Federal Court Decisions

 

 

 

Date: 20061107

Docket: IMM-6264-05

Citation:  2006 FC 1335

BETWEEN:

FARHAT NASIM HASHMI

IDRI MUHAMMAD ZUBAIR

HISHAM MUHAMMAD ZUBAIR

TAIMIYYAH IDREES ZUBAIR

 

Applicants

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR ORDER

GIBSON J.

 

INTRODUCTION

[1]               These reasons follow the hearing on the 24^th of October, 2006, at Toronto, of an application for judicial review of a decision of an Immigration Officer, dated the 30^th of September, 2005 refusing the Applicants’ application for temporary resident status extension or restoration and for a work permit for Farhat Nasim Hashmi.

 

 

 

BACKGROUND

[2]               The Applicants are citizens of Pakistan.  Farhat Nasim Hashmi (the “principal Applicant”) is acknowledged to be a world-famous Islamic scholar and teacher.  The other Applicants are her husband and children.

 

[3]               The principal Applicant was invited by the Islamic Society of North America to come to Canada to give a series of lectures.

 

[4]               The Applicants obtained twelve (12) month multiple entry visitor visas in order to enable the principal Applicant to take up the invitation from the Islamic Society of North America.  They first came to Canada in June of 2004 and, apart from a three (3) week visit to the United States by the principal Applicant alone, they remained in Canada for eight (8) weeks during which the principal Applicant fulfilled her commitment to the Islamic Society of North America.

 

[5]               The principal Applicant was invited, once again by the Islamic Society of North America, to give further lectures.  The Applicants returned to Canada in October of 2004 and, once again, the principal Applicant fulfilled her obligations to the Islamic Society of North America.  On the second visit, the Applicants remained in Canada until the 7^th of January, 2005.  Prior to their leaving Canada on that date, the principal Applicant was offered full-time employment in Canada, for a year, to continue her religious work.

 

[6]               The principal Applicant applied for a work permit to allow her to continue her religious work in Canada.  She returned to Canada on the 4^th of April, 2005, still relying on her multiple entry visitor visa which would expire in May of 2005.  She was advised at the port of entry that her application for a work permit had been refused.  Nonetheless, she was permitted entry, in this case for a period of one (1) month, again to give lectures.  A second application for a work permit for the principal Applicant was submitted on her behalf.  It is the decision on that application, rejecting her application for a work permit and for related temporary resident status extension/restoration that is here under review.

 

[7]               The principal Applicant remained in Canada from her entry on the 4^th of April, 2005 to the date of hearing of this application for judicial review. 

 

THE LEGISLATIVE, REGULATORY AND RELATED SCHEME

[8]               Subsections 18(1) and, 30(1), and the opening words of section 32 and paragraphs 32(a) and (b) of the Immigration and Refugee Protection Act[1] underly the regulatory scheme governing entry to Canada of persons other than Canadian citizens and persons registered as Indians under the Indian Act.  That subsection reads as follows:      

 

[9]               The related regulatory scheme, as it is relevant to the principal Applicant and her family members, is reasonably complex.  The relevant provisions are set out in the Annex to these reasons.

 

THE ISSUES

[10]           Before the Court, counsel presented two (2) issues on this application for judicial review:  first, whether the principal Applicant, when she was admitted to Canada on the 4^th of April, 2005, was admitted to work in Canada without a work permit as a person responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties were to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling, that is to say, pursuant to paragraph 186(l) of the Regulations; and second, whether the Immigration Officer erred in a reviewable manner in concluding that the principal Applicant was not eligible for extension/restoration of her temporary resident status and for a work permit based on her application filed from within Canada in April, 2005.

 

ANALYSIS

Standard of Review

[11]           The following is a brief pragmatic and functional analysis to determine the standard of review for the two issues on this application for judicial review.

