Raj Sharma's Canadian Immigration Blog

Merry Christmas!

Just wanted to post my best wishes to my readers and of course thank all of my clients for allowing me the opportunity to assist them this past year. 

The work this year included: removal order appeals based on criminal inadmissibility and misrepresentation, submitted PRRAs, NAFTA TN applications, refugee hearings, family sponsorships, spousal appeals, work permits, emergency stay application before the federal court and both overseas and inland humanitarian and compasionate applications. I've been with clients that have been interviewed by the Canadian Security Intelligence Service (CSIS); and attending at detention reviews to secure the release of my client in immigration custody. Surprisingly I also attended before a criminal court for a bail hearing for an unfortunate charged criminally under IRPA. 

A number of TRP applications were done to allow clients who were otherwise inadmissible to Canada to enter and either transit through here or remain here. 

Quite a few applications for leave and judicial review were filed late this year. I've just received leave from the court for a refugee refusal involving article 1fa - war crimes. The hearing will be in March and I am looking forward to appearing before that court. 

One application I am working on now is to obtain status for a victim of human trafficking. 

Another memorable experience was traveling to Montreal in August to appear on behalf of my client where the Minister was making application to vacate his refugee status. A decision is still pending on that matter. 

Its clear that immigration enforcement has received new impetus and priority. As a result I am anticipating more charges under IRPA, more inadmissibility reports, more removal order appeals and consequently more requests for exemptions under s. 25 of IRPA. Its been a challenging year and feel a great deal of personal fulfillment for assisting my clients. 

Cheers! 

IRB Resources

Process for Making a Refugee Claim.

Admissibility Hearing Process.

Detention Review Process.

Sponsorship Appeal Process

Residency Obligation Appeal Process.

CSIS involved in wiretapping solicitor-client conversations

I was at Goodwin McKay's Christmas party last week and ran into Kelly Sundberg, formerly with the CBSA. Kelly is now a PhD candidate and an instructor with the Department of Justice Studies at Mount Royal College. He also has a forthcoming book discussing the changes in Canada's border security (due out later this next year). 

All the lawyers there were commenting on the new 'enforcement' first mentality of the CBSA, and the increase in IRPA prosecutions and investigations. Everyone had also mentioned the number and increase of occurrences where client documents sent to their offices from abroad was opened and examined by CBSA. 

An interesting, and disturbing article in the Toronto Star indicates that CSIS has been monitoring conversations between lawyers and their clients (in this case, those under the Security Certificates). Dennis Edney has contacted the Public Prosecutions office to determine additional details. 

WebValuer.org ...

I came across Webvaluer.org, an interesting site, when I was checking out WebWorkerDaily. It essentially "values" your site. Comparing my blog with the web sites of various Calgary law firms was interesting. Here's my valuation:

My site is worth
$1,018

Here's the valuation of Burnet Duckworth & Palmer, with over 100 lawyers and an online presence since 1995:

My site is worth
$615

Here's the valuation of Bennett Jones:

My site is worth
$231

The internet appears to live up to its reputation as the great equalizer - allowing innovative businesses who can provide on-line value and hold their own against much larger firms.

Detention Review

Preventive detention should be exceptional means of restraint in a society such as ours. In certain circumstances, foreign nationals can be placed in preventive detention if there are grounds to be believe that they are a danger to the public, or unlikely to appear for a further examination. Individuals held in immigration detention are usually placed in the Calgary Remand Center.

I was at Harry Hays earlier today to secure the release of my client, who was the subject of a valid removal order. In his case, removal could not have been effected in the foreseeable future, and alternatives to detention existed (such as the posting of a cash bond, and weekly reporting conditions).

The release was secured with some difficulty however. This has not been my typical experience, and anecdotal information suggests that the enforcement activity of the CBSA has increased in recent weeks. The anecdotal information included one Immigration Division Member commenting that these last 2 weeks have been the busiest in his 25 plus career. 

Detention reviews are interesting affairs, and take place with minimum notice and the Calgary practice entails the CBSA Hearings officer reading in 'evidence'. There are no rules of evidence as understood by the criminal courts, which is disconcerting. 

Federal Court Appearances

I've appeared before the Federal Court on a number of occasions.

I was going through some of the reported decisions, and remember the work that was involved in getting them before the Court. I find Federal Court practice very challenging, and very rewarding.

One of the more memorable cases was Swarn Singh Sandhu v. Canada (MCI) [2005] FCJ No. 1294, where we were successful in having the decision of a visa officer set aside, largely on the grounds of 'inadequacy of reasons'.

Mr. Sandhu attempt to sponsor one of his two children was forestalled because of the operation of 117(9)(d) of the Regulations (essentially, by failing to list him as a 'dependant' child on his own application for permanent residence).

Another case, Sarkis v. Canada (MCI) FCJ No. 756, involved the breach of residency obligation by a permanent resident, and a negative decision of the Immigration and Refugee Board, which oddly found little hardship in returning the appellant to her country of nationality (Iraq, as I recall, and not Jordan as indicated in the Federal Court judgment) and finding another viable country of return as Libya (where she had no status).

