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Raj Sharma
Calgary Based Assisting Clients Throughout Canada and the World
Queen's Counsel, Managing Partner of SSH Law, author, "Inadmissibility and Remedies"
Recent Activity
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There is an avenue of relief for those found inadmissible to Canada on the most serious grounds of inadmissibility Section 42.1(1) provides an avenue for relief for most of the provisions within s.34/35/37 Some will call this relief more illusory than real; the process may take many years and more than one kick at the can There is no statutory stay of removal while the application for ministerial relief is under review This is no area for amateurs -if you are facing allegations of inadmissibility under the most serious grounds of inadmissibility then you need to talk to experienced legal counsel Continue reading
I discussed confronting bias and antagonism at the Immigration and Refugee Board in my book. The most recent iteration of this phenomenon is canvassed in a Toronto Star article. The Refugee Appeal Division set aside a biased RPD Board Member's decision and granted protection, noting, in part: In her decision, Bobkin said there’s a high bar for appellants to establish bias or even an apprehension of bias; an allegation cannot be just based on “mere suspicion, pure conjecture or mere impressions.” The adjudicator said she assessed the couple’s allegations based on Mungovan’s tone and demeanour; his use of boilerplate reasons in Romanian Roma cases; and his pattern of focusing on “peripheral, microscopic and sometimes inappropriate credibility issues” in this case and others. ... The refugee judge made comments with a “sarcastic tone,” such as “I didn’t know that I was limited to non-leading questions, but nevertheless,” said Bobkin. Others were made with an angry, argumentative tone, Bobkin said, such as, “You don’t want them to answer the question, I will move on,” and “Is it to be answered or not?” and, “I am going to ask this for the last time.” “At times, the member interrupts counsel. All of these... Continue reading
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Status matters when it comes to inadmissibility. Foreign nationals (FN) --as well Permanent Residents (PR) to a lesser extent --remain strangers in a strange land. There are various grounds of inadmissibility --here we are talking about those individuals that are in Canada. Status in Canada determines the extent of remedy and recourse available: Protected persons may not be removed until a danger opinion has been secured against them (this is in addition to any right of appeal they may have if they are Permanent Residents as well); There is a higher threshold to establish allegations of foreign criminality (s.36(1)(c)) against a PR; PRs don't face inadmissibility on certain grounds (like medical/health and financial); PRs may have a right of appeal to the IAD (the IAD can consider H&C factors); FN can be removed from Canada for even a scintilla of criminality (they can only afford a straight summary offence; IRPA presumes all hybrid offences to be indictable) Continue reading
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There are manifold consequences of serious criminality or criminality under the IRPA (IC or immigration consequences): potential removal of PR/FN -removal order if in Canada --> 44 report…ID (issues removal order)…IAD for PR and appeal rights retained; ineligibility for refugee (s.101 of the IRPA) if protected person + serious criminality/criminality =ineligible for PR exclusion from refugee protection -this would be under an exclusion clause, typically 1F(b) delay/prohibition to grant of citizenship impact on Family Class sponsorship (sponsor ineligibility for certain convictions; family member criminality) possible inadmissibility to other countries (e.g. may need a waiver of inadmissibility to travel to the US) Continue reading
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The refugee claim process in Canada is set out in the IRPA. Section 99(3) stipulates that the claim must be made to an officer (and cannot be made by a person subject to a removal order). Claims inside Canada are either those made at a POE or in-land. After notification is made, an officer will determine whether the claim is eligible (s.101(1) of the IRPA). Some individuals are not eligible to make a claim for refugee protection -and eligibility should be canvassed with experienced legal counsel prior to initiating a claim. If the claim is eligible it is referred to the Refugee Protection Division. If the claim is accepted the person becomes a protected person and can apply for PR from within Canada. Note that the government can seek to appeal a positive decision to the Refugee Appeal Division. This happens but is relatively rare. If the claim is refused the failed refugee claimant can seek to appeal to the Refugee Appeal Division (unless they are ineligible for the RAD). The RAD is a substantive appeal and can set aside the RPD decision and substitute the decision that should have been made. A negative RAD can be challenged at the... Continue reading
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Remember that a removal order is not necessarily the end; there are remedies and the person concerned should seek out experienced legal counsel --the sooner the better. Continue reading
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Applicable to PR that has entered Canada; not applicable to those outside Canada. PRs outside Canada facing such allegations may or may not have the ability to travel back to Canada to deal with their appeal. Continue reading
