“those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another..."
“those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another..."
Immigration authorities made the allegation that my client (a young man, a foreign national in Canada) was inadmissible under paragraph 34(1)(f) of the IRPA - that the Bangladesh Nationalist Party (BNP) (of which he is a member) is an organization that has engaged in the subversion by force of the Bangladeshi government and has engaged in terrorism.
When I first reviewed the Minister's admissibility package, I was somewhat taken aback. Politics on the subcontinent, particularly Bangladesh and Pakistan are rough-and-tumble affairs. As a former Refugee Protection Officer, I reviewed hundreds of refugee stories. Details became blurred with PPP members fearing the PML, Awami League or AL members fearing the BNP, and a whole host of other acronyms (JKLF, etc. popping up) and, with changes in government, allegations of harm, violence being reversed.
It never crossed our minds back then to invoke s.34 against whole political parties notwithstanding the violence perpetuated by individual "goons". We certainly did it for other, limited, brutal organizations such as the SSP.
The fact of the matter is that relations between the Awami League (now in power) and the BNP are deeply bitter and vituperative.
It looks like it has crossed someone's mind because this is not the first time that the BNP has faced this allegation; it's been rejected in the US and I was fairly optimistic that it would be rejected for my client's sake as well. The one thing that gave me pause was a recently released decision by the Federal Court here in Canada upholding an officer's finding that the BNP was in fact an organization caught by s.34 of the IRPA (Gazi v. MCI 2017 FC 94). I was obviously concerned with a finding that would brand my client with the mark of Cain, that he is a 'terrorist' and that too, for the rest of his life.
My client and I appeared before the Immigration Division in February. Troublingly, the Minister relied on spurious documents, cherry-picked the other evidence, and ignored evidence that the BNP does not sanction acts of violence.
Thankfully, the allegation that the BNP engages/engaged in subversion by force/terrorism was found not be well-founded.
For a number of reasons, I'm not going to be sharing the decision itself (for now).
There are a number of resources available to those facing similar allegations.
Counsel will of course have regard to Suresh and the Criminal Code as well as jurisprudence relating to subversion by force is Najafi v. Canada 2014 FCA 262 and Oremade 2005 FC 1077. It's important to determine whether the impugned organization sanctions the impugned acts (Jalil 2007 FC 568).
Counsel should be prepared to deal with disclosure from the Minister that may not be in fact credible or trustworthy, particularly "news" articles from within Bangladesh ("fake news"). Compare the contents of same with Amnesty International and other objective, independent country condition documents. The Minister will likely conflate the BNP with "opposition supporters" or "BNP-led opposition supporters and, in this particular case, did not distinguish between the BNP and the other groups that form the opposition to the AL. Your own disclosure should include the GOC listing process and list of proscribed entities, that of the UK and the US (none list the BNP). According to Karakachian 2009 FC 948 the fact that an organization does not appear can be considered one indicia among others that it is not a terrorist organization. The Minister will likely rely on Gazi where the Federal Court upheld the officer's finding that the BNP is an organization engaged in terrorism. However, the case can be distinguished. Find and disclose the US (immigration) court that rejected the claim that the BNP is a terrorist organization, grab the brief from the National Immigration Project Practice Advisory ("The Bangladesh National Party is not a Tier III Terrorist Organization") and disclose that too.
I hope this is of assistance to others.
This is advice that I'm not sure I'm qualified to give; or, perhaps, it's that any such advice should be accepted for what it is, and with a grain of salt. My own path to the law and my approach to the practice of law will necessarily be different, and specific to myself and my time. I was exposed to the barrister tradition of the law at a relatively young and impressionable age and that too in a moment of great stress for myself and my family.
To paraphrase Dershowitz, lawyers tend to hero-worship and advice should be suspect given that the one offering it often wants the recipient to follow in his or her own footsteps. But the profession seems as popular as ever. Perhaps lawyer-aspirants are still swayed by media or film portrayals of lawyers as warriors in the courtroom, striving, seeking and obtaining justice for their clients. Maybe they're swayed by the glamour of law or perceptions of law as a means to an end or an end unto itself for raking in hand over fist money.
My first thought is that all lawyer-aspirants needs to understand that there's little glamour, but unremitting hard work and you could probably make more money with less stress elsewhere).
Further, this tends to be a harsh profession, particularly to its young. I know that Millennials seem to place greater stock in mentorship than those before them. Full disclosure, according to that HBR article, I apparently fall within that cohort (I have to mind the gap; I'm either a really old Millenial, or a really young Gen X). I think mentors, "mentees", mentoring, mentorship is overrated.
“there is nothing outside of yourself that can ever enable you to get better, stronger, richer, quicker, or smarter. Everything is within. Everything exists. Seek nothing outside of yourself.”
― Miyamoto Musashi,
If you're contemplating entering this profession then I think it's imperative to know thyself. Take stock of your strengths, weaknesses, interests, passions. There are manifold paths within the practice of law, but all require certain traits, or attitudes such as suspicion of authority, critical thinking or a certain aptitudes such as the ability to read and absorb information. Are you articulate and eloquent (probably necessary traits for anyone hoping to persuade another)? Are you a good writer (everyone thinks they are, but I've found few new calls are)? Are you persistent, that is do you tend to finish what you've started and have you committed to multi-year endeavours in the past?
It is this last point that I would like to address in this post. I think it's the most important virtue to being a lawyer (at least a successful one). I've been reading Angela Duckworth Grit: The Power of Passion and Perseverance.
Duckworth points out that talent is overrated (perhaps even distracting). The concept of talent can be dangerous; individuals give up too quickly because they think that success is requires innnate talent. It's dangerous because if we accept that talent is innate, individuals have an easy out; a perfectly wrapped and prepared tactic that allows them to safe face, and safeguard ego. The reality is that grit - that is, persistence, perseverance is the only path to lasting achievement (I know that achievement and fulfillment should not be confused but neither should be assumed that they are mutually exclusive. Indeed, it appears that they are and there is a fair degree of correlation between the two.) This is something perhaps most children of immigrants have heard from their parents. It was certainly a central thesis for my dad who repeated his cardinal virtue of persistence and downplayed his native intelligence (not obviously borne out with his multiple post-secondary and post-graduate degrees from a time when those actually meant something).
“Talent is insignificant. I know a lot of talented ruins,” James Baldwin
Grit is the propensity to continue despite setbacks, and the ability to endure monotony (in other words, boredom) and breakthrough to gaining skill. Grit entails more than mere practice or robotic repetition.
Malcolm Gladwell, as is his wont, gave us the bromide of 10,000 hours, but read Anderss Ericcsson's Peak: How to Master Almost Anything instead for the true import of time spent in a craft, in a calling.
Duckworth thinks that interest, practice, purpose and finally, "hope" (to sustain during low points) is associated with success; I would connect this last virtue to the concept of Chardi Kala the Sikh concept of hope/optimism in the face of overwhelming challenge. I've seen that unconscious value or attribute result in success time and time again for my Punjabi clients. Indeed, these clients - sometimes unsophisticated - are far more successful than my professional clients (particularly engineers, who have a hard time grasping the grey, and have trouble with the ambiguous).
Duckworth finds that a grittier person is more likely to enjoy a healthy emotional life. There is an abiding satisfaction that comes from doing something valuable, valued, important for yourself and others.
British psychoanalyst and author, Adam Philipps writes about the experience of missing out on an unlived life. Do you really want to be missing out on "lives we could be leading but for some reason are not"? Do you really want to "spent a great deal of our lived lives trying to find and give the reason" that [these unlived lives] "...were not possible. And what was not possible all too easily becomes the story of our lives."? Well, the difference between living the life that was possible and making reasons for why that life was not is probably a function of your persistence, and ability to endure.
I've also been reading N. Taleb's Antifragile. He too talks of grit, albeit in different terms. Taleb praises and prefers wisdom from experience over (mere) reasoning, and knowledge from contact with reality, from feedback and skin in the game. There can be no more skin in the game than litigation. Litigation may well be the crucible that separates the charlatan or fake expert from the real expert. In sum, get comfortable being uncomfortable. The practice of law requires a lifetime of learning and most of what is worth knowing will arise from the school of hard knocks.
“He who can, does. He who cannot,teaches.” - G. Bernard Shaw
The Canadian immigration system seeks firstly to bar criminals or terrorists entry. If these proclivities come to light after the fact, those tasked with enforcement seek to excise these individuals from our society. While they have formidable powers sometimes removal is stymied by the refusal, reluctance or intransigence of the country of origin or country of return.
Canada sought to deport rather than try him for terrorism or other crimes in a criminal court. Had he obtained Canadian Citizenship, he would not be subject to the jurisdiction of the IRPA and the Immigration and Refugee Board. The standard of proof to strip a Permanent Resident of status under the IRPA is far lower than that of "beyond a reasonable doubt". He was found inadmissible by the Immigration Division under s.34 based on evidence that he was plotting to bomb the US Consulate and the financial district in Toronto. The decision is chilling, detailing Malik's commitment to his cause, his dedication to wreak destruction and seek the death of innocent Canadians.
Malik and his lawyer didn't challenge the Minister's efforts; perhaps they knew it was a lost cause given the low threshold or bar that had to be met and the overwhelming evidence that established him to be a risk or threat to national security. I don't know whether it was smarter to get rid of Malik via immigration rather than going through the criminal process. If Malik was found not guilty, they could still act against him using s.34 and remove him; if he was found guilty, then a convicted terrorist with murderous intent would be secure behind bars for many years and then removed to Pakistan. The end result here is that Malik, still in his 30's, presumably with greater grievance against the West, will be released into a country with lax security and where ethno-religious violence and targeting of religious minorities occurs largely with impunity.
Malik was ordered detained after the finding of inadmissibility and the issuance of the removal order. He was probably looking forward to freedom in Pakistan and was probably frustrated himself when his removal was delayed for months. Obviously Pakistan was not thrilled to receive their wayward son back, and luckily they did. As far as the Pakistan High Commission was aware, Malik was not detained upon arrival. I hope this decision to safeguard our citizens will not risk the lives of innocents somewhere else.
I was recently at the Immigration Appeal Division to deal with a negative residency determination made against my client. I wanted to provide an overview regarding the residency appeal procedure. After the appellant files an appeal against a negative residency appeal with the IRB they receive the Appeal Record. The hearing is then scheduled. In such appeals the appellant will receive a notice to appear indicating the address of the Immigration and Refugee Board (here in Calgary, at Suite 201-225 Manning Road NE). Such hearings are typically scheduled for two hours. The opposing party, the Minister, is represented by the hearings officer. Permanent Residents face a negative residency determination and such appeals when they don't comply with the residency obligation (s.28 of the IRPA). The first step of course is to seek exemption from the requirement and put your best foot forward to the responsible, however, if a negative determination has been made, then the PR has the right to seek relief at the IAD. Such matters are not a foregone conclusion. As they say, however, the devil is in the details, and if residency appeals were based solely on the fact of non-compliance or shortfall in terms of the days of residency, then there would be little point to such appeals.
The hearing begins with the Immigration Appeal Division Member entering and confirming that we all have the same documents. In such cases, we are to provide our disclosure some 20 days in advance. After confirming that we all have the same documents, the appellant will be asked to stand, raise their right hand, and swear or affirm to tell the truth during the hearing. I then begin by asking the appellant questions, and the purpose of any question that I ask and the answer that I am looking for is to support the so-called Ribic and Chieu Factors. These are factors that the board commonly looks to. They include the degree of the non-compliance; the reason for the non-compliance; the degree of establishment in Canada; the affect or hardship that would result if relief is not granted; the best interests for any children that are engaged. The humanitarian and compassionate or equitable powers of the Immigration Appeal Division are rooted in s.67(1)(c) and can also include or discuss all the circumstances or, in essence, the circumstances that have necessitated the request for relief from the harsh or technical operation of the law.
These appeals are fact driven. Each appeal is different and questions and the approach need to take that fact into account. Minister's counsel will cross-examine and test credibility and the plausibility of certain answers. The IAD member may well ask questions. However, the Board Member should ask clarifying questions and not to act as a stand-in for the Hearings and Appeals Officer from CBSA. If there is a question or an answer that is not quite clear, the Board Member may well ask a follow-up question. In cross, the appellant may be, for example, challenged on information that does not accord perhaps or may be deemed to be implausible or contradictory. A prior inconsistent statement can be put to the appellant. If there is a witness, then that witness testifies after the appellant is done with direct and cross examination.
The appellant should keep a few things in mind. He or she should listen carefully to the question whether it is a question from their own counsel or a question by the Hearings Officer or the IAD Board Member. They should answer the question that is being asked, not the question that they want to answer. If a question calls for a "yes" or a "no" answer, they should feel free to say "yes" or a "no." This is important: If you don't understand a question, ask for it to be re-phrased; d0n't guess (without advising that you're guessing) or make up an answer.
At the close or end of questioning, I then give my submissions to the Board Member. The purpose of submissions is not to reiterate or repeat the evidence. I may point to evidence and discuss the answers and the interplay of same with the Ribic and Chieu Factors. I will likely go through the jurisprudence. I will try and find something that is supportive of the arguments that we are advancing. However, as can be imagined, everyone's circumstances are different. The Hearings Officer will be given an opportunity to respond; I will have the final say.
Three can keep a secret, if two of them are dead - Benjamin Franklin
The story of Farhan Mahmood urf/aka Muhammad Irfan (or vice versa?) reads like a 1970's Bollywood double-role masala flick.
I've written in the past as to the apparent ease in circumventing our immigration laws. You don't need to be a criminal mastermind or Frank Abagnale to pull one over nice, polite Canada.
I've written in the past how terrorists have entered this country and remained for decades. In this case, a foreign national was able to enter Canada and live here for years with a double identity. Not knowing who it is that we are allowing entry into Canada undermines the integrity of our immigration system and undermines the security of our society. All you need is the ability to get a another passport with a different name.
It's harder to change the face that you were born with.
Muhammad Irfan born on February 12, 1977 came to Canada in 2003 to work for Maharaja Sweets and Restaurant owned by Tariq Chaudhry in Edmonton, Alberta and after being denied subsequent work permits, he left Canada on September 23, 2003.
Enter Farhan Mahmood born on January 10, 1978, who apparently enters Canada on a work permit in late 2005, coincidentally to work for a similarly named business owned by the same employer, Tariq Chaudhry. Also coincidentally both Mr. Mahmood and Mr. Irfan previously worked in Toba Tek Singh, Pakistan, and both had similar home addresses in Kamalia District, Toba Teck Singh.
Irfan first, then Mahmood had applied for and received an Alberta Driver's License. This is a secure document and applicants' photos are stored in a database. Irfan (or was it Mahmood?) had a moustache; Mahmood (or was it Irfan?) was clean-shaven. The difference between the photographs of Irfan and Mahmood is basically that between between Clark Kent and Superman.
Years passed; Mahmood worked here from 2005 to 2013. Mahmood later sued Tariq Chaudhry. That was probably a bad idea because Chaudhry went to CBSA. It would have been interesting to be a fly on the wall for the first discussion between a CBSA or CIC officer and Chaudhry. However, CIC and CBSA often initiate investigations on such complaints, sometimes anonymous (and known as a "poison pen letter") and sometimes shar-e-aam. In this case, Chaudhry would have to know, and in fact would necessarily have to take part in the deception of Canadian authorities (employers in Canada need to obtain what was then called a Labour Market Opinion, and now called a Labour Market Impact Assessment to support an application for a work permit by a foreign national). Perhaps Mahmood/Irfan thought Chaudhry would not come forward because of his own entanglement in this sordid story.
An investigation was launched and facial recognition analysis as well as a manual comparison resulted in a conclusion that the photographs of the two men were "the strongest possible match". The CBSA sought to have Mahmood/Irfan removed for misrepresentation as Mahmood did not disclose his previous work permit applications/refusals as Irfan.
Mahmood went down swinging. He challenged the determination that he and his doppleganger were the same person at two administrative tribunals and the Federal Court of Canada.
The Immigration Division, the Immigration Appeal Division and the Federal Court reviewed Mahmood's argument that he and Irfan were two different men; that Irfan was simply his humshakal. I assume they have not watched Bollywood movies such as Amitabh Bachchan's Don or the Great Gambler - clearly everyone has a twin somewhere in the world, and it's entirely possible that both (from the same neighbourhood) could end up working (in the same profession and) in the same Pakistani restaurant half-way around the world in Canada, one right after the other. Heck, maybe they're long lost twin brothers, swept apart when they were children in a hurricane, a flood, or an earthquake or another Manmohan Desai type of plot device only to find that after a lifetime of searching for each other, they missed meeting one another in a northern Canadian city by a few months.
But life, alas, is not a Bollywood movie.
Chaudhry testified before the ID (hell hath no fury as an employer sued?) but greater reliance was placed on the comparison report that found that Mahmood and Irfan were the same person. The ID however found there was insufficient evidence that he failed to disclose the previous work permit applications/refusals (obviously a snafu on the part of the CBSA). The CBSA appealed to the IAD with additional evidence and the IAD found Mahmood and Irfan to be the same person and Mahmood/Irfan inadmissible for misrepresentation. Great stock was placed on the analysis by the IAD and Mahmood's arguments of Officer Bryant being influenced by CBSA "wishes" fell on deaf ears. I don't think anything turns on the identity of the Board Member, but such is the luck of the draw, that particular Member just happened to be a financial crime officer with the RCMP, a team leader in the anti-human smuggling unit of the RCMP, and an investigator for the Vancouver Stock Exchange prior to his appointment to the IAD. I would imagine that this background allows for a certain, let us say, je ne sais quoi, confidence in law enforcement and their investigatory techniques and reliability of same.
Mahmood argued that he and Irfan could not have been the same person as he was in Pakistan getting married, and a child was born that same year when Irfan entered this country. However, he did not provide a marriage certificate or a birth certificate. If someone can obtain a different Pakistan passport (perhaps even an apparently secure Pakistan National Identity Card) that person would be able to obtain a Nikah-nama or Union Council marriage certificate and birth certificate. Odd. Purely hypothetically, perhaps the contact that assisted him in securing documents in the past was no longer available or willing to assist with additional documents. Who knows. It's immaterial. What we do know is that Mahmood/Irfan didn't even - at least at the IAD - have anyone else testify saying that he is who he says he is. This is strange litigation strategy, but bear in mind, I am not privy to the facts and the perspective that Mahmood/Irfan's lawyer had. Sometimes you just have to play the cards you are dealt.
The Federal Court decision provides additional background as to the facial comparison. The CBSA investigation included a facial recognition image comparison report; there was then a manual comparison by an examiner from the provincial government's facial recognition and document examination team with the conclusion that the two photographs of Mahmood and Irfan were "the strongest possible match" [paragraph 6]. The Court canvassed the "comparison report" from paragraphs 11-22. In addition to the "system" report, Officer Bryant's manual comparison included the use of the "FBI seven point scale" and his "analysis did not rely solely on computer measurements and took into account differences such as lighting, pitch, yaw and roll in each photograph." Further, before the IAD was an independent peer review of Officer Bryant's comparison report.
There is no indication as to the cost to taxpayers of this investigation and subsequent efforts to remove Mahmood/Irfan. I would imagine it easily runs into the six figures involving CBSA Officers, Hearings Officers, Police, DoJ counsel and tribunal and Court time.
I assume the now mandatory collection of biometrics (fingerprints and photograph) from TRV applicants from Pakistan has put an end to the double-identity gambit. Remember though, were it not for a "combative", "self-serving" and "lacking in credibility in many areas" Chaudhry that turned on Mahmood, this would never have come to light; Mahmood may well have become a citizen with none the wiser. There are many others like Mahmood/Irfan in Canada, either oblivious of the Sword of Damocles hanging over their heads, or content with waiting for the other shoe to drop for the rest of their lives.
This may not be the end of Mahmood/Irfan's legal issues in Canada. He could be charged for offences related to documents. Section 122 of the IRPA proscribes possessing a passport of Canadian or foreign origin that purports to establish or that could be used to establish a person's identity or use such a document, including for the purpose of entering or remaining in Canada. The maximum penalties range from imprisonment up to five years or up to 14 years. But, luckily for Mahmood/Irfan, the SCC decision in Jordan, the shortage of judges and Crown counsel in Alberta and the fact that there is now a removal order against him, I would surmise that he may be safe from criminal prosecution (even though one would be child's play).
It may be that Pakistan will not take kindly to an individual holding two different Pakistan passport. I'm not sure.
There is no information as to the repercussions (if any) to Chaudhry and whether he or his businesses still have access to Service Canada/the temporary foreign worker program.
Exit, stage left.
Federal Court decision: Download Mahmood 2016fc1332
The IAD decision: Download Mahmood irfan 2016canlii22116
As I've previously written, Canada is a land of immigrants and it is a testament to our immigration system and safeguards that immigrants that choose this country don't increase crime and may in fact suppress it. The jury is still out on the economic costs to welcoming immigrants and it's clear that we need to improve the outcomes of those that come to this country because it's getting longer for them to achieve parity with native born Canadians. That being said, recent immigrants are still holding their own, and in the words of John Ivison of the National Post:
The employment rate for foreign-born men was higher than for native-born men, a statistic that gives the lie to the popular image of the immigrant welfare scrounger.
But, despite the positive impact immigrants have made to this country, the fact of the matter is that some have been able to circumvent the safeguards in our immigration system meant to keep liars, criminals and terrorists out. Our system is not perfect and many are obtaining status that they don't deserve. A recent auditor general's report which reviewed a tiny sample of grants of citizenship outlined the shortcomings of one part of our immigration system. I discussed that report on CBC which can be heard here.
It doesn't take a genius or a criminal mastermind to do an end run around our system since so much of it depends on self-report and documents from countries were document fraud is common-place. The enforcers, those that uphold our immigration system are stymied by the system ("this is the way we do things") and by the sheer numbers (and processing targets) and frankly they are constrained by limited resources (despite all the tough talk from politicians of all stripes).
Prevention remains the best cure. After the fact attempts require firstly detection and then deportation which is hampered (as it should be) by due process.
One way that individuals get to Canada and hide a problematic past is to use false travel documents and commit identity fraud (and simply lie to immigration officers). One particularly strange and compelling case is that of Indian national Parminder Singh Saini who was convicted as a terrorist by a Pakistani court after he and his associates from the All India Sikh Students Federation hijacked an Air India flight to Delhi, forcing it to land in Lahore, Pakistan instead. Saini discharged a firearm in the commission of the offence, and his compatriots injured crew members with their kirpans, threatened and intimidated them for over 20 hours. The Toronto Star article on this case can be found here:
On July 5, 1984, when he was 21, he and four accomplices in the militant All India Sikh Students Federation boarded an Air India flight to Delhi from the northern city of Srinagar.
Twenty minutes after takeoff, he and another man stood up. They pushed aside a female attendant, walked to the front of the plane and Saini - in full view of passengers - raised a handgun to the head of a male attendant and fired.
“(The bullet) did not hit him,” the trial judge later wrote in a 184-page judgment, “but there is little doubt that the object of Parminder Singh (Saini).....was to intimidate and terrorize the crew members and the passengers.”
At the cockpit door, Saini fired two or three more shots - risking the plane’s destruction, the court judgment said. One bullet pierced the door, striking the flight engineer in the back, not seriously. Other hijackers beat and stabbed two other crew members with kirpan daggers.
Sentenced initially to death (by hanging, the apparently preferred execution method of South Asia) he was released by the Bhutto government after serving 10 years and given one month to go to a country of his choice. Not surprisingly, he did not pick India, the country of his birth. Instead, Saini chose to enter Canada in January 1995 with a false Afghan passport as "Balbir Singh" and made a false refugee claim. This allowed him to work and the good character hearing decision of the Law Society of Upper Canada indicates that he continued this "identity charade" for almost a year.
Unfortunately for Saini, CSIS soon detected the fraud and after a hearing before the Immigration and Refugee Board he was found to be inadmissible to Canada. He was also found to be a danger to the public. Saini then fought for almost a decade-and-half to remain in this country. Those efforts included an application under humanitarian and compassionate grounds which was also refused. In the meantime, as is to be expected, he went on with his life.
His "long and strange" journey from terrorist to Canadian law graduate is outlined here. His remarkable sojourn in this country saw him detained for three years; being found a danger to the public; getting released; going to university, graduating with three degrees, including a professional degree and working with one of the preeminent immigration lawyers of the country.
In his efforts to remain here Saini proffered his pardon from Pakistan as evidence of his rehabilitation. That pardon got short shrift from the Federal Court of Appeal:
... It is clear that hijacking is considered to be among the most serious of criminal offences. Hijacking may combine, in one act, numerous offences including kidnapping, unlawful confinement, theft, assault, extortion, and potentially murder. It entails the violation of individual human rights such as the right to life, personal security and freedom of movement. ... Hijacking is not the mere seizure of an aircraft for its own sake; it exploits control over the aircraft “as a weapon of psychological coercion and extortion directed against governments.” … Moreover, the victims of this crime are not limited to those persons unfortunate enough to be physically affected, nor are the effects of hijacking limited to one government. Hijacking terrorizes all nations and society as a whole.
In our view, the gravity of the offence can and should be considered when deciding whether or not to give effect to a foreign pardon. Even if the Pakistani legal system were similar, and even if the pardon were given under a law similar to Canadian law, the conviction in this case was for an offence so abhorrent to Canadians, and arguably so terrifying to the rest of the civilized world, that our Court is not required to respect a foreign pardon of such an offence.
Canada (Minister of Citizenship and Immigration) v. Saini, 2001 FCA 311 (CanLII),  F.C.J No. 1577, Para. 43-44
His application for a law license was refused by the Law Society of Upper Canada despite the passage of time and the support of numerous individuals here in Canada. The decision can be read here:
While Applicant has shown an ability to obtain university degrees and has impressed a number of people, we are still left with a number of serious concerns. In view of: the seriousness of the crime of hijacking; the deception after landing in Canada; the state of the immigration applications, including the fact that he is still described as being a person of danger to the public; and the uncertainty with respect to his good character at this time, the Panel do not find that the Applicant has met the onus of proving, on a balance of probabilities, that he is now of good character.
While Saini expressed remorse over his (leading) role in the terrorist act, he seemed almost blasé about lying to immigration authorities in this country:
 Although Mr. Saini expressed remorse for the hijacking, he passed off the deception of immigration authorities and his own lawyer, as something that everyone does and therefore should not be criticized. ...
I think Saini might be partly right; deception of immigration authorities is something that many do. But that doesn't mean it's justified - and as someone that obtained legal education and sought admission into the profession of law, he should know that.
It took 15 years, numerous hearings and applications, a number of appearances before the Federal Court and Federal Court of Appeal but Saini was finally deported in early 2010 after the Federal Court again ruled against him. Escorted by CBSA officers, Saini was returned to his country of nationality. His legal troubles continue there, as this article from the Hindustan Times indicate.
Any reform of the existing system should not depend on self-report or suspect documents from countries that traffic in fraudulent documents, that have elevated fraud to an art form. Interviewing every applicant just separates the good liars from the bad. Any criminal or terrorist with an IQ of room temperature will be able to pass Kellie Leitch's proposed Canadian Values Interview Exam.
Any meaningful reform will rely more on objective, reliable, third party information. The increasing use of biometrics, facial recognition technology, artificial intelligence and data mining and the sharing of information between countries (particularly the Five Eyes) will likely reduce the incidence of individuals coming into Canada with false travel documents and false identities. That is well and good but how many are here that simply didn't get caught?
It's a provocative title, but let's be clear about a few points before anyone conflates what I'm trying to say and their own personal views on immigrants. The reality of the Canadian experience - more so than any other similar country - is that Canada is a land of immigrants. Indeed, the number of Canadians born abroad is more than ever, and that proportion is a little more than a fifth of the population. Further, immigrants do not increase crime. A bevy of criminologists have undermined that fallacy. Immigrants not only do not increase crime, it appears they may well suppress it. It is true that the jury is still out on the economic benefit of immigration - or, put another way, the true cost of immigration. Generally speaking, our immigration safeguards are working.
Despite that, Kellie Leitch, a leadership aspirant for the Conservative Party, has raised the question of whether we do enough to screen the immigrants that do come to this country. She notes, correctly, that most are not interviewed by Canadian immigration officers. Despite the letters appearing after her name, she appears to possess a very simplistic notion of the process, but her concerns do appear to be hitting a chord with certain segments of our population. Other than that bromide she has not identified how screening can improve, or how an interview with an immigration officer is a cure-all. She wants to ask prospective immigrants questions like whether men and women are equal. In my mind, an interview based on these types of questions simply separates a good liar from a bad one.
Making fun of Dr. Leitch's proposal and list of questions is easy but it's important to realize that our system is not perfect.
The fact of the matter is that individuals have been able to circumvent the safeguards in our immigration system meant to keep criminals, liars and terrorists out. In 2011, CBSA identified 30 war criminals believed to be still living in Canada and noted that they were able to remove 300 over the years. Even the NDP (hardly the law-and-order type of political party) criticized the vetting and screening process that allowed war criminals into the country in the first place. My own view on immigration policy and the terrorist threat to Canada may well be biased as the child of immigrants, but can be found here, but in a nutshell, it's to keep calm and carry on albeit utilizing a virtuous cycle of continuous assessment and reconstitution as needed of our laws, policies and practices.
The starting point is simply that countries have the right to determine who gets in. In 1969, the iconic Lord Denning, in the British Schmidt case insisted that
'no alien has the right to enter this country [UK] except by leave of the Crown: and the Crown can refuse leave without giving any reason'.
However, both the UK and Canada have come some way from Denning's almost laconic characterization of immigration law. Current immigration law requires the immigration department to consider every [complete] application submitted and to give every refugee claimant that makes it into Canada a hearing. Principles of fairness, with roots in the Charter of Rights and Freedoms, require procedural fairness to be meted to most applicants.
Remember, our immigration system depends largely on self-report (e.g. "Have you been detained...", and basically, "Are you a terrorist") and police or security checks from Third World countries where corruption is rife.
There is no doubt that prevention is the best cure. After the fact attempts at deportation cost Canadians millions, and may or may not succeed - and that assumes that we figure this out in the first place. There may well be scope for improvement in our immigration selection, background checks and enforcement. Frankly, additional resources should be allocated to visa offices dealing with countries where we have deficient sureties.
I wrote about one such example of a terrorist getting in and then staying here in an opinion piece published in the Globe and Mail almost four years ago.
Mahmoud Mohammad Issa Mohammad, a convicted terrorist, had been removed from Canada after spending a quarter century here. When he entered Canada in 1987, he hid the fact that he was a member of the Popular Front for the Liberation of Palestine (designated a terrorist organization subsequent to his arrival), and convicted of manslaughter by a Greek court (and sentenced to 17 years) for his role in a brazen attack on an El Al commercial jetliner where an innocent passenger lost his life. On December 26, 1968 25-year-old Mohammad and Naheb Suleiman, his 19 year old partner in terror, stormed an Israeli passenger plane in Greece with Mohammad firing dozens of rounds at it with a submachine gun and Suleiman throwing a half dozen grenades. A bullet ripped through the jetliner and killed Israeli Leon Shirdan, an engineer, husband and father.
Mohammad's past and his lie that allowed him entry to Canada was basically discovered right away and he was ordered deported soon after his arrival. The wheels of justice grind slowly and it seems that the wheels of immigration grind even slower. While he was deemed to be a terrorist – and inadmissible under the previous Immigration Act back in 1987 – Mohammad made a refugee claim (rejected) and with various appeals staved off his removal from this country. Mohammad was represented by the indomitable Barbara Jackman, which may be a big reason he has been able to celebrate 25 birthdays in Canada and is now a grandfather to children born in Canada.
Coincidentally, Israel Leon Shirdan's grandson also lives in this country.
The reasons for these delays, at least in initially, were allegations that he would be at risk upon return. Canada ’s laws restrict refoulement or return of individuals facing personalized risk. Canada is not alone in facing obstacles in removing individuals such as Mohammad. The U.K. struggled to deport Abu Qatada, a radical Islamic cleric, back to his native Jordan, a removal that took more than a decade for that rule of law country. The obstacles that prevent easy deportation are our self-imposed fetters (like the Rule of Law) that correctly restrict arbitrary government decision making.
More recently, Mohammad’s entreaties to remain centred around his poor health. At the end of the day, Mohammad had multiple levels of review with full access to the panoply of rights accorded to him by the Charter of Rights and Freedoms and costs to the taxpayer in the millions. Due process, and justice, have been served.
But, due process does not require undue delay. There is no discernible reason why Mohammad’s removal took a quarter-century after the initial determination of inadmissibility. One can surmise, given his unique circumstances, he has had access to immigration tribunals, the Federal Court of Canada, and sought other, legal, recourse to remain in Canada. He was entitled to do so and he cannot be faulted for availing himself of these options. There is no doubt that the system is more to blame for any delay in removal and this may, in part, be attributable to the fact that Mohammad’s file was with individual officers who had little oversight or accountability with respect to individual files such as his.
Jason Kenney, then Minister of Citizenship and Immigration Canada said that lessons were learned and that there would be no repeat of this case again. That may well be true; but that only applies to terrorists that the Government knows about.
Each Visa Office is unique. Some are facilitative, others not so much.
Individuals - particularly those that are seeking visitor visas - seeking to come to Canada are supplicants; there is no right of entry to foreign nationals. Visa Officers hold the key and decide whether or not to let someone into Canada. The decision making process is opaque. Applicants send in their application and supporting documents and the result is somewhat akin to shaking a Magic 8 Ball.
Many bona fide visitors are refused because of generalizations and stereotypes, particularly if they come from poor countries.
A recent refusal at our office involved a middle aged couple from India. They were well established in that country, owning property, filing taxes, running a business. They had more than sufficient funds and were seeking to visit the wife's three siblings in Canada, all citizens. Most importantly, they were leaving behind their only son, a 12 year old attending school there.
The visitor visa was refused, the only reasons:
Given economic conditions, employment prospects, considering your travel history, economic establishment and family ties, I am not satisfied that you would respect the terms of your admission as a temporary resident in Canada.
Any applicant for a temporary resident visa has to demonstrate that they will leave Canada by the end of the period authorized for their stay.
It is true that 'economic conditions' are better in Canada than India; but that has to be connected to the applicant's actual situation.
In, Hongjuan Lin v. Canada (MCI)the Federal Court noted:
 … she [the Visa Officer] does not connect this knowledge [knowledge of conditions in China] with the Applicant’s actual situation. Hence the Visa Officer relied on speculative generalizations and stereotyping in reaching her Decision. This was a reviewable error.
It is true that India does not enjoy the same standard of living as Canada; but basing TRV decisions on generalized economic conditions would mean Canada would allow only citizens of G7 countries entry as visitors.
The finding of 'travel history' is not supported by the evidence either; both of my clients have traveled internationally.
There is no mention in the decision or GCMS notes as to the son that the couple are leaving behind.
In my eyes, the Immigration Officer has made an unsupported generalization and stereotype: That Indian nationals are so desperate to come to Canada, they would leave behind property and business and abandon an only child. That individuals with property and a business would rather work for cash, under the table at a liquor or convenience store rather than return to the hell that is India.
The Officer’s reasons had to include some explanation as to how those general economic conditions would prompt these land owners, these business owners, to flee India and leave behind a successful business, a young son, a home and other family.
However, there's little recourse to refusals of this nature. There is no real appeal or reconsideration process (perhaps there should be, one where applicants can pay a processing fee to cover the cost). I will be filing an application for judicial review against the decision, but with Federal Court you always (even with a good argument) run the risk that the Court refuses to grant leave.
In the meantime, those wanting to visit Canada will have to keep relying on hope and prayer that their application will be considered fully, and on the merits.
Over the past few weeks, Canadians have been inundated with media reports of desperate migrants trekking over rugged, snow-covered terrain in freezing temperatures into Canada from the United States to claim asylum. The image of an RCMP officer joyfully welcoming a child migrant has likely appeared on your social media feed, along with a caption proudly proclaiming that refugees are welcome in Canada. This narrative of Canada as a shining castle on a hill and that its gates have been flung open for refugees is deeply flawed and does not reflect the enormous obstacles migrants face in obtaining asylum in Canada.
The improbable election of Donald J. Trump has caused many journalists to heed to the wisdom of Jeet Heer: take Trump and his campaign promises both literally and seriously. The Executive Order banning immigration from seven Muslim majority countries and refugees for a 120-day period was the clearest indication that this U.S. administration would be unlike any other. And with Trump’s aggressive crackdown on asylum seekers and undocumented migrants, it’s apparent that the impacts will be felt around the world, including Canada.
Given the situation, it’s hard to blame Canadians looking for an uplifting narrative against the dark, dystopian, anti-Muslim and anti-refugee messaging of Trump, particularly the journalists covering the migrants who have made their way north. However, their uncritical coverage will not age well, particularly if failed asylum seekers from the US are not successful in their efforts to remain here, and the burden of deporting and removing them is simply shifted from stern, armed and body-armored American ICE Officers to the stern, armed and body-armored Canada Border Service Agency Officers.
Canada is not a Disneyland for asylum seekers: there are miles to go before even those intrepid enough to cross international borders can rest easy. There is a rigorous, comprehensive set of requirements that refugee claimants must meet, failing which will result in their claims being denied and removal being initiated. Refugees need to establish their identity; they are barred from making a claim if the are ineligible due to criminality or security issues; and can even be removed even after their claims have been decided.
Over the past few years, only about half of all refugee claimants who made their claims in Canada have been successful, which amounts to, on average, less than ten thousand refugees per year.
Asylum seekers, particularly those that have issues establishing personal identity (practically everyone from Somalia) or fearing gender or violence as a result of their sexual orientation face serious obstacles in establishing their claims here. Additionally, there are strict requirements on the grounds and threshold of persecution. Persecution must be real, preventing them from returning to any region of their country of origin. Migrants seeking better economic opportunities, absent persecution on a personal level, will not be admitted as refugees under Canada’s refugee system. These are some of the basic challenges refugee claimants face in Canada, which is often glossed over by the narrative or bromide that refugees are welcome here.
Failing to recognize the significant challenges asylum seekers face in making their claims in Canada only emboldens those who want to shut Canada’s borders to those individuals in desperate need of asylum. Politics, in the words of Henry Adams, has always been about the systematic organization of hatreds, and over the last few weeks, we have witnessed the fanning of fear over the relatively small number of asylum seekers who have made their way north into Canada. For example, political leadership aspirants whose ambition greatly exceed their personal appeal are quick to stoke nativist sentiment; further,while the Conservatives are demanding action but can’t quite spell out what they think the government should do.
Let us be clear, this is a small leak and trickle, not a deluge and our refugee system has handled far more in years past. The Safe Third Country Agreement, which normally prevents making a refugee claim at a land port of entry by anyone that entered the US first, was only put into place in 2004. Prior to then, Canada was capable of processing asylum claims in an effective and fair manner. This is not a crisis, and should not be treated as one at this point.
Keep calm and carry on.
Part 1 of my interview on AM770 discussing immigration developments on February 13, 2017 with Danielle Smith; specifically, the spike in refugee claims that we are seeing:
Danielle Smith: ...
Okay, a few of you have been asking, are you going to talk about M103? Yes, indeedy we are. We've got Derek [inaudible 00:02:58] coming up a little bit later, but I wanted to get into a whole battery of issues that took place while I was away and are continuing to occur. Remember when I played that clip from our immigration minister, Ahmed Hussen, who I thought did a very measured job of saying, "Hey look, the Americans can do whatever it is they want to do in controlling who comes into their country and we will do what we will do. We will offer temporary asylum to those who find themselves stranded and I have been assured," he said, "... that Canadians and those who are permanent citizens are not going to be denied entry into the United States."
Well, as expected, because I think there's a little bit of confusion around this policy and I think it is being selectively enforced in different ways. I don't think that there's uniformity in the ways being enforced. We've now got a couple of instances where we have seen Muslims from Morocco, which isn't even on the list of seven countries, denied entry into the United States. That wasn't supposed to happen.
Because they also have Canadian citizenship even though that would have been the place of their birth. We're also seeing, as my next guest predicted, an influx of asylum seekers coming across the US border. He said that this was going to happen. I'm wondering if these numbers are at all surprising to him. Then the third issue that has been raised is we're beginning to get reports now of a number of refugees or those who do not have permanent status committing crimes in our country. We heard about incidents in Edmonton. There's been incidents as well in Lethbridge.
A few of you have sent me a couple of other cases. The question is what power do we have when we are confronted with these situations? We're going to see if my next guest can get through all of those topics. I know they're all huge, but we'll try to talk fast. We've got Raj Sharma who is a Calgary immigration lawyer and he joins me now. Raj, thanks so much for being with me again.
Raj Sharma: Thanks for having me.
Danielle Smith: Okay, I'm not even sure where to begin. Why don't we begin where we left off last time. We started talking about the border wall and what was going to happen with Mexican illegal immigrants in the United States, whether we would expect to see an influx here, but it sounds like in Quebec and Manitoba they're getting a number of people coming across the border who originally came from African countries. What can you tell us about what you're seeing and whether or not Alberta is likely to see something like that too?
Raj Sharma: Well Danielle, I think you have far greater insight into politics than I do, but I'm reminded of that quote that there are decades where nothing happens and then there are weeks where decades happen. This is just week three of the Trump presidency, but I think for every immigration lawyer it's almost like dog years right now in terms of reacting and trying to understand the repercussions as to what's happening.
We've had something called a Safe Third Country Agreement for over 10 years. Just on the tail end [as a] refugee protection officer. I had left in 2004 and that's when the Safe Third Country Agreement had been put into place. What the Safe Third Country Agreement does is it's certainly logical, it's very straightforward. It's designed to prevent forum shopping. What that means is we recognize that the US is also signatory to these refugee conventions that we've signed off on as well.
If someone arrives in the US they're expected to make a refugee claim there. They're not entitled to come up to the border and decide that okay, well I just feel like Canada might be a better option for me and vice versa in terms of Canada or people arriving in Canada.
Danielle Smith: Can I ask you? Would you the US be the only country we have this type of agreement with because we share a border or do we have these kinds of agreements with other countries as well?
Raj Sharma: For the last 10-plus years, although we can designate other countries, the US is the only country that we consider a safe third country.
Danielle Smith: Okay.
Raj Sharma: We expect people to make a refugee claim in the US. Now there's some exceptions to the Safe Third Country Agreement. Some of the exceptions are that if you've got a family member in Canada. There's a concept of family reunification or unification, so you might have a family member that's in Canada. They've made a refugee claim in Canada or they've got status in Canada. The Safe Third Country Agreement accepts that and allows someone to come to the border and say, "Well, yes, I landed in the US but I've got a brother who's got status here and he's going to take care of me," or "I've got a wife going through the refugee process and I'd like to just continue on with that here."
They're allowed to cross into Canada. There's other exceptions such as unaccompanied minors and if we're into the prediction sort of, I know prediction is a sort of Mug's game, but if we're into the predictions, my next prediction is that we're going to see a lot more unaccompanied minors showing up at the border to make that refugee claim.
Danielle Smith: How does that work? They would show up, they'd get refugee status and then are they allowed to get an adult guardian, a parent to join them?
Raj Sharma: No. They wouldn't get refugee protection. If they come to the border they'd be allowed to come into Canada. Their refugee claim would be referred and in independent decision maker would make a decision as to whether their refugee claim is meritorious or not. What's happened though, one of the exceptions to make a refugee claim in Canada even though you've been in the US is that if you cross the border illegally or you somehow show up in Canada, you can make a claim inland. You can make a claim at for example Harry Hays here in Calgary.
The Safe Third Country Agreement doesn't apply to in Canada, inland refugee claim. That's what we're seeing. We're seeing Ghanaians for example. [inaudible 00:08:48] who 10 hour trek into Manitoba. He's lost all his fingers. He was denied asylum in the US. He's bisexual or gay and he feared removal and therefore he made that perilous trip into Canada to make a refugee claim here.
What we're seeing is we're seeing numbers. Now I don't want to be alarmist, but these numbers are not, there are dozens of people. In the sense of Quebec you've got, in 2016 you had a doubling year over year since 2015. Then the first month alone in January, so we've already hit probably 50% of last year which was a doubling of the year prior to that. BC has already doubled. Manitoba has already, they're kind of swamped. Emerson, Manitoba is swamped. It's dozens and dozens of individuals there as well, mostly from Africa.
Danielle Smith: What I don't understand, and again I should know this but maybe you can help clue me in, why is it that Manitoba, British Columbia and Quebec seem to be the entry points? Is it just hard to get into Alberta? Is that why we're not seeing a spike in numbers here?
Raj Sharma: Well, I think number one is that our dataset is a little bit incomplete. The CBSA and RCMP haven't exactly advised in terms of total numbers. I would expect that it's a proximity sort of issue. I think that Quebec is closer to higher immigrant populations in New York for example or those areas. I would suspect that BC, again you've got proximity to maybe California or those Pacific western states.
I think that to some degree it's ease of entry. Again, these individuals are probably being assisted by traffickers or other individuals and so they're using the routes that are popular so to speak for now. Once those routes I think are restricted, then you'll see individuals trying to get access to Canada elsewhere or through other ports of entry. Or sorry, in this case non-ports of entry.
Danielle Smith: What are you seeing the official response being because the immigration minister did say that those who find themselves in limbo will be able to have temporary sanctuary here, but I didn't think that he was going to throw out the Safe Third Country Agreement that we have and that it was going to be a permanent arrangement. Are we just in the middle of not really knowing which direction the government's going on it?
Raj Sharma: Yeah. I think there's a number of sort of confusing and conflating issues. For one, we had the executive order that was kind of , again, never ascribe to malice that which can be explained by incompetence. We have [an] executive order that was poorly drafted, poorly rolled out that confused a lot of people including US authorities.
The executive order that restricted entry from those seven Muslim countries, that does not impact the asylum adjudication system of the US. What we're seeing is the Safe Third Country is still good to go because we respect and we expect the US asylum adjudication system to sort of parallel our own. The executive order does not change refugee or asylum adjudication.
If we talk about, and again, this is important because we have to ... Unlike the US I'm not going to call other human beings "aliens", but there's economic migrants and then there's refugees. There's a big difference between the two. The only problem, well, and it's a significant problem, the issue is this. The US actually grants asylum to a huge number of individuals. It's one of the leading countries for refugee resettlement. Now it also has a massive undocumented population.
If this increases, and again, not to be alarmist, so far we seem to be managing I suppose, but bear in mind that provincial legal aid systems for example grant coverage to refugee claimants. Those provincial legal aid systems are already overburdened. Of course our refugee adjudication system may well be or become overburdened with a sudden spike in asylum claims. It is something to keep an eye on and something that is a little bit troubling because ...
I suppose it's important not to conflate these two issues, but they're kind of inter-related in the sense of, and I'm getting lots of consults [inaudible 00:13:33], if the Trump administration executive order, which doesn't have anything to do with asylum adjudication, it does have a chilling affect on the massive number of undocumented and these have overstayed. They're in the US. If they decide to come up to the border and risk a crossing inside of Canada to make a refugee claim here, I think that's completely foreseeable.
Danielle Smith: What I am confused about is that this policy, the suspension policy that Trump, the Trump administration has put in place, is only temporary. They want to be able to then retool their priority list and start their refugee process again on lower numbers it sounds like, but also on a different set of priorities.
Does that mean that the people who are coming here, whether they're from the seven named countries or any other country, does that mean that we're just going to hold them here temporarily for processing once the US system is back up and running? That's what I'm a little bit confused about is what is the status of those coming in in this period while the US is sorting out their new policy?
Raj Sharma: Well again, I think that in terms of the executive order that we had individuals that were stranded in Canada for example and we had US green card holders that were being denied entry into the US. What our government said is that we will allow them or grant them temporary status. Again, it's difficult, but let's not conflate those affected by the executive order with permanent status in Canada.
If someone manages to cross the border into Canada and make a refugee claim in Canada and if their claim in accepted then they would be entitled to apply for permanent residence. Again, these are other ripples, other aftershocks we need to consider if the Trump administration is banning individuals or is not certain or is some sort of trepidation from these seven countries, but these individuals can come to Canada and become permanent residents and thereafter citizens and then have thereafter I guess unimpeded access to the US. That might be problematic in terms of our relationship with the US.
Danielle Smith: Very diplomatic in how you say that. I can well imagine it's going to be quite a topic of conversation between Mr. Trudeau and Mr. Trump today.
Raj Sharma: Mr. Trudeau and Mr. Trump are, I was just seeing [that] Mr. Trudeau is off and I just say Godspeed because all Canadians have an interest in maintaining good relations with our biggest trading partner.
Danielle Smith: No kidding. Okay, I want to ask you other questions though about those refugees who commit crimes because people are very unsettled with what they read last week about the individual who has been charged criminally with it sounds like sexual assaults against four individuals. Say a little bit more about that story, but I'm wanting to understand what the nature of the law is and what can be done.
I've been reading “Points of Entry: How Canada's Immigration Officers Decide Who Gets In” by Vic Satzewich. The author managed to - after obtaining with some difficulty the necessary bureaucratic blessings - interview over a hundred visa and case officers, and attend and examine the inner workings of a number of overseas visa offices. Reading the book confirmed many of my own experiences both as a former immigration officer and now for more than a decade, an immigration lawyer charged with facilitating my client's interactions with Immigration, Refugees, and Citizenship Canada - formerly known as Citizenship and Immigration Canada.
In this post, I'm going to focus on the Visa Office Interview. Interviews are rarely scheduled for most temporary resident visas. After two recent TRV's were refused, I sought judicial review challenging those decisions. After succeeding, both were sent back for re-determination by different officers and interviews were convoked for both. They are often not necessary for an economic class application, although I've seen them for the self-employed class. The interview is far more common for family class, and specifically spousal sponsorship applications.
Unfortunately, the visa office interview can feel akin to first defeating the Minotaur and then finding a way back out of the Labyrinth (without Ariadne's thread).
In the chapter “The Interview” Satzewich notes that applicants “can be described as “non-voluntary” clients”, that is “if they want a visa, they have no choice but to deal with the [immigration] bureaucracy because it holds a monopoly on a “benefit”. Further, applicants are necessarily and “generally in a subordinate position…” they are forced to “adopt a deferential manner.”
Of course applicants get that they are in an inferior, subordinate position and they have to watch what they say or do lest they jeopardize reunion with a loved one. This results in anxiety, nervousness. An applicant that is on pins and needles may well be mistaken for someone being not forthcoming.
The reality is that “A general air of distrust frames the face-to-face encounter in the interview booth.” and “…caution and doubt hang over both sides of the interaction.” Satzewich notes the “climate of disbelief” and that this climate “forces [applicants] to adopt a cooperative or compliant stance.” Applicants “must be acquiescent and deferential…”
I understand that Visa Officers can get jaded and cynical quickly. That being said, there should be some degree of empathy, some understanding that while interviews in such formal settings are routine and old hat for the Officer, this may be the first time a young girl from a village, or an uneducated farmer from a provincial town is speaking to a person in authority.
As Satzewich notes, “Compliance also entails keeping a firm hold on emotions, even if the interview seems to be going badly…”; that “applicants probably feel that directing an emotional outburst at an officer could potentially torpedo it…controlling their emotions is critical, even when an officer essentially tells them to their face that they are not being truthful…they have no choice but to appear compliant in the hope that they can satisfy the officer’s doubts, and venting indignation is obviously incompatible with deference…”
In my opinion, this puts the applicant, to put it lightly, in an unenviable position.
If the applicant is deferential or acquiescent, that may be viewed as being disinterest; if the applicant is emotional, that too may be viewed negatively.
Visa Officers do not get specialized training for demeanor; the range of human response to stress is wide and too much stock is being placed on body language or other subjective findings. Visa Officers are also dealing with applicants from all ages, from varying educational achievement levels and cultural background and some with (justifiable) concerns and trepidation in dealing with state actors.
Satzewich notes that “Many officers claim that they know within a few minutes after an interview begins whether a spousal relationship is real…” and “In forming their impressions, officers focus on demeanour, body language, and even how applicants enter the room, and they claim to develop a “gut feeling” about how people with nothing to hide step into a room and answer questions.”
What's the solution? Better, formal training for Visa Officers so that they don't have to rely so much on stereotypes, anecdotal tips on cultural practices (how someone, or a particular group behaves or should behave) or body language tips that they've picked up from others. This training should also canvass logical fallacies, the pitfalls of relying on stereotypes and risks in thin-slicing.
Visa Officers should recognize that their "gut" is a poor substitute for good questioning and reasoning; that a false negative results in separation and hardship for a family.
My advice? Avoid an interview. Put together a good, complete application that addresses both the strengths and weaknesses of the application. If an interview is convoked, prepare for one.
 Satzewich, page 218.
 Ibid, page 220.
 Ibid, page 226.
It's always a pleasure discussing immigration and refugee issues with the reporters from VICE Canada.
Some excerpts are below:
In Ottawa, some Conservative MPs—such as Michelle Rempel—have balked at the idea of providing refuge to individuals entering Canada illegally. However, critics of that narrative say the cost of crossing is already incredibly high as it is.
"Canada appears to some people to be Disneyland for refugees," Raj Sharma, a Calgary immigration lawyer whose firm has been working overtime due to the number of new claimants, told VICE Tuesday.
"There is a very difficult process here, it's not like people are just being given a pass to do as they wish," Sharma told VICE, adding that many who have been arrested are still awaiting hearing, and that there's no guarantee that they'll win their case.
Out of all three regions, the RCMP says that Quebec has had the greatest influx of refugee claimants attempting to cross the border. The RCMP would not provide VICE with comment as to why they believe this is is, but Sharma says it's likely because of the lack of environmental impediments (such as snow and off-road terrain) that have already caused so much harm to those who have tried to cross in places like Emerson.
According to Sharma and the RCMP, many of the individuals arriving at these unintended border crossings are coming only partially by foot—for many refugees, much of the trip leading up to the border is by cab or truck. These rides can reportedly cost anywhere from $100 a head to $4,000, depending on the severity of the situation and desperation of those trying to cross.
"Migrants and refugees are going where other migrants and refugees have gone," Sharma told VICE. "It's a little bit self-perpetuating, but people will follow in the footsteps of others who have paved the way."
Online, images of RCMP officers playfully hoisting up children who crossed the border last week drew both applause and criticism from social media—with some saying that the images were misrepresenting what was actually happening, which is that the refugees were being, as some authorities have put it, "gently arrested."
"It is unfortunate to say, but think about it this way: these folks are likely going to have hearings very quickly. Weeks, maybe months, but it will happen fast, and now, instead of the US deporting them, that burden may just fall on Canada to deport them," Sharma told VICE.
"Those Ghanaian men who lost their fingers to frostbite? They will have their hearing soon, and it may very well be that they have went from the frying pan to the fire."
I discussed President Trump's new Executive Order yesterday with reporter Tracy Nagai with Global News. To borrow a term from his favourite pastime, he took a mulligan. Rather than fight out his first (both flawed in its drafting and flawed in its execution) Executive Order all the way to the Supreme Court, he simply went back to the drawing board. But a rose by any other name smells as sweet; a #muslimban by any other name, is still a #muslimban.
Like some bad zombie movie, the Executive Order has come back to life, stumbling and shambling about causing chaos and confusion in its wake.
It was my pleasure and honour to have been asked to speak to my colleagues at the CBA Immigration Subsection here in Calgary late last year. The topic was the (manifold) consequences of criminality; while the Immigration law in this country prioritizes security and enforcement, all is not lost nor is removal a foregone conclusion even in the event of a conviction in Canada, or a conviction or charge outside of Canada. After the speech, I sat down with my friend and colleague, Mark Holthe, an accomplished and experienced immigration lawyer for an interview which he will be posting on his popular immigration podcast.
The transcript of that interview follows.
Mark Holthe: I'm here with my good friend and colleague, Raj Sharma. Raj, thanks for joining me.
Raj Sharma: My pleasure.
Mark Holthe: We're testing this out with our digital recorder here. I usually do these interviews via Skype call, but I've got high hopes that the audio is going to be great regardless. Thanks for putting up with me, Raj, and happy to have you with us. Today, Raj has agreed to come in and talk a little bit about criminal inadmissibility and some of the consequences that can flow when people get themselves into trouble here in Canada, but before we get into that I want to take a moment to share a little bit of background on Raj, and where he's come from professionally, and where he's at.
Raj Sharma's a lawyer and founding partner of Stewart Sharma Harsanyi, one of Western Canada's largest dedicated immigration law firms. He received his Masters of Law from Osgoode Hall and is a former Refugee Protection Officer with the Immigration and Refugee Board. Now, I'll get to the question of how you got into immigration and I'm going to go out on a limb and think that that probably influenced it a little bit.
Raj Sharma: That's right.
Mark Holthe: With over a hundred reported decisions, Raj has indicated to me, he frequently appears before all divisions, as well as the Federal Court, the court of appeal, and has also appeared before every level of court in Alberta. Raj regularly speaks on immigration matters in the media, and he's been a panelist and speaker at the CBA National Immigration Conference in 2014 and '15. He also writes a lot on immigration, multiculturalism, and diversity. Recently he was the recipient of the Legal Aid of Alberta's Access to Justice award and has been recognized as well as one of Calgary's Top 40 Under 40. Raj is an extremely accomplished individual and I know that he won't plug himself, so I'll do that for him, but whenever I have a difficult case with respect to enforcement, or appeal work, or anything like that I send it to him and his firm. Once again, thanks for joining, Raj.
Raj Sharma: Thanks, Mark. I'm East Indian, or as I like to describe ourselves as brown, so no matter how accomplished I am, obviously given that I'm not a doctor I'm probably a disappointment to my parents.
Mark Holthe: Well, we'll have to get your parents on to come back and I'm almost positive with everything that you've done, at least within our industry and how you've distinguished yourself, that there wouldn't be a parent on this planet that wouldn't be proud of you. Enough of the feel good stuff, fill us in. How did you get into immigration?
Raj Sharma: I never intended to get into immigration law. I did my JD at the University of Alberta. While I was there, I didn't take any immigration courses, immigration just wasn't even on my radar. I summered at a large law firm here in Calgary, Burnet, Duckworth & Palmer. I didn't like the large law firm milieu so to speak. Then I spent some time with Dennis Edney, who's now the lawyer for Omar Khadr. Then I also clerked up the Alberta Court of Appeal and ended up doing my articles with the Federal Department of Justice. I think I had at that point an understanding that I would be somewhat closer to a barrister or a litigator than I would be in terms a solicitor.
There was one [immigration] case that I handled and my mentor at that time at the Federal Department of Justice was Glennys Bembridge, who is now a Federal Court Justice with a different last name [McVeigh], but there was this one case and it involved a family, they're doctors, and their son had autism. I was the articling student, so I had to put together the affidavit supporting the officer's finding of medical inadmissibility. I found that really, really interesting, but I kept saying to my mentor at that why can't we just consent on this file, the family's really deserving, and ultimately I think that the family did get relief. After that, I'd met my wife at Winnipeg at a wedding ...
Mark Holthe: I'm going to jump in.
Raj Sharma: Yes.
Mark Holthe: You said, "Why can't we just consent to this?" What was his response?
Raj Sharma: It was a strange response. The response was just like, "Oh, we just have to ..."
Mark Holthe: Carry it through.
Raj Sharma: It was more like it was like, "Oh, the client instructions ..." I'm like, "What client? We're the government." I was explained that different departments are actually clients of the Department of Justice. I found that very odd because I don't think that's true. I think that a client/solicitor relationship doesn't encapsulate departments of government being clients of each other. I found that odd.
In any way, I'd met my wife in Winnipeg at a wedding, my cousin's wedding. She was in Calgary, born and raised in Calgary, so I needed a way to get to Calgary somehow, so I was applying for jobs in Calgary and I got this called up to do this test or examination at the Immigration Refugee Board. I was offered this position to become a Refugee Protection Officer. That's where in fact I met my partner, Bjorn Harsanyi, so we both started off as Refugee Protection Officers, hearings officers in 2002.
Mark Holthe: Obviously that makes a pretty nice background for sliding over to the other side. It gives you an opportunity at least having worked on the other side to get a better understanding of how the government operates, how the department operates, a little bit more inside to the minds of what goes through a decision maker on that side. I have to assume that that helped you as you moved over to the other side with your advocacy on behalf of clients.
Raj Sharma: I think so and I think that, and again there's this tradition of this entrepreneurial tradition within my community, and of course my second and third languages also helped, there was a burgeoning South Asian community in Calgary at that time. Really, it was timing, and so Calgary's just really good to me. I'd moved to Calgary at about the right time and I went into private practice at about the right time, right before Calgary took off, so to speak. 2004 I started my practice, late 2004 I started my practice. At that time, just trying to take whatever you can get, so again, I wasn't really centered in immigration.
Then there was this legal aid file, this three hour legal aid file for criminal inadmissibility. It involved a foreign national in Canada accused or there was an allegation of weapons, ... gun smuggling, and weapons trafficking. At that point I thought, "Well, this is a foregone conclusion." I looked at the IRPA and I said, "Well, this is just, there's no way out here," but my partner at that time pushed me a little bit and so I looked at it, I looked at it again. I put in far more hours than the three hours allotted to me, and low and behold I was able to succeed. I think that was the first time that I was in the media, that was the first time I was on TV or the newspapers, at least when it came to my legal practice.
It was after that that my practice in immigration took off because it was after that that I joined Caron & Partners and then again after I left Caron & Partners there was another Vietnamese fellow, [another] fork in the road. There was another client, Jackie Tran, and that file I took on in 2009. Both of these cases probably had something to do with the direction of my practice.
Mark Holthe: Yeah, that makes perfect sense because I think for most of us business immigration lawyers, I guess that's how I classify myself, when there's a sticky situation I get uncomfortable pretty quick. I have a tendency to try to take the path of easiest and least resistance with my clients. If there's push back from the government, I tend to try and say, "Do we need to refile? Do we need to rethink our strategy?" Sometimes it's faster to just accept the stupid decision that you get from an officer and then just try to satisfy whatever they want, and refile, and get it approved, but there's a number of situations where people get themselves into a corner where they really don't have a nice, easy solution other than taking the government on.
Raj Sharma: I think .. it depends on what you're facing. Now, in your case you have to solve a sort of business problem. Prior to 2009, before Tran, I was actually doing hundreds of LMIA's, or LMO's that they were called at the time, so I was representing major corporations, I was getting fat, I was just doing pure solicitor work, and I think again timing came to my rescue because once I got into the Tran file, which necessitated three different Federal Court applications, [emergency] stay application, IAD, ID, and right about that same time the economy in Calgary sort of collapsed, so to speak. If you're a one trick pony, that is you're only doing one aspect of immigration, you could be susceptible to that sort of change.
I was very lucky in the sense of I did quite a bit of solicitor [and] business [immigration] work, but given that strong litigation year we were able to just basically switch our practices over to a litigation aspect. In business [immigration], you're tasked with making sure that the business runs smoothly. Where it's an individual facing loss of status, it's a zero sum game. In business there may be not, it's not a zero sum game, but in someone facing removal or deportation to a country that they haven't been in since they were a kid, it's a zero sum game which is you win or you lose, so at that point you start bringing out all the arrows in your quiver and you're doing whatever you can for your client because it is, for them to some degree, it's life or death in the sense of it's a death of a relationship, it's a death of your relationship to Canada, and it's a death of your status in this country.
Mark Holthe: Let's shift to the topic at hand. I think a lot of our listeners, this isn't something that they're very familiar with because I think genuinely people try to avoid committing crimes in Canada and getting themselves removed.
Raj Sharma: Right, and we know for a fact that immigrants or first generation Canadians have a lower crime rate than native born Canadians, so you're absolutely right. Most of your listeners and our clients, most of them, the vast majority enjoy a lower criminal rate or criminality than Canadians would.
Mark Holthe: Yes, absolutely. As those that are listening in here, as I introduced when I started the podcast here, the interview with Raj Sharma, I indicated that we're going to be talking a little bit about criminal inadmissibility, so Raj, can you give us a little bit of an introduction? When we talk about criminal inadmissibility, how does that play into this world of immigration?
Raj Sharma: Immigration is about, and notwithstanding whatever we hear these days from Donald Trump or Hilary Clinton, there are no such thing as truly open borders. A country will always dictate who enters and who remains, so there was a case that went to the supreme court of Canada involving a woman actually -- most of the cases I deal with actually do involve men -- but Medovarski involved a woman and Medovarski reaffirmed that concept that non-citizens do not have an unqualified right to enter or remain inside of Canada.
When we look at criminality, the threshold for removing non-citizens from Canada is spelled out in intricate detail in the Immigration Refugee Protection Act and there is a bifurcation, i.e., it's somewhat harder to remove permanent residents from Canada and quite a bit easier to remove foreign nationals from Canada. When we talk about foreign nationals, we're talking about students and those here on work permits or those that are visitors in Canada. When we talk about permanent residence, obviously those are individuals that have applied for permanent residency, they're not citizens yet, and so we have a paradigm, a very detailed framework that deals with non-citizens that get in trouble with the law.
Mark Holthe: When we talk about getting in trouble with the law, does the Immigration Act or the government, do they view certain crimes more seriously than others? How is that distinction set up?
Raj Sharma: No, and maybe they should. That would have been a proper starting point. Maybe you should have been involved in [drafting] this legislation or these laws, but unfortunately the distinction of the severity of a crime is based on the maximum [potential] term of imprisonment or the actual incarceral term that's imposed. When we talk about prison or incarceral terms, we're including conditional sentences or sentences to be served in the community, so the distinction is not between the type of offense, someone that's convicted of a white collar offense such as fraud could face removal just as easily or perhaps more easily than someone accused or charged with simple assault.
Mark Holthe: Even if an offense, let's say it's a hybrid offense, so it could proceed summarily or via indictment, the person that is sentenced to ten years imprisonment for that offense versus someone that's sentenced to six months under the eyes of the lovely immigration authorities, it's irrelevant.
Raj Sharma: That's right, and it also doesn't take into account your length of time in Canada, so you could be a permanent resident and you could be here since you were two or three, and you could be [here] thirty years, and you could have an issue. Of course, this is the fragility of the human condition, we all make mistakes, so it doesn't take into account the length of time that you're in Canada…, nor does it take into account the nature of the offense, whether it's violent or whether it's non-violent. It's a blunt instrument unfortunately, Section 36 in particularly.
Mark Holthe: If you have an individual that's committed a crime in Canada it's pretty clear we know what the offense is, we know what the conviction was, there's not a lot of debate about it, but what happens if someone wants to enter Canada or comes to Canada and has a conviction that occurred over seas or in another country, how does Canada treat those?
Raj Sharma: Those things get complicated really quickly because different countries have different legal systems and different countries have different standards in terms of the ... You could have a situation [if] you're from China. Now, China has a 99.9% conviction rate.
Mark Holthe: Wow, maybe I won't ask too many questions as to how that justice system plays out for those people accused, but ...
Raj Sharma: I mean, so when we start making equivalent, or making offenses, or acts that individuals have done outside of Canada, and we have to somehow try and make them equivalent to offenses in Canada, those things get tricky really, really quickly. That's one subset of what we do.[But] I just keep getting reminded, even this morning, had a client applied on the Alberta Immigrant Nominee Program, skilled individual, excellent English, everything's fantastic, no criminal record whatsoever, applied on the ANP, got the nomination, applied for the PR forms to [CPC] Sydney. We got the passport request two days ago, three days ago, problem. Last week after a birthday party or someone's party, one in the morning, [he’s] charged with impaired driving.
Those are the sort of simple, understandable criminality because I think some politicians paint criminals as this broad brush, but criminals are no different than [you or I], it's just there's one incorrect decision. I think impaired driving is like that, this is impaired driving, could result in no jail time whatsoever, probably will result in a fine if he ever gets convicted, and a driving suspension. Won't spend a day in jail, but that's a hybrid offense and that [a conviction] makes him [as a foreign national] inadmissible.
That's where I feel a lot of sympathy because you're seeing literally in front of you the end of a dream and you're seeing a person that for all other purposes would be an ideal addition to Canada's multicultural fabric. It's not really the media, it's not my cases that hit the news or the front pages that really give a proper idea of my practice. It really is those guys that are within an inch of permanent residency and we wouldn't consider them to be criminals, but of course they've made a grievous and horrendous error by drinking and getting behind the wheel of a car.
Mark Holthe: Let's carry that through, I think that would be interesting. An individual who is in that type of a situation, this happens to them. What can they expect?
Raj Sharma: Number one, if they come to me my first response to them, and there may be some sort of false hope, or some sort of strange fever dream that they're existing under, or they may get some sort of strange advice from someone, or a friend, or a cousin, and there may be a suggestion as to just somehow let it ride out and CIC may not figure this out. My first advice to them is that if they want my assistance, that we will be disclosing the charge and the encounter with the police immediately. That's the first thing that should happen and one they agree to these sort of terms, then we can start figuring out a solution.
Now, the solution of course, and I kind of outlined that earlier today in my speech here, which is now start looking into conviction options or post conviction options. These conviction options, number one, beat out the charge in trial, because the system is binary, because it's a zero sum game, we can't now ... I think criminal lawyers and immigration lawyers that dabble in criminal law, there's no options now. You actually have to go and try to beat this out, you got to find, even if your client is factually guilty, you got to find a way to make him legally not guilty because if he's not guilty, that doesn't lead to any criminal consequences.
If it's an offense, a domestic violence type of situation, and a peace bond is in the offering, take a peace bond. A peace bond doesn't have any criminal consequences either. There may be possibilities for some offenses for absolute or conditional discharges, take it, take it. That bird in the hand, we can safeguard that immigration at that point. In terms of a DUI, we're really looking to these curative discharges now and that's one option as well.
Mark Holthe: Maybe you can explain what that is. What is a curative discharge?
Raj Sharma: Curative discharge involves a process by which there is a guilt or there is factual guilt and there's again…. A curative discharge we've used where there's indication of alcoholism [as a] medical condition. If we can establish that, then the judge may see fit to grant a curative discharge. If that happens, then there is no criminal record that could waylay an immigration application or application for permanent residence. That's not to say, by the way, that that won't lead to other issues, i.e., you may still need a waiver to get into the US, but the curative discharge is something that we explore for impaired driving, and conditional, and absolute where ever possible [for other offences].
Now, bear in mind there's a whole host of offenses that result in mandatory minimum sentences and so we can't do any number of these things for those types of offenses, but those are some of the arrows in our quiver in terms of post conviction. Where ever possible, if you are facing a charge, either you're a permanent resident or a foreign national, try to get immigration lawyer involved alongside your criminal lawyer. There may be options to get positive sentencing remarks or positive remarks that are spoken into the record. Those transcripts can come in handy.
If you are convicted, if you are sentenced, it's important that the client demonstrate remorse, and rehabilitation, engage in programming, and try to turn that life around. If we can demonstrate that, there are some options, which is that that initiating document to establish criminal inadmissibility, the Section 44 report, there is a scope for the officer not to write that report. Again, when I started down this journey I didn't realize the scope of discretion that's in the act. There is significant discretion. An officer may choose not to write a report against a permanent resident or foreign national and that may be the first, and maybe the last, real line of defense for a lot of these individuals. We've seen that happen, we've seen permanent residents, I've represented permanent residents, young guys, a technical armed robbery, four years plus sentence ...
Mark Holthe: A technical armed robbery.
Raj Sharma: A technical armed robbery...
Mark Holthe: I love this terminology, technical versus a real, is there any distinction there?
Raj Sharma: Let me tell you and you tell me whether that terminology or that splitting of hairs is appropriate. A guy got fired from a job at a liquor store, was angry, young guy, and decides to rob the liquor store as some sort of payback, buys a gun that is not operational, just this old, rusted out gun. There's no bullets in it, it's inoperable. Goes into the store, people see the gun, so they flee, so he goes to the cashier, he tries to open the cash box, is unable to do so, and runs out without stealing anything. Misfortune added to his idiocy, there's an off duty police officer who immediately arrests him outside the liquor store, so this guy goes through this process and his criminal lawyer after wasting tens of thousands of dollars of his money, pleads him guilty to an offense that includes a mandatory minimum sentence.
At that point, and I met the judge actually afterwards and the judge said, "Hey, I wonder why that lawyer did that because if the lawyer challenged that on a charter round of cruel and unusual punishment, that that mandatory minimum sentence in this case offends the Charter, I would have granted it to him." This lawyer tells this guy and his family, "That's it, game over, you will be deported," but of course that's not actually the end of it. [So] I do stand by my characterization of that as a technical armed robbery because this guy, he's more of an idiot than he was a criminal.
This family went through a lot, this family, his sister in fact, who lived with was married, [her] husband had some mental issues, and she was attacked actually. The police attended and in fact that man was actually brought down by the CPS, so the family went through a lot. We put all this together, put the sentencing transcripts in, the judge, they got a really compassionate judge who said a lot of things into that record. [The client] was out on bail for four years, and upgraded himself, and it really was an ill advised decision. Ultimately, we had an understanding officer. She ended up interviewing him over the telephone, I think, at the Remand institution, and [she ultimately] decided not to write the report.
Mark Holthe: I guess that's the beauty of this is the discretion that's laced into the immigration process.
Raj Sharma: They won't lightly do it, but if you've got the goods .. it can be done. We had another case, we had another individual originally from Hong Kong, came over as a kid, got into some gambling issues, and then got into selling drugs to pay off some of those debts. Served his time, was a model prisoner, and his entire family was here, we set out everything. In this case we asked the Report not to be written, it was written. We challenged the Report at the Federal Court, we received approval or leave on one, it went back, and ultimately a Minister’s Delegate decided to issue a warning letter. That's drug trafficking [involving a “hard” drug] and that was again significant, so these things can be done for the right individual.
You will have people that have turned their lives around and you can see, you can tell. There's no faking this because it's a year's long journey. If you've got it, you've got it, and thankfully our officers, what I've seen is that we have fair individuals, open minded individuals, and that's not to say that I haven't lost on something that I think I should have won, I have, but even that decision, at least that individual had an open mind. I think our [CBSA/CIC] officers by and large are open minded individuals.
Again, this may be the last line of defense for a lot of these individuals because there may not be an appeal to the ID anymore because the atrociously entitled Fast Removal of Foreign Criminals Act has amended the IRPA, so permanent residents that have been sentenced to more than six months, including conditional sentences, don't have an appeal to the IAD anymore. Whatever they've got, they've got to address that Section 44 report, that procedural fairness process, maybe Federal Court, maybe a TRP, maybe an H&C, a humanitarian and compassion application, but without that IAD backup, options are limited.
Mark Holthe: That's really interesting because like I said, from my perspective, someone who does not do a lot of that type of work, very little in fact, I see walls, absolute walls sometimes for people that I can't see past, whereas individuals such as yourself who have a little bit of a broader perspective, and have actually gone and looked behind the wall have realized that sometimes there's ways through. The message that I got, especially, and just to clarify for the listeners, Raj and I are just meeting at the Canadian Bar Association Office here in Calgary after Raj gave a presentation [to the CBA Immigration Subsection] on this similar topic. One of the messages that came through loud and clear is that maybe people give up too easy, especially counsel, us.
I put us under the bus in many circumstances because sometimes we're just too willing to roll over. We need to take a serious look at what the possibilities, are and not be afraid to question and challenge an allegation that's being made against our clients. Even in circumstances where based on a clear reading of the law there's a certain outcome that's supposed to flow doesn't necessarily mean there isn't discretion to go around that and that there isn't some compassion laced into the system.
Raj Sharma: I learned this relatively recently. I went to visit my eighty-five, ninety years old grandmother in Edmonton. I didn't learn until much later -- my grandfather died, so my grandmother came over with my youngest uncle to Canada to her children here. None of us kids actually knew that our uncle was actually her sister's son. Her sister had died, so she had taken my uncle in. I guess his dad wasn't interested in caring for him, so I learned this later that Uncle is not actually our uncle, he's actually my mom's cousin. …I knew that there was some immigration issues that he was going through early on when he came, so my grandmother explained it to me, because there was no adoption papers and because my grandmother I think is incapable of lying, she's very straight out that we have no adoption papers, but he has nowhere else to be other than with me.
They battled for like three or four years to try and get my uncle to be here [and succeeded]. Ultimately CIC indicated, "Well, he can't be here, there's no adoption papers, we have no consent from his guardian, or his biological father, or whatever the case may be." We're from this small mining town in BC and [the family was helped] by an immigration lawyer out of Vancouver. Ultimately my uncle got what was then called a minister's permit, which is now we call a TRP, a temporary resident permit. When I learned that I was, "Well, I guess that's what I do." So I [do] think people minimize or perhaps don't understand the scope of discretion that's available. There are roadblocks, there's hurdles, [but as my personal history demonstrates] there's very few problems without an absolute solution.
That being said, if you are unmitigated, incorrigible criminal, no officer's going to give you the benefit of whatever doubt there may be, but there are these avenues that can be pursued and there is a sort of system. You got to work through that system, work with the criminal lawyers, put your client in the best possible light, take advantage of any little nook, cranny, any little shaft of light, and you might be able to widen that crack a little bit for your client to step through, but yes, very few things are foregone conclusions and it's our job as counsel to put the best possible foot forward for the client.
Again, in my twelve years of practicing immigration law there's very few actual incorrigible [criminals]. I said this before … that hard cases make bad law and outliers shouldn't make the world a harder place for the vast majority of people that simply want to come to Canada and give their families a better life. These outliers don't reflect the vast majority of cases that we deal with. The vast majority of cases we deal with are human fragility, human error, understandable mistakes.
Mark Holthe: You mentioned this concept of a TRP, a temporary resident permit, which is now the new version of a Minister’s Permit.
Raj Sharma: That's right.
Mark Holthe: In some circumstances, individuals will have appeal rights when there is criminality involved and they're facing some harsh consequences, they have appeal rights and other times they don't. You had talked a little bit about the discretion that an officer has to write that report to refer it or not. Can you maybe clarify that just a little bit for counsel who maybe have individuals that are at the stage where the consequences could be pretty nasty? Maybe there is no appeal right and you indicated that sometimes an officer does have some discretion whether or not to write it.
Raj Sharma: That's right. That Section 44 report, so let's say there's a conviction in Canada. Establishing that would be pretty straightforward, pretty easy. What counsel can do is respond to a procedural fairness letter, say, "Please don't write the Section 44 report and here's why," and these are going to be [modeled on] the typical Section 25 type of application or submission, so time in Canada, establishment in Canada, those ties here, the family ties here, hardship, or adverse conditions, or challenges upon return, children that are affected by the decision, the circumstances leading to the events, any indicia of remorse, rehabilitation, insight.
All those should be placed squarely before the officer and you say to the officer, "Don't write this report, please. The guy's been here for a long time, this is a singular mistake, the criminal record is limited or none other than this lapse in judgment." If the officer writes the report, its then has to be referred under Section 44 sub 2 by a Minister’s Delegate. If it's referred, for a permanent resident that means it goes to the immigration division. If it's criminality or serious criminality in Canada, that's Section 44 sub 2, that becomes a removal order for a foreign national. Again, there's less options for foreign nationals here.
If it's referred to the immigration division, not much you can do if it's a conviction in Canada. The ID is not going to look beyond the certificate of conviction. If it's a conviction outside of Canada or an allegation that some offense has occurred outside of Canada, that would be equivalent to serious offenses inside of Canada. Then the immigration proceeding becomes a substantive proceeding. That's when it takes on some degree of significance. You are then going to start talking about foreign legal laws, standard of proof, burden of proof, and at that point you probably should be retaining a foreign legal expert. It gets complicated really quickly at that point.
After a removal order is issued, post removal order options are limited. A TRP can overcome or allow you to remain in Canada notwithstanding a removal order. An H&C can do the same. One option might be to get a TRP pending record suspension for a conviction inside Canada, for example, if there's eligibility.
Mark Holthe: If an officer chooses to write the report when you've made your submissions, can you challenge that part before it gets to the immigration?
Raj Sharma: Yes, you can challenge both the writing of a Report to the Federal Court and the referral of the report to the Federal Court. You probably won't do that if the person concerned is a permanent resident and has an appeal right to the IAD, there's no sense in that, but if you don't have that appeal, you're left with these limited options, so you're going to buy some more time. By going to the Federal Court either you buy some more time, it goes back, a different officer might come to a different conclusion, or you simply might need time for record suspension.
Mark Holthe: Just buying the time, interesting.
Raj Sharma: Might be one because you need strategic depth, so strategic depth is usually time, more time in Canada gives you more options.
Mark Holthe: Define strategic depth for those who are not following. What are you talking about when you use that terminology?
Raj Sharma: Strategic depth I was thinking more in terms of war. If you've got a country like Russia and you want to invade Russia, and Napoleon and Hitler both tried that. One of the problems is that Russia has a lot of depth, so you can invade, and invade, and keep invading, and the Russians will have time to mount a response. You can contrast that with, for example, Pakistan, which is thin waisted [country] geographically speaking, there's not a lot of strategic depth there.
If we were to apply that terminology to immigration in Canada, then I would say strategic depth would be time. A lot of time, we don't have time, and so give me some time, give me enough time and I can do quite a bit. You need time to marshal resources, to file Federal Court obligations, to file TRP applications, to file H&C applications, to maybe get a rehabilitation application in, so time is our strategic depth and most of the time we don't have it.
Mark Holthe: Yes, that is abundantly clear within our practice. I really appreciate that overview and the insight, it was awesome. Let's talk about some practice tips maybe. If counsel finds themselves in these types of positions dealing with an issue, a potential criminal inadmissibility, what are some of the things that go through your mind right away that you'd give in terms of advice, things that people want to make sure they do every single time, or little tips or strategies? You've already indicated here that you want to try to buy as much time as you can, that's obviously really important, but are there any specific things or pieces of advice that we haven't maybe talked about yet that you'd like to share with the listeners?
Raj Sharma: I think definitely take a look at the IRCC or CIC policy manuals, Enforcement Manual 5, Enforcement Manual 6, take a look at the loose leaf publication by Mario Bellissimo and Genova, Immigration and Admissibility, they've got a handbook as well. You need to get an understanding of the facts and understand the law in a relatively quick fashion. Once you understand the context that you're in, so if the context is a permanent resident, and there's an offense, and you're looking at the loss of appeal rights, and you've got a procedural fairness letter, and the sentence has been served, what I would do immediately is probably do ATIP requests, access to information requests, and I would try to get and reconstruct the client's immigration history as much as possible.
That's probably the first thing I would do is do an ATIP request. I would do FOIP requests for the correctional service documents, the institution documents, and see what's been going on over there and try to get access to those parole documents, take a look at their recidivism rankings. I would probably get the sentencing transcripts right away, I would get any pre-sentence reports that were filed or that were before the sentencing judge right away. After I looked at that I would see if I could update that pre-sentence report by a qualified forensic expert and reassess recidivism. Then I would probably put together these substantive submissions. Again, relying on maybe the IRB, IAD, Removal Order Appeals publication. Having regard to the sort of H&C factors and Ribic and Chieu factors. I would put all that together and get it into that officer probably as soon as possible.
That's probably what I would do and that's probably what anyone should probably do with a PR facing removal where there's been a length of sentence greater than six months. If it was less than six months, then obviously maybe I'd just keep my powder dry to some degree, I'd still put in something, but I'd probably just keep my powder dry for the IAD.
Mark Holthe: It's pretty much they're going to send it that way and choose not to make a decision at that stage.
Raj Sharma: I would think as an officer, this is not in the manuals at all, but ...
Mark Holthe: This is what we want, Raj, yes.
Raj Sharma: As an officer, and I used to be an officer, but as an officer if I saw that a PR had a right of appeal, then really I would probably give short shrift to any sort of request for exercising my discretion at the 44 stage. I'd be like, "Look, let me just do my job, let me write this 44 report, and refer it, and let them make whatever submissions he needs to the IAD." I think the relationship to discretion and the loss of appeal rights is inverse, so if there's an appeal right, then I would narrow my own discretion. Then if there's no appeal rights, then I would probably take and expand my scope of discretion within, of course, the ambit of the law.
Mark Holthe: That's awesome and it makes perfect sense. Officers, despite how some people feel, are human beings. When they feel like someone is trying to screw the system over, they're probably not going to give you a lot of help, but if they feel people are genuine and they've made a mistake, and there's a whole host of ...
Raj Sharma: The system, maybe the system has been narrowed against, for example, any further request for relief. I think that they'll substantively consider.
Mark Holthe: That's awesome. I really appreciate everything that you've shared here.
Raj Sharma: Any time.
Mark Holthe: This is fantastic. Now, as always when I have guests on, people are going to listen to this and they're going to say, "Hey, I've got a friend," or, "I know someone who's in this exact situation," and their counsel that they have right now is telling them that they might as well start singing 'Happy Trails,' and packing their bags, and they're saying to themselves, "There must be something else that I can do." They're going to listen to this and they're going to say, "Raj Sharma, how do I get a hold of this guy?" How do people track you down? What's the best way of getting in contact with you and engaging your services?
Raj Sharma: For sure, Mark. Anyone can email us at email@example.com, that's firstname.lastname@example.org, number is 403-705-3398. I think we have a toll free number, but I'm not sure what it is.
Mark Holthe: You can go to the website [www.sshlaw.ca], right, too.
Raj Sharma: Yes, you can definitely reach us and we'd be happy to help. It's something that we've developed for the last seven, eight years or so.
Mark Holthe: Awesome, thanks a lot. I appreciate your time. Take care.
Raj Sharma: Thanks a lot, Mark.
I discussed the Executive Order implemented on January 27, 2017 and the resulting chaos and confusion with Global News on January 30, 2017.
Speaker 1: ...the outcry continues for a ban on immigration and refugees. Is part of this government attempt to stop radical terrorists from entering America. This morning, a look into the international rules and and impact of vetting people. Immigration lawyer Raj Sharma joins us this morning with more insight into what this could potentially entail. I know Raj throughout the weekend, there was a lot of kind of uncertainty as to how this was being ruled out, but things seem to be a little bit more clear this morning. However, I want to start by asking you, have you seen anything like this rolled out internationally before?
Raj Sharma: No. If you look at the United States, the country itself was founded as a haven or escape for individuals fleeing their religious persecution from Europe. The United States is this haven and this safe place is right from its founding days. I want to make something clear, because there's been a lot of talk about, and there's a lot of scapegoating or targeting of certain groups or immigrant groups or certain types of refugees. I want to make it very very clear, immigrants as a whole commit less crimes than native born populations in both Canada and the United States.
the second point I'd like to make is that the Syrian refugees that came into Canada and that went into US, they've been vetted more than Trump's cabinet picks. That process has been more transparent than Trump himself. Trump hasn't even released his tax returns and we know everything about these certain refugees that are coming in, that are escaping persecution, that are escaping a violence.
Speaker 1: You mentioned these people escaping really horrible scenarios in a lot of cases from their home countries, wanting to come to a fresh start, now being denied entry. What are the implications there for these people? What can they do?
Raj Sharma: The problem with this is that, you know when I first heard about this on Friday, this was ruled on a Friday. There was this massive bewilderment and astonishment. I compared to the Kübler-Ross fives stages of grief where it goes from denial and bargaining all the way to acceptance. As an immigration attorney and someone that works with immigrants and refugees, you go from astonishment and bewilderment and ... At this point, after three or four days, the dust has settled a little bit.
Frankly, I must say that an eight year old with a crayon probably could have executed this executive order better that what we've seen. What we saw was greed cards are effected and that's 500,000 American permanent residents that have the right to live and exit and reentry and work in the United States. Apparently, they're effected. the executive order was drafted in such a way that it would it would cover dual-Canadian nationalist from one of these seven countries, including Iranians that left a very authoritarian regime decades ago to Somalians.
One of those would be our minister, our current minister of immigration that was just appointed a few days ago who was born in Somalia. There's confusion regarding that. Over time, we've got a little bit of clarity, and so okay dual nationalist from Canada are now going to be barred from entry, even though some have. We know that individuals that have a visa and manage to get into Canada, they should not be removed, and that's because of Federal Courts stay that was done in Brooklyn. We know that green card holders, the half million green card holders of these seven countries apparently they're not going to be subject to additional measures.
Speaker 1: How do you see this rolling out, going forward because there's so much criticism, this is anti-constitutional, State sight.
Raj Sharma: Well, we've got the constitution and the constitution of the US is similar to our charter, but there's equal protection under the law, and that's the US constitution. We of course have the charter which prohibits discrimination based on for example, origin or nationality. There's actually immigration act or legislation in the US that prohibits this as well. This is a problem with an executive order. Now, let's not let President Obama off the hook. President Trump is this real estate developer. You might be able to give him some leeway in terms of superficial acts, but President Obama was constitutional law prof. He's the guy who opened up the Pandora's box to these executive orders and that have run amok.
The ACLU ... By the way, I don't want to hear any more snarky lawyer jokes for the next little bit, we had my colleagues in the US rushing to the airports, filling up habeas corpus petitions in these sort of conditions. It's been a world wind, 72 hours, and this is the first week of a Trump Presidency. There's three years and 51 weeks to go, and of course in the first 10 days, he suffered a loss in the courts.
Speaker 1: We'll continue to see how this rolls out. As you mentioned, there's still ... It seems as though the dust is settling on this. Raj, thanks for your time this morning.
Raj Sharma: My pleasure.
It was a pleasure discussing immigration developments with Danielle Smith on AM770 last week, just before Trump's Executive Order caused chaos and confusion over the weekend. A transcript of our conversation:
Danielle Smith: Let me just take a pause, 'cause I don't want to end up short changing the conversation with my next guest. We're going to get into a different topic immigration impacts for Canada. Two big things that have happened in the last couple days. Number one, shutting down the Mexican boarder by building a well. Number two, which were expecting an executive order today, a suspension on refugee claims in America. Now how is that going to impact us? Raj Sharma is my guest he's a Calgary Immigration Lawyer, we'll talk to him about that when we get back on News Talk 770.
Okay, welcome back! Now we've got two big decisions happening in the United States and there's been some analysis suggesting that they're both going to impact us. I'm going to find out from my next guest, Raj Sharma is a Calgary Immigration Lawyer and he joins me now. Raj, thanks so much for being with me.
Raj Sharma: My pleasure.
Danielle Smith: Lets first talk about this decision of the government to finish the boarder wall on Mexico's boarder. It's interesting to me it's already one third built so they're acting like they don't have any boarder wall but in any case, there is a lot of people saying what that might mean is an influx of Mexicans to Canada. I think there's some 11 million as the estimate of illegal immigrants in the United States. The Federal Immigration Minister, when he came through with a proposal to remove the visa on Mexican visitors, he said I might have to revisit this if we end up getting more then 3500 Mexicans claiming refugee status in any given year. There's sort of an expectation that some how we're going to be impacted by this. What are you seeing and what are you expecting?
Raj Sharma: Well Danielle I think it remains to be seen whether the boarder wall will in fact curb illegal immigration to the U.S. It's [inaudible 00:02:00] 30 foot walls just means that there's going to be increased demands for 31 foot ladders. That being said, the mood and sentiment in the U.S. has certainly changed and I think it's very very clear that there's going to be an enforcement mindset to our colossal neighbor to the south.
What's going to happen and this is what CIC the bureaucrats have sort of looked into and ... This kind of ties in with my experience as well, I was a refugee protection officer between 2002 and 2004. Thereafter I set up ... started private practice and we had thousands of Mexicans made refugee claims in Canada during those years [inaudible 00:02:50] 7 or 8 thousand at certain point. At a certain point in one year, we had more refugee claimants from Mexico than we had in all of Africa.
Danielle Smith: Wow! Give me a timestamp on that again. When did that occur, what years?
Raj Sharma: I think it started probably around 2004 or so and at that point you had maybe well over 7,000 refugee claims from Mexico at that point.
Danielle Smith: Wow. What was happening at that time in Mexico? I can't remember back to 2004.
Raj Sharma: Well 2009 it was, we had about almost 10,000 refugee claims from Mexico and this is all because of the drug wars. So in the last 10 years or so we've had tens of thousands of people killed in Mexico. So I think Canadians view of Mexico is a little bit skewed. I mean Mexico is this sort of sun destination that we all go to to escape the ravages of our winters. That's not the reality on the ground, there's an incredible amount of violence there. And obviously there's always these significant push and pull factors. And so Mexicans started making refugee claims in Canada until there was a visa requirement placed on that. That dropped from 9500 and after that visa requirement was imposed it whittled that number right down to just dozens.
Danielle Smith: So it completely stopped the flow by having a visa requirement. So what would happen is people would come here under the auspices of coming for vacation then they'd make a refugee application when they arrived.
Raj Sharma: Right and so immigration offices over sees ... someone has to make a request for a visa. When they make that request they're going to look at the situation of this applicant they're well established, they have a job to go back to they've got a house to go back to, they've got family ties to go back to. These immigration officers they're pretty good at sensing that out and they will give a visa to a well established or a business man or a professional for example. They won't give a visa to for example a 22 year old or a 23 year old young man or young woman, single, who may very well come and make a refugee claim.
Danielle Smith: Then explain to me how our system couldn't have been the one they used in the U.S.? Why couldn't the U.S. do the same thing? Just have a visa requirement? Is it because the poorest boarder that people are just sneaking across?
Raj Sharma: A, there is a visa requirement. The U.S. does have a visa requirement to Mexicans now that's one. The other is that again their asylum policies may be less generous for example then Canada maybe Mexicans don't apply for refugee protection in the U.S. because it may not get accepted. There's been varied numbers as to how many Mexicans we accepted or whether they're objectively not well founded. So you had Chris Alexander or Jason Kenny call them bogus refugee claimants but you did see the numbers go up there. You did have probably about 20 25 percent acceptance rate of the Mexicans that made refugee claims. Indeed over the last 10 years, Canada's accepted about 6500 Mexicans and their dependents and given them permanent status as a result of successful refugee claims.
Danielle Smith: Can I ask you, if they're fleeing because of the drug war, are they saying "Hey I've been involved in drugs I want to now get out, please protect me." Or is it "There's such a criminal element in my community, I feel unsafe raising my children here." What do you need to have as a standard to be able to get a successful refugee claim?
Raj Sharma: Once again, we've got a little bit broader definition of refugee protection than the U.S. For example, section 96 where the convention definition of a refugee talks about a personalized risk due to [inaudible 00:06:41] persecution because of race, religion, [inaudible 00:06:46] opinions that sort of standard that we accepted post World War II. Canada also has ... we also give protection under Section 97 to people who can establish [inaudible 00:07:00] that there's a risk to their life and it doesn't sort of have this sort of component. For example, there is ... human rights violations in Mexico there are journalist that have issues, there are political sort of activist there are for example a union or labor activist and you know frankly, a domestic situation, domestic violence, we've seen some horrific cases involving women and abuse and just a lack of protection available to victims of domestic abuse.
Danielle Smith: Okay, that helps to explain it. Can you explain why the U.S. is so different though because if you've mentioned there some legitimate refugee claims, there's something else going on in the U.S. if they do truly do have 11 million people who are illegally in the country. They're they for economical reasons, they're there to be farmer workers or laborers or working in restaurants working under the table. What happens to that group of people?
Raj Sharma: Well, that's perhaps the million dollar question. There is something called, a safe third country agreement that we signed with the U.S. So basically if someone is in the U.S. they've got to make a refugee claim there first. If someone arrives in Canada, they've got to make a refugee claim here first, they can't go forum shopping. We say people that were in the U.S. for decades for example perhaps moving a refugee claim or [inaudible 00:08:22] and then just coming up to the boarder and making another refugee claim in Canada. So the safe serve country agreement tried to put a stop to that.
Now the Mexicans oddly enough, the safe third country agreement will not prevent Mexicans from making refugee claims at the boarder, even if they've been living in the U.S. for years or decades.
Danielle Smith: Is that presumably because they haven't made a refugee claim in the U.S. They're just working there illegally, so we would be the first refugee claim they were making?
Raj Sharma: No, whether or not they make a refugee claim in that country is irrelevant to the operation of the safe third country agreement. One of the exceptions is that the U.S. has a visa requirement for that ... those nationals and we've dropped that visa requirement for those nationals. That's peculiarly one of the exceptions to the safe third country agreement. Another one is that if you sneak into the country and make a refugee claim in land, the safe serve country agreement doesn't apply to you either. So we have these demands where we're seeing hundreds of individuals crossing the Manitoba border, Ghanaians, one man's going to lose basically all of his fingers. He was ...
Danielle Smith: All because of ... from frostbite, I think we were reading about that in the last couple of weeks.
Raj Sharma: That's right. He has been denied protection in the U.S. so he risked a seven hour journey through knee deep snow to make a refugee claim inside Canada because if he had made that claim at a port of entry or a land crossing they would've turned him back.
Danielle Smith: Okay, I want to talk about international refugees in a minute but let me just ask you one last question. Because I'm reading Trumps executive order, he is saying that in executing faithfully the immigration laws about ... of the United States, he seems to want them to have enforcement priorities and he's pretty clear about what the priorities are. Anyone convicted of a criminal offense, anyone charged with a criminal offense, anyone whose committed acts that constitute any chargeable criminal offense, anyone whose engaged in fraud or made a ... in connection with an official matter before a government agency, anyone whose abused the access to public benefits they are all subject to a removal order. So he sounds to me like ... And also anyone who is a risk public safety or national security. So it sounds to me like his first order of business is getting rid of the bad guys, getting them out of the country. Which is why I'm still trying to figure out if people sort of proactively worry that he is going to go after the farm workers, and the laborers if their just going to start steaming up to Canada. Or if how we should be preparing for that?
Raj Sharma: Well, I think there's a couple of things. First of all, President Obama deported the most number of aliens so President Obama is the deport-ator in chief so to speak. The priority on criminality has always been there, and been there for the last 8 years or so. Just on a side note Danielle, it's a little bit interesting, if you don't have authorization or status in Canada your foreign national here and you commit a crime, legally we can't even remove them until the criminal charges have been resolved. People might be a little bit surprised to hear that.
In terms of the outcomes, CIC is predicting thousands of Mexican refugee claims and the lifting of the visa and of course these claims ... they're estimating potential cost to Canada of above 270 million dollars per year. That wouldn't offset the increase in tourist dollars, only about a hundred million dollars or so.
That's one issue that might arise. That may be offset by some solutions, I was proposing just increase the visitor visa fee requirement on Mexican nationals so that we can at least cover up the cost of expected and foreseeable increase to refugee claims and obviously the burden [that would] put on public system.
Danielle Smith: Right, so you get at least a source of revenue from it. But again it may be that it's not that ... that they wouldn't be arriving directly from Mexico. It may be that they are goin to make their way up through ... by land through America.
Raj Sharma: I think that likely. Now bear in mind, there's significant cultural and other ties that a Mexican or an illegal alien in the U.S. from Mexico or those countries. There's significant ties to keep them in the U.S. and that could be just cultural or just the sort of ... it could be family ties for example. It's not that they're gonna ... All of these millions of individuals are going to come up and start making claims at the boarder.
Danielle Smith: Got it. It may go back to the levels that we say before, the 10,000 at the peak.
Raj Sharma: That's right.
Danielle Smith: Got it. Okay, lets see if we can talk ... and I know it's speculative because we're still waiting for it but the New York Times received a leaked version of the next executive order everyone's expecting coming.
The board brush stokes is they want to suspend for 90 days all refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, and then they want to indefinitely block Syrian refugees, so no time limit on that. They want to ban all refugees from the rest of the world for 120 days and then when they've reoriented and reopened they want to reduce their total refugees from 110,000 which they currently take in to only 50,000. That's sort of what they're expecting, and I think in addition there is going to be some crack down on sanctuary cites, but I think that might be related to the other one. This is a pretty dramatically different turn that the United States is taking on the position of refugees then what our government is taking here. I mean our government brought in 25,000 Syrian refugees fast track. The [inaudible 00:14:02] have now been targeted as a particular ethnic group that we want to bring over so that they can avoid genocide so I think those individuals just started arriving last week. I think we've heard the immigration minister talk about opening up to another 50,000 Syrian refugees. I'm thinking this is putting us in potential conflict with the direction of the new Trump administration.
Raj Sharma: I think so, a lot of people have asked and I have been asked whether ... what role Canada has to play in terms of U.S. policy. Tails rarely wag dogs, and the reality is that the U.S. experience is different then the Canadian experience. In terms of immigration generally speaking, there's very much more of an enforcement sort of mind-set... and again look lets ... In all fairness the U.S. is like Jupiter, U.S. is the massive gravitational field sucking in all of these sort of asteroids or whatever else. We've been very lucky, Canada's been able to ... Our immigration policy and the way we select immigrants, and that's what we actually do, we select immigrants instead of immigrants selecting us. The vast majority of immigrants we select and we have language proficiency and education and work experience requirements. The U.S. has not been able to do that because the porous border ... and those ... Our immigrants aren't necessarily competing with native born or Canadians in terms of these jobs at the lower run. Whereas individuals in the U.S. and ... and by the way this is the reason for Brexit.
In the UK they expected 60,000 Polish immigrants and they got 600,000. Those Polish immigrants, under the EU, had the right to work in the UK and they were competing directly against native British people for those type of [..] truck driving job. When they are driving down the wages for the native born and that really gives rise to nativist sort of sentiment and to immigration resentment.
I met with the previous minister of immigration and they're talking about increasing immigration. I said, look there's going to be blow back if you increase immigration without a rational connection or explanation. We've been very very lucky, Canada's very very welcoming because we select the majority of our immigrants and we don't let foreigners select Canada.
Danielle Smith: Is there any danger though, that if the Trump administration perceives the people are going to use Canada as an entry point to get into the Unites States, that we may face some kind of border controls or sanction?
Raj Sharma: I don't think so, I think it really is fortress North America with the [inaudible 00:16:46] of Canada of the U.S. For example, we've agreed [inaudible 00:16:50] all of their demands. President Obama wanted exit control in place to Canada and we gave them that. We're going to have exit control in place by 2018. Bear in mind Danielle, we ... Canada tracked people entering Canada, we never tracked when those people left Canada. One of the requirements that the U.S. had, probably legitimately, and it's going to cut down on citizenship fraud and residency fraud here in Canada is that we are now going to track when people leave Canada. So that's good. We are part of the Five Eye's, the group of Five Eye's so we share a massive amount of intelligence with the U.S. and the UK, Australia and New Zealand. We have our criminal databases are shared, our immigration databases are quite a bit ... are shared, they know when someones made a [inaudible 00:17:38] application to Canada and we know when someones made a [inaudible 00:17:43] application to the U.S. for example.
Danielle Smith: So, there's lots of ...
Raj Sharma: We're cooperating and collaborating and I don't ... Yes, if the Trump administration wants us to change something we probably will.
Danielle Smith: Okay. Raj Sharma I'm sorry we're going to have to leave it there but you've been a wealth of information I sure appreciate your observations today.
Raj Sharma: My pleasure!
Danielle Smith: That was Raj Sharma who is a Calgary Immigration Lawyer. There you are. Potential issues that we're going to have to deal with but also some solutions that have already been put into place. Do stay with us, news is next.
A transcript of my discussion with CBC Calgary's Rob Brown follows.
Rob Brown: One of the biggest protests over that travel ban was in Toronto today. Demonstrators gathering outside the US Consulate to condemn Donald Trump's controversial decision.
Demonstrator: This is what democracy looks like!
Demonstrators: This is what democracy looks like!
Demonstrator: What does democracy look like?
Demonstrators: This is what democracy looks like!
Rob Brown: The US President signed the Executive Order on Friday, late Friday. Protestors say many refugees stuck in airports are being turned back to dangerous places because of their religion, their language, or their skin color.
Still not entirely clear what this travel ban means for some Canadians, so to help clear up some of that confusion, I'm joined now by Calgary immigration lawyer, Raj Sharma. Pleasure to welcome you back to the show.
Raj Sharma: My pleasure.
Rob: Let's start with what you've heard from Dr. Farouk [ph] there. In his concerns about entering the US, what would you advise him to do?
Raj Sharma: Frankly ... I share those concerns. I think a lot of Muslims are [experiencing] sleepless nights. I think in Canada, and after, of course, Quebec city, I think Muslims are experiencing sleepless nights in North America generally. And he's right. It's a normalization of hatred, and this is a discourse that politicians have been engaged in in the US, and it's a discourse that politicians are engaging in Canada as well. What would I tell them? As someone who deals with immigrants and refugees all the time, and growing up just like he did in Canada? Frankly, I think, it's a very very sad day. It's a very sad day for a number of reasons. The United States was a economic, scientific juggernaut for decades because they attracted the best of the best. Whether you're from India, or Iran, or China, or wherever you were from, you would want to go to the US. The beacon, the pinnacle. Where you would be able to-
Rob: And now?
Raj Sharma: And now I think a lot of individuals are gonna have second thoughts.
Rob: So you're advising clients not to go to the US?
Raj Sharma: I'm advising my clients ... And again, if you put it in the context of the last 72 or more hours, if you're a Green Card holder from a Muslim majority country my advice is stay put in the US and apply for American citizenship. If you're a permanent resident of Canada and you're from a Muslim majority country, not just one of those seven countries, my advice is to stay put and get Canadian citizenship. If you are ... Any other reason for example, I mean, bear in mind Rob, they stopped in Iraqi interpreters. People that put their lives on the line to help Canadian and US forces, who got SIV visas, Special Immigrant Visas, they were harassed. They were detained at airports over this weekend.
Rob Brown: It's so unpredictable. That's the point.
Raj Sharma: I don't know what to advise my Muslim clients, but my advice would be to ... Yeah, second thoughts is probably what my advice would be right now.
Rob: You mentioned seven countries. I want to list them: Libya, Sudan, Somalia, Yemen, Iraq, Iran and Syria. So a Canadian who may have dual citizenship any one of those countries, and Canadian citizenship, obviously being Canadian, are they still allowed in the US right now?
Raj Sharma: Well as of right now, yes. But as of 48 hours ago, no. And so again, as a lawyer, what advice do you give clients? There's no certainty right now. These are all turbulent waters. These are all muddied waters. And so on Friday, this came up, this Executive Order, and it seemed to apply to Canadian dual nationals, it seemed to apply to Canadian permanent residents. And by Saturday, okay, it may or may not apply. And by Sunday, okay, it doesn't apply. So how do you give that advice, and what's next if this is what happened within week one of the Donald Trump Presidency? We've got three years and 51 weeks to go. What's the next country that's gonna be on the list? Is Pakistan next on the list? Reince Priebus indicated that it might be on Meet the Press this weekend.
Rob: The point is we don't know. We're gonna have to leave this chat there, I expect we'll continue to talk about it in the weeks, and months, years ahead, you illustrated. Thanks Raj. Nice to see you.
Raj Sharma: My pleasure.
It has been mere days since Trump took the oath of office; just a few rotations of this celestial body as it orbits around our Sun and much has changed already.
Trump has carried out his promise to ban Muslims - albeit temporary, and from just 7 countries (coincidentally none of them have a Trump business presence).
A fish rots from the head down and I have little doubt the sentiments and (unfounded) suspicions against immigrants and refugees that Trump enunciates ad nauseum will permeate throughout US immigration decision makers and those that execute policy.I discussed the consequences for Canada of an anti immigration US president with Vice.
I know that we will see increased deportations from our giant neighbour to the South. Some of those facing removal or now living in fear and anxiety will look to Canada for relief, for succor. One consequence will almost certainly be an increase to refugee claims, or at least attempts to access protection here. One of the impediments to those fearing persecution and living in the US with its rapidly changing attitude towards refugees and asylum seekers is the Safe Third Country Agreement. This forecloses making a claim at a (land or border) port of entry for those already in the US subject to some exceptions. One exception is to make the claim in-land; the STCA will encourage individuals to make a potentially perilous and unauthorized entry. Some have tried already, including Ghanaians that risked a perilous, 7 hour hike across the US-Canada border. One will likely lose all of his fingers to frostbite.
Another consequence of Trump, particularly because of his success, are the noxious copy-cat politicians and alt-news and right wing media that have arisen here almost overnight, like mushrooms energized by fresh excrement. Think of the nasally, charisma challenged Kellie Leitch, who heretofore never expressed any concerns as to immigration policy (according to Jason Kenney himself) and her flawed polygraph test (widely understood as targeting brown people) and jowly, serial prevaricator, lawyer-that-turned-in-his-bar-card "Rebel Commander" Ezra Levant and his merry band of provocateurs.
On the other hand, here may be some advantages; Canada might benefit. If H1B knowledge workers are turned aside they and the companies that employ them might set up shop here.
Is there anything that our Prime Minister can do? I don't think so. Neither coercion nor persuasion. Tails rarely wag dogs, and what 35 million strong Canada thinks means little to the colossus next to us. That being said, perhaps one concrete (but unlikely) action might be for Canada to walk away from the Safe Third Country Agreement. Another may be to lift the 12 month ban on making humanitarian and compassionate applications after a failed refugee claim. A third might be to create a special, temporary class for the "Dreamers" individuals that came to the US as kids, are educated there, have no criminal records, have done nothing wrong.
Update: Since that post, there were a number of developments, sound and fury, and the dust has finally settled on the Friday announcement of a #muslimban Here are my thoughts, shared with Globalnews here in Calgary and in Edmonton: