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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.
Recent Activity
Laws! We know what they are, and what they are worth! Spiderwebs for the rich and powerful, steel chains for the weak and poor, fishing nets in the hands of the government. -Pierre-Joseph Proudhon, 1851 The Federal Government euthanised their Investor Program a couple of years ago. To the responsible bean counter's surprise, they found that multi-millionaires that came under the program (avoiding the more rigorous requirements of the FSW like language proficiency and high educational achievement) remitted less taxes than those close to the new minimum wage and created little, if any economic benefit for Canadians. Quebec's Investor program however, is still going strong. For over 25 years, close to 60,000 individuals (mostly from China) have used the program and even la belle province knows that only 6,000 or so have stayed in Quebec. No downside, and all up-side for these wealthy individuals; no downside and only up-side for Quebec as it utilizes the 800,000 per investor deposited interest free; and only downside and no up-side for the RoC and particularly B.C. and Ontario, the provinces of (actual choice). Their wealth remains outside Canada, and not subject to Canadian taxation. There is no doubt and no gainsaying the fact... Continue reading
GCMS, Global Case Management Software Training Materials. Obtained via ATI request (2018). Download A201737971_2018-02-06_10-52-21 Continue reading
You got to know when to hold 'em, know when to fold 'em, Know when to walk away and know when to run. - Don Schlitz, The Gambler A certain (but incalculable) percentage of immigrants have committed misrepresentation to come to Canada. Misrepresentation, as with many aspects of life, is a spectrum, but broadly defined by immigration law. Whether its "white" lies, omission, or bald-faced deception, I've seen the various manifestations of misrepresentation on a daily basis. When a Permanent Resident is found out (or if the Officer is simply over-reaching), there is recourse; if in Canada, an Officer must decide whether or not to write a section 44 report (thus initiating the enforcement/removal process) and another Officer decides whether to refer the matter forward. If referred, the Immigration Division determines if the Minister has made out his case (that the report is "well-founded"). Certain allegations of misrepresentation are harder to establish than others (marriage fraud, for example, as it requires evidence as to state of mind or subjective intent at the time of landing in Canada). If the ID finds the PR has committed a misrepresentation, an exclusion order results. A Permanent Resident can appeal that exclusion order to... Continue reading
Sponsors and Applicants (the person being sponsored) under the FC1 or spouse or common law partner in Canada Class are sometimes called in for an interview. The call-in letter usually has a list of documents that the couple are to bring to the interview. I attended one such interview this morning; we had prepared a package of documents as to the couple's cohabitation, letters of support from individuals familiar with their relationship, and other corroborative documents. Officer "JPS" conducted the interview and as always, was professional and courteous. He started by explaining the process. These interviews can sometimes take several hours. Husband and wife (in this case) will be interviewed separately. Remember: there are two types of officers. The first type are facilitative in their approach; they will give applicants the benefit of the doubt and either understand or be cognizant of cultural considerations. The other type are enforcement minded officers. They are suspicious and cynical. They look for any opportunity (real or imagined) to impugn the applicant(s) and see their role (at best) to separate the good liars from the bad. My clients were lucky today. Interview questions will vary depending on the nature of the relationship. In this... Continue reading
Canadians have a right to marry (or enter into marriage-like relationships) whom they wish (subject to some basic, and common-sense, consanguinity, age, and species prohibitions). It's more straightforward when their partner is a Permanent Resident or Canadian Citizen. A Canadian, however, does not have an unfettered right to sponsor a partner that happens to be a foreign national to Canada. That decision requires the scrutiny of (sometimes overbearing immigration officers). If the sponsorship is refused, the Canadian sponsor has the right to appeal against the decision of the immigration officer to the Immigration Appeal Division. Trying to determine whether a relationship is genuine is actually more difficult than it may, at first blush, appear (one confounding variable is that there are in fact non-genuine marriages in the mix). It is true that there are many ways to skin a cat. The basic premise is the same: to separate the wheat from the chaff. However, far too often, a sponsorship appeal becomes a forensic exercise. Emotional relationships, the decision to marry do not lend themselves well to such artificial and ex post facto autopsies. The Federal Court has cautioned that too much reliance should not be "placed on minutiae and marginalities..."... Continue reading
Canada (and all countries) have certain objectives with respect to immigration policy. Canada is lucky; many seek to immigrate here (as opposed to countries like North Korea, where many would seek to emigrate). Immigration works best when the objectives of the host country and the immigrant align, converge. Canada needs skilled individuals, proficient in English and/or French, that can contribute economically (and culturally). Most applicants under the economic class meet that criteria; despite some continuing challenges in underemployment they come to live in an advanced, open market, inclusive, and democratic country, truly one of the best countries in the world. Other objectives include providing refuge to asylum seekers and facilitating family reunification. Other immigrants have a different goal and interests anathema to the public good. They see Canada as providing them with safe harbour (should they ever need it). They see Canada as a country where they can access subsidized and excellent education for their children, health care, and a place to stash their significant funds in "land banks". They see the residency obligation and needing to remain in Canada to fulfill that criteria as "immigration jail". Canada to them is more of a hotel, a place to stay and... Continue reading
The Trump Administration has ended TPS for the 200,000 plus individuals from El Salvador. Will they come to Canada and follow in the footsteps of the thousands of Haitians that crossed the border last year? My interview with Danielle Smith this morning: Danielle Smith: Let's talk about another influence that the U.S. might have on us with this decision for them to essentially ... Let me read some of the background on this because we've seen it once before with the decisions regarding Haitians. In the U.S. they have this temporary status, temporary protected status that when something occurs that causes the displacement of people to the United States, then they have a grace period for a period of time until they're expected to return home. Traditionally what has been happening is that these grace periods have just continued to get extended, and extended, and extended. Well on Monday the Trump administration ended a major immigration program for El Salvadorians leaving nearly 200,000 people in legal limbo. Now what I find really interesting when I read these is the stories that say oh well it was related to a ... Most of the people who came from El Salvador came... Continue reading
Another year is behind us; a New Year is on the horizon. This last year has been a significant one in terms of immigration developments, policy, and legislative enactments/changes. These immigration developments took place under the shadow cast by the Trump presidency. Perhaps Pierre Elliott Trudeau said it best in his Washington Press Club speech made on March 25, 1969, almost a half century ago: "Living next to you is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt ... " Almost 50 years ago, but little has changed. The year started off with the Trump "Muslim ban" and I found myself in a flurry of media interviews given that the hastily rolled out and poorly implemented ban (with no notice to Canada, one of the United States’ largest trading partner). Initially it seemed to apply to Canadian dual nationals. Mere hours later it didn't and our own officials including our Minister of Citizenship and Immigration, Ahmed Hussen himself, a "hyphenated Canadian" (having been born in Somalia) had to scramble to make sense of it all. My thoughts... Continue reading
Dear international students. I have a great deal of sympathy and concern for you. You are trying to navigate a new country, studying in your second or third language, away from friends, family and familiar surroundings. You are paying exorbitant fees and your families have likely sacrificed to send you here. So, it breaks my heart whenever a student comes to me after a refusal and potential loss of the opportunity to obtain Permanent Residence status here. By the time you come to me, options may be limited. Some advice from someone older and wiser (me). Do your research; don't rely on the questionable advice or the stated experience of others. Be careful when doing things on your own and get assistance when needed. Have a backup plan. Plan all the way to the end. Good luck! Continue reading
It's been an absolute deluge of immigration developments from our huge, rich neighbour to the south. Living next to you is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt. Être votre voisin, c'est comme dormir avec un éléphant; quelque douce et placide que soit la bête, on subit chacun de ses mouvements et de ses grognements. P.E. Trudeau Addressing the Press Club in Washington, D.C. (25 March 1969) My throat is hoarse from the number of interviews I've done on the repercussions of the Trump Presidency on Canada's immigration policies. In this case, a prominent Albertan (of Iranian descent) biomedical engineer was denied entry in the US earlier this month. The rollout of this "Muslim ban" has been beset by incompetence and an underlying hostility to the adherents of one religion (and thus is subject to challenge). Transcript: Parsin Hajireza: We planned to go through San Francisco with five others, my colleagues, my research team. At the airport, unfortunately, they didn't let me to pass through. Shallima Maharaj: Plans that had been the works for months so... Continue reading
Just finished a Sunday prep session for a spousal appeal to be heard tomorrow; stakes are high, consequences of false negative, devastating to a family are significant, so more prep never a bad idea. IAD will hear from both spouses, first the sponsor here in Canada, and then the sponsored person, almost always overseas. The couple needs to satisfy a subjective threshold. They need to satisfy either the IAD or the CBSA (the Minister's counsel can consent to the appeal) that they are indeed in a genuine relationship. But, what is a "genuine" relationship? We know that the IAD/CBSA expects the couple to be able to demonstrate a high degree of knowledge of one another (well and good). However, the couple is also gauged against "our" standard of what is a genuine couple/relationship/marriage. The risk of cultural misunderstanding is high. The IAD/CBSA expect to hear certain things from spouses, and some of these expectations are grounded in a Western ethno-centric world view. Spouses from North America, Western Europe display these hallmarks; other cultures may not. For example, Western couples will know and discuss details regarding past marriages, relationships; couples from other parts of the world would find delving into those... Continue reading
It was an honour - and a unique experience - to conduct a Federal Court judicial review hearing before 50 or so students from the University of Calgary Faculty of Law. The Federal Court moved from it's usual location to the Moot Court classroom at the U of C and the hearing was presided over by Justice Gleeson. Continue reading
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. 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: 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