Raj Sharma's Canadian Immigration Blog

Stampede hooliganism

Hopefully Charlie won't notice the damage

Stampede 2009

Charlie Stewart QC in his french cowboy shirt finery.

The stampede has arrived

The inestimable Judge Sean Dunnigan

Somalian Refugee Claim - Accepted

After getting up at 5:30 this morning and reviewing the audio of the past hearing, as well as reviewing the voluminous documentary evidence on these claim types, I had limited input into the actual hearing. The hearing was concluded after some questions by the Presiding Member within one hour with a bench positive from the Member, Ms. Dhir.

Once the member accepted the identity of the claimant, the objective country condition evidence was clear and corroborative of a well founded fear of persecution. Somalia, in essence, is a failed state and with no functioning central government. There is no rule of law and the situation for women without the protection of a tribe or male relatives is especially dire.

My client had waited almost two and a half years for this day, and was understandably happy with the result.

In Defence of Jackie Tran

Jackie Tran committed serious crimes and has served the jail time imposed by the courts of this province. Unlike a citizen however, he will be punished twice for those crimes if he is deported from Canada and separated, perhaps permanently, from his family here. The comments made with respect to a Herald article detailing Tran’s efforts to remain indicate that there is little or no sympathy to his plight. Much like an unwanted adopted child, we now seek to return him to his birthplace.

Born in Vietnam in 1982 and now 27, Tran came to Canada along with his mother when he was in Grade 5.  His father had fled Vietnam in 1983, became a refugee, and after being in a camp in Asia, made his way to Canada. After sponsoring his wife and only child, Tran's father became absent from their lives after their arrival in 1993. Tran studied at Patrick Airlie School for elementary school, then Ernest Morrow for junior high and attended Crescent Heights High School. His mother disabled because of a workplace injury, Tran dropped out during Grade 11 and was convicted of both drug trafficking for an incident in 2000 and an assault involving a fight with a co-worker in 2002. As the family’s sole income earner, Tran was working as a glass cutter, but the family lost their home because they were unable to meet the payments in 2006.

As a result of these convictions, Tran was found to be inadmissible to Canada by a division of the Immigration and Refugee Board. A permanent resident can appeal such a removal order, which Tran did. It would appear that the Criminal court did not share the current and widespread public belief that Tran is a "danger" as it imposed a conditional sentence of two years less a day to be served in the community (after assessing Tran’s risk to the community) for those drug offences (he had received a fine for the assault). Interesting, the Immigration Appeal Division of the IRB also found that Tran "himself, is not a danger to the public as there is no evidence that he has continued his serious criminal activities which are dangerous to the public..." Tran is now seeking judicial review of the decision of the IAD which confirmed Tran’s removal order.

The IAD’s negative decision is pre-occupied with Tran’s alleged connections with organized crime (he has never been convicted or charged of any criminal organization offence under the Criminal Code). It dismissed the humanitarian and compassionate considerations that included the fact that Tran was the de facto parent to his 9 years old step-sister (dealing with her teachers and schools, her medical appointments, driving her to and from school, movies, McDonalds, to the park and zoo). Tran now faces removal to a country that he has not seen since he was 10 years old.

The IAD has allowed more serious criminals than Tran to remain in Canada, including sex offenders. Is Tran not a product of Canadian society? Is he not prejudiced in his efforts to reform and remain here because he has somehow become the embodiment of Calgary’s gang problem? Tran is, for all intents and purposes, a Canadian and should be afforded an opportunity to rehabilitate and reintegrate into the fabric of this society. His lack of a serious criminal record since his offence in 2002 is indicia of his efforts in this regard. He should not be removed because by an accident of birth he happens to be born in a different country than his adopted homeland.

Removing someone from the only home they have known, and depriving two dependent family members of their son and brother and their sole financial and emotional support, merits more sympathy, consideration and less rush to judgment by Calgarians.

 

Raj Sharma is representing Jackie Tran before the Federal Court of Canada. Mr. Sharma is a former immigration hearings officer and is currently completing his LLM at Osgoode Hall in Administrative Law.

 

LICO - Low Income Cut Off

Canadian citizens or permanent residents who seek to sponsor their parents (or grandparents) need to meet certain income levels. These income levels are generally ascertained by reference to the client's Notice of Assessment (Option C printout).

Given that sponsorships can take years - and the vagaries of our economic system - it is possible that LICO may not be met for one or more years. In these cases, the sponsorship can be refused by the relevant visa office. The sponsor has the ability to appeal this decision to the Immigration Appeal Division.