My friend Jatin Shory (who also practices in my area) had asked Ian McKay (an experienced criminal defense lawyer) and myself to present to the CBA Immigration Section in February. We talked about 'crimmigration' -the intersection between criminal and immigration law. In this part, we discussed the importance of understanding that intersection and providing the client the necessary information for an informed plea. Raj Sharma: If you're going to practice in criminal law, you should understand the repercussions of Wong. So understand the concepts of Wong. You're flirting with allegations of incompetence, if you don't advise your client as to immigration consequences. If they're not a citizen and there's immigration consequences and you don't ... There's a positive duty. The Supreme Court has indicated that there's a positive duty on defense counsel. So read Wong. Act in concert with criminal defense ... Criminal defense lawyers and immigration lawyers can do magical things together. They can do magical things together, if they work together at the right time. Creative solutions are possible. So for example, now Ian and I were just discussed Jaskirat Singh Sidhu’s case. He's a permanent resident of Canada, who's been convicted of an offense. And he's gotten... Continue reading
My friend Jatin Shory (who also practices immigration and refugee law) had asked Ian McKay (an experienced criminal defense lawyer here in Calgary) and myself to give a presentation to the CBA Immigration Section on 'crimmigration' in February. Part I of our discussion follows... Jatin Shory: [Raj] ... is also a lecturer of the University of Calgary, and he commonly appears at all tribunal levels, and also at the Federal Court and the Federal Court of Appeal. And a quick plug in for him, he is also the author of the newly minted Inadmissibility and Remedies. I know we're going to get into that, but if you haven't gotten your copy, go and take a look. Mine's already tabbed up. Great place to start when you're jumping into this very stressful space. With the introductions aside guys, I think I'm going to just go ahead and jump right into some of these more open-ended questions. For those who are here today, there is a Q&A button at the bottom of your screen. Feel free to drop questions wherever you like, we will get to them at the end. Jatin Shory: Today's more of a discussion, trying to get some best... Continue reading
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This is a simplified chart for PRs inside Canada facing allegations of inadmissibility. This doesn't apply for PRs facing allegation that they have not complied with the residency obligation under s.28 of the IRPA. A PR may have a right of appeal to the Immigration Appeal Division. Continue reading
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Letters of support are an important part of an H&C application. They can speak to a number of factors that may be at play such as the applicant's: establishment in Canada; family/family support; involvement in the community/community support; BIOC; Remorse, rehabilitation (for past instances of misrepresentation/criminality). These letters should indicate the writer's relationship with the applicant and should be specific and cogent. At times letters of support may be dismissed or given little weight by an Officer when they are cookie-cutter or generic or suffer from some other congenital defect. Other times, an Officer will deal with such letters in an unreasonable way. In Kaur v. MCI 2022 FC 220 the Officer dismissed letters of support because they were "advocative" in nature. Of course they were. That's the whole point. That analysis was given short shrift by Justice Ahmed: Continue reading
What is the test for the grant of humanitarian and compassionate relief under section 25(1) of the IRPA? It was set out by the Supreme Court in Kanthasamy, at paragraph 21: ...to offer equitable relief in circumstances that "would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunates of another": Chirwa, at p. 350. Justice Zinn, in a recent decision, commented on the fact that there are some Federal Court decisions that have phrased the test/question in a different way, "...in particular, decisions that require that an applicant's circumstances be compared to those of others..." (Zhang 2021 FC 1482) After commenting that it was "challenging" to discern the origin of this practice, Justice Zinn points to a representative statement by the Chief Justice: ...applicants for such relief must demonstrate the existence of misfortunes or other circumstances that are exceptional, relative to other applicants who apply for permanent residence from within Canada or abroad..." (Huang 2019 FC 265 at para 20). Justice Zinn notes that this statement appears to have been followed and relied upon by H&C officers. In his view (one that I must agree with) this "comparison requirement is not supported by Kanthasamy".... Continue reading
IRCC sometimes tries to justify inordinate delay in processing based on the apparent fact that they are waiting on third party security clearances. Justice Harrington dealt with that excuse in Hamalipoor: [21] Furthermore it is not adequate to pass the buck and avoid responsibility by blaming delays on another government organization. An applicant's right to a decision is an obligation on the Government of Canada acting through the responsible minister. It is the Respondent's obligation to cause the necessary steps within government so that the rights under the statute are fulfilled. Continue reading
