency Obligation in the meantime. I assume this has been resolved, no problem, no lingering questions about compliance with the PR RO.
Additionally I assume you are
currently living in Canada (not just in Canada temporarily). Technically the extent of your absences between the date you applied (back in February 2011) and now are not relevant. In practical terms, however, living and working abroad makes an impression, not a favourable impression. If that is now history, all past tense, and you are definitively now settled in Canada, the impression should be not so bad. If however you are in Canada temporarily (I assume you are in Canada since you report having telephone conversations with the call centre representatives), and have continued to be living and working abroad, the impression is not so good.
Another caveat: There are so many angles it is hard to focus on this or that one which might be of more significance for you.
For example, in reference to security clearances (another subject of inquiry you have recently posed), one of the things that has changed, and which affects even those who applied a long while ago, is that the prohibitions have been expanded to include convictions for crimes abroad. So background clearances can now include getting clearances from foreign governments (and indeed, currently new applicants must submit police certificates from any country in which they spent a total of six months or more during the
four years prior to applying. Basically for you, the background clearances must show no criminal conviction between February 2007 and today (from four years prior to application and from date of application to present). Assuming there have been none, this is nonetheless something which can have an impact on how long it takes for background and security clearances to be completed, recognizing that any clearances done before the end of May 2015 (when the change in prohibitions took effect) would not have been clearances covering time abroad.
That has nothing to do with proving residency at a CJ hearing, but it is a factor in where things are now. And it may even partly explain the continuing delay (as I address below, yours appears to be among a few cases that have been pending beyond five years), which still leaves open the possibility you might be pleasantly surprised by suddenly being scheduled to appear and take the oath.
Timeline:
You stated:
"I was hopeful when I heard that March 31st 2016 is set to finalize all old applications. And was told by a phone agent that we qualify then told by another that we didn't."
Timelines reported by CIC and IRCC
never have any direct application to any individual applicant. They are
generalizations, not rules, not at all mandatory or otherwise controlling, not at all definitive. They really do not mean much other than as a general, very general, indicator of how soon or how long things
can take, and do not illuminate much about how long they are likely to take, and absolutely no direct indication about how long any particular case will take.
At this juncture, though, you must have one of the longer pending applications, more than five years in process now. Way too many went to four years, plus some, but five years plus is unusual. Which means it is about time things moved to the next step, and I think you can expect that fairly soon. (There have been longer cases: one reported case going eight years, and then only to end up in an admissibility examination; an acquaintance of mine said his took seven years, but these are very unusual.)
Hearing Preparation In Particular:
Prepare to make an affirmative case but then be considerate, polite, in making that affirmative case:
NOTE: Yes, lawyer Recommended. The assistance of a lawyer is a good idea. But even an experienced lawyer may have some difficulty making an affirmative case at a CJ hearing (which is an indicator of how difficult it is for a non-lawyer). Moreover, a lawyer cannot change the facts. And at this stage most of the facts are in the record.
Most reports of CJ hearings indicate they are usually conducted relatively informally, more or less in the style of an interview, the CJ usually asking questions, and typically (best we can extrapolate from a rather small number of apparently credible reports) no clear opportunity to, so to say, put on an affirmative case. This is in part among reasons why it can be so difficult to make an affirmative case at the hearing: CJs are typically (it appears) less than open or receptive to much if anything other than a question and answer session, the CJ in control.
Some reports indicate that even when the applicant is accompanied by a lawyer, the manner in which it proceeds is still largely the interview format.
The applicant is entitled to make submissions at the hearing, however, including submission of additional documentation; CJs may strongly resist this, but the applicant has a right to insist. Whether that is a good idea, however, is yet another question. At most, this should be approached cautiously, considerately, politely, but if a particular document (not a pile of paper but this or that specific document) is important, the applicant can politely insist he or she wants it to be part of the record.
Perhaps it is a bit of hyperbolic over-simplification, but my impression is that a nodding-head smile and reassurances of being an honest and deserving immigrant, is the preferred approach, perhaps even for those represented by lawyers. Perhaps the idea is that if the CJ likes the applicant, there are better odds of approval, and virtually no odds of approval if the CJ is in any way alienated, irritated let alone offended, or otherwise given a bad impression.
There is, though, some substantive foundation underlying this: the facts are already largely in the hopper. As I noted upfront, the applicant's real opportunity to make his or her case is in what is submitted in response to the RQ. That was the best time to make an affirmative case. The hearing is then more or less an opportunity for the CJ to consider the applicant in person, to assess demeanor and credibility, and to perhaps ask a few specific questions which could resolve the case one way or the other.