Luckily, it appears that the CBSA Hearings and Appeals Unit are amenable to consent on such matters as long as the requirements under the IAD case Jugpall are met. Even if the Minister is not wiling, the IAD can allow the appeal based on all the circumstances of the case (including humanitarian and compassionate considerations). The IAD however may not be an attractive option however because of the current timelines - an appeal on a sponsorship refusal can take as long as a year or more to resolve.

I've had a number of these cases (in one case, the visa office has refused on failure to meet LICO, even though there was no indication that the sponsor's income had in fact failed to meet LICO in any of the relevant years) and thankfully the CBSA has consented to the appeal on all of them.

Somalian refugee claim

I will be appearing before Ms. Dhir, Member of the Immigration and Refugee Board, Refugee Protection Division, on a Somalian refugee claim on Monday. She was appointed in December 2008 and the CIC Press Release contains the following information:

Ms. Dhir is a leading figure in the Indo-Canadian community in Vancouver. Prior to her appointment to the IRB, Ms. Dhir was Controller for Software Productivity Center. She also held the position of Controller for Kaldor Design Group Ltd. and was Senior Accountant for MC Forest Products Inc. She received a Bachelor of Commerce from the University of British Columbia and is a Certified General Accountant.

Crime, Drugs and Scams behind Spike in Mexican Refugee Claims

The deteriorating conditions in Mexico are plain for all to see.

President Calderon indicates that the future of democracy is at stake in its struggle against corruption and organized crime. New York Times article here.

A National Post article indicates that almost 5000 Mexican refugee claims were referred to the Immigration and Refugee Board, Refugee Protection Division in the first third of this year.

Attributing the spike to both drug violence and 'scams' the article does refer to Rusty Fleming who produced a documentary on the current situation in Mexico.

The situation is not so clear cut as the Minister of Citizenship and Immigration sees it. The deteriorating law and order situation in Mexico calls into question whether the state can adequately protect its citizens. This inability to protect then brings in the issue of international 'surrogate' protection. Given the current objective evidence available, it is a specious argument that most Mexican refugee claims are manifestly unfounded.

Ainp success

Ainp family stream. First applicant from last year. Interview waived. Medicals and passport requested. Sponsor is pleased.

Iranian Revolutionary Guard deported

This does not bode well for my client who also served in the Iranian Guard. However, I've had an opportunity to thoroughly review war crimes and crimes against humanity in a recent federal court matter and look forward to testing this issue if raised against my client. Link here.

Reforms for the live in caregiver program

Martin Collacut in a comment for the National Post calls for reforms to the live in caregiver program. Noting the problems in Punjab India specifically - which has over 160 'nanny schools' and surprising number of male applicants - he suggests that the LIC program be restricted to individuals that can qualify under the skilled worker stream. However, his bald assertion that nannies are underwritten by the taxpayers of Canada has no discernible factual foundation. Link here.

Human trafficking on the increase

It appears that the global recession is increasing the incidence of human trafficking. Link here.

Roma refugees from Czech Republic

Conservative government finds it hard to believe that the Czech Republic is an 'island of persecution' in Europe. Link here. 

Ghost consultant sentenced

Baldev Pandher received an eighteen month sentence for submitting false/fraudulent documents to Citizenship and Immigration Canada.

Additional details at CSIC website here.

Pandher submitted fraudulent documents in support of his clients' application for sponsorship. These documents included Notices of Assessment and tax returns, presumably to meet LICO.

Through his business, Canada Immigration Consultants located in Mississauga, Pandher did 'immigration consulting' and appears to have charged exorbitant amounts of funds -  in excess of $9,000 for one family class sponsorship application, and $8,000 for the other.

It appears that the Crown would have been seeking incarceration but for Pandher's serious heart condition.

In a blunt decision, the sentencing judge found that people like Baldev Pandher gave immigration consultants "such a bad name" and are the reason why immigration consultants "are held in low regard and with such great suspicion". The Judge also stated that Pandher should be incarcerated, but given the medical condition and the joint submission, he allowed a sentence to be served in the community.

Twitter

I am trying out twitter. Follow me at www.twitter.com/Raj_Sharma_imm

Brian Beresh

After the decision we stopped in on Brian Beresh. Brian is one of the top criminal defence lawyers in Canada and Bjorn had articled with the firm years ago. We had a celebratory beer and a chat with the other lawyers and got some great advice.

