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Raj Sharma
Vancouver and Calgary
Raj Sharma, of Stewart Sharma Harsanyi, Barristers & Solicitors (one of Western Canada's largest immigration law firms) reviews developments in Canadian immigration law.
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The sad reality is that in many cases, visa officers have made up their mind before they even start the interview. Other times, they decide within minutes, relying on their "gut" -subjective findings based on assumptions, stereotypes, "cultural arguments" and generalizations. Satzewich, in Points of Entry notes a designated immigration officer advising that he/she looks at "body language, eye contact, their demeanour, if they are fidgety, if they are looking at the wall..." (p. 228). Proving this, either at an appeal at the Immigration Appeal Division (luckily, not such an issue since such an appeal is de novo) or at judicial review, is difficult. No officer would admit to a bias. Officers have learned not to record biased comments in their notes post-Baker. Most probably could deny that they had a bias even under a lie detector test, or application of sodium pentathol. Few individuals have the ability to view their own actions (especially if it means a realization that they are not being fair) objectively. The underlying reason is of course, confirmation bias: Confirmation bias, also called confirmatory bias or myside bias,[Note 1] is the tendency to search for, interpret, favor, and recall information in a way that confirms... Continue reading
Danielle Smith: I want to get into this issue, now that we've seen more development in the US on the Haitian Temporary Protected Status now being revoked finally, for the final time, so they say. This was supposed to be the final time, given six months, and now it's been ... or, when he extended it this last time ... Normally they have been extending it for an 18 month period ... they only extended it for a six month period, and that resulted in this influx of Haitians coming across the border, mostly Haitians. I went and looked up the numbers first because you guys have asked me to. 16,992 who came across the border apprehended by the RCMP, meaning they came across illegally, so that is a number that I have no doubt is going to increase. The number of people who are still in the US from Haiti are estimated at between 50 and 60,000. Now here's the interesting thing, right? They talk about how cruel it would be after the 2010 earthquake to send these people home, and so on and so forth, but they quote this woman in this one story, saying, "Rony Ponthieux, a... Continue reading
An application under Humanitarian and Compassionate grounds pursuant to s.25[1] of the Immigration and Refugee Protection Act is an incredibly versatile tool that can allow someone who is without status in Canada or is even seeking status from outside of Canada to become a permanent resident. S.25[1] of the Act allows almost anyone, notwithstanding ineligibility or inadmissibility [subject to some restrictions], to obtain permanent resident status in Canada. This provision was recently considered by the Supreme Court in a decision called Kanthasamy. This decision reviewed the ambit and objective of this particular provision, which has been around under our immigration act and its precursor for many, many years. There has always been a method, so to speak, to overcome non-compliance/inadmissibility – there has always been a safety net for individuals that fall through the cracks of our immigration regime. Such an application can consider a number of factors, for example, the individual's time, establishment or ties to Canada; the circumstances leading to his or her application for relief; the adverse challenges that removal or a return scenario would entail (or "hardship"); and the best interests of a child or children affected by the decision. Each application is unique. An immigration... Continue reading
I wanted to give an overview of the BoC narrative and what needs to be kept in mind;the narrative is critically important in a refugee claim and it plays a large role in success or failure. Many refugee claims will turn on the narrative. The narrative, of course, should contain in chronological fashion all of the events and incidents that lead to the well founded fear of persecution or risk to life. One of the primary objectives or tasks or responsibilities of the board member is to determine credibility, that is whether the claimant is telling the truth or not. One way the board member can determine credibility is to compare the testimony at the hearing with the narrative and potentially compare both to the objective country condition evidence or the other evidence on the file. The narrative and the testimony should be consistent, that is one or the other should not contradict the other; it is equally important that there should be no significant omission, that is, if a novel or new event is relayed in the testimony and it is not present in the narrative without adequate explanation, then the board member may well draw a negative inference.... Continue reading