And your case might very well fall within the range of this sort of case. You are pessimistic, but my impression is that your physical presence met the physical presence test, and that your partner's fell short only by a small amount due to a relatively minor error. So it might even have been a case which could have easily been favourable long before now
except you were living and working abroad, and that was a huge red flag while the Conservatives formed the government. (And perhaps will continue to be at least a red flag.) Which is to say, if you are living and working in Canada now, and
IF asked will give a reasonable explanation for living abroad after applying, and you make a good impression on the CJ, and the CJ has no reason to doubt your credibility, this could easily go OK.
That is saying a lot. Frankly, given the change in procedure which took effect in August 2014 (part of the Bill C-24 changes), it is apparent that the majority, perhaps the vast majority, of applicants scheduled for a CJ hearing have had a very negative referral made, the Citizenship Officer completing what is called the File Preparation Analysis Template (FPAT) most likely highlighting reasons to deny approval. And while the referral in your case may likewise be rather negative, if the real or practical concern was really more about you being abroad after applying (and this is possible even though there is no provision of law or the rules which provide for or authorize this), it really might not be so bad.
In fact, again, since you have not yet received notice for a CJ hearing, it could indeed be the background clearances that are now holding things up, and you might not even be scheduled for a CJ hearing. You could still suddenly be sent notice to attend the oath.
But of course there is also a substantial risk otherwise. Particularly since, as I just noted above, with the changes made to the process in the last two years, any case referred to a Citizenship Judge tends to be a hard case, a case for which IRCC (previously CIC) has prepared a negative referral arguing why the application should be denied.
If this is the situation, that you are scheduled for a CJ hearing and the FPAT referral essentially highlights reasons why approval should not be granted (regarding which you have virtually no way of knowing, except to the extent that just being scheduled for a CJ hearing suggests a high risk of this), this is when making an affirmative case could matter.
Hard part is knowing whether or not to, in essence, be forceful about making an affirmative case or just going the smile and head-nod and politely answering questions route. If the latter will suffice, going the former, being forceful, could spoil it.
The skill of forcefully
and persuasively making a case to a judge disinclined to receive argument is not common, not even among good lawyers, but rather is the hallmark of only a few advocates, who typically are some of the best lawyers. Not so many of those are immigration and citizenship lawyers (such skills can demand
the-big-bucks, so to say, and immigration and citizenship law is not where
the-big-bucks are made). Many lawyers are good at making very strong arguments. Persuasive arguments, though, are not so easily come by.
Perhaps the best preparation is to focus on the basic facts and being prepared to answer questions, any questions, about them. When you traveled, where and why, where you lived, where you worked, details about this and that place you lived, worked, went to school.
Do not plan or try to submit too much.
I am hesitant to delve into particular planning, into details, for a lot of reasons. Big one is that
I am NO expert, and
I am NOT qualified to give personal advice. Another really big one is that, again, there are so many diverse factors involved, affected by so many details and how the details interrelate, a forum like this is simply
NOT an appropriate venue for going into such detail let alone fully vetting them.
But perhaps some general observations will be helpful.
Reminder: What is already in the file is the main source of information and evidence the case is likely to be decided on. There is, in particular, no need to attempt to re-introduce any documentation which has already been submitted. There may, however, be reason to refer to and highlight some of that evidence, to bring the more favourable parts to the CJ's attention.
My impression is that applicants tend to make one of two mistakes:
-- attempting to do too much, to submit too much
-- failing to submit enough
Finding the right balance goes back to similar observations about advocacy skills generally. Basically a so-called
mountain of evidence tends to obscure if not outright bury what really matters, to distract from or outright lose what will really persuade in a storm of not-so-relevant or at least not-so-persuasive detail.
But too little is simply too little. And finding the right balance is an uncommon skill.
Advocacy 101: Argument tends to alienate. Helpful explanation tends to get a better reception. It is the difference between pushing and inviting. Unfortunately this is not something so easily executed.
And more than a few of the anecdotal reports of CJ hearings indicates that at least some CJs appear to have their mind made up before the hearing. They have, after all (if they prepared, assuming they prepared), already read the FPAT referral and thus are already familiar with all the reasons why the application should be denied. My guess is that nearly all CJs would deny this, emphatic that they approach the hearing with an open mind. Not likely.
So the applicant who wants to take his or her best shot needs to recognize the limitations of the venue, of the process, and really focus on what will be his or her best shot.
But a problem here, typically, is that the applicant is given very little guidance as to what IRCC or the CJ are focused on as the real problem in the case. The applicant goes into the hearing relatively blind, knowing mostly what is required generally not specifically, whereas what will determine the outcome will be very much what is specifically the focus of concern.
So the applicant who wants to be well-prepared should rake over his or her application looking for its weaknesses, as brutally focused on the negatives as possible, and then be prepared to address those weaknesses at the hearing, not with argument but with
facts. Not with explanations (though some explaining can be helpful, even key), but with
facts. No excuses.