Stay application

Our application for a stay was granted by the Court today in Edmonton. The client had been scheduled for removal at midnight a few days hence, and the stay will ensure that he remains in Canada until the application for leave and judicial review with respect to the prra decision is decided. While we could have had the stay heard via videoconference or teleconference we felt it was important to appear in person. Given the removal schedule, this necessitated a trip to the capital city. I enjoyed collaborating with Bjorn on the record and both of us alternated on the oral argument.

Yellowpages Video

Bill targets early parole

The Conservative government has taken aim to end the faint hope clause that allows convicted killers chances for release after 15 years. The legislation is important to me for personal reasons and of peripheral importance to immigration - but does underscore the emphasis on law and order issues by this government. I have little doubt that the enforcement provisions of IRPA will increasingly be applied to permanent residents and foreign nationals.

Lawyers Gone Bad

I'm reading Lawyers Gone Bad by Philip Slayton. While he acknowledges that 'only a few lawyers are dishonest' he believes that the ones detailed in his book and their stories provides insight into both the legal profession and the practice of law. I'm not so sure. I think the stories of dishonest lawyers provides insight into their particular pathology. Generally speaking one finds insight into a general population by analysing a representative subset of that population. Slayton also seems to call for a change from lawyer self regulation which is the norm in Canada to the UK model. I'm not sure if he's demonstrated any serious deficiencies with the status quo ... all of the lawyers chronicled in his book were disciplined by their respective law societies'. Nor can it be shown that government or some other form of regulation would be superior. In any event the book should be especially enjoyable to those that have a pre existing belief in the dishonesty and moral failings of lawyers...

Success

I have just received a positive decision on a refugee claim against Mexico. I'm studying the decision to ensure that the relevant principles are referenced in my subsequent hearings concerning Mexico.

Refugee claim

Just finished a refugee claim. This claim involved a claim against Denmark and arose as a result of the Mohammad cartoon incident. The presiding member had previously practiced immigration law and had an obvious grasp of the relevant legal issues - it was a pleasure appearing before her.

Fighting Deportation

Calgary Herald Article Here.

Excerpt:

The lawyer for a reputed gang member who has been fighting deportation to Vietnam since 2004 argues he is not stalling by filing for a judicial review of his client's latest deportation order.

Raj Sharma, who represents Jackie Tran--whose formal name is Nghia Trong Nguyen-Tran--filed paper-work Thursday to the Federal Court of Canada requesting a review of the decision last month by the Immigration and Refugee Board.

...

Asked if the latest application was a stalling tactic, Sharma told the Herald he has filed a 305-page application, not some long-shot motion.

"I don't think this is a stalling delay at all. A stalling delay I would characterize as something you do with no expectation of success. We have every expectation of success," he said.

"This is not a stall tactic because serious errors have been made," said Sharma.

He argues there were two errors of law. Specifically, when Tran was ordered deported, one reason was that he was a danger to the public because there had been two attempts on his life.

"He's not a danger to the public because of his likelihood to reoffend, he's a danger to the public because someone else might try to kill him," said Sharma. "That is not the law. The law states very clearly that the danger flows from the individual."

The second error in law, said Sharma, is that in his opinion, a section of the Immigration Refugee Protection Act pertaining to human smuggling was incorrectly applied to Tran.

Some of the comments are also interesting:

Jamie

 

May 22, 2009 - 1:58 PM

Flag this as Inappropriate

 

 Seriously, why is there even a trial for this piece of garbage? What is the debate here?! Get his butt out of Canada. We're better than this. Ha ha - and like Frank said - maybe send the lawyer away with him. haha

   

 

JRW

 

May 22, 2009 - 12:14 PM

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 This is why the system in canada is so slow.... eeeeverybody needs to make their money. The judicial system will not change because it will be depriving their lawyers, judges etc. of $. This is understandable, but there is a line which I believe was crossed long time in canada. Taking 5 years to deport a known and dangerous gang member is ridiculous. Stop the greed, lawywers!!!!!!

   

 

my2cents

 

May 22, 2009 - 12:00 PM

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 funny how an accused (not convicted) sex offender from the States was caught here and his butt is on its way back to the US in a couple days.. but a convicted and escaped murderer from Bosnia gets let go and this trash Tran is still here. I guess the sex offender did not have as much cash or government funding to line the pockets of lawyers and 'others' who benifit financially from these things.