My thoughts -in an interview with CTV Alberta Primetime on Canada's commitment to increasing immigration levels over the next three years. Transcript Shawna Randolph: Canadian government plans to roll out the welcome mat to nearly 1,000,000 new immigrants by the end of 2020. It hopes to attract 1% of its population in three years. Michael Higgins: The move is to meant to spur economic growth, but some wonder how services to help immigrants will keep up with the ambitious plan. We get the perspective of an immigration lawyer. Shawna Randolph: This year Canada is expected to welcome 300,000 immigrants, and that number will gradually increase over the next three years rising to 340,000 in 2020. The federal government says it's a necessity to keep the economy moving as baby boomers enter retirement. Minister Hussen: It'll help employers to be able to get the talent that they need here faster, and yes, it'll also help us to provide more protection to the most wonderful people in the world. Shawna Randolph: The opposition says the government needs to do a better job of integration to help newcomers thrive from language to mental health supports, and points to lack of details in the... Continue reading
My thoughts -in an interview with CTV Alberta Primetime on Canada's commitment to increasing immigration levels over the next three years. Continue reading
After submitting an application to sponsor family overseas, sponsors are sometimes confronted with refusals based on a shortfall in meeting the MNI or minimum necessary income (currently defined as the LICO or low income cut-off plus 30%). There is a right of appeal against such decisions -as long as the sponsor has indicated in their sponsorship forms that they wish to continue with the application notwithstanding any issues of ineligibility. The Immigration Appeal Division or IAD will look at two different areas in such appeals. Firstly, an appellant can argue that the visa office decision is not valid. This is relatively rare as it is simply black and white whether the sponsor met the minimum necessary income requirements at the time of sponsorship and at the time of the visa office assessment. The vast majority of these appeals are decided on the IAD equitable jurisdiction that is on humanitarian and compassionate grounds. The IAD will look at all of the circumstances of the case including the best interest of any child or children affected by the decision and can still allow these appeal and direct the visa office to continue processing the file notwithstanding the noncompliance or shortfall. The Immigration... Continue reading
Our office is handling a number of refugee claims made by nationals of Yemen. There is of course a severe humanitarian crisis throughout that country. Civil War or prevalent conflict does not preclude a refugee claim however an applicant must still show personalized risk. Such dire conditions however assist the claimant in showing that there is no viable internal flight alternative (generally speaking claimants have to show that there is a no other safe and reasonable place to relocate in their own country before requesting international protection). Such conditions further assist in rebutting the presumption of state protection -indeed the presumption does not even arise as this state is not in control of its borders or territory. Outside of the two issues outlined above of the claimant will still be tested on his or her credibility. This may be done by the board member exploring testimony by way of questioning and ensuring that of the testimony is consistent with the basis of claim form and narrative -and whether the testimony or narrative is consistent or at odds with the objective country conditions on file. Other issues that may arise may be the failure of a claimant to make a claim... Continue reading
The inaccurately named "Express Entry" (think "Refugees are welcome here) forum for permanent residence filed for Canadian Experience Class, Federal Skilled Worker, Federal Skilled Trades ans some Provincial Nominee programs has been a mixed bag. On the one hand, processing times have been reduced, requirements of applicants streamlined and points for selection rationalized. On the other hand, the system still lacks the internal checks and balances as well as common sense of officers necessary to ensure the system works as it was intended. Since the system has been implemented we have seen: -Points for Arranged Employment subtracted and applications refused even though the requirements for arranged employment were met in the contract submitted; -Points for Education subtracted despite assessments confirming the points claimed; -applications wholly rejected where proof of submission for police checks was not provided even though explanatory letters were sent in the absence of the certificates; and -Work Experience points deducted and misrepresentation findings made on the basis of calls to unsuspecting former employers who could not recall the individual in question or, due to surprise, provided inaccurate information. Thankfully, in Alberta, provincial nominees can apply for permanent residence independently of the Express Entry system. Unfortunately, we have... Continue reading
FYI : AINP is changing in Jan 2018 – see below and attached link for details of new Opportunity stream. Good news is that NOC D jobs are being accepted (as long as they are not listed on ineligible occupation list) and AINP is opening up to Express Entry. However, all applicants will now need a language test and minimum work experience requirements. http://www.albertacanada.com/opportunity/programs-and-forms/ainp-alberta-opportunity-stream.aspx Effective January 2, 2018, the AINP will be making changes to its streams. The AINP will reduce the number of streams available. These changes will simplify application processes, reduce wait times, and make it more fair for applicants across all sectors and industries in Alberta. The AINP will also be more responsive to emerging labour market needs while supporting the goal of building a skilled, permanent workforce and a more diversified economy. As of January 2, 2018, the AINP will accept applications under two streams: the newAlberta Opportunity Stream and the Self-Employed Farmer Stream. The Alberta Opportunity Stream will replace the Employer-Driven Stream and Strategic Recruitment Stream. Complete applications for the Employer-Driven Stream and Strategic Recruitment Stream postmarked on or before January 1, 2018, will be accepted for processing and those already in queue for processing... Continue reading