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The decision in Mohammed v. MCI 2022 FC 1 has already played a role in the granting of an appeal against a removal order by the IAD (coincidentally, by the same Board Member that initially denied relief to Ms. Mohammed). This was discussed in a recent Borderlines podcast (#69) and may be of assistance beyond those that worked in the front lines of the pandemic. This topic also came up during my chat with Conservative MP Jasraj Singh Hallan -the Official Critic for Immigration: Raj Sharma: There's so many. I think the most recent is my first-reported decision, and the first-reported federal court decision of the year. It involved someone that was working in long-term care who was providing end stage service and assistance, and she was short of the residency obligation. Because she was short on the residency obligation, they tried to remove her from Canada, and she had good reasons why she couldn't comply with the residency obligation. When we ran the appeal, they gave short shrift to her assistance in a long-term care facility. There was multiple COVID outbreaks, there was deaths in the facility. She's literally risking her life, and this is in the decision, risking... Continue reading
Borderlines · #69 - COVID-19 as an H&C Factor, Mandamus and FSW vs. CEC Priorities, with Raj Sharma ... Steven Meurrens: Hello, and welcome to the Borderlines Podcast. The podcast for the discussion of Canadian immigration law and policy. I'm Steve Meurrens. This week, Deana Okun-Nachoff and I are joined by Raj Sharma an immigration lawyer in Calgary at Stewart Sharma Harsanyi. Raj previously appeared on episode 48 of this podcast, where he discussed responding to procedural fairness letters, and also episode three, where he discussed marriage fraud. And today Raj is on to discuss this case, Mohammed V Canada, citizenship and immigration, which is the first federal court decision of 2022. Steven Meurrens: There the federal court ruled that the immigration appeal division unreasonably minimized the extent to which working as a frontline healthcare worker during the COVID-19 pandemic should be a factor in the humanitarian and compassionate assessment. We also discuss processing times, mandamus applications, whether IRCC made a mistake in lumping federal skilled worker class and Canadian experience class applicants together in express entry and more. Raj can be found on Twitter @immlawyercanada. And if you enjoy today's episode and you like the show, please leave a... Continue reading
Transcript Jasraj S. Hallan: Hey everyone. Welcome to the second episode of All That Jas. I'm your host, Jasraj Singh Hallan, Member of Parliament from Calgary Forest Lawn. We are so honored today to have my good friend, and I would say world-renowned immigration lawyer, Raj Sharma, joining us today to talk immigration and a bunch of other things that I know a lot of people are going to be really excited to hear about. Raj is a very well known lawyer for many years, someone I could say I look up to. A little bit of a, I would say, role model as well; someone that is very dedicated and very passionate about helping people out. I'm not going to do an introduction for him because I'm going to leave that to him. Raj, thank you so much for being here today. Let us know, who is Raj? Raj Sharma: Jasraj, thanks so much for having me on. This is the first time I'm in your, in your lair, in the lion's den, so thanks for having me. In terms of background, just like you probably, my parents came over about 50 years ago, so we're second generation now,... Continue reading
**Update. I wrote the below post about a month ago; some days ago the Federal Court rendered a decision in the case where we argued that the actions of former counsel should be grounds for the setting aside of the decision itself. ** Choose your counsel/representative carefully. Prevention, as they say, is the best medicine. It is essential that you and those close to you ask questions to ensure that your representative has the necessary skills, knowledge and experience to present your case. In terms of immigration, your application, hearing or appeal may be your only shot to enter, stay or bring your family members to join you in this country. While difficult, you may be able to set aside a refusal if it results from incompetence of counsel. It isn't that easy to set aside a refusal based on alleged oversight or incompetence by counsel. The Federal Court has a Protocol in place: Download Procedural-protocol_7march2014 Current counsel will need to determine whether there is actual foundation for the allegation and must notify former counsel and include their response, if any, in their filed materials (the Applicant's Record). If leave is granted, former counsel must be served with the perfected... Continue reading
I was interviewed for an article on the impact of the pandemic on immigration policy. My comments: Raj Sharma – lawyer, immigration specialist, and founding partner at Calgary firm Stewart Sharma Harsanyi – said in an interview that the uniqueness of COVID, and its impact on “every business line of immigration”, made it stand out. “COVID presented a challenge and an opportunity for government,” said Sharma, who recently authored the immigration law book Inadmissibility and Remedies with Aris Daghighian. Among COVID’s “silver linings” was a shift to a paperless application process, said Sharma. In November 2020, Sharma made a presentation to the federal Standing Committee on Citizenship and Immigration. He reported to the standing committee that “COVID-19 has caused an unprecedented disruption to our immigration system…IRCC (Immigration, Refugees and Citizenship Canada) was caught flat-footed, as were we all.” Among the areas affected: IRCC workers having to work remotely the suspension of visitor visa applications, biometrics, and medical examinations for months the separation of families by borders or travel logistics the delay of citizenship ceremonies and landings for permanent residents significant delays in processing submitted applications “There was and continues to be massive uncertainty as immigration policy is being made almost... Continue reading
