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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
Many Sikhs have long advocated for a separate homeland -Khalistan. Some point to historical grievances, whether by the British colonial government and its successor Indian government headed by Nehru. Great impetus was given to these aspirations of independence and autonomy by the ill-conceived attack on the Golden Temple, and the reprisals against innocent Sikhs following the assassination of Nehru's daughter, the first woman PM of India, Indira Gandhi. The bloody aftermath resulted in displacement and dislocation; many came to Canada and made refugee claims. With time and pacification of Punjab, that particular claim profile receded. Over time, there have been different players that have advocated for Khalistan. One of the more recent is Sikhs for Justice. This organization has spearheaded a referendum for November 2020 in which members of the Sikh community (and others that have a connection with historical Punjab) are to mark their support for an independent state. Should it succeed, the organizers will forward to the United Nations. SFJ has been banned by the Indian Home Ministry. The establishment of a separate Sikh homeland is once again in the consciousness of many. There have been ebbs and flows to such claims. More recently, there are troubling signs... Continue reading
Liberal and secular individuals in Pakistan have a thin margin of error. That margin of error has been shrinking of late. There is a reason that Pakistan has consistently been a refugee producing country. It has one of the lengthiest National Documentation Package (NDP) up on the IRB site. Our Canadian government has the following to say about Canadians visiting Pakistan. Of course generalizations should be avoided. Country condition reports will never encapsulate or provide us with the reality of life in any country. Liberal, secular and "western" influence "is pervasive in many parts of Pakistan, particularly in large urban centres...Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives." (DFAT Country Information Report: Pakistan. Australia. DFAT. 1 September 2017). I myself hope to visit Pakistan one day. However, it's clear that there is increasing (religious) extremism in Pakistan (see for example the 2018 Report of the US Commission on International Religious Freedom). Stray but a little, and such an individual can be caught between the hammer and anvil of the state and the (religious) mob. The interpretation of blasphemy laws has exacerbated religious extremism -both... Continue reading
If you are an international student in Canada, your spouse may be eligible to apply for an open work permit. A work permit may be issued to a foreign national under s.205(c)(ii) of the Regulations (this talks about such an allowance for reasons of public policy). This section is then expanded upon by way of a public policy Program Delivery Initiative. The PDI indicates that a foreign national may be eligible for a work permit if they establish that they are the spouse or common-law partner of a full time student at a public post-secondary institution, or even a private institution (if it has been authorized by provincial statute to confer degrees). The PDI does not however stipulate the types of documents that should be presented to establish the applicant meets eligibility requirements. In my experience, this largely depends on the visa office in question. Some visa offices/officers are easier to satisfy than others. If the applicant is from a more –shall we say –rigorous region, then these applications sometimes approach mini-spousal sponsorship applications. Documents should include proof of relationship (not just a marriage certificate) -photographs, proof of relationship, past cohabitation, etc. It is, of course, important to show that... Continue reading
Individuals have options in terms of sponsoring their spouse, common-law or conjugal partner to Canada. In terms of an inside Canada application, they are restricted to spousal or common-law partner. For an application made outside Canada, they can also sponsor a conjugal partner (a marriage-like relationship). The family class was expanded to specifically include common-law and conjugal partners of the opposite and same sex in 2002-2003 (see edited Hansard, Number 009 (37th Parliament, 3rd Session).[1] The discussions before the Standing Committee on Citizenship and Immigration (April 3, 2001) are also illustrative of the intent of the legislators [2] Here’s an excerpt: However, in recognition of the uniqueness of the immigration situation, we are going to make a somewhat different definition. This is because we know that in the immigration context, people often cannot cohabit, cannot live together, because they are separated because they are nationals of different countries. So with a Canadian, for example, who wishes to be reunited with his or her partner, the whole reason they're going through an immigration process is because their partner is living in another country. In recognition of the fact that it is often difficult for common-law partners to live together, in exceptional... Continue reading
Good morning one and all, Our firm has been nominated for the Top Immigration Law Services 2020 in Calgary. Please make sure you vote right away! Vote for Stewart Sharma Harsanyi Continue reading
Danielle Smith: All right, I am prepared to have my mind changed on this one. My inclination is that the Safe Third Country Agreement is a good agreement; and that we are absolutely right when somebody arrives at our borders saying that they are from America, that they should be applying for refugee status in the United States first. My inclination is that genuine refugees fleeing hazardous conditions in war torn areas are going to have an equally fair process in the United States and Canada. Danielle Smith: My sense of it though is that there is this push on for economic migrants regardless of your reason of wanting to move to a different place, you should be accepted and there shouldn't be any additional process that you need to go through. I think that's problematic because we have an entire system on immigration that is built around identifying people who are going to be the best match for our particular economic circumstances. And the point system and giving precedence to those who can speak one of the two official languages so that they have an easier time into integrating into our economy. It's actually a pretty darn good system... Continue reading
Exclusion Clauses – Article 1(E) Certain individuals are excluded from the grant of protection. These are the exclusion provisions; some don’t need Canada’s protection, and some don’t deserve Canada’s protection (Articles 1F..) In the case of the former: in order to be excluded from the Convention -a claimant’s status in another country must give the claimant rights that are substantially similar to the rights possessed by nationals of that country (the right to return, to work, to study, and to have access so social services). This usually arises when a claimant makes a claim against their country of nationality but has status in another (something akin to permanent residence). A claimant can be denied protection if they abandon or reject status in that third country. This prevents claimants from forum shopping. Refugee protection is not for persons “who simply prefer residence in one country over another”. Either the CBSA (which represents the Minister) or the Board raise this issue. If the Minister is involved then he sends a “Notice to Intervene” and may participate in person to question the claimant (or simply file documents to this effect). Article IE sometimes raises credibility concerns as well. If a claimant taks actions... Continue reading
Making a Refugee Claim? Here are the top 6 mistakes that we’ve seen as former Refugee Protection Officers and lawyers with more than a decade of legal practice. Mistake #1 -making a claim without first doing your research/talking to an experienced refugee lawyer. You may think that your claim is straightforward. You may think that you do not need any assistance. You would be wrong. The statistics are unambiguous. Those individuals that have the assistance/guidance of experienced refugee lawyers are far more likely to succeed in their claims. Further, credibility is often assessed at the hearing by comparing the testimony there with the narrative/statements made previously. Do yourself a favour and have your ducks in a row before you file your claim. Mistake #2 -failing to prepare is preparing to fail. Review your Basis of Claim form and the narrative. Prepare for the hearing. Be proactive. There are a number of resources available. Again, an experienced refugee lawyer will be able to give you an idea-if not 100% of the questions that will be asked -at least 80-90%. Review the National Documentation Package (NDP) and be aware of the relevant country conditions. Spend time, energy, forcus (and yes, likely money)... Continue reading
At the IRB this morning -RPD (Refugee Protection Division). The RPD is now housed in the Harry Hays building -a stellar example of brutalist architecture. Here in Calgary, the IRB is just down past the CBSA offices and downstairs from IRCC. The passport office is there on the main floor as well. Citizenship ceremonies are done here too. From notification, eligibility, hearing, deportation, or landing and citizenship, Harry Hays is a full service shop. Essentially cradle to grave in terms of immigration. The RPD surroundings are frankly depressing. The hearing rooms are small and windowless. Whoever designed the rooms had no regard for the actual needs of the participants. Hearings are frequently held via videoconference but the screens are placed awkwardly, oddly and haphazardly. The Board Members do not have their own offices. They are expected to work out of the hearing rooms themselves. These issues could have been avoided had those responsible simply sat down and talked to a Board Member -or had bothered to observe an actual refugee hearing, appeal or detention review. Oh well. There is no point in complaining. On the positive side, Harry Hays is more convenient in terms of location from the last premises... Continue reading
A LMIA Does Not Mean a Work Permit Will be Issued A positive labor market impact assessment, or LMIA, does not mean that an applicant is entitled to a work permit. An immigration officer is still required under the regulations, specifically section 200[3][A] to determine whether the foreign national applicant is able to perform the work sought. If the work permit is rejected, the only option is a judicial review at the federal court and the court will not likely interfere in such a [highly discretionary] bracket determination. Remember, the onus is always on the applicant to put forward a complete application. The applicant has to put his or her best foot forward with a thorough and comprehensive application. It is the applicant's responsibility to show that he or she meets the employment requirements. The LMIA does not bind the officer-the officer is still required/entitled to conduct an independent assessment to determine whether the applicant has the ability to perform the work or not. The Federal Court has said that, "The mere fact of the positive LMIA [LMO] is not determinative ..." Singh 2015 FC 115. At a minimum, ensure that the application demonstrates the applicant meets the NOC requirements... Continue reading
Just because you win your refugee claim doesn't mean you are home free. There are ways to lose your protected person status -either before your PR status or even after (and even citizenship can be revoked). I'm off to Edmonton today-vacate hearing tomorrow. The CBSA can initiate either a vacate or cessate proceeding. A vacate in essence is retrospective- it looks to whether there was a material misrepresentation at the time of the refugee claim; whether there remained grounds to justify or support the grant of refugee protection -or if not and if the application is allowed the grant of status is nullified and set aside. Basically but for the lie you would not have been granted refugee protection in the first place. A cessate is more concerned with actions the refugee or protected person did after the grant of protection. This could include accessing consular services or utilizing your own passport instead of a Canadian travel document but most commonly it involves travelling back return to the country where you alleged risk. In essence you do not require Canada's protection anymore. The partners at SSH law have extensive experience in both types of proceedings. Needless to say both carry... Continue reading
Danielle Smith: We have been doing a series about immigration over the course of the last day, looking at where the parties stand on immigration. And I wanted to talk to Raj Sharma to see if he's seen anything out there that gives him some confidence that any of the political parties have the right answer for solving some of the problems he's spoken so eloquently about with us in the past. Danielle Smith: Raj Sharma, of course, is partner and immigration lawyer at Stewart Sharma Harsanyi, joins me now to talk about it. Raj, thanks so much for being with me today. Raj Sharma: My pleasure. Danielle Smith: When I talked with you in the past, you've been so excellent at just giving us a play by play of how the backlogs are growing and some of the consequences of that. You've talked about what some of the solutions are, and it seems like there are a lot of people putting a lot of minds to figuring this out. Is there any progress being made from your perspective? Raj Sharma: Well it's an interesting time that we're in right now. I honestly expected immigration, irregular migration to play a... Continue reading
J'lyn Nye: Mr Sharma, welcome to the show. Raj Sharma: It's a pleasure. J'lyn Nye: I'll start by asking you about this... We've been talking about it today over the last... Well, since the news broke yesterday afternoon. Want to start by asking you about liberal leader Justin Trudeau. I know on your, on your website, it's right there. "Every lawyer at this office, has a son or daughter of immigrants, the majority of our support staff choose to immigrate to this country." Given you know who you work with, your clients, your personal background, what is going through your mind when you've seen those pictures of Justin Trudeau in brown face and in black face? Raj Sharma: Well I was born in Canada. I was born in Hamilton, Ontario. I grew up in a small coal mining town and I myself have experienced incidents of racism. I remember older kids spitting on me in grade four. These things sort of stay with you. So I suppose the first reaction really was a truly deep feeling of profound disappointment. J'lyn Nye: What kind of impact do you think that this could have on immigrants wanting to come to Canada and... Continue reading
The Agri-Food Immigration Class pilot is starting in early 2020. Focus on attracting butchers, food processing labourers, harvesters for mushrooms ad greenhouse crops, farm workers for mushrooms, greenhouse crops, livestock raising, and livestock workers. Max number of applications to be processed under this class is 2,750. Eligibility: During the 3 years preceding their PR application, need 12 months full-time, non-seasonal Canadian work experience in TFWP, in an occupation in processing meat products, raising livestock, growing mushrooms or greenhouse crops Lvl 4 in English/French High school education or greater Indeterminate, full-time job offer for work in Canada (must be outside of Quebec) 2-year LMIA for meat processor employers who support foreign workers to get PR. Must outline plans of support in obtaining PR. Continue reading