A heartfelt congratulations to Peter Edelmann and his team for winning a great victory in the Tran case. A copy of the decision is linked here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16803/index.do Essentially the Court's decision can be summarized as follows: (1) Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a "term of imprisonment" under s 36(1)(a) of the IRPA? The Supreme Court has answered "no" to this question. Prior to this decision an individual who received a C.S.O of six months or more would be treated the same as an individual who was incarcerated for the same period. In both cases, the individual concerned, if a permanent resident, would lose their right to appeal any removal order issued against them as a result of a conviction with a sentence of six months or more incarceration or a conditional sentence for the same term. Now, an individual with a conditional sentence of six months or more could retain their right to appeal a removal order to the Immigration Appeal Division. A right to appeal to the IAD ensures that a decision maker will only proceed with deportation if, after a review... Continue reading
Speaker 1.: So I was hoping you might be able to explain how could it possibly be that this man [Abdulahi Hasan Sharif] could enter Canada after being rejected in the United States? Could you just walk through the mechanism of how that might be possible? Raj Sharma: Well The Safe Third Country Agreement or the STC is designed to prevent, or restrict at least, asylum shopping. It's meant to make sure that people that come to Canada first, make a claim here, rather than go and make a claim in the US and vice versa. Now, there are exceptions to the STC. So someone could make a refugee claim in the US, be rejected, then come up to the border. So either you cross the border and make a claim outside of a port of entry, and that's an exception to the STC and that's what we're seeing with the border crossers over out East. But you could also come to a port of entry and you could make a refugee claim at the border and there could be an exception, for example, if you have family in Canada that either have status or are going through the refugee... Continue reading
Danielle Smith: Let's move on to this next topic. We do know why it is that Abdulahi Hasan Sharif in Edmonton, we do know why he did what he did. He had an ISIS flag sitting on the seat of one of the vehicles that he was in. We know that it was motivated as a terror attack. When he slammed into a police officer, attempted to kill him by stabbing him and then went and got a U-Haul truck and again, good policing work in both of these instances, right. It's quite amazing when you think about it that hours later they were able to identify, recognize this guy and then immediately take evasive action so that it was not worse than four individuals being injured. We've been looking into how it is that this person got refugee status. We talked about that earlier. Even more alarming now is how does he get refugee status after having been refused in the United States, detained for four months. They say they didn't have the ability to remove him right away so they let him go and he didn't show up again when he was supposed to on January 24, 2012.... Continue reading
For a change I was in the position of answering questions and subjected to cross examination. An international family, custody litigation case required an expert opinion as to the efforts of a GB/UK national that sought entry to the US and then Canada to see his child. He has been stymied in his efforts to enter either country. I never imagined that I'd have to travel to Springfield Missouri for any reason, much less to testify; this week has been difficult given my appearance before the IAD in Winnipeg on a spousal appeal hearing on Monday, and then flying to Springfield on Thursday. My testimony wrapped up this afternoon. It was a unique opportunity and I'm grateful for this experience. Unfortunately litigation is often a consequence to the break down of a marriage. Sadly, emotion trumps logic in matters involving the end of a relationship, particularly where children are involved. I'm glad I'm not a family law lawyer! I don't know the end result for my client. That's ultimately out of my hands. I hope I was able to provide the necessary information to the Court for its considered judgment. I have a feeling that no matter the result, it... Continue reading
Another day another immigration appeal hearing. This last was in Winnipeg; my client was married in 2013; application was refused by CHC Delhi in 2015; now 4 years after the marriage, success. In many spousal interviews, the applicant is damned if s/he does and damned if s/he doesn't. In this case the visa officer in Delhi had concerns that my client's husband knew (detailed) answers to his/her questions -apparently this raised a red flag and this was one of the reasons the application was refused. This is of course a no win scenario. When overseas applicants don't know enough of their Canadian sponsors, the application is refused, and when they do know, it still gets refused. In this case, the Officer found that the Applicant's precise answers regarding key dates indicate that he memorized information. More specifically, during the interview in New Delhi, the Officer notes the following: “When interviewed he demonstrates that he knows some information by heart. He knows precise dates by heart.” The Officer castigated the applicant for his accurate recollection of the key dates surrounding the marriage, rather than weighing it as evidence to support the genuineness of their relationship. The Officer places the Applicant in... Continue reading
