Raj Sharma's Canadian Immigration Blog

Loksat radio program

Just finished a radio interview with Dan Sidhu on FM 94.7 on the topic of inadmissibility and removal of permanent residents from Canada. The interview was mostly in Punjabi and in a call in radio format.

'Appealing' a decision

The media tend to simplify the legal process. An application for judicial review is not an appeal on the merits but merely a request to the court to review a decision to ascertain reviewable errors.

Reprieve and the Federal Court

I am currently working on a Federal Court application in respect of the dismissed appeal of my client. An application to the Court is not quite a reprieve, but offers an individual an opportunity to review administrative action.

Immigration Marriage fraud

Just watching Jason Kenney on Canada AM discussing immigration fraud - using marriage to a Canadian citizen or permanent resident to gain entry into Canada. Kenney indicates that emphasis is on prevention. Kenney points out the in depth immigration interviews. These officers have to balance the integrity of the system vs possibility of keeping a genuine couple apart. A jilted bride is on Parliament Hill in her wedding dress to bring attention to this matter.

Ian and Me

Live blogging the CBA immigration and citizenship conference

Workshop on detention reviews. Interesting presentation. The panel, which includes Leann King, a member of the Immigration Division, is a mock detention review proceeding using an actual transcript. Waren Creates - who has written a paper 'detained and terrified'- has brought up a good point regarding providing an affidavit or information about bonds persons and their relationship with the detainee, where the detainee would be residing after release, their particulars and details of assets, and the level of suasion they have over the detainee.

Live blogging the CBA immigration and citizenship conference

This is my fifth annual CBA National Citizenship and Immigration Conference. I've had an excuse to visit Banff, Quebec City, Victoria, Niagara-on-the-Lake...and now Whistler. Next year it will be in Halifax and I'm looking forward to seeing that beautiful city for the first time.

Live blogging the CBA immigration and citizenship conference

Workshop: Criminality Redefined.

Used to be: looked at total period of incarceration including pretrial custody at the rate imposed

Now Mathieu - decided in non immigration context. Held that sentencing includes only actual sentence imposed does not include pretrial custody. Pretrial credit is not part of the sentence. Had profound potential immigration implications. Had potential to restore appeal rights to large class of permanent residents. Pretrial custody could be used to benefit.

However- IAD cases have limited Mathieu. Distinction between term sentence from punishment. Immigration law restored to pre Mathieu. Pre trial custody to be included in calculation. No benefit to pre trial custody. This may remain a live issue.

Someone has indicated that this issue is before the Federal Court.

Criminal counsel may remain unaware of immigration consequences to criminal convictions and sentences - or nuances to calculating term of punishment/sentence.

Integration and Tamil Canadians

Article today in the Globe and Mail about the protests by Tamil Canadians.

Live blogging the CBA immigration and citizenship conference

Its Saturday morning. Last night was a raucous affair involving a Sarah Palin look alike and Brad Hardstaffs band, I'm now taking in a workshop detailing the CEC (the Canadian Experience Class).

There are clear rationales and benefits to Canada. Reduced settlement costs is one.

Some policies to keep in mind:

-Work experience can be comprised of multiple part time jobs;

-Alternative evidence to confirmation of employment is possible;

-Self employment is not recognized;

-Generally Buffalo encourages a language test - but note test results are conclusive and cannot refute the objective assessment;

For the post grad stream:

-full time studies is defined by the particular institution;

-Work experience gained prior to obtaining the Canadian credential is not recognized;

-CIC processing: 8 months.

-CPC Vegreville should be willing to extend temporary status pending a determination.

-Estimates for CEC are 30000 per year. However curently not approaching this estimate.

-Can withdraw FSW.

-Police certificates can be provided after submission of the application.

-CEC has no substituted evaluation. It is a pass/fail system.

Note: Must meet requirements the day applicants apply. Also - note the language benchmarks and requirements which are waived for nationals of Australia, New Zealand, Americans and the UK. While the CEC appears straightforward there are still nuances and opportunities remain for counsel to provide value.

The inestimable David Matas

Live blogging the CBA immigration and citizenship conference luncheon

The Chair of the IRB is recognizing the contributions of David Matas by way of an Achievement Award. He has also been awarded the Order of Canada. Matas is eloquent in his acceptance. He sees the recognition as an affirmation of the importance of immigration law to Canada.

Live blogging the CBA immigration and citizenship conference

Workshop 2C: Representations on Misrepresentations. Vancouver counsel Gordon Maynard always presents well and has a depth of knowledge in this area.

Language of term 'withholding' in the act. Does it add a new duty of disclosure? Is there an obligation to volunteer information? Not limited to situations where no questions are asked.

