Hussein v. Canada (Minister of Citizenship and Immigration), 2015 FC 88

• Judge: LeBlanc, J.
• Court: Federal Court (Canada)
• Case Date: September 22, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 88;(2015), 474 F.T.R. 129 (FC)

Hussein v. Can. (M.C.I.) (2015), 474 F.T.R. 129 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. FE.003

Haiffa A A Ali Abdel Hussein (applicant) v. The Minister of Citizenship and Immigration (respondent)

(T-255-14; 2015 FC 88)

Indexed As: Hussein v. Canada (Minister of Citizenship and Immigration)

Federal Court

LeBlanc, J.

January 22, 2015.

Summary:

Hussein, a citizen of Jordan, arrived in Canada in 2001 and became a permanent resident in December 2007. She applied for citizenship in November 2010 and reported having been physically present in Canada for 1099 days during the preceding four years. A citizenship judge rejected Hussein's application. Hussein appealed.

The Federal Court allowed the appeal and sent the matter back to the decision-maker for redetermination.

Aliens - Topic 2510

Naturalization - General - Duties of citizenship judge (incl. duty re reasons) - Hussein, a citizen of Jordan, applied for Canadian citizenship and reported having been physically present in Canada for 1099 days during the preceding four years - A citizenship judge chose to apply the test which involved the strict counting of days of physical presence - He rejected Hussein's application, finding that he could not determine, on a balance of probabilities, how many days Hussein had been physically present in Canada because (1) there were a certain number of undeclared absences from Canada during the reference period; and (2) there was a lack of consistency in the documentation submitted by Hussein to support her claim of physical presence - The Federal Court allowed Hussein's appeal - First, the judge did not engage in any counting of days, which was at the crux of the test that he chose - Second, the judge's decision was based on erroneous findings of fact that were made without regard for the explanations and documentation that Hussein provided - Third, the judge's reasons were not adequate - He failed to explain why and how Hussein's supporting documentation was insufficient to determine her residency days, and why and how her undeclared absences impacted on the 1095 days threshold of physical presence.

Aliens - Topic 2525

Naturalization - Qualifications - Residence - [See Aliens - Topic 2510 ].

Cases Noticed:

Saad v. Canada (Minister of Citizenship and Immigration) (2013), 433 F.T.R. 174; 2013 FC 570, refd to. [para. 10].

Canada (Minister of Citizenship and Immigration) v. Rahman (2013), 445 F.T.R. 32; 2013 FC 1274, refd to. [para. 10].

Balta v. Canada (Minister of Citizenship and Immigration) (2011), 403 F.T.R. 134; 2011 FC 1509, refd to. [para. 10].

Canada (Minister of Citizenship and Immigration) v. Baron (2011), 388 F.T.R. 261; 2011 FC 480, refd to. [para. 10].

Canada (Minister of Citizenship and Immigration) v. Diallo (2012), 424 F.T.R. 156; 2012 FC 1537, refd to. [para. 10].

Huang v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 276; 2013 FC 576, refd to. [para. 10].

Sinanan v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 826; 2011 FC 1347, refd to. [para. 12].

Pourghasemi, Re (1993), 62 F.T.R. 122 (T.D.), refd to. [para. 13].

Canada (Minister of Citizenship and Immigration) v. Jeizan (2010), 386 F.T.R. 1; 2010 FC 323, refd to. [para. 16].

Korolove v. Canada (Minister of Citizenship and Immigration) (2013), 430 F.T.R. 283; 2013 FC 370, refd to. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 24].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 24].

Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761; 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 24].

Mehterian v. Minister of Employment and Immigration, [1992] F.C.J. No. 545 (F.C.A.), refd to. [para. 24].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 24].

Canada (Minister of Citizenship and Immigration) v. Arastu, [2008] F.T.R. Uned. 872; 2008 FC 1222, refd to. [para. 24].

Counsel:

Chantal Desloges, for the applicant;

Sybil Thompson, for the respondent.

Solicitors of Record:

Chantal Desloges Professional Corporation, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on September 22, 2014, before LeBlanc, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on January 22, 2015.