2014 FC, 2014 FC 1193

Date: 20141210 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 theresidency 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 bepresent 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 ofview 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 daysapproach, 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), (FC),[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 makerin 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, whois 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 outof 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 wasnot physically present here for at least 1,095 days. If he was in Canada without a passport, for all intents and purposes he would beunable 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 thecountry 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 hadpurchased something in Canada the day after, coupled with Canadian government records of entry, and the fact he had no passport, it wasimpossible 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 CourtsRules, the applicant’s record did not include any of the material certified by the tribunal in accordance with Rule 318. The certifiedtribunal record ran some 1,240 pages, and reference to various parts thereof had been made in the written submissions, although notreproduced in the applicant’s record. The applicant then moved that this requirement be dispensed with in accordance with Rule 55. Thatmotion 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” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1515-14 STYLE OF CAUSE: MOHAMMAD WASEF ABU-TALEB v MCI PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: DECEMBER 5, 2014 JUDGMENT AND REASONS: HARRINGTON J. DATED: DECEMBER 10, 2014 APPEARANCES : Isabelle Sauriol-Nadeau For The Applicant Alain Langlois For The Respondent SOLICITORS OF RECORD : Bertrand, Deslauriers Avocats Inc.

Barristers & Solicitors Montréal, Quebec For The Applicant William F. Pentney Deputy Attorney General of Canada Montréal, Quebec For The Respondent