Docket: T-1515-14
Citation: 2014 FC 1193
Ottawa, Ontario, December 10, 2014
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MOHAMMAD WASEF ABU-TALEB
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1]
This is Mr. Abu-Taleb’s appeal from the decision
of a citizenship judge who was of the view that he did not meet the residency
requirement under the Citizenship Act.
[2]
The case was launched before recent amendments
of the Act, so the residency requirement was for three years (1,095 days) out
of the four years immediately preceding the citizenship application.
[3]
Mr. Abu-Taleb applied for Canadian citizenship
on 1 September 2010. During the four previous years he claimed to be present in
Canada for 1,197 days.
[4]
Before the Act was amended, three schools of
thought had developed as to the meaning of residence in the Act. One point of
view was that of Mr. Justice Muldoon in Re Pourghasemi [1993] FCJ No 232,
19 Imm LR (2d) 259. He took a strict counting of the days approach, i.e.
a physical presence test, rather than a more philosophical – my heart is here
even if my body is not – approach.
[5]
Mr. Justice Lutfy, as he then was, held in Lam
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 410, 164 FTR
177, that it was open to a citizenship judge to adopt any one of the three
conflicting lines of jurisprudence. Indeed, Lam was a precursor of the
decisions of the Supreme Court which have held that deference should be shown
to a decision maker in interpreting his or her home statute (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3
SCR 654).
[6]
In the present case, the citizenship judge
specifically followed the physical presence test as set out in Re Pourghasemi.
[7]
The citizenship judge was not satisfied with the
evidence presented. She thought it very significant that Mr. Abu-Taleb, who is
of Palestinian origin, held a Jordanian passport but, had none from 28 January
2008 to 24 March 2009, i.e. for more than one year out of the 1,197 days
in question. Mr. Abu-Taleb was under no obligation to keep his passport
current. If he was out of the country, he was not physically present here for
at least 1,095 days. If he was in Canada without a passport, for all intents
and purposes he would be unable to leave. However, if he was outside the
country he would not be able to get back in.
[8]
The citizenship judge also referred to credit
card transactions which suggested to her that Mr. Abu-Taleb was out of the
country during the period under review. According to Mr. Abu-Taleb, the credit
card transactions in question were for online purchases. Considering that he
had received a police ticket in Canada the day before a transaction was processed
in the Netherlands, that he had purchased something in Canada the day after, coupled
with Canadian government records of entry, and the fact he had no passport, it
was impossible for him to have been outside Canada in order to purchase
something in the Netherlands.
[9]
The analysis was unreasonable. Consequently, the
appeal must be allowed.
[10]
Counsel for the Minister pointed out that in
accordance with a recent amendment to Rule 309(2)(e.1) of the Federal
Courts Rules, the applicant’s record did not include any of the material
certified by the tribunal in accordance with Rule 318. The certified tribunal record
ran some 1,240 pages, and reference to various parts thereof had been made in
the written submissions, although not reproduced in the applicant’s record. The
applicant then moved that this requirement be dispensed with in accordance with
Rule 55. That motion was granted.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The appeal is allowed.
2.
The decision of the citizenship judge dated 16
June 2014 is set aside.
3.
The applicant’s citizenship application be
reopened and re-examined by another citizenship judge.
“Sean Harrington”
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