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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
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
Whitney Deane: … someone who's been a Canadian since he was three years old, all of sudden, having to go through that immigration process. Here's that audio. Speaker 2: My grandparents moved here in 1948, took a boat all the way from England to Halifax and then took a train all the way across Canada to Calgary where they eventually settled. That's where he grew up. He grew up in Calgary. He lived his entire life, all his memories are of Canada. Yeah. He grew up, god, with nothing to indicate that he wasn't. He went to school here. He graduated. He got his first job. He got married. He had kids and homes. He had his driver's license, all of this stuff. None of this was really an issue until he retired to British Columbia a couple years ago with his wife Deb. Then when he went to get his driver's license renewed and replaced with a British Columbia driver's license, they took his Alberta license and informed him that they couldn't give him a BC license because he wasn't a Canadian citizen. There was definitely a shock to him. He no real idea about it. Of course, it's... Continue reading
It was a pleasure being interviewed and quoted for CBC investigative reporter Geoff Leon's newest piece into the (rampant) cash-for-jobs-immigration scheme. When I read Mr. Leon's first piece, I was impressed -to say the least -with his efforts to uncover, detail and document these practices; I was however, not surprised. Cash has been exchanged for LMIA/Arranged Employment/Job Offer ever since employment in Canada was linked to Permanent Residency; it confers a huge leg up for an application for permanent residency (whether a Federal Economic Class or a Provincial Nominee Program). Hardly a day goes by without someone inquiring whether we provide this service and it's clear that there are many that do. Calgary immigration lawyer Raj Sharma says Canadian permanent residency is being sold like a commodity, at great profit, for those willing to bend the rules. ... None of this is surprising to Raj Sharma, a Calgary immigration lawyer who used to work for the immigration refugee board as a hearing officer. "Wherever you have this hot economy and favourable immigration climate, you're gonna see this type of action," he said. He said this is precisely the sort of thing they've been seeing for years in Alberta. ... Sharma... Continue reading
Recently several of our clients have received calls from numbers listed in the United States (specifically from the 740 Area Code in Ohio) indicating that a warrant has been issued for their arrest by the "IRS" and for the clients to call back immediately to ensure they are not immediately arrested. These are scam calls and the likely purpose is to obtain personal information or even payment information from the individuals contacted to commit fraud against them. Given the fear such calls tend to engender and the lack of any legal basis for such calls, we thought it might be helpful to understand what is likely to happen when immigration wishes to speak with someone in Canada. (1) Immigration or the CBSA, depending on where the file is at, will send a letter or call to setup an interview. In many cases the interview is to determine if someone is in Canada. In some cases the interview will be scheduled to issue a removal order, in other cases it is simply to determine admissibility, in other cases it would be to serve a PRRA on an individual who is eligible; (2) Do not panic if you receive a call or... Continue reading
June 15, 2017 Danielle Smith: ... I want to get into this issue with Raj Sharma who knows how the system works and maybe can help explain to us what on earth is wrong with these delays. Raj Sharma is a Calgary immigration lawyer and he joins me now. Raj, thanks so much for being with me. Raj Sharma: Good morning. Danielle Smith: I called you to talk about this issue about this report that has now come out of the Immigration Refugee Board saying that we have such huge backlogs, we're not catching up. If things continue at this rate, by 2021 we're going to have a hundred and ninety-two thousand, seven hundred claims in the queue, a wait of approximately 11 years, and it's going to cost three billion dollars to support people on different social supports. What on earth is going on here? Raj Sharma: A couple of things is at fault here, and it's one of those unique situations where we can blame both the Liberals and the Conservatives for the predicament that we're facing right now. I used to actually work for the Immigration Refugee Board. I used to be a Refugee Protection Officer in... Continue reading
Misrepresentation is broadly defined under the Act; the system is predicated on individuals being truthful and forthcoming. I've been doing this for almost 15 years and my clients still surprise me with a new fact scenario. Don't accept advice from anyone (even a lawyer or a consultant) to do so; the consequences of misrepresentation reverberate for years. Continue reading
