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ATIP Short by 5days on residency

Diplomatru

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I am sorry to say that but your application will be rejected for not meeting residency eligibility. If you withdraw and reapply, you will save plenty of time on your next attempt. Good luck
 

links18

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Diplomatru said:
I am sorry to say that but your application will be rejected for not meeting residency eligibility. If you withdraw and reapply, you will save plenty of time on your next attempt. Good luck
You don't know that. He may or may not save time by withdrawing and reapplying under new law, but you don't know that either. People on here should not speak in such absolutes about what will happen in cases they don't know much about......
 

Diplomatru

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links18 said:
You don't know that. He may or may not save time by withdrawing and reapplying under new law, but you don't know that either. People on here should not speak in such absolutes about what will happen in cases they don't know much about......
I am not saying that my opinion equals to legal advice. CJ hearing + appeal by IRCC can take two years or more. IRCC will never grant citizenship without court order in such a case.
 

Icebergmoma

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Diplomatru said:
I am not saying that my opinion equals to legal advice. CJ hearing + appeal by IRCC can take two years or more. IRCC will never grant citizenship without court order in such a case.
The thing is that even if you are 5 days short the CO can grant the citizenship without going to a CJ but cannot refuse it. So I agree with links18, nobody should be that absolute without any knowledge on the case.
 

Diplomatru

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Icebergmoma said:
The thing is that even if you are 5 days short the CO can grant the citizenship without going to a CJ but cannot refuse it. So I agree with links18, nobody should be that absolute without any knowledge on the case.
I have never heard of such cases.
 

Icebergmoma

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http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c24&Parl=41&Ses=2#a49

2.5.6 Role of Citizenship Judges (Clause 12)
Clause 12 sets out new section 14, which establishes a more limited role for citizenship judges in processing citizenship applications. The Minister will refer an application to a citizenship judge only if he or she is not satisfied that the residency requirements are met.
The new procedures of the c-24 bill have been applied right after the royal assent (mid june 2014). That means that before 2015 June 11th, the residency was still not defined as purely physical in the law. So, an officer can grant the citizenship if after a RQ you have successfully demonstrate that you strong ties in Canada.

If he/she's not sure, the application will be transfer to a judge.

I may be wrong but that's what I understand.
 

Diplomatru

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Icebergmoma said:
http://www.lop.parl.gc.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c24&Parl=41&Ses=2#a49

The new procedures of the c-24 bill have been applied right after the royal assent (mid june 2014). That means that before 2015 June 11th, the residency was still not defined as purely physical in the law. So, an officer can grant the citizenship if after a RQ you have successfully demonstrate that you strong ties in Canada.

If he/she's not sure, the application will be transfer to a judge.

I may be wrong but that's what I understand.
Yes, you are wrong.

When to refer an application to a citizenship judge
Applications must be referred to a citizenship judge where an officer is not satisfied that the applicant meets any of the following requirements, assuming all other requirements for citizenship have been met.

For applications received before June 11, 2015

The applicant is a permanent resident.
The applicant has accumulated at least 3 years (1095 days) of residence in the 4 years immediately before the date of their application.
http://www.cic.gc.ca/english/resources/tools/cit/admin/decision/judge.asp

Even if it's 1094 days the case will still go to a CJ, which is a waste of time because CIC will challenge that in court leaving single digit percent chances for a positive outcome and delaying the process by a few years.
 

dpenabill

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YNSAFDARI said:
What is the best way to address the issue, like through my ATIP i found that I am 1091 days, meaning short of 4 days according to the officer. Should I write a letter or call CIC to find out or wait for their letter or refusal (hope not). Please advice.
You are in wait mode. This happens. There is probably nothing you can do to accelerate the process or even discern what will happen next until something does happen.

You will not get a refusal letter without first getting a request to submit RQ (I am assuming you were not issued RQ), and even then not without being first referred to a CJ hearing.

Next step is likely to be:
-- scheduled to take oath (some chance of this), or
-- issued CIT 0520, request for further documents, or
-- issued CIT 0171, the full blown Residence Questionnaire known as "RQ"

Most shortfalls get RQ'd. If RQ'd, follow the instructions, submit your documentation, be sure to specifically document the date you first established an actual residence in Canada (this is an important fact for any shortfall case, but none of the CIC or IRCC information alerts applicants of this -- but it is something repeatedly emphasized in numerous Federal Court decisions).

But it remains possible you will be approved and granted citizenship without being issued RQ, given the nature of the shortfall.

Not much to do, however, but to wait and see how this goes. ATIP is not going to illuminate much if anything.





Beyond that, there is a lot of misinformation posted in this topic. Disheartening. Disappointing. Because of this I feel compelled to make some observations about the content of posts here.


YNSAFDARI said:
Just received my ATIP, the officers comment says " Applicant has fallen below 1095 days ". Physical presence = 1091 mentioned on ATIP, Basic residence = 1402.
And this notes are of 3rd Dec 2015, but so far neither I have got refusal letter nor Oath. I had filled up the form as per the best of my knowledge without hiding anything.
Can anyone shed any light on this status? What are my chances of making it as it wasn't done intentionally just missed few days.
YNSAFDARI said:
What is the best way to address the issue, like through my ATIP i found that I am 1091 days, meaning short of 4 days according to the officer. Should I write a letter or call CIC to find out or wait for their letter or refusal (hope not). Please advice.
Icebergmoma's responses are the most accurate, as well as observations by links18.

In contrast, those who have said that short of 1095 means near zero chance are grossly exaggerating how shortfall cases (old-rules, less than 1095 days APP cases) are doing.

As Icebergmoma posted, and as others in this forum have reported their experience, and as has been confirmed in actual cases officially reported in Federal Court decisions, some shortfall applications are being approved and the applicants become citizens. Particularly relatively small shortfalls appear to be getting approved unless there is a credibility issue.

Yes, a few dozen cases in which CJs granted approval to shortfall applicants have been appealed by the Minister, but so far we only see those appealed by Minister Alexander before the election. Among these, while the Minister wins most, the applicants have won some. And for most of those appealed, by a big margin, there are obvious reasons why CIC (under Alexander) had real concerns.

Otherwise, there have been multiple credible reports in this forum by applicants who had a shortfall and were scheduled to take the oath without having to go to a CJ hearing.

Nonetheless, it is difficult to forecast how any particular case will turn out. The specific factors in the case make a huge difference. A small shortfall has better odds. But overall extent to which the applicant has clearly established a life in Canada, centralized his or her affairs in Canada, and whose credibly is good, makes for favourable odds for relatively small shortfalls.

In contrast, compromised credibilty hurts a shortfall case badly, very badly.



The following posts either exaggerate or are outright incorrect:

robw said:
I hate to say it, but your chances are practically zero. It has to be 1,095 by their calculation. I can't imagine this ending up in no other way than a rejection. Perhaps, maybe, you get an RQ, but likely this will end in rejection.

Sorry...
Diplomatru said:
I am sorry to say that but your application will be rejected for not meeting residency eligibility. If you withdraw and reapply, you will save plenty of time on your next attempt. Good luck

Diplomatru said:
I am not saying that my opinion equals to legal advice. CJ hearing + appeal by IRCC can take two years or more. IRCC will never grant citizenship without court order in such a case.
Regarding the latter, it is simply not true that IRCC will not grant citizenship without a Federal Court decision. In fact, again, there are credible reports that CIC and then IRCC (which is new name for CIC) have granted citizenship to some shortfall applicants without even referring the case to a Citizenship Judge.

Timelines for residency cases are unpredictable. In the past they could easily drag on for three years, some longer. But there are only a few of those old cases still loitering about the system and it appears the IRCC is making at least fair progress in reducing processing timelines.




Icebergmoma said:
The thing is that even if you are 5 days short the CO can grant the citizenship without going to a CJ but cannot refuse it. So I agree with links18, nobody should be that absolute without any knowledge on the case.
This, in particular, is indeed how it is.

Thus both the following posts by Diplomatru and by Politren are the ones that are wrong:


Diplomatru said:
. . . you are wrong.

http://www.cic.gc.ca/english/resources/tools/cit/admin/decision/judge.asp

Even if it's 1094 days the case will still go to a CJ, which is a waste of time because CIC will challenge that in court leaving single digit percent chances for a positive outcome and delaying the process by a few years.
Politren said:
This is the first time I also hear such thing.
Well, I suppose it may indeed be the first time Politren has heard of this, and perhaps that should come as no surprise. But that actually does not appear to be the case or the first time Politren heard of an applicant being approved despite a shortfall; and indeed earlier in this thread this same individual posted:

Politren said:
Under the old rules the people still could be approved with a shortfall of actual physical presence.
(Note: this one is accurate.)


In any event, it would be nice if there was more an effort to post based on actual information, or at least after trying to do a little homework.



Other topics regarding RQ'd and shortfall applications:

There are numerous topics in this forum in which related issues have been discussed, and in which there are numerous anecdotal reports of succesful shortfall applications.


A sampling:

The following is a report from someone who was short by 157 days and who is now scheduled to take the oath April 5 (CJ approval, no appeal by IRCC):

chx said:
I read several times on this board that it's futile now and they won't grant exceptions now. That's not so. Every case is different. I was short by 157 days (however 133 of those were for helping out with my baby nephew as a medical necessity) and yet here we are: I am invited to take the oath on Apr 5.

My timeline in Vancouver:

Application received March 6, 2013.
Processing started May 2, 2013.
RQ sent to me November 28, 2013. We (I had a lawyer up to this point) answered somewhere second half of December.
Test May 7, 2014. Did 19/20. Yes, I am annoyed at not doing 20/20.
Interview with a citizenship judge at the Surrey office February 16, 2016.
Oath invite sent on Mar 2, 2016 for Apr 5, 2016.

Another thing which might or might not have helped: I have filed for a second time last November under the new rules because at that point I did have enough days under the new rules but I didn't send the proper form for withdrawal of the old one and on Dec 9 I got a call from the Nova Scotia office saying a) if you want to withdraw your old application you need to send a form not just a plain letter b) if I did withdraw I would need to retest c) I should wait until the end of January before withdrawing the old one... Surprise, surprise: I got my notice for the hearing just before the end of January. And then it is not impossible that both the judge and the CIC office have seen the futility of refusing my old application. I can't say. Every case is different.


Another successful shortfall case, applicant 100 days short:

jman1200 said:
Hi

I just this forum joined to share my experience. This site provided me valuable information so I'd like to return the favour.

I applied for Citizenship before reaching Physical Presence and it got granted. Now, I do not advise anyone to do this.

My particular situation:
- I had the number of calendar days required to apply for citizenship.
- I was 100 days short to meet the physical presence. My absences were due to vacation, I work and live in Canada.
- Applied in Oct 2012.
- I decided to apply because the requirements were changing back in Nov 2012 and if I had waited, I needed to prove I knew English which I learned when I was a kid and I didn't want to take any kind of tests.
- In Dec 2013 they asked for additional documents, a Residence Questionnaire which I sent with 100+ pages of documents to prove I lived here.
- In Aug 2014 I wrote and passed the Citizenship test. Official that reviewed my file after the test told me that because I applied before meeting the physical presence my application will have to be reviewed by a judge and that it could take up to 8 months. Said that I'd be better if I withdrew my application and re-apply. I decided to take my chances.
- Oct 2015. Once my application exceeded the 36 months, I called the call centre to inquiry about my file and why it was taking so long.
- Nov 2015 got an appointment to meet a judge. Judge reviewed my file and asked my about my ties to Canada, I was able to tell he followed the Koo test I read about somewhere. Judge was very nice to speak with.
- Jan 2016. My application was granted.

If I had known I'd take so long and that I was going to be under so much stress thinking it was going to be rejected, I'd have waited to meet the physical presence and write the English proficiency test. Many friends that applied after me, got their application approved within 8 months.

My advise, wait until you meet all the requirements.


A relatively recent Federal Court decision which upheld a CJ's grant of approval for a shortfall applicant is Justice Southcott's decisions in the Ryeome Lee case (this should link).

I discussed this briefly in the following post:

dpenabill said:
The Ryeome Lee decision (this should link) is a fairly straight-forward ruling upholding the decision by the Citizenship Judge. This applicant was ultimately 21 days short (1074 days actual physical presence), even though she declared more days present in her application.

This was both a credibility case (Minister challenging the CJ's approval in part because there were, allegedly, unresolved credibility issues) and a shortfall case. Justice Southcott even suggested a different decision maker might agree with the Minister, or at least have reached a different conclusion than the CJ, but that is not enough to overturn a CJ's decision.

One interesting aspect of this case is that the CJ applied the Papadogiorgakis test for residency. That is one of the alternative qualitative tests that can be applied to applications made prior to June 11, 2015. For several years the qualitative test usually applied is that often referred to as the Koo criteria. Koo specifies far more specific parameters for determining if the applicant was resident-in-Canada for at least three years even if absent some of those three years. The Papadogiorgakis test is quite vague, the focus of inquiry on whether the applicant has shown that his or her life has been centralized in Canada.

In any event, Ryeome Lee was short, but the CJ found she was resident-in-Canada per the Papadogiorgakis test and approved her application. The Minister appealed, and lost.


[This is a partial quote; go to linked discussion for full post and context, and observations by others.]


Additional samples of related discussions:

dpenabill said:
Many, many applicants have taken the oath after having been issued RQ.

. . .

How these cases go is very much dependent on the particular facts and circumstances, especially the extent to which the applicant is clearly a settled resident of Canada, but also on certain details including, for example, whether pre-landing credit is involved, extent of residential ties generally, overall duration of applicant's life in Canada (applying with 1099 days basic residence, and a shortfall in actual residence, does not make a good case), in addition to more general factors which can be influenced by detailed factors, credibility looming very large in the latter part of the equation.

Regarding credibility, again it is a huge factor.


[Again, this is a partial quote; see linked discussion for full post and context.]

For detailed discussion about preparing for a CJ hearing, if it comes to that:

dpenabill said:
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.

[Again, this is a partial quote; see linked discussion for full post and context.]
That should be enough doing homework for others. There are many other topics in this forum which discuss many aspects of this.





Note: there seems to be an unusual amount of activity in the forum recently involving posting unfounded or inaccurate information, or in some instances outright nonsense.

For an example of how far off, how unfounded, some of the posts have been, see:

--------------------​
Politren said:
The Intend to reside clause will be removed ONLY for those who will apply after the Royal Assent.

It doesn't have retroactive effect.

For all those who have applied between June 11th 2015 up until the Royal Assent of this Bill, the Intend to reside clause will remain effective until the Oath.
This is about Bill C-6 and the provision to repeal the current provision requiring applicants have an intent to continue to reside in Canada.

My response:

dpenabill said:
Shake my head. No. Totally wrong.

Section 1(5) in Bill C-6 repeals the entirety of Section 5.(1)(c.1) in the Citizenship Act; Section 5.(1)(c.1) contains the so-called Intent to Reside requirement. This provision, the repeal of the intent requirement, will be effective on the date Royal Assent is given.

It's applicability and effect are prescribed by sections 16 and 17 in Bill C-6.

Section 17 in Bill C-6 explicitly states that Section 5.(1)(c.1) will NOT apply to pending applications. Simple. As of the date section 1(5) in Bill C-6 comes into force (which, again, will be the date of Royal Assent), anyone with a pending application will no longer be subject to the requirement.

Moreover, for anyone who applied after June 11, 2015 and who has already become a citizen, Section 16 in Bill C-6 explicitly prescribes that Section 5.(1)(c.1) in the Citizenship Act will be deemed to NEVER have applied.