Travel History as Grounds for Refusing a TRV The burden is always on a foreign national to establish that he will leave Canada at the end of the authorized period, according to paragraph 20(1)(b) of the Immigration and Refugee Protection Act. There are several factors that guide a visa officer's determination that a person meets the requirements of the above section. One of these is section 179 of the regulations. The Applicant submits that he proffered overwhelming evidence of ties to his country. That, of course, includes the fact of his longstanding marriage, his three children and grandchildren, as well as property ownership and business interests in that country. The Applicant relies on the Federal Court decision in Ogunfowora v MCI 2007 FC 471. Using pre-Dunsmuir parlance the Court found it was patently unreasonable to conclude that because this was a first journey, the applicant in that case would not return. The Applicant relies on the rationale of Justice Maurice Lagacé. At paragraph 42 of the above-noted decision, "if there was nothing wrong with considering previous travel history as a factor that does not assist the applicants, on the other hand, it also does not hurt their application, since they... Continue reading
Overview This is an application for judicial review of a decision of a visa officer in New Delhi, India denying the Applicant a temporary resident visa. The officer stated that he or she was not satisfied that the Applicant would return to India at the end of the period authorized by his stay. The reasons are simply that "file reviewed. Applicant has limited to no travel history. I'm not satisfied that the applicants would leave Canada at the end of their authorized stay. Refused." The officer did not request the Applicant to attend an interview or examination prior to refusing that application. It is patently unreasonable to conclude that because this was the Applicant's first international journey that he would not return. Putting an Applicant in a catch-22 position is not reasonable. The Applicant can't get a TRV to Canada because he has no travel history; he can't accumulate or build up travel history because he can't get a TRV. Continue reading
Great chatting with Rishi Nagar on RED FM 106.7 this morning on the developments on the Canada - US border. I also discussed this issue with Danielle Smith last week (and several times this year already) as well as media organizations such as VICE. There's been some effort, both politically, and now there is a piece by the U of C School of Public Policy downplaying the unique events of the past few months. In essence, that Canada can effectively deal with this influx of individuals crossing the border from the US; and, (now via the School of Public Policy) This is not unprecedented that we've seen this before (most notably after the events of 9/11). Well, my law partner, Bjorn Harsanyi, and I were actually there, as an Refugee Protection Officer with the IRB. The reality is that our refugee adjudication system is not set up at present to deal with large numbers of arrivees. Further, these numbers of border crossers is indeed unprecedented. Comparisons to the past don't work for a number of reasons: The projection for 2017 claims by the School of Public Policy do not take into account the massive jump - 7,000 *after* June (they... Continue reading
Danielle Smith: This next topic. Before anybody says that I'm catering to the racists and bigots out there, I want you to know that you're talking about the majority of Canadians. If you're talking about the majority of Canadians who feel this way, then there's going to be, in these poll results I'm about to share with you, there is going to be at least some liberal voters who feel this way. There is an emerging problem, as you've heard about, in Quebec. They've now brought in the army to set up a tent city that can accommodate 1,200 people coming across the border, as they figure out a way to process them. Works fine for the summer. I don't know what's going to happen as we get close to winter. Ipsos-Reid, along with Global, has just done this new poll, and I want you to hear for yourself what some of the results of that poll are, about the level of confidence that they have in Justin Trudeau to be able to fix this mess. I can give you a bit of a hint: not so much. Listen to this. Speaker 2: According to exclusive Ipsos polling, 63% of... Continue reading