NO EXCUSES. Be prepared to acknowledge mistakes made. Maybe offer explanations but never excuses.
It is important to recognize that preparation is best if it is far larger in scope than what one might possibly actually do in the hearing. Prepare to do much, but be prepared to actually focus on doing much less, on hitting the keys which make a difference, to the extent you can figure out what is important toward making the difference.
Key facts to be prepared regarding:
-- as much detail about dates of travel as possible (again, you might only actually address little of this information, but in preparation organize as much detail about trips as is practically feasible); this is mostly about being prepared for questions
-- details about all the key elements of residency:
-- -- where you lived (very specific, including specific dates, addresses, descriptive information, who was your landlord or roommates or such, and so on)
-- -- where you worked in Canada (and again, very specific, who, what, where, when, including precise dates) or went to school or what other activity was regularly engaged in
-- -- general things (but still as to details) reflecting a life lived in Canada, a life
centralized in Canada
-- as to any gaps in information (place of abode, employment, or such) previously submitted: fill in the gap
For the latter, if there was a month or three or more which was not clearly covered by the documentation you previously submitted, you should be prepared to fill in that gap; thus,
for example, even if there was only a one month gap in documentation (leases or rental or property tax documents) showing the residential address, your actual place of abode, somehow fill in that gap, even if it is a letter from someone whose home you stayed at that month. Similarly for employment, do what you can to cover every month.
Be sure to specifically document date actual residence established:
This is especially true for your partner, who has the shortfall, since it is a crucial element in any qualitative test for residency: it is critical to affirmatively document date of establishing residency. For example, under a physical presence test, all days physically present count. But a shortfall applicant automatically fails if a physical presence test is applied. So the applicant needs to make a good, strong case for having established
residence in Canada, and having centralized his or her life in Canada.
Only days AFTER establishing actual residence count.
Consider, for example, the PR who landed in Canada, stayed for just two or five weeks, then left, and later finally returned to establish an actual residence in Canada. Under a physical presence test those two or five weeks count, as the PR was physically present.
But they do not count if a qualitative test is applied.
It is somewhat unclear whether they might not count even for the physical presence test, but at least most CJs and most Federal Court justices will count those days . . . but again, only if the applicant meets the physical presence test.
The reason why they will not count if a qualitative test is applied is that the qualitative test is based specifically on
residence in Canada, so only time actually spent as a
resident counts.
In any event, one of the things to affirmatively impress on the CJ is the date you actually set up a household in Canada, the date you began living in Canada. One way to do this is to present a copy of the lease or rental agreement or receipt for payment of rent (or point out this is a document in the RQ submission) showing where you first lived in Canada and clearly stating this is your evidence of the date you began living in Canada.
There is much, much more. As I noted, this is a big topic. And there are so many angles, so many possibilities. Hopefully I have offered something of some assistance.
As noted, copy of a post from two years ago for referencing some details like the timeline:
Lily2011 said:
to start, here is my timeline:
1. Application submitted 22 Feb 2011
2. RQ received Nov 2011
3. RQ returned Dec 2011 (some requested documents were submitted in Jan 2012 due to delay from Canada Border)
4. Requested specific case inquiry March 2014 and the reply was that the Calgary office recieved my RQ in Oct 2012 (a year after returning it) and that "your file is currently in queue to be reviewed by an officer. The current processing time in Calgary for non – routine applications is approximately 44 months from the date of application. As your application was received in February 2011 it is still within their current processing time" which is depressing.
5. I contacted my MP who inquired about my file. He told me that my application is in queue for an officer to review the RQ submitted in 2011.
6. I applied to renew my PR card in Oct 2013 and it is still processing.
My lawyer gave me two options, either wait it out or apply for mandamus. The thing is, the CIC website states that 36 months is the processing time for non-routine applicants, while the email I received says that it is 44 months which means 7 more months.
My only worry is that I might lose my PR status due to work obligations outside Canada. I am doing the best I can to maintain it but it is really hard to do so. I am moving back permanently after I'm done and I am even looking in to houses at the moment (rent them out to help pay the mortgage until I move back). Not to mention that one of my kids is Canadians and the other is not which makes it very confusing for Canada borders whenever we enter the country (I show them my PR, my kid's Canadian passport and my other kid's visa) I considered sponsoring my child to grant her a PR status but the processing time is ridiculous and I thought my citizenship application would be done by then (hopefully).
What happens if I had to leave Canada while my PR is processing for reasons beyond my control? They still did not decide if they will grant me another PR card so how do I apply for travel documents if they are not decided yet?
Is buying property in Canada will help my application in ANY way?
Any advice on how to proceed?
Thanks
P.S. I'm new to the board and not familiar with all the acronyms yet.
