Citizenship Application Referred to Citizenship Judge

[ghsamim]

Hello everyone,
I applied on Oct. 2, 2017
Provided fingerprint in Dec. 2017
passed citizenship test in Jan. 2018
The IRCC had lost my fingerprint and asked me to resubmit May 2018
Fingerprint resubmitted successfully
Case referred to citizenship judge in July 2018 (I was two days below in residency requirement based on bill C-24)
Online status changed Oct 2018 to Decision Made.
Has anyone recently received a Decision Made from the citizenship judge? Did you receive the decision result by mail or email? Did you hear directly from the judge or from the citizenship officer? Are most of the decisions negative/positive/ both? Was your decision positive/ negative? If positive How long did it take until Oath Day? If negative what was the next step to take?
I appreciate if you could share experience should you have gone through a similar process.
Thank you!

 

[dpenabill]

Hello everyone,
I applied on Oct. 2, 2017
Provided fingerprint in Dec. 2017
passed citizenship test in Jan. 2018
The IRCC had lost my fingerprint and asked me to resubmit May 2018
Fingerprint resubmitted successfully
Case referred to citizenship judge in July 2018 (I was two days below in residency requirement based on bill C-24)
Online status changed Oct 2018 to Decision Made.
Has anyone recently received a Decision Made from the citizenship judge? Did you receive the decision result by mail or email? Did you hear directly from the judge or from the citizenship officer? Are most of the decisions negative/positive/ both? Was your decision positive/ negative? If positive How long did it take until Oath Day? If negative what was the next step to take?
I appreciate if you could share experience should you have gone through a similar process.
Thank you!

Upfront observation: please follow-up and report about your experience more when you learn more. We do not get many reports about how it actually goes at this stage of the process. Your report could help us provide a better response to queries like yours in the future.

Note: I have no personal experience with a case referred to a Citizenship Judge. But this is a subject I have been following for nearly a decade. This forum sees very, very few personal reports about applications referred to a CJ. Most of what I know about the process is derived from actual cases reported in officially published Federal Court decisions, considered in conjunction with the law, regulations, and PDIs (policy information published online by IRCC), and historically from Operational Manuals and Operational Bulletins (these now replaced by the PDIs for citizenship decision-making). Before the changes which took effect in 2014 and 2015, there was a lot more information available, BUT those cases involved a RESIDENCY requirement not a PHYSICAL PRESENCE requirement. Under the RESIDENCY requirement rules a Citizenship Judge (CJ) had a lot more discretion to approve an application EVEN if the applicant was SHORT in terms of physical presence. So far as I know, there is NO such discretion available for applications made after June 10, 2015.

There are TWO big items of information your post does not disclose: whether and when there was a CJ hearing, and whether you were still claiming to have been present in Canada, during the relevant six years, for at least 1460 days.

The latter, whether you were still claiming at least 1460 days presence, is the most important factor.

If there was a hearing with a Citizenship Judge, it is for sure a CJ decision. And notice of a NEGATIVE decision would ordinarily come directly from the CJ within a prescribed amount of time after the hearing (I forget whether this is 30 or 60 days, plus a week or three for sending it by mail). Reports are too sporadic to know whether DM shows up in eCas in these cases.

There would be NO notice, as such, of a favourable decision, except perhaps the designation of DM in eCas and, eventually, a notice to appear at the Oath ceremony. Timeline in this event can be significantly longer, since the CJ's positive decision goes to IRCC and a Citizenship Officer reviews the decision before deciding whether to appeal the CJ's decision or to go ahead and grant citizenship, and if it is the latter there is no timeline limitation so it can take awhile.

If, for example, you went to a CJ hearing in July, and are just getting a decision now, that would suggest a POSITIVE outcome and the next actual notice you get would be for when and where to attend an oath ceremony, which could still be weeks or months away.

It may be possible a CJ reviewed the case and decided without a hearing. At least the PDIs suggest this is now possible. However, this is NOT a process anyone has reported in this forum NOR have I seen it referenced in any Federal Court decision. As such, no idea about how such a decision is communicated to the applicant.

Again, the bigger question is whether you claim to have met the minimum physical presence requirement (1460 days for application made before October 11, 2017). That is, did your version of the presence calculation claim to show at least 1460 days presence during the relevant six years? AND if so, was the referral to a CJ based on IRCC determining you were two days short or based on you conceding you were two days short?

That is, as of when this was referred to a CJ, was there still a question of fact as to whether or not you were two days short. Or, was it clear you were indeed two days short?

If there is NO question of fact . . . If it is established you were two days short . . . And your application is reviewed pursuant to the law in effect under Bill C-24, that is the law prior to Bill C-6 presence requirement taking effect October 11, 2017, THEN THERE IS NO DISCRETION, THE APPLICATION MUST BE DENIED.