Words matter at the border and stray words, without further documents or explanation, can have unintended consequences. Our client was attempting to re-enter Canada with her three children. As Americans they did not require visas, however they were questioned intensely at the border regarding their intentions in Canada. In this case, the family had applied for permanent residence through Express Entry, but had not been selected. They wished to re-enter Canada so their children could attend school (they were paying the required student fees) and resolve their long term residency issues (the client's husband was a professional who worked in different locations all over the world as a consultant). The family presumed they could re-enter Canada for these purposes as no member of the family had ever contravened the conditions of their stay previously. In the midst of her interview with the CBSA Officer, our client, when asked about the family's intentions in Canada indicated "of course, we wish to immigrate here and live here permanently." On the face there was nothing wrong with stating this. The family could have been allowed entry on the basis of having dual intent -intention to reside in Canada permanently, but also a willingness... Continue reading
We recently had three separate temporary resident visa refusals that illuminate the banality of indifference through which overseas visa offices routinely refuse visa applications. The differences between the applications and the similarities in the refusals illuminates the problems overseas applicants face when applying to come to Canada: (1) Our client invested as a majority shareholder in a Canadian company. He was a longtime business owner who was going to own and operate the business as he had expertise in the businesses' subject matter and the Canadian partners were essentially silent partners in the business. Bank accounts were provided showing the applicant had a high level of savings, traveled to Europe regularly on a Schengen visa always returning to his home country, and the business was incorporated, had leased space and invested in fixed assets for the business to get off the ground in Canada. The application was refused because the Officer was unconvinced the Applicant could withdraw funds from his overseas bank account to fund the Canadian venture. We are now challenging the decision in Federal Court; (2) Our client applied for a temporary resident visa to visit her boyfriend in Canada five months ago. The processing times for visas... Continue reading
I had a great discussion with Allison Tierney, a writer with Vice. An American ex-pat herself (when North Americans, or the English, immigrate, they're ex-pats; when others immigrate to North America or the UK, they're immigrants -or worse, "aliens"). For decades, Canada's best and brightest were irresistibly drawn to our great neighbour to the South, like a moth to a flame. It appears that more and more Americans are now realizing that they can also move north and partake of our crazy social experiments like health care for all, or an inclusive military, or our top tier (public) education system. Allison put together a list of ten questions that Americans would want to ask a Canadian immigration lawyer. That article is now up and can be read here. The article includes my thoughts on a certain degree of nonchalence, or perhaps even arrogance inherent in the assumptions that some Americans make; as if they can simply stroll across the border, collect a Canadian passport, pick up a hockey stick at Canadian Tire and a double double at Tim Horton's and Voila! ...I want to deal with the underlying arrogance by Americans whenever this question pops up. Many times they expect... Continue reading
Another day, another judicial review. The client is an Indian national and sought a work permit to come here and work in an administrative capacity. The application was refused without an interview with the Officer's notes providing an insight as to the attitudes, stereotypes and generalizations apparently commonly held in that particular visa office: Given the great disparity in applicants earning power in Canada versus in India, as well as the better working condition [sic] available in Canada, it appears that applicant would have little financial incentive to return to India if admitted to Canada. Given all of the above, I am not satisfied that applicant meets burden of R200(1)(B) that applicant would leave Canada at the end of authorized stay. Application Refused There is of course clear Federal Court jurisprudence that warns Officers from relying on generalizations and stereotypes (Lin. v. MCI 2004 FC 96; Yuan v. MCI 2001 FCT 1356). There was no mention by the Officer as to this particular applicant's circumstances (educated and professionally employed) and the fact that she had a very strong reason to leave Canada at the end of her "authorized stay" (a home, a husband and two children). I argued: It is... Continue reading
Hersh Wolch QC, perhaps the greatest criminal defense lawyer in Canadian history, passed away yesterday. His legacy includes a half century practicing criminal law which saw him exonerating the wrongfully convicted; and of course his family including two accomplished children that followed their father into law. His remarkable career is beyond easy description or comparison; in addition to being perhaps our country's most brilliant lawyer of the past half century, he also assisted law enforcement and successfully resolved a half dozen hostage taking standoffs. His cross examination of Larry Fisher at the Supreme Court is the stuff of legal legend. Not only did he exonerate Milgaard (his client) but implicated Fisher who was found guilty years later. The case took a physical toll on Wolch; but he remained prolific until the very end. At the risk of committing the sin of being self-referential in this time that should only be about this great man, it was my privilege to have known him, to have involved him and relied on his expertise for our clients in our bailiwick -that is immigration litigation. It was happenstance that our offices were in the same tower; even seeing his car in the parkade at... Continue reading