Another day, another tragedy. We received a cold call from an Indian national who had a study permit which expired in August 2017. For reasons of his own, he had stopped going to school, but continued working part-time based on his mistaken belief that he could work without going to school. In any event, he took steps to rectify his situation. His employer obtained an LMIA for him and he could have simply filed an in Canada work permit application to have his status changed. Did he make this relatively simple and straightforward application? Of course not. His consultant and his employer told him to take the LMIA and go to the border for his work permit. Outcome: Not only was the work permit not issued, this individual has now been asked to leave Canada and confirm his departure with immigration otherwise have a removal order issued against him. Foreign nationals can obtain a work permit if they meet the requirements under s.190(3)(f) by presenting an LMIA, job offer, supporting documents at a land POE. We would recommend this generally to nationals from a visa exempt country (an American, some Latin countries, Europe, Australia, New Zealand, the usual suspects). The... Continue reading
Citizenship and Immigration has recently changed the checklist for the submission of spousal sponsorship applications. Their motivation to do so is noble: they wish to increase consistency with respect to forms and documents and in so doing decrease processing times. In the course of making these changes, they are experiencing some growing pains. Applications are being sent back, in some cases even where all documents on the checklist have been provide along with forms and corresponding fees. We recently experienced the return of an application which did meet the checklist and additional requirements. After it was returned we immediately contacted the Operations Manager at CPC-Mississauga. The Manager not only responded to us in a helpful manner, they actually called our office to assist and provide some instructions on what we could do to rectify the situation so that no prejudice would be accorded to our client. Our communication was open, friendly and responsive on both sides and we are now in a position where it appears the situation would be resolved. The above positive experience stood in stark contrast to our recent experience at an Alternate Dispute Resolution Conference (ADR). Our client had filed a conjugal partnership sponsorship which was... Continue reading
Rishi Nagar: Hi, I'm Rishi Nagar; I’m a journalist from India and now have the pleasure of working for one of Canada’s largest multicultural broadcasters. It’s my pleasure to take part in this conversation that is of significant interest to our community, that is, immigration, and the consequences of misrepresentation. Raj, what is misrepresentation? Raj Sharma: Thank you Mr. Nagar, misrepresentation is very broadly defined under the immigration and refugee protection act. Misrepresentation is basically either misrepresentation, it could be the withholding, it could be the omission of a material fact that could induce an error in the administration of the act. Here I think our community and we discussed this a lot on Red FM, we discussed this a lot in other forums but I think our community has driven a lot of the jurisprudence in the area of misrepresentation. It's something that I deal with on a daily basis. Rishi Nagar: How many types of misrepresentation are there? Raj Sharma: I don't know I think that's a tough question. I've been doing immigration since 2002 when I started as an immigration hearings officer and so it's been about 15 years and I'm still coming across new, novel approaches... Continue reading
An allegation of misrepresentation is a big problem. It's one of the most common issues that we help address. I'll be speaking to this issue at the Canadian Bar Association, National Immigration Conference this year. The system - which handles hundreds of thousands of applications per year - requires individuals to tell the truth (the whole truth) because to definitely check every application would cause the system to grind to a halt (they would also need to hire private investigators in every source country). As a result, misrepresentation is broadly defined and carries with it serious consequences as a deterrence. Continue reading
[Raj: Canada's refugee laws are broader than most countries and includes "Persons in Need of Protection" not just "Convention Refugees"] Generalized Risk and Gang Violence The protection afforded to a claimant under paragraph 97(1)(b) of IRPA must be personal and not one faced generally by others in the country. The million dollar question in the last number of years is what is meant by personal risk, and how have the courts defined it in recent years? In the past few years the jurisprudence has become muddied to say the least, with often competing lines of interpretation on when a risk becomes personalized when an individual is faced with gang related violence. Decisions of the RPD emboldened by certain decisions from the Federal Court have repeatedly denied otherwise well founded claims for protection because the risk to them is generalized. This is particularly the case for applicants from countries in Central America, where crime and gang violence is rampant. In recent jurisprudence, the courts have clearly grappled with where the line in the sand should be drawn in these cases. For example, is a shopkeeper who flees Guatemala because he refuses to pay extortion money simply a victim of crime for... Continue reading