That said, I am NOT absolutely certain how IRCC is handling applications submitted just prior to the change in presence requirement as of October 11, 2017, and in particular whether IRCC might, possibly, be exercising some kind of discretion to process these under the more lenient 1095 days requirement.

In particular, there have been some reports from applicants who sent their application BEFORE the changes October 11, 2017, have been advised their applications are being processed pursuant to the changes implemented October 11, 2017, that is the 1095 day presence requirement rather than the 1460 day requirement. AND IRCC has overtly accepted applications made using the pre-change version of the application for many months after October 2017 and has been processing these under the 1095 days requirements.

So there is a slight possibility that despite being short under the Bill C-24 requirements, IRCC has elected to decide the case under the more recent Bill C-6 1095 days presence requirement.

To be clear, I DOUBT THIS. I only acknowledge it MIGHT be possible. My strong sense is that if the application arrived at the CPC-Sydney before October 11, 2017, it MUST be decided based on meeting the 1460 days presence requirement . . . AND IF IT IS ESTABLISHED YOU WERE SHORT OF 1460 DAYS the application must be denied.

In any event, it would help focus a response if you could share whether or not you had a hearing with a CJ, and if so when, . . . .
. . . and, especially, if you could clarify how the two days short is known . . . whether IRCC identified days to be deducted from your presence calculation, and if so how clearly that is correct, and whether you agreed you were two days short.

 

[RFouad]

I have a similar case and was wondering what happened with this one? that would be very helpful.
- Application submitted Aug 2017 under the 1460 days requirement
- Citizenship test passed on Dec 2017
- Letter received Jan 2018 about 2 entries missing from US Border check (6 hour trips to US) which qualify for 0 days absence but were missing from the physical presence calculator - I responded and explained the purpose and how long I stayed.
- Letter received Aug 2018 about mistake in calculation (1 day difference) causing actual physical presence to be 1459 days instead of 1460 days - I responded and confirmed the unintentional mistake and explained what happened in that trip that caused the mistake (border entry to US is 11:45 pm but actual arrival in hotel was past mid night)

I followed up with CIC today and was informed that my application was referred to a CJ as of Dec 2018.

Would be very helpful to know what happened in similar cases - just trying to prepare myself to re-apply if I can refused.

Thanks, RF

 

[ghsamim]

Hi RFouad, I would suggest being ready to reapply. My application was refused for the two days I was short for physical residency, which was 1460 days under old bill-C24. I met the CJ in person during my wife and three children taking the oath. the CJ was very nice and persuasive telling me that she refused people that were one day short of the 1460 days under the old bill and the required 3 out of 5 years under the new bill C-6. I am sorry for the delay to reply to your question.
I suggest to all new applicants to apply with a few days over the required physical residency, just to be on the safe side.
Best,
GFS

 

[RFouad]

Thank you for your reply. Its been a long journey coming up to a year and a half now. I believe I can withdraw the application at this point and apply instead of waiting for the refusal.

 

[RFouad]

I just saw this on a different thread - someone was short of 1 day but was able to convince the judge through the hearing. Did you have a hearing? Are you in Toronto?

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do

 

[Kambiz2002]

I just saw this on a different thread - someone was short of 1 day but was able to convince the judge through the hearing. Did you have a hearing? Are you in Toronto?

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do

Please note that in this case the citizenship is actually NOT granted to Mr. Hashem. If you read carfully, the judge has granted the application “to be reconsidered by IRCC”. It is again IRCC who will have to decide which most likely will reject again unless they would change a policy (which is unlikely) to give the applicants the benefit of having more days since the time of receiving the application (again unlikely). The judge has also advised Mr. Hashem that he can send a fresh application.

 

[dpenabill]

I just saw this on a different thread - someone was short of 1 day but was able to convince the judge through the hearing.

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do

In addition to the fact that Hashem, the applicant in that case, has NOT been granted citizenship, it is important to recognize that the Federal Court ruled the Citizenship Judge's decision was NOT VALID.

Moreover, the Citizenship Judge did NOT actually approve the application DESPITE the applicant being one day short. Rather, the CJ decided the applicant was NOT a day short.

To reach the conclusion the applicant was NOT a day short the CJ applied an alternative and rather creative approach to, in effect, also COUNT some days after the application was signed (which is the date IRCC considers the application to be made). Federal Court ruled the CJ's decision was not supported by a reasonable basis.

To be clear, the decision you reference illustrates and emphasizes that a ONE DAY SHORTFALL cannot and will NOT support a decision to grant citizenship.

I have addressed this in depth:

KEY OBSERVATION derived from the HASHEM decision:
(see http://canlii.ca/t/hwwl2 or https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do)

This decision illustrates and emphasizes that a ONE DAY SHORTFALL cannot and will NOT support a decision to grant citizenship.