 

[12]           With respect to whether or not the Applicant entered Canada on the 4^th of April, 2005 to work as provided in paragraph 186(l) of the Regulations, the first factor, the presence or absence of a privative clause, is neutral since there is no privative clause contained in the Immigration and Refugee Protection Act.  The second factor to be considered is the relative expertise of the decision-maker.  Here the decision-maker was an Immigration Officer who did not decide whether the Applicant had been admitted pursuant to paragraph 186(l) of the Regulations but rather decided whether or not the Applicant had been admitted pursuant to that Regulation by another Immigration Officer.  Immigration Officers have a high degree of expertise in determining the status of an individual under the Immigration and Refugee Protection Act and the Regulations.  They are trained, among other things, to screen people seeking to enter Canada and, consequently, have detailed specific knowledge regarding the relevant regulatory scheme.  Relative to an Immigration Officer, this Court has less expertise in this area.  Thus, a high degree of deference is warranted.

 

[13]           The third factor to be considered is the purpose of the statutory and regulatory scheme.  In particular, Regulation 186 deals with circumstances in which temporary residents may work in Canada without work permits.  Paragraph (l) of that section deals specifically with work involving assistance to a spiritual community.  It would appear to be directed to assisting communities within Canada in meeting their spiritual needs.  As such, it would appear to be a polycentric provision.  Once again, this brief analysis augers in favour of a high degree of deference to the Immigration Officer in question.

 

[14]           The final factor to be considered is the nature of the problem.  This issue raises a finding of fact by the Immigration Officer.  He or she did not need to interpret the law in arriving at his or her conclusion but rather determined whether another Immigration Officer had allowed the Applicant to enter Canada under paragraph 186(l) of the Regulations.  Such a finding of fact warrants a high degree of deference to the decision-maker.

 

[15]           Based on the foregoing brief analysis, I am satisfied that the first issue on this application for judicial review should be determined by affording a high degree of deference to the Immigration Officer, which is to say, the issue should be reviewed on a standard of patent unreasonableness.

 

[16]           On the second issue, whether or not the principal Applicant qualified for a work permit on the basis of her inland application for such a permit in April of 2005, and for a related extension or restoration of her temporary resident status, the following brief pragmatic and functional analysis applies.

 

[17]           As earlier indicated, the Immigration and Refugee Protection Act contains no privative clause.  In the result, this particular factor is neutral.

 

[18]           Once again, as with respect to the first issue, immigration officers are relatively experienced and expert in determining who is qualified for a work permit to work in Canada under the statutory and regulatory scheme.  That being said, such decisions involve the interpretation of law, an area in which this Court has significant expertise.  In the result, I determine this factor to be neutral.

 

[19]           Regulation 200(1) is mandatory in that it requires a work permit to be issued to a foreign national if, following an examination, it is established that the foreign national applied for it in an appropriate manner, the foreign national will leave Canada by the end of the period authorized for his or her stay and, on the facts of this matter, the foreign national intends to perform work described in section 205 of the Regulations.  Once again on the facts of this matter, a medial examination of the principal Applicant would appear not to have been required.  Section 205 of the Regulations would appear to be permissive with regard to the issuance of a work permit to perform work that “…would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents or that is of a religious or charitable nature.  I am satisfied that the mandatory language of section 200 of the Regulations overrides the permissive language of section 205 if the work that the principal Applicant intended to perform falls within the ambit of the forgoing criteria.  I would regard this factor as neutral.

 

[20]           Finally on the factor of the nature of the issue, I am satisfied that it is one of mixed fact and law as it involves determination of whether the principal Applicant falls within the scope of either paragraph 205(a) or 205(d) of the regulatory scheme.  This factor points to only a moderate degree of deference.

 

[21]           Against the foregoing brief analysis, I am satisfied that the standard of review on the second issue on this application is that of reasonableness simpilicter.

 

Did the principal Applicant enter Canada on the 4^th of April, 2005 to work in Canada without a work permit under the authority of paragraph 186(l) of the Regulations?

[22]           The evidence before the Court on this issue is remarkably unsatisfactory.  Unfortunately, the Immigration Officer who made the decision under review provided no affidavit for the guidance of the Court.  Therefore, the Court is left to speculate as to the Officer’s reasoning in circumstances where it is clear that the Officer counselled the principal Applicant to apply for a work permit from outside Canada.  That fact alone would lead the Court to conclude that the principal Applicant was not qualified in the mind of the Immigration Officer to apply for a work permit from within Canada.  By contrast, counsel who submitted the principal Applicant’s application for the work permit and extension or restoration of the principal Applicant’s temporary resident status clearly was of the view that the Applicant had been admitted to Canada to work without a work permit pursuant to Regulation 186(l) and that therefore the principal Applicant was entitled to apply for a work permit from within Canada.  Whether counsel’s view in this regard was before the Immigration Officer who admitted the principal Applicant on the 4^th of April, 2005 is a matter of sheer speculation.  That being said, the principal Applicant attests in an affidavit before the Court that she made it clear to the Immigration Officer who admitted her on the 4^th of April that she was returning to Canada to once again give lectures to assist a congregation or group in the achievement of its spiritual goals and that she would be seeking a work permit to allow her to continue in that role, with remuneration, for a full year.

 

[23]           As indicated earlier in there reasons, the principal Applicant’s entry to Canada on the 4^th of April, 2005 was not her first entry.  It was part of a series of entries all directed to assisting a congregation or congregations in the achievement of its or their spiritual goals.  Against this background, I am satisfied that the Immigration Officer whose decision is under review erred in a reviewable manner, against a standard of review of patent unreasonableness, in concluding that the principal Applicant was not admitted to Canada on the 4^th of April, 2005 for purposes of working without a work permit under the authority of paragraph 186(l) of the Regulations.

 

Did the Immigration Officer err in a reviewable manner in concluding that the principal Applicant was not eligible for a work permit?

[24]           The evidence before the Court is clear that the principal Applicant applied for a work permit in April, 2005 in order to enable her to accept an offer of employment for one (1) year to teach Muslim women and develop courses in Islamic studies.  Her salary in such employment was to be $43,500 supplemented by “…any standard package of benefits which ISNA (The Islamic Society of North America) provides to its employees.”

 

[25]           Evidence before the Court indicates that the Immigration Officer regarded the salary and benefits package that would be provided to the principal Applicant as more than a “small stipend for living expenses” as provided for in section 5.40 of the Foreign Worker Manual quoted in the Schedule to these reasons and that therefore the principal Applicant did not fulfill the conditions provided by the Manual for issuance of a work permit to engage in “charitable or religious work”.

 

[26]           The definition “work” in section 2 of the Immigration and Refugee Protection Regulations, also quoted in the Schedule, defines that term, in part, as an activity for which wages are paid or commission is earned…”.  Such wages or commissions are not constrained in the manner provided by section 5.40 of the Foreign Worker Manual.  In D’Souza v. Canada (Minister of Employment and Immigration)[2], Justice MacKay wrote at pages 517 and 518:

The principle upon which the applicant’s submissions are based is essentially that the administrative procedures of the Employment Manual are not authorized by the Immigration Act and Regulations.  In my view the principle upon which the procedures must be assessed is whether they are inconsistent with the Act and Regulations.  Insofar as such internal directives are not inconsistent with the Act or the Regulations there can be no serious objection to them.  If there is inconsistency with the Act or Regulations, or if they establish procedures which fetter discretion vested by law, i.e., the Act and Regulations, then the latter must prevail.

 

On the facts of this matter, I am satisfied that section 5.40 of the Foreign Workers Manual, insofar as it restricts the “remuneration” that a foreign worker engaging in charitable or religious work may receive to a “…small stipend for living expenses” is inconsistent with the definition “work” in section 2 of the Immigration and Refugee Protection Regulations where the quantum of wages or commissions earned for an activity, whether charitable or religious or otherwise, is not qualified.  I am satisfied that the definition “work” in the Regulations, in Justice MacKay’s words, must prevail over the restriction in the foreign worker manual.  Put another way, the particular restriction contained in section 5.40 simply cannot prevail as a basis for denying the principal Applicant a work permit for charitable or religious work for which she would receive a salary of $43,500 per annum plus benefits.