Individuals looking for assistance in dealing with Canada's immigration authorities can hire a lawyer or a registered immigration consultant. There has been, over the years, many issues regarding the regulation, governance, and quality of representation with both. The following audio is my appearance (along that of Lorne Waldman) before the Parliamentary Standing Committee on Citizenship and Immigration discussing the ongoing issues arising from the regulation and governance of immigration consultants earlier this month. Continue reading
Mr. Chair: Thank you. Ms. Dzerowicz, five minutes please. Ms. Dzerowicz: Thank you. I didn't expect to have time but delighted that I do. I'm just going to continue with some of the questioning and I only have five minutes so if you could respond as quickly as possible. I'm just going to go back to the governance and maybe start off where you left off Mr. Sharma where you suggested maybe we could have Immigration Consultants register with Provincial Law Societies. If we were to do that, what would happen to the education requirements and what would happen with ICCRC? Raj Sharma: ICCRC would be gone. Ms. Dzerowicz: So it’d be gone. That would be an alternative system, and then educational requirements would? Raj Sharma: Would be set by the Provincial Law Societies. Ms. Dzerowicz: How about the conflict between a lot of lawyers who would love to see them just do the Immigration Consultants, or would that just shake out? Raj Sharma: Well, I'm sure certain lawyers didn't want paralegals to be providing legal work in Ontario either. They'll have to be cognizant that, again, lawyers don't have the monopoly over the delivery of all legal work in... Continue reading
Mr. Chair: Thank you Mr. Sharma. Perhaps you could continue that later. Mr. Saroya, you have five minutes please. Mr. Saroya: Thank you Mr. Chair and thank you both, Raj and Lorne. The two fine lawyers are here but we are talking [inaudible 00:45:25] consultants. I agree with the both of you, what you have said so far. The real issue is previous terms of the government, they're trying to fix the issue. They're [inaudible 00:45:39] the problem still exists. We hear it every single day. Most of the [MP's 00:45:47] have at least two members looking for answers on a daily basis. I think the problem is we have consultants, they have the sub-consultant, then they have the ghost consultants and each sitting back in India, back in Pakistan, and Hong Kong and China. I even heard from somebody that said consultant number so and so is looking to hire some people back home who can find some cases. Then he will go back twice a year, three times a year when he can fix the fix. The crookedness has gone so far, I don't think ICCRC have the courage to fix it. It hasn't worked, it won't work,... Continue reading
Mr. Tabarra: Thank you, Mr. Chair. I'll be splitting my time with my colleagues and Mr. Sarai. My question is for both of you. You mentioned, Mr. Sharma, in your opening statements that anyone over 18 can pass an exam. An exam consists of six months and 320 hours, and they can represent a lot of their clients. My question to both of you is in regards to the UK system, how there's a tier certification that has seven levels of advanced services that Immigration Consultants can give. Sorry Mr. Waldman, you mentioned also that a minimum standard of education, so if you can just elaborate on maybe how we can learn from the UK system and how we can get a certain of education and certification for consultants to have in order to perform their services properly and better service to their clients. Mr. Waldman: Yeah. As I said, I think that ICCRC should be doing it but if they're not, the government can put into the regulations minimum standards and they could say, "If a consultant ... In order to be a member of the ICCRC and to provide these services, the consultant must have this education in... Continue reading
Jenny Kwan: Thank you very much, Mr. Chair. I appreciate that. Again, I think it's most unfortunate that we can't get on with a debate with a motion that I table and a motion that really calls for a study on a critical issue that's before us. If we don't do this, the fear mongering will continue and it's not good for our country. It is not good for all of us together in a multi-cultural society. I implore the government members to think about that and maybe we can get on with it and do the work that is so very much necessary. With that, I'll turn my attention back to the study at hand. As I was saying, I thank both the witnesses for their comments. I do want to follow up on some specific questions. First off, given the situation that we have with ICCRC, which frankly on all accounts is not doing their job, most certainly not doing their job properly, the issues being raised from other witnesses, "Should consultants be self-regulated?" I wonder if I can get Mr. Sharma to answer that question and I'll turn to Mr. Waldman on that. Raj Sharma: I think... Continue reading