Brooks. The 'grand daddy' case. 1974 SCC case. DOJ argument was that there was a duty to provide information even if unasked. SCC said if material, misrepresentation law was broad enough. Is still basis for misrepresentation cases now. Brooks argument: No intent to misrepresentation. SCC: no question of intent. Brooks argument: needs to be determinative. SCC: only needs to be material enough to close off a line of inquiry.

Maynard- 4 circumstances where duty to disclose:

1. When relevant question asked

2. When change of material circumstances (termination of employment...see Guidino...death of principal applicant...marriage of accompanying dependent - see Mohammad [1997] 3 FC 299- misrep includes error made in honest ignorance)

3. When a statute demands disclosure - see regulation 51 whidg requires disclosure at POE

4. Surrounding circumstances...even if no questions asked and even if no statutory duty - see Baro 2007 FC 1299 ...but cannot mean that every person at POE must spontaneously recite any possible fact that could have the potential to cause them to be inadmissible - are Brundell ID decision from Vancouver. Also see Bodine (2008) FC 848: duty of candour exists and surrounding circumstances important to determine disclosure Remember that disclosure has to be pertaining to a material and relevant fact.

It is clear the scope of what constitues misrepresentation is broad and there are serious consequences for a breach of this duty.

Live blogging the CBA immigration and citizenship conference

After a harrowing drive in last night arriving in the early hours of the morning, I'm now listening to the presentations for the morning plenary. Attendance seems solid but perhaps the conference is not sold out as in previous years.

It was nice meeting the members of the bar whom I haven't seen in some time like Evelyn Ackah, Michael Birnbaum, Michael Tilleard, Nico Breed, Michael Greene and Michael Sherritt, Peter Edelmann, and many others. I also bumped into Ross Pattee ADC and Ken Sandhu of the IRB.

I'm now listening to Lorne Waldman in plenary 1C 'recent decisions affecting your practice'. Commenting on Khosa: most judges felt it was within range of reasonableness but Fish felt it was not.

Key: have to satisfy that not within range of acceptable decisions. This fact that was ignored, misconstrued, this inference improperly drawn.

Leigh Taylor from the DOJ feels that court will overturn if injustice apparent. Use language of court but focus on facts.

Justice Snider. Deference here to stay. If appearing before federal court and trying to overturn decision must focus on decision of tribunal member and say that decision is unacceptable. Show that the particular decision is unreasonable and why. Addressing counsel for tribunals: Standard of review is not the issue. The issue is the reasons.

Waldman noted a pet peeve - the tendency of the DOJ to file affidavits after the fact; buttressing weak decisions with follow up affidavits.

Now...Taylor discussion re officers discretion regarding deferral of removal. Borone(?) appears to provide some guidance. Simoes and Wang. Concluded jurisdiction limited. Confined to travel, long outstanding H&C applications. Court firm that stay is exceptional. Deference warranted. Reasonableness standard for that decision.

Waldman feels that Borone doesn't change the law and that Simoes and Wang continues to be good law. Lesson: need compelling facts or timely H&C. Problem: counsel bringing stays that should not be brought to court.

The Access To Justice Award

Access to justice awards

I just attended and received the award at the Westin a couple of hours ago. I was supposed to be on a flight right now, but the powers that be have dictated otherwise - the flights been delayed an hour and half. Once we get in we'll grab a shuttle to Whistler. I've printed off the materials and will glance at them on the flight.

Jason Kenney

The Minister spoke in Calgary recently. He touched on the recent surge in Mexican refugee claims...but did not seem to acknowledge the situation in that country that is causing so many to flee: On a separate matter, Kenney said he's concerned about a growing trend of illegal immigration from Mexico that saw nearly 10,000 refugee applications from Mexican nationals in 2008, with about 90% of those applications rejected by the Immigration and Refugee Board. Reports have suggested there's been a spike in the refugee claims since Mexican airlines started direct flights to Canadian cities. Much of the increase in refugee claims has been linked by government officials to deadly drug wars plaguing Mexico. "It's just not fair. It's not right for people to jump on a plane, come here, and make a refugee application, even if they don't meet the definition of a refugee," Mr. Kenney said. "The vast majority . . . are actually trying to immigrate to Canada through the back door of the refugee system. I think that's unacceptable; that's basically queue-jumping."

Canadian denied right of return

In a web exclusive commentary at the Globe and Mail, Irwin Cotler, makes a compelling case for allowing Abousfian Abdelrazik to return to Canada. 

At the National Post, the cause has been taken up by Chris Selley at Full Comment, who makes the following points:

Yesterday, the latest chapter in the Sudanese-Canadian’s mind-boggling six-year struggle to return home unfolded as many had ruefully predicted. Having booked and paid for a flight to Canada, thus fulfilling the conditions under which the government had promised, in writing, to issue an emergency passport, the apparently destitute Abdelrazik was instead told he needed somehow to get himself removed from the United Nations’ no-fly list before the papers would be issued. Quite apart from the absurdity of the condition, Foreign Affairs itself had