In Kaur v. Canada (MCI) FCJ No. 1306, the applicant's status as a widow from India was a central element of her claim for refugee protection. Corroborative evidence was provided post-hearing, but was not referred to (in fact, the decision seemed to indicate that the evidence in question was not provided) in the decision. While it was highly fact specific, the decision is disturbing as it indicate the very serious consequences flowing from a flawed decision (which can only be rectified by the Federal Court, which is no appeal - leave must be obtained, and is rarely given). What was especially strange here, was the fact that while the Board itself characterized the evidence as 'central', Respondent's counsel (the Department of Justice) reiterated that it was instead, peripheral (at odds then with the decision maker who had the benefit of hearing viva voce evidence and is 'specialized' in refugee determination). The Federal Court decision is brief, but to the point.

Appeals from a refused spousal sponsorship

When a spousal sponsorship (overseas) is refused, it is generally on the basis that the relationship is not genuine or was entered into primarily for the purposes of immigration to Canada (otherwise known as a "marriage of convenience"). The statutory language is contained at s.4 of the IRPR Regulations:

4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.

The sponsor is provided a refusal letter along with a notice of appeal. After completing this notice and attaching the refusal letter, the sponsor is to file the notice of appeal with the appropriate registry office of the Immigration Appeal Division. After 120 days of the filing of the notice of appeal, the sponsor is provided with the appeal 'record' which contains all documents before the visa officer (including the sponsorship application, and the CAIPS notes and decision of the officer). 

Unfortunately, an appeal can take as long as a year to be heard in the western region. 

The IAD will deal with the evidence of the appellant - and importantly, attempt to ascertain the intention of the applicant. I generally call both the appellant and applicant (via telephone) to provide viva voce evidence. 

(Note I took the s.4 excerpt and the one below from the IAD decision in Glen v. MCI [2008] IADD No. 604). Most IAD decisions are extremely fact specific, but it's useful to know the factors considered by the Board:  

In considering whether a marriage is genuine and whether the "bad faith" section 4 of the IRP Regulations applies to it, the Immigration Appeal Division (IAD) tends to look at a number of the same factors. However, these factors are not identical in every appeal as the genuineness of the marriage can be affected by any number of different factors in every appeal. The factors considered can include, but are not limited to the:

• i) intent of the parties to the marriage;
• ii) length of the relationship;
• iii) amount of time spent together;
• iv) conduct at the time of meeting, engagement and/or the wedding;
• v) behaviour subsequent to the wedding;
• vi) knowledge of each other's relationship histories;
• vii) levels of continuing contact and communication;
• viii) provision of financial support;
• ix) knowledge of and sharing of responsibility for the care of children brought into the marriage;
• x) knowledge of and contact with extended families of the parties, and
• xi) knowledge about each other's daily lives⁹.

IELTS and skilled worker immigrant class

I've been approached by a couple of rejected applicants under the skilled worker class. These individuals chose not to submit an IELTS exam and decided instead to provide other documentation to establish their language proficiency. Where the applicant is from a non native English speaking country an approved language test ought to be provided because it takes the guesswork out of determining the applicants score. A refusal based on language proficiency established by other evidence can be reviewed by the Federal Court. Its an expensive route to remedy a refusal but given the fact that most applications have been in process for years, immigrants have a lot invested. Sent from my BlackBerry® wireless device

All work and no play...

At the hockey game between the flames and dallas. Couldn't resist a post. Perhaps knowledge of our national game is useful to prospective immigrants? Sent from my BlackBerry® wireless device

Skilled worker - ministerial instructions

The recently announced ministerial instructions regarding the skilled worker immigrant class may be short lived.

If the current government falls (which is a distinct possibility) these 'instructions' will not govern the handling of new applications received under this class.

Troubled times for immigrants

As I've said many times in the past, immigrating to another country is not easy.

As the son of immigrants, I saw it first hand. There were more struggles before my birth, and my parents provide me with great perspective and insight into the lives of new immigrants.

This Toronto Star article discusses the difficulties for an immigrant family. Both primary wage earners lost their jobs. Both are struggling to adjust.

Excerpt:

When layoffs scatter workers, as they have with mounting frequency, immigrants are left facing the same problems as their Canadian-born counterparts. But they have additional hurdles, too. Before they can train for new careers many must improve their English. Another complication: Immigrants often find work through community or family relations, which means a husband and a wife, a cousin and an uncle may all become unemployed in one devastating swoop.

For many of these families, it is a time of unforgiving firsts. First employment insurance cheques, first resumés and interviews, the first time filling out government funding forms. The first time forced – thrown, really – into a job market dominated by service-sector work.

For generations, immigrants could find jobs that required few skills, yet gave them a middle-class lifestyle.

That door is closing.

The Sainis plod into the unknown with quiet dignity. They are willing to do whatever it takes. They will be patient. They will not forget to laugh, even if the laughter is often closer to a nervous giggle.