That's as retroactive as a law can get. Once Bill C-6 is adopted and receives Royal Assent it will be as if there never was an Intent to Reside requirement.

Caveat: Bill C-6 remains subject to amendment and there is no guarantee it will be adopted. Definitely no guarantee as to when it will be adopted.
--------------------​

There is usually a certain amount of not getting it right. And of course I too make my share of mistakes (and am glad to be corrected when I do). We are not experts.

But this level of blatant disregard for any semblance of accuracy seems far more pervasive of late than usual.
 

Politren

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Jan 16, 2015
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I am happy that all that subjectivity of the old rules have been effectively removed by the new rules with the requirement of strict physical presence.

It is also very sad that almost 10 months after the effective date of the current new rules we will likely still going to see suffering in the waiting lumbo applicants for the foreseeable future at least. But Hey this is Canada , the country with almost NEVER ENDING citizenship journey.

All that subjectivity which was under the old rules is incredibly strange, two identical cases could have ended up in a completely different final decisions.
Outcome UNKNOWN
Timeline UNKNOWN


The old rules were a complete FAIL and I am feeling really sorry for all those stuck in the lumbo of the old rules.

Thank God that all that is already history.

I am just curious do you guys thing that some of the applicant waiting for the whole snail process have already died while waiting?
 

Politren

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dpenabill

Keep in mind that most of us are not that high in English proficiency. Most of us (The PR) are coming from the 3rd world and our mother language is completely different.

Me personally , I have big difficulties to understand your long statements full with some kind of sophisticated English words which I hear for the first time and therefore have no idea what they mean.

There is no communication in that way.

Use short post with easy to understand English.
 

Diplomatru

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dpenabill,

Are you saying that shrortfall cases can be approved by CO without CJ referral? If so, you should get back to my previous post and familiarize yourself with the departmental policy again.

PS. You are not a CIC case processing agent, so quit acting like your opinion here is the ultimate source of truth. I can quote several of your long reads prior to C-6 when you insisted that restoring pre-PR credit will take years or that C-6 second reading will take place sometime in Fall. So, as the say in Japan, "Saru mo ki kara ochiru".
 

Exports

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Aug 10, 2015
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@ diplomatru @ politren
What dpenabill is trying to convey is the factual data and Info derived from various sources. It is really appreciating how much time and effort he/she has taken to go in the details and quote the references. If I were I wouldn't Hv enve bothered to quote but just given my opinion.If there is issue in understanding the long post; go slow and read what is being quoted. It is worth to read the info if you can derive some meaning out of it what is being conveyed by giving different quotes without any liability.
In short, it means that COs recently Hv approved some cases of shortfalls under old rules without intervention of CJs- though various factors such as offices etc.
Also according to my guess it is dependant upon COs efforts to verify the stamps. It could be different in case if the officer thinks " misrepresentation " or 100% " correct self declaration l" and referring to CJ.
But yes there r cases of shortfalls without CJ HEARING WHICH ARE APPROVED DEPENDS UPON THE CO. In this case, difficult to analyse/ assess whether it is linked to some profiling not limited to country of origin, faith etc.

As rightly said by Dpenabill- it's a waiting game as you have no control over this.
 

Diplomatru

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Exports said:
In short, it means that COs recently Hv approved some cases of shortfalls under old rules without intervention of CJs- though various factors such as offices etc.
Simply put, I don't believe this information because it clearly contradicts departmental policy on shortfall cases and dpenabill is not a CIC employee to prove me wrong or vice versa on this matter. The only factor that I will take into consideration is what's written in the law / CIC website.
 

Politren

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Exports
Thank you for summarising.

The problem is that I also have found a lot of misleading information in this long type of posts from dpenabill in the past and therefore I realized that there is no need to waste the time to look into something which is NOT 100% true.

And it's really funny how dpenabill acts like he got the last authority to correct the others when very often he is the one who needs corrections in his interpretations.

He is using very advanced level of English for a lot of newcomers to understand but that does NOT means that the information provided by him should be treated as the most truthful point of view.