In my 15 years practising immigration law, I have encountered many exploited and abused temporary foreign workers (usually low-skill/low-wage). They are often exploited or abused by members of their own community -sometimes even by their own family. This abuse/exploitation takes on many forms. For years, foreign workers were caught in a dilemma. Report the exploitation/abuse and risk removal/deportation from Canada or continue in an untenable situation for hope of working (even at their pitiable wages) or staying permanently. Options for Exploited/Abused Temporary Foreign Workers Some sought relief via a humanitarian and compassionate application (the "H&C"). The outcome of course depends on the officer. Some have been sympathetic, others not so much. I sought judicial review on such a refusal. Justice Fothergill's decision will help many others I think: [17] The immigration officer did not dispute that Ms. Kaur had been the victim of fraud, and even praised her willingness to assist in the investigation of her employer. While acknowledging that her employer’s actions had undermined her AINP application, the officer appears to have concluded that the situation was effectively resolved by affording Ms. Kaur an opportunity to seek new employment or obtain a new LMIA. The officer ultimately gave little... Continue reading
Economic immigration to attract foreign skilled workers to one of the smaller, participating communities. The prospective candidate approaches the approved community. List of communities: , submits application for endorsement to the community who selects candidates. Successful candidates submit PR application which is assessed against Federal Selection and Admissibility requirements. If PR is successful, person can move there to work. Pilot begins in Fall 2019. Further details on who can apply & what documents are needed will be provided at that time. Continue reading
One important goal that all immigration lawyers share is to help their clients avoid deportation. Deportation however is one outcome (among others) contemplated in the IRPA/IRPR. My client entered Canada almost a decade ago. She came as an international student, graduated (had a child here) and obtained a Post Graduate Work Permit. She attempted to navigate the PR process but failed. She was found to be in non-compliance (she didn’t leave after the expiry of her status, seeking instead status from within Canada). After the breakdown of her first marriage, she started a common law relationship with a failed refugee claimant. A “H&C” was filed for both; the couple had a child together. Along the way, a PRRA was initiated (and like most PRRAs, rejected). The H&C was refused on spurious grounds. JR was sought at the Federal Court. The Department of Justice (DoJ) graciously consented. During this time, she was meeting CBSA regularly and CBSA was coordinating removal plans. CBSA decided not to remove given the consent from the DoJ. Lo and behold -unlike other returns from Federal Court which take months or even years to re-determine, another Officer refused the H&C for the 2nd time within 2 months.... Continue reading
The Minister of IRCC, Mr. Ahmed Hussen, recently announced a two-year pilot program which allows some immigrants to sponsor their undeclared, non-accompanying family members. These individuals would have been previously barred under the family class sponsorship pursuant to section 117(9)(d) of the IRPR. This pilot is significant as it shows the government’s changing mindset towards giving more flexibility to the current harsh regime set out in 117(9)(d). Announcing this new pilot, Minister Hussen said that the “federal government recognizes that the regulation was unfair” and that, “newcomers who failed to declare immediate family members as they first came to Canada were barred to sponsor them. Today, we right that wrong.” The new policy applies to sponsors that came as refugees or as accompanying family members. However, the policy leaves others out in the cold. One class gets to sponsor even previously undisclosed family members; the other class face potential misrepresentation and removal from Canada. This entails the writing and referral of a s.44 report; a hearing at the ID and thereafter an appeal to the IAD. The new policy obviates much of s.117(9)(d) -and so it makes little sense to take enforcement action against sponsors given that, on the other... Continue reading
I've discussed the ADR process in the past. Last week I attended at an ADR. The purpose of the meeting was to see whether a negative residency determination could be determined in my client's favour without need for a full hearing. My client, a septuagenarian, was unable to comply with the residency obligation set out in s.28 of the IRPA -essentially -other than a couple of exceptions -a PR needs to be in Canada for 730 days (non consecutive) in a five year period. This is a Minister's counsel driven process. The Minister's counsel asks the bulk of the questions. The DRO -Dispute Resolution Officer (from the IAD) is simply a facilitator. Thus the identity -and experience level of the MC matters (more than it should, in my opinion). It is an informal process and likely less unnerving to the sponsor/appellant than a full hearing. It is, essentially, another kick at the can. If the MC indicates that he or she is satisfied the appeal will likely be allowed without need for a hearing. If the MC is not satisfied (let's face it, some Officer's will never be satisfied) or simply needs more time or needs to see more then... Continue reading