   

 

frank

 

May 22, 2009 - 11:40 AM

 

 Send him back now. Maybe the lawyer with him

   

 

geo

 

May 22, 2009 - 10:26 AM

 

  99% of lawyers give the rest of them a bad name.

   

 

WHAT

 

May 22, 2009 - 10:16 AM

 

 SEND THE KILLER HOME!!!! He does not deserve to be in the country. In fact i think they need to send every FOB and FOB Killer back to where they came from. Canadian laws are way to easy on these people. As far as I am concerned it should be one strike (even if it is stealing a pack of gum) and you are sent straight back to where you came from.

   

Applications for Leave and Judicial Review

I was before the Federal Court yesterday on two applications for leave and judicial review.

One involved a refusal by a visa officer of what can be termed an 'overseas humanitarian and compassionate application'. In essence, family in Canada sought to bring their widowed sister-in-law/daughter-in-law and their nephew/grand-child.

The Department of Justice sought to introduce an affidavit of the visa officer whose decision was under review. There exists clear case law dealing with this eventuality. I believe that we'll likely succeed on this application as (in my opinion anyway) there was a deficiency in the BIOC (best interests of the child) analysis and unreasonable findings.

I'm enclosing my notes of the one application - I don't read from a prepared statement and I believe that this lends itself to a more natural and flowing style. Download 20090520 notes

Ruby Dhalla and nanny gate

Dhalla was before a Parliamentary Committee today. Two concerns need to be balanced: 1. Individuals in Canada on temporary status often say and do anything to remain in Canada. Exhibit A: Karlheinz Schreiber. 2. Nannies or live in care givers are vulnerable to exploitation. They are here dependent on their employers and have few funds or other resources. Hopefully this matter is properly investigated and individuals are held to account whatever the outcome. I'm not rushing to judgment.

Labeling gang members

I was interviewed yesterday by CBC on the Calgary Police Service comments on identifying gang members...and by Global at noon today on the same topic. In my opinion, a label as prejudicial as 'gang member' should only be applied in the clearest of circumstances given the prejudice that can result.

Colombian War Crimes/Crimes Against Humanity Research

I've come across some notes from the Federal Court matter I handled last month. In that situation, the applicant was a member of the Colombian armed forces and was excluded from refugee protection. A decision has not yet been made. 

The Refugee Convention is inapplicable where "serious reasons" (see Sivakumar -- less than balance of probabilities and more than suspicion) exist if applicant committed crimes against humanity (see Article 6 of International Military Tribunal ... crimes against humanity are generally committed against own nationals). Commission of crimes against humanity can be done either directly or one can be complicit. The Standard of proof lies on the Minister. 

Ultimately, association with an organization responsible for crimes against humanity may constitute complicity if there is personal and knowing participation or toleration of crimes. 

The RPD has to provide findings of fact to specific crimes against humanity which the refugee claimant is alleged to have committed. Complicity must be some close association with principal actors and a shared common purpose. 

Remember - the analysis of complicity is as follows. Did the applicant have a) a shared common purpose and b) a personal and knowing participation with a specific/particular organization (in this case within the Colombian armed forces)?

And... "the organization must be the particular unit/brigade to which the individual was assigned.." (Bedoya).

Some notable cases that may be of assistance to counsel (Search terms "Colombia" & "Crimes Against Humanity"):

1. Escorcia - applicant was excluded. He was chief of intelligence with D.A.S. which was directly responsible for murder etc.
2. Vasquez - application allowed. Applicant was a Major and career officer in the Colombian army. Commanded reserve platoon. "Member...fail to demonstrate any reasonable explanation as to whether applicant shared a common purpose with persons who are said to have committed atrocities and if actions constitute widespread and systematic attack directed against a civilian population..."
3. Rubianes - applicant excluded. specific evidence supporting Board's findings. 6 year military service. Involved with a "notorious" mobile brigade. Goal of his organization was to capture and "interview" guerillas. 
4. Blanco - application allowed. while applicant had specific intelligence training. He was with naval intelligence. Board bound Colombian armed forces committed "crimes against humanity". Issue was if the Navy did so. 
5. Murcia - application allowed - "considerable confusion" in the evidence whether applicant was at places at time of atrocities. 
6. Ardila - application allowed. Applicant was in the armed forces for 12 years. For 8 of those years he rode horses. For 4 years he was a commander of a platoon/unit. No evidence organization was involved in crimes against humanity (Much of my argument involved reliance on Ardila).
7. Herrera - application allowed. The Colombian army not of "Limited/Brutal Purpose" Served in Reserves.