 

[27]           Further, the application submitted on behalf of the principal Applicant for a work permit and temporary resident status extension or restoration relied not only on paragraph 205(d) of the Immigration and Refugee Protection Regulations, but also on paragraph 205(a) on the not unreasonable basis that the principal Applicant’s employment in Canada for a year, in the employment offered to her, would “…create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents”.  On the evidence before the Court, this particular ground in support of the principal Applicant’s application would appear to have been completely ignored.

 

[28]           Based upon the foregoing brief analysis, I am satisfied that, against a standard of review of reasonableness simpliciter, the Immigration Officer whose decision is under review erred in a reviewable manner in arriving at the decision to reject the principal Applicant’s application.

 

CONCLUSION 

[29]           This application for judicial review will be allowed.  The decision under review will be set aside and the principal Applicant’s application for a work permit and temporary resident status extension or restoration, filed in April, 2005, will be referred back to the Respondent for reconsideration and re-determination by a different Immigration Officer.

 

[30]           At the close of the hearing of this application, counsel for the Applicant proposed no question for certification.  While counsel for the Respondent urged that there might be, on the facts of this matter, a serious question of general importance to be certified that would be dispositive of an appeal from my decision herein, he proposed no particular question.  I share the position of counsel for the Applicant that this matter turns entirely on its remarkably unique, at least in the experience of this judge, factual underpinning.  While the issues raised are undoubtedly serious, at least to the principal Applicant and her family, I cannot conceive that any question that might be certified and that would be dispositive of an appeal of my decision herein would be of general importance.  In the circumstances, no question will be certified.

 

 

“Frederick E. Gibson”

 

Ottawa, Ontario

November 7, 2006

 

 

SCHEDULE

 

The opening words of section 2 of the Immigration and Refugee Protection Regulations[3] (the “Regulations”) and the definition “work” in that section read as follows:

 

The opening words of section186 of the Regulations and paragraph (l) of that section read as follows:

 

Section 196 of the Regulations reads as follows:

 

The opening words of section 199 of the Regulations and paragraph (b) of that section read as follows:

           

Subparagraph 200(1)(c)(ii) of the Regulations reads as follows:

 

            The opening words of section 205 of the Regulations and paragraphs (a) and (d) of that section read as follows:

           

Related to the foregoing, and particularly to Regulation 205(d) and the definition “work” in section 2 of the Regulations, is section 5.40 of Citizenship and Immigration Canada’s Foreign Worker Manual relating to charitable and religious work.  That section reads in part as follows:

R205 (d) applies to charitable or religious workers who are carrying out duties for a Canadian religious or charitable organization.  It does not apply to religious workers who are entering to preach doctrine or to minister to a congregation, as these people may be admitted pursuant to R186(1).

_________________________________________________________

Note

A non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  An applicant may be considered to be engaging in charitable or religious work if they meet the following conditions.

·         An individual will not receive remuneration, other than a small stipend for living expenses;

…

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-6264-05

 

STYLE OF CAUSE:                          FARHAT NASIM HASHMI

                                                            IDRI MUHAMMAD ZUBAIR

                                                            HISHAM MUHAMMAD ZUBAIR

                                                            TAIRMIYYAH IDREES ZUZBAR

 

Applicants

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      October 24, 2006

 

REASONS FOR ORDER:               GIBSON J.

 

DATED:                                             November 7, 2006

 

 

APPEARANCES:

 

Lorne Waldman	FOR THE PLAINTIFFS
Robert Bafaro	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Waldman & Associates Barristers and Solicitors Toronto, Ontario	FOR THE PLAINTIFFS
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT