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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
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: https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/rural-northern-immigration-pilot/community-partners.html , 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
It’s a cold and snowy Monday night on January 2, 1989; the Immigration and Refugee Board has been in operation for one business day; Brian Mulroney is Prime Minister ; there are ten centimeters of snow on the ground in Ottawa; the Canada-United States Free Trade Agreement came into effect on the same day as the Board; and David Matas is about to publish a book titled “Closing the Doors: The Failure of Refugee Protection”. This might pose the question of relevance, as three decades have passed since the inauguration of the Board; but wait, because what is old, is new again. In Matas’ book, readers would learn about the obstacles to protection that the vulnerable faced in Canada. They would also learn of the inherent flaws and the challenges facing our new refugee determination system. What might come as a surprise to many is how little things have changed in three decades. The Pre-Modern Era of Canadian Refugee Adjudication The pre-modern era of Canadian refugee adjudication began on January 1, 1989 with the coming into force of Bill C-55. The newly minted Board was immediately confronted with 85,000 cases. This was the result of a multitude of problems, including:... Continue reading
Starts at about 5:30 minutes in Danielle Smith: …you probably saw that the press conference, a couple of days ago from the Auditor-General talking about the myriad problems that we have at the federal level, but this is one that we have known about because my guest has been raising the alarm about this ever since at the crisis of people coming across the border illegally, saying, "We just do not have the ability to handle this influx. We do not even have the ability to handle the existing refugees that we are trying to process, let alone this new influx." And it sounds like everything he has been telling us is absolutely true. Danielle Smith: Joining me now to see whether we are any closer to solutions is Raj Sharma, Calgary Immigration Lawyer. Danielle Smith: Raj, thank you so much for being with me today. Raj Sharma: Good morning. Danielle Smith: So let us talk a bit, if we can, about the Auditor-General report. What stood out for you on it? Raj Sharma: Well it was not surprising, I do not think. I think what stood out, for me, is that we are trying to fix a plane while... Continue reading
A visa officer (for a sponsorship submitted outside Canada) is tasked with determining whether a marriage or common-law relationship is genuine or entered into primary for the purpose of an immigration purpose. If a visa officer refuses a family class sponsorship (marriage, or common-law) outside Canada on the basis of s.4 of the IRPR, the sponsor (generally) has a right to a substantive review or appeal at the Immigration Appeal Division. The appeal has to be filed within 30 days of the sponsor receiving the refusal from the visa office. It is possible that the matter can be resolved by way of an ADR (the Alternative Dispute Resolution) proceeding. I have written about that process; today, I will try and provide further details when an ADR is deemed unsuitable or the ADR is not accepted. In that event, the matter goes to a full hearing (again, generally speaking –there may be marriage appeals that may not merit a full review, such as appeals involving res judicata). These hearings, for sponsors living in Alberta are heard in Calgary and Edmonton. In Calgary, the hearings are held at the Harry Hays Building. The hearings are typically scheduled for a full day hearing;... Continue reading
I was counsel on several refusals of work permit applications made by a spouse [overseas] seeking to join their husband/wife/partner in Canada [the spouses here were international students]. The refusals were strikingly similar; the decisions were made by the same officers in the same office [CHC Delhi]. Officer "AP" who made the initial decision -that she wasn't satisfied or that there was insufficient evidence provided regarding the bona fides or genuineness of the relationship and then recommending a finding of misrepresentation, which was affirmed by Officer "TS". A finding of misrepresentation on the overseas spouse not only results in the refusal of the work permit application, but it also poses an impediment to the intended and likely future application for permanent residence by the spouse in Canada. A Canadian PR or citizen spouse who seeks to sponsor his or her partner to Canada under the Family Class has (generally) an appeal on the merits, a de novo appeal to the Immigration Appeal Division. There is no such fulsome or substantive review in cases involving a finding of misrepresentation by an overseas spouse on a work permit (or visitor visa). This very serious finding of misrepresentation can only be reviewed by... Continue reading
"The only thing necessary for the triumph of evil is that good men do nothing." -Edmund Burke A recent Globe and Mail article about the exploitation of foreign workers and the "industry" that has sprung up to take advantage of these vulnerable individuals is not terribly shocking; and, now, after so many years bearing witness to it all, it fills me with weary resignation rather than anger. I discussed some of these transgressions during my testimony before the Parliamentary Standing Committee on Immigration (CIMM) two years ago. Unlike the CBA, I did not argue for the elimination of immigration consultants altogether and restrict the practice of immigration services to lawyers alone. My position was, in fact, almost entirely endorsed by Lorne Waldman, the next witness, and perhaps the most respected immigration lawyer these last couple of decades. I suggested that regulation and oversight be improved, with additional training for consultants that sought to appear before the Immigration and Refugee Board. Going back to the the Globe article. It discusses nefarious actors like Kuldeep Bansal -there are many others but he perhaps exemplifies the apex (nadir?) of that sordid industry that preys on the hopes and dreams of migrants and workers.... Continue reading
Tara McCarthy: A foreign worker from Edmonton is now in hiding. She says the owner of an Edmonton restaurant that sponsored her work visa tried to extort her for sex. If she didn't comply, he threatened to withdraw her immigration application. The woman who can't be named, due to a publication ban, was sponsored under the Alberta immigrant nominee program. Raj Sharma is the managing partner of Stewart Sharma Harsanyi. He specializes in immigration law and joins me now from our Calgary Studio. Good morning. Raj Sharma: Good morning. Tara McCarthy: How common is it that foreign workers get exploited like this? Raj Sharma: Unfortunately, Tara, it happens all too often. And the exploitation and the ill treatment of temporary foreign workers is nothing new. It goes back to the days of coolie labor. It goes back to the days of the Chinese laborers on the Canadian Pacific Railway. Tara McCarthy: Why is it so common? Raj Sharma: It's common because there's various power dynamics, power imbalances at play. It happens because we have individuals that are coming here from third world countries. And there's various sort of actors, bad actors unfortunately. There's recruiters, for example. There's individuals in every... Continue reading
We are handling a number of cases all concerning dated and dismissed criminal charges. All of these refusals are from the Philippines (Manila Visa Office). In these cases, the applicants have provided court documents that the charges have been dismissed. Most of these incidents occurred decades ago. After the Procedural Fairness Letter, the applicants try and obtain documents pertaining to the charges. This includes court certificates that the charges have been dismissed and they have also provided their own statements as to what happened (or didn't happen). However, the visa officer still wants more (whether or not these other documents exist or not, after the passage of decades) and the application is refused. Some officers will never be satisfied. That is simply the way of the world. Some of the refusals are based on section 16(1) of the Act, which requires applicants to answer truthfully and "provide all relevant evidence and documents that the officer reasonably requires." Some refusals are based on a finding that the applicant is criminally inadmissible under s.36(2)(c) -even though there are court documents indicating the charges have been dismissed. Nevertheless, some kind of equivalency is done to a offence in Canada. The starting point is... Continue reading
Michael Higgins: An immigration plan to help reverse shrinking populations in rural Alberta. Jason Kenney's Alberta Advantage Immigration Strategy would speed up processing and end large backlogs with an aim of bringing 10,000 newcomers to rural Alberta communities, giving priority to committed entrepreneurs ... Jason Kenney: ... who take big risks to turn a dream into reality, which creates jobs and produces prosperity for all of us. Michael Higgins: To get some perspective on what the UCP plan might involve and its degree of potential, we're joined now by Raj Sharma, an immigration lawyer in Calgary. Michael Higgins: Mr. Sharma, before we get to the UCP proposal, many of us understand immigration to be a federal responsibility, so to what degree do the provinces factor into the equation? Raj Sharma: Thanks, Michael. Immigration is a federal legislation, but the responsibility is a bit shared between the federal government and the provinces. Raj Sharma: I'll leave Quebec aside; Quebec has its own sort of deal in immigration just like they have their own deal on other matters. Other provinces have been sort of clamoring for more say in terms of immigration, and so each province has their own provincial nominee program,... Continue reading