Docket: IMM-6291-04
Citation: 2005 FC 1008
Ottawa, Ontario, July 20, 2005
BETWEEN:
TERENCE DURAISAMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] The Applicant was denied an extension of his temporary resident permit on the grounds that he did not satisfy the requirements of the Immigration and Refugee Protection Regulations ("IRPR") s. 186(l). That provision provides a work permit exemption for those engaged in certain religious activities. This is the judicial review of the Immigration Officer's negative decision.
Background
[2] The Applicant, a citizen of India, had been in Canada since September 2000. He entered Canada to study theatre arts at Humber College. He held a Temporary Resident Visa which was valid until May 29, 2004.
[3] The day prior to the expiry of this visa, he filed for an extension under the exemption for clergy/religious worker as prescribed in S. 186(l) of the Regulation which reads:
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186. A foreign national may work in Canada without a work permit:
l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;
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186. L'étranger peut travailler au Canada sans permis de travail:
l) à titre de personne chargée d'aider une communauté ou un groupe à atteindre ses objectifs spirituels et dont les fonctions consistent principalement à prêcher une doctrine, à exercer des fonctions relatives aux rencontres de cette communauté ou de ce groupe ou à donner des conseils d'ordre spirituel;
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[4] His application for extension of his visa was based on the premise that the extension would allow him to work for the Church on the Rock without the need for a work permit.
[5] The Applicant was offered a "full time ministry position" with the Church on the Rock as a Drama Co-ordinator. His duties were:
- formulation of a drama program for the children's ministry;
- coordination with the elder-in-charge of Evangelism in presenting the gospel to the
outside world by way of drama;
- working with the pastor in presenting the message in drama form during Sunday service;
- helping out with any administrative work as it unfolds.
[6] In support of the visa extension were two (2) letters referring to the Applicant's abilities in theatre arts and a letter of June 1997 from a church in India. That letter spoke to his religious involvement, his role as a youth leader in regard to leading songs and providing inspiring messages.
[7] The Respondent sent a letter dated June 23, 2004 (the "first letter") denying the extension on the grounds while the application was filed May 28, 2004, the visa had expired on May 24, 2004. This letter was clearly in error as the visa did not expire until May 29, 2004.
[8] As a result of efforts by counsel, the Respondent sent a further letter in July 2004, (the "second letter") but dated June 23, 2004, stating that the visa application had been refused. To add further confusion, this letter went on to say:
"In reaching a decision, an officer considers several factors, which include the applicant's:
1. Reason for original entry and reason for requested extension;
2. Ties to country of permanent residence, including; employment and study commitments; family ties and responsibilities; status (citizenship or immigration status).
3. Financial means for the extended stay and return home;
4. Travel and identity documents;
5. Probability to leave Canada at the end of the authorized stay.
After considering all the circumstances of your case, I am not satisfied that you meet the requirements of the Act and Regulations."
[9] As was apparent when the FOSS notes became available, these enumerated factors described in the second letter have only the most tenuous connection to the real reasons for the refusal of the extension. Those FOSS notes confirm that the first letter of June 23 was sent in error.
[10] The critical passages of the FOSS notes read:
"S186(L) applies to persons whose employment will consist mainly of preaching of doctrine, presiding at liturgical functions or providing spiritual counselling, either as an ordained minister, a lay person, or a member of a religious order."
[11] The FOSS note then goes on to list the functions the Applicant was to perform at the
Church on the Rock and finally concludes as follows:
"Client has not presented any information relating to his abilities to preach doctrine or any certificates etc indicating that he is ordained or education in any way to perform spiritual duties."
[12] There is no doubt that the FOSS notes describe the real reasons for the denial of the extension of his visa.
Determination
[13] The Applicant alleges three grounds for review:
- the absence of proper reasons
- the application of the wrong legal test
- the failure to have regard for the material before the officer
[14] The standard of review applicable to the grounds is a mix of standards. To the extent that the issue is either the proper legal criteria or the denial of natural justice, "correctness" is applicable; to the extent that the issue is the weighing of the evidence or consideration of that evidence in the proper legal context, "reasonableness simpliciter" is the appropriate standard.
[15] There is no doubt that the Respondent's actions caused confusion and exhibited some administrative error. However the Applicant could not point to any real prejudice, caused by the delay in obtaining and the confusion surrounding the real reasons for the refusal of the extension.
[16] The Applicant says that the reference in the FOSS notes to s. 186(l) applying to persons "presiding at liturgical functions" is an error of law. It is said that the Respondent has inserted an additional duty to those already found in s. 186(l).
[17] With respect, I cannot agree. The reference in the FOSS notes is to "those activities" which would meet the test of s. 186(l). This does not have the effect of creating a new criterion or legal test in s. 186(l). "Presiding at liturgical function" is an activity which would easily fall within the duty "to perform functions related to gatherings of the congregation or group". There are no doubt other activities which would fall within the scope of those duties.
[18] Further, the officer did not ignore evidence of the Applicant's ability to preach doctrine. The letter from the church in India never addressed the ability to preach doctrine - it referred only to the Applicant's religious enthusiasm 8 years ago. There was no evidence presented on the ability to preach doctrine. Religious fervour cannot necessarily be equated to ability to preach.
[19] In my view s. 186(l) has to be given a meaning and application consistent with its purpose - to grant an exemption from work permits to those who have responsibility to assist a congregation or group in achieving its spiritual goals. There are rational limitations based on the specific facts as to the scope of the provision. Not every person who assists at a place of worship (ushers, singers, teachers of children's religious studies) per se, fall within the scope of s. 186(l).
[20] The officer's conclusion as to the application of the specific facts of this case to the legal test in s. 186(l) is a reasonable one. There is a clear rational connexion between the facts and the decision. Therefore there is no reason for this Court to interfere with this decision.
[21] For these reasons, this application will be dismissed. No question will be certified.
"Michael L. Phelan
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6291-04
STYLE OF CAUSE: TERENCE DURAISAMI v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 13, 2005
REASONS FOR ORDER: Phelan, J.
DATED: July 20, 2005
APPEARANCES:
Daniel Kwong FOR APPLICANT
Leena Jaakkimainew FOR RESPONDENT
SOLICITORS OF RECORD:
Daniel Kwong
Toronto, Ontario FOR THE APPLICANT
Leena Jaakkimainew
Toronto Ontario FOR RESPONDENT
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