2021 has been a momentous year for immigration. I had made some general predictions in January of this year. As I've said before in another forum, I am no soothsayer, but this statement turned out to be somewhat prescient: 2020 was like a storm that impacted every business line of immigration. 2021 will be the first year for rebuilding. However, it's not just systems and backlogs that need to be addressed: the government has set aggressive settlement targets -and it remains to be seen how those targets can be met with a still-hobbled system. One can only assume that CRS will drop and that will benefit the Canadian Experience Class. One can only hope that a pathway to PR will be created for essential (but low skill/wage) workers in Canada that have been on the front lines during the pandemic. That pathway for essential workers was in fact instituted (along with a modality for international graduates); the statement "it remains to be seen how those targets can be met with a still-hobbled system" is true today and applicable for 2022. Silver Linings Despite the challenges, there were some positives, one of which was the publication of a text written by... Continue reading
Stewart Sharma Harsanyi Immigration Lawyers · RedFM Interview -Immigration Backlog Raj Sharma Audio With MP Jasraj Hallan RedFM News Director Rishi Nagar interviews immigration lawyer Raj Sharma and Member of Parliament Jasraj Hallan as to the recent news of a 1.8 million application/file backlog with Immigration, Refugees and Citizenship Canada. Raj Sharma Audio with Jasraj Hallan_mixdown Continue reading
I had a fun time chatting with Chantal Desloges and Cathryn Sawicki on their new immigration podcast -Welcome Home. We talked about practicing in the complex area of inadmissibility law. Topics covered: The amount of discretion that remains in the hands of an Officer even when confronted with inadmissibility; The challenges and rewards inherent in practicing in this area; The consequences of inadmissibility and potential remedies; The increased reliance on section 37 -organized criminality by CBSA; and Jaskirat Sidhu and the intersection of criminal law and immigration enforcement. Speaker 1: This podcast is brought to you by the Immigration Law Series by Emond Publishing, Canada's leading independent legal publisher. Cathryn : Welcome Home everybody. This is a podcast about Canadian immigration law. If you are an immigration practitioner or a student looking to get into this area, this is a podcast for and about you. Chantal and I will tell you what you need to know, bring you expert guests and share their wisdom. And we will all have a lot of fun doing it. So sit back, enjoy and welcome home. And I will now serenade you with a song. Why are you cutting me off? What? Chantal: The... Continue reading
In order to maintain status, a permanent resident must comply with the residency obligation set out in s.28 of the IRPA. With some limited exceptions, this means being in Canada for 2 years out of every 5 year period. Non-compliance carries with it a risk or jeopardy to status. Section 41 of the IRPA establishes a ground of inadmissibility for the breach of the residency obligation. An Officer (inside Canada or at the POE) can prepare a section 44 Report asserting same. If the person concerned wishes to appeal, the matter will be heard by the Immigration Appeal Division (IAD). The IAD has equitable discretion to grant relief notwithstanding inadmissibility/ineligibility. As reiterated in the IRPA, section 28(c) the best interests of any child directly affected is always a primary consideration in humanitarian assessments under the Act. In addition, the jurisprudence has also developed a non-exhaustive list of factors the IAD can look to in such cases, including: Extent of non-compliance with the residency obligation/how much is short-fall? The reasons why the appellant left and remained outside Canada (remember the element of choice will be relevant here) Whether efforts were made to return to Canada at the first opportunity (and reasons... Continue reading
A driving while impaired, or DUI, criminal conviction in Canada for a permanent resident (PR) and for a foreign national (FN) is problematic—the maximum sentence possible for this offence is ten years, thus meeting the threshold for immigration jeopardy. If an officer writes a report and the minister’s delegate refers it, then the ID will issue a removal order against a PR. If the actual sentence imposed is less than six months’ jail, then the PR retains a right of appeal to the IAD. For an FN, after being presented with the report alleging inadmissibility, the minister’s delegate will issue a removal order. Contact an experienced immigration lawyer if you encounter this type of charge... Continue reading
Bear in mind: A good outcome from a criminal justice point of view (a shorter jail sentence than for other, similar, offences) may be a terrible outcome from an immigration point of view. A far longer conditional sentence order (CSO) than a six-month incarceral sentence for a PR or consecutive individual sentences of six months less a day are far better than a “deal” that is more than six months but less than the consecutive sentences. Either would preserve a PR their last best option to remain in Canada. Continue reading
A dangerous driving offence could be “exchanged” for a plea to careless driving under a provincial traffic safety act. Both can carry similar consequences; but the latter does not result in immigration jeopardy, whereas the former does. If you are a Permanent Resident of Canada or a Foreign National here ... make sure you have experienced criminal defense lawyer that understands the consequences of criminality. Continue reading