Raj Sharma's Canadian Immigration Blog

Is the IRB independent?

Is the IRB independent?

Recent comments and actions by the immigration minister raises the spectre of executive interference in the operations of the IRB.

Kenney commented on the merits of claims from the Czech Republic and Mexico. This despite the high success rate of claims by Roma and evidence of societal discrimination and racism against the Roma minority.

His department has now sought judicial review of a IRB decision granting protection to a white South African, Brandon Huntley. Huntley's lawyers argue that this was done because of political pressure from the South African government.

Kenney has power to both appoint and reappoint Board members. Is it a great leap to presume Board members may face either an overt or implicit pressure to toe the line?

The independence of the courts has been recognized for centuries. There is no essential difference between a court and a tribunal like the IRB. There must be freedom for a decision maker to hear and decide the cases that come before them from any interference.

Unwarranted deference for Canadian Refugee Adjudication

I've finally completed my Major Research Paper (MRP) for my LLM. It's the final requirement for the degree. It was a great relief sending the draft to my supervisor this morning. The MRP is entitled "Unwarranted Deference to Canadian Refugee Adjudication" and discusses the issues facing the RPD.

To some degree, the RPD is hampered by legitimacy in decision making - RPD Members are often appointed based on patronage. The deference/respect shown to decisions of the RPD by the Federal Court is to some extent unjustified given the absence of the Refugee Appeal Division and the difficulties facing refugee adjudicators, including claims based on sexual orientation. While policy considerations exist in favour of wide judicial deference, justice must be obtained at the first instance and not in an after the fact judicial review exercise. Justice should not be denied because too many ask for it, or that its too expensive.

Immigration hearings

It'll be a busy December. Scheduled hearings include refugee claims against Burma, Colombia, Iraq, Romania, Somalia and Haiti.

Each claim type has challenges. Somalian claims for example typically lack identity documents. Haitian claims are typically complicated by long sojourns in the United States which results in a significant passage of time which tends to minimize the perceived risk to the claimant.

Burmese claims tend to be strong ones. The military junta brooks little dissent and the claim could succeed as a sur place one.

I'm also looking forward to the Iraqi claim which raises a well founded fear of persecution or risk to life based on religious persecution.

Interesting article at the National Post ... an Ontario court case seems to indicate that sponsor's who's relatives default (receive social assistance/benefits) may not automatically be required to pay back the funds to the government. This despite the very clear Sponsorship Agreement which forms part of any family class sponsorship application requiring sponsors to be responsible for their relatives. It seems that about 5,000 sponsored immigrants apply for social assistance (in Ontario at least). Some critics have commented on the administrative hurdles in setting up 'case by case' assessments of which sponsors should be required to pay and which should not.

I'm all for due process, but there are some circumstances and situations that call for sympathy. For example, if someone sponsors a husband or wife, and is the victim of marriage fraud, they should not be responsible financially when/if that individual accesses social assistance.

At least 1500 war criminals in Canada

A Quebec court has sentenced a Rwandan man to the harshest penalty possible under Canadian law.

What is relevant for the purposes of immigration law and policy is that the Rwandan national, Désiré Munyaneza, arrived in Canada and attempted to claim refugee protection, which was refused.

Having worked at the Refugee Protection Division, I came across others that should have faced charges in Canada for their activities. This did not happen. I once come across a self-professed leader of the Sipah-e-Sihaba - a banned terrorist organization in Pakistan. Strangely he alleged persecution from victims of the group in his attempt to seek protection/asylum. In this case, the claim was clawed back and sent to an admissibility hearing. I do not know what became of the SSP leader, but hope that he was removed from this country. 

It seems that 1500 war criminals or others that abuse human rights are in Canada. Included in that number may be convicted terrorists such as Parminder Saini, who is now seeking admission to the Law Society of Upper Canada. 

While I applaud the fact that justice has been served in Munyaneza's matter, it is disconcerting that there are so many others, known and unknown, that continue to reside in this country after participation in heinous acts abroad.

Refugee News

National Post has an article on the murder of a rejected refugee claimant from Mexico.

One wonders what Jason Kenney has in mind for the refugee reforms (article here) but some educated guesses would have to include fast-tracking refugee claimants from certain countries and additional decision making responsibilities for tribunal officers (see also the National Post article here).

Any reform would have to address the current system which encourages bogus refugee claims. In essence, the economic benefit of a refugee claim includes the ability to remain in Canada and work for years. Getting to a quick yes or a quick no is good for genuine refugee claimants that can establish their claim for protection and good for Canada which can effectively and efficiently remove individuals and preserve the integrity of the immigration system of this country.

Marrying for immigration

Just finished watching the w5 news program on immigration marriage fraud.

Julie Taub, an Ottawa immigration lawyer, suggests that immigration law be changed to grant only conditional status in Canada to the sponsored spouse. I'm not sure I agree. This could result in abuse and coercion as well - a method of control by the sponsor over the immigrant spouse.

Immigration minister Jason Kenney is indicating changes and reforms are imminent. To some degree I am in agreement with what Kenney stated. Individuals need to be responsible for their own choices. Immigration to Canada is a significant benefit and could be an incentive to unscrupulous individuals. As a result, sponsors need to take appropriate precautions.

As it stands visa officers test the bona fides of a marriage by way of an interview of the sponsored spouse. This may be insufficient to protect duped sponsors or the integrity of the system. Given the actions of unscrupulous immigration consultants (Pinnacle Immigration was captured on video by w5 discussing a sponsorship for 40000) and the plethora of fraudulent marriages perhaps follow up interviews should be done by immigration after the immigrant spouse arrives in Canada.

The more things change...

A boat load of illegal immigrants has arrived on the west coast resulting in calls for changes to Canada's laws. Sound familiar?

According to the Globe and Mail, Canada will take a "hard line" with these individuals, believed to be Tamils from Sri Lanka. 

10 years ago, and slightly before my time as a refugee protection officer (formerly known as a refugee hearings officer, and now known as a tribunal officer) a boatload of Chinese migrants evoked similar concerns. 

In 1914, almost 100 years ago, the Komagata Maru sailed into Vancouver Harbour to meet a chilly reception. Forcibly returned to India, despite being citizens of the British Empire, 20 people were killed by the British there. 

What separates this society from the one in 1914 is due process. Allow the specialized immigration tribunals to do their job and determine whether these individuals pose a threat to Canadian society, should be removed or are deserving of our protection. Calls for a 'hard line' are premature and only evoke earlier responses that were rooted in our fear of those different than us. 

An Interesting Week before the IAD

I was before the Immigration Appeal Division on two separate matters involving appeals by permanent residents.

The first involved an appeal against a removal order by a permanent resident who was inadmissibile on the basis of serious criminality. Having arrived in Canada from the UK when he was three, my client amassed a number of convictions.

Interestingly, the appeal was postponed when the issue of my whether my client had an ability to apply for and receive Canadian citizenship. Due to changes to Canada's citizenship laws this year, the client may be entitled to retroactive citizenship as he is a first generation Canadian born abroad - his mother was born in Canada, and while my client was born outside Canada, he may be entitled to citizenship.

The second appeal involved my client who had sponsored her parents and her brothers almost 7 years ago. The sponsorship was refused because her father was determined to be medically inadmissible. That finding was appealed to the IAD, but tragically, before the hearing, the father passed away. Strangely, the Minister, instead of conceding that the remaining family members have a right for their applications to continue, opposed the appeal and a determination by the IAD member to send the matter back to the visa office for continued processing. The IAD reserved the decision, but I cannot imagine a contrary result for my clients.