There are some wrinkles in the reasoning, as there almost always are, but the essential key to this decision is the principle that there is no legal authority to grant citizenship UNLESS the applicant meets the presence requirement. Any short fall, even just ONE DAY, means the application must fail.

The wrinkles have to do with whether or not the facts and circumstances can be analyzed in a way which does NOT result in any shortfall at all. [follow link to see full analysis]

Thus, it is true that an applicant who had been determined to be one day short by the IRCC Citizenship Officer was able to convince a Citizenship Judge to reach a DIFFERENT CONCLUSION, which in Hashem's case was based on using a different approach to counting days. But again that case actually emphasizes that ONE DAY SHORT is SHORT.

As I have attempted to illuminate in other posts, if there is otherwise a reasonable argument that as a matter of fact the applicant was NOT a day short, an applicant who has been referred to a Citizenship Judge hearing may convince the CJ he or she WAS NOT SHORT. But, again, IF THERE IS LITTLE OR NO DOUBT THE APPLICANT WAS SHORT, EVEN JUST A DAY, CITIZENSHIP WILL BE DENIED. (There is a remote possibility of anomalies or other exceptions, but if the evidence shows the applicant short, even if only short by one day, there is NO legal authority to grant citizenship and thus the application must be denied.)

Many RQ'd cases are as much about proving presence in-between dates-of-entry and the next reported date-of-exit, and NOT so much about the precise dates reported for entries and exits. In such cases the applicant may still argue his accounting is truthful and sufficient to show actual presence meeting the requirements (that is, NO short fall), but the IRCC Citizenship Officer has concluded otherwise. In these cases the applicant can make his case to the CJ that his evidence shows he met the requirement despite the Citizenship Officer's conclusions otherwise. Some of these cases result in the CJ believing the applicant and approving the application. (IRCC has the option to appeal but even if IRCC appeals, as long as the CJ's decision was reasonably supported by the evidence and consistent with the law, the approval should be upheld by the Federal Court. In the Hashem case it was the CJ's interpretation of the law that was ruled not reasonable.)

 

[Kambiz2002]

In addition to the fact that Hashem, the applicant in that case, has NOT been granted citizenship, it is important to recognize that the Federal Court ruled the Citizenship Judge's decision was NOT VALID.

Moreover, the Citizenship Judge did NOT actually approve the application DESPITE the applicant being one day short. Rather, the CJ decided the applicant was NOT a day short.

To reach the conclusion the applicant was NOT a day short the CJ applied an alternative and rather creative approach to, in effect, also COUNT some days after the application was signed (which is the date IRCC considers the application to be made). Federal Court ruled the CJ's decision was not supported by a reasonable basis.

To be clear, the decision you reference illustrates and emphasizes that a ONE DAY SHORTFALL cannot and will NOT support a decision to grant citizenship.

I have addressed this in depth:


Thus, it is true that an applicant who had been determined to be one day short by the IRCC Citizenship Officer was able to convince a Citizenship Judge to reach a DIFFERENT CONCLUSION, which in Hashem's case was based on using a different approach to counting days. But again that case actually emphasizes that ONE DAY SHORT is SHORT.

As I have attempted to illuminate in other posts, if there is otherwise a reasonable argument that as a matter of fact the applicant was NOT a day short, an applicant who has been referred to a Citizenship Judge hearing may convince the CJ he or she WAS NOT SHORT. But, again, IF THERE IS LITTLE OR NO DOUBT THE APPLICANT WAS SHORT, EVEN JUST A DAY, CITIZENSHIP WILL BE DENIED. (There is a remote possibility of anomalies or other exceptions, but if the evidence shows the applicant short, even if only short by one day, there is NO legal authority to grant citizenship and thus the application must be denied.)

Many RQ'd cases are as much about proving presence in-between dates-of-entry and the next reported date-of-exit, and NOT so much about the precise dates reported for entries and exits. In such cases the applicant may still argue his accounting is truthful and sufficient to show actual presence meeting the requirements (that is, NO short fall), but the IRCC Citizenship Officer has concluded otherwise. In these cases the applicant can make his case to the CJ that his evidence shows he met the requirement despite the Citizenship Officer's conclusions otherwise. Some of these cases result in the CJ believing the applicant and approving the application. (IRCC has the option to appeal but even if IRCC appeals, as long as the CJ's decision was reasonably supported by the evidence and consistent with the law, the approval should be upheld by the Federal Court. In the Hashem case it was the CJ's interpretation of the law that was ruled not reasonable.)

@dpenabill
I agree with your argument above. Why do you think that the judge sent the application back to IRCC for "reconsideration". Reconsideration of what? In this case the federal judge has clearly rejected citizenship judge's imaginary calculation. That doesnt give room for Hashem to have enough days. So what is the federal judge doing in referring the case back to IRCC?

 

[dpenabill]

@dpenabill
I agree with your argument above. Why do you think that the judge sent the application back to IRCC for "reconsideration". Reconsideration of what? In this case the federal judge has clearly rejected citizenship judge's imaginary calculation. That doesnt give room for Hashem to have enough days. So what is the federal judge doing in referring the case back to IRCC?

The technical reason for finding the CJ's conclusion was unreasonable was the CJ did NOT adequately provide reasons for the decision; in particular, the CJ did not provide an adequate justification for applying the alternative approach to counting days. As Justice Gleeson observed (paras 4 and 31):

Although a reviewing court may look to the record and supplement the reasons of a decision-maker, this does not extend so far as allow a court to undertake, de novo, a consideration and interpretation of the relevant statutory provisions, the very analysis in which the decision-maker was required to engage in.

In challenging the reasonableness of the Judge’s interpretation, the Minister has advanced arguments that, while persuasive, can only be considered if I were to undertake, de novo, the very interpretative analysis that the Judge was required to undertake.​

Technically, then, a Citizenship Judge may specify reasons, based on a reasonable interpretation of the statutory provisions, which would support the approach applied in the Hashem case. There remains some possibility (which I'd suggest is remote or at least highly unlikely) the CJ can specify a sufficient statutory interpretation basis for counting days present between the date the application is signed and the date the application is "received" by IRCC.

Basically the Minister (IRCC) argued, to Justice Gleeson, why "the Judge’s interpretation of paragraph 5(1)(c) of the Act is unreasonable," based on what IRCC put forth as the proper versus not proper interpretation of the statute. Justice Gleeson declined to engage in that analysis and, rather, ruled the CJ's interpretation was not reasonable because it was not adequately supported in the record.

All of which is very standard in judicial and appellate review by the Federal Court in citizenship cases. It is actually rare for a Federal Court to order a specific outcome. Almost all grant citizenship appeals result in either the decision being upheld OR, when the appeal is granted, being returned for reconsideration. This ordinarily means for reconsideration by a different decision-maker (for CJ decisions this typically means for another CJ; but some cases go back to be reconsidered by a Citizenship Officer). Sometimes the Federal Court will give an order which overrules a CJ's approval and denies the application, but this is unusual. I can recall very isolated instances in which the Federal Court overruled a CJ's denial of approval and ordered IRCC/CIC to proceed in granting citizenship, but those cases involved very particular procedural reasons for the unusual outcome.

Justice Gleeson does not specify, in the decision, that the reconsideration is to be by another decision-maker or CJ. As a practical matter we are not likely to see any further developments in the case. (My more speculative sense is that the CJ was simply being creative to get around the one-day short fall for an otherwise deserving, sympathetic applicant, and that effort now having failed we are not likely to see any more about it. Hashem will likely be further encouraged to re-apply and perhaps IRCC will, as Justice Gleeson urges, expedite that application.)

In the Hashem decision the FC references the Minister's arguments as to why the CJ's interpretation is wrong and unreasonable, and the Minister's arguments state these far better than I could. Those reasons illuminate why it is highly unlikely we will see any more about this particular CJ's creative approach to justify a grant citizenship to someone the CJ clearly concluded deserved a grant of citizenship. See paragraphs 2, 24, and especially 25.

It warrants also noting that subsequent changes in the law may further cement the IRCC interpretation which specifically prescribes the eligibility period based on the date the application is signed. These would not necessarily govern a 4/6 application (applications made prior to October 11, 2017), but might have additional influence supporting the Minister's arguments.

 

[ghsamim]

I just saw this on a different thread - someone was short of 1 day but was able to convince the judge through the hearing. Did you have a hearing? Are you in Toronto?

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/360603/index.do

Hi Fauad,
I am in Ottawa and the CJ who looked at my case was from Montreal. The CJ made the decision in my absence. I was not there. When I met her during my wife's and kids' citizenship oath ceremony, I asked whether it would have been better if I was present when the decision was made. The CJ told me that it wouldn't make a difference. The CJ refused people with even one day short of physical residency required. I passed the test last January. the citizenship officer offered me two options, to withdraw or go to CJ. She wasn't as clear as the CJ. Otherwise, I would have withdrawn my application then.

Anyway, too late for me to think about the past. I reapplied last November. I am still not in the system. This time, I have a year more than the physical residency required under Bill C-6. I am not worried at all. I hope that this time it won't take as long as they have all my additional documents. I guess I will have to take the test again, which I am not worried at all about it. I will keep everyone posted here when things develop. Good luck with everything!

 

[ghsamim]

BTW, anyone who has been refused for short of physical residency and reapplied? I would like to know if it took as long as the last time, shorter, longer, how was the process? I would appreciate the info, even if you have heard from other friends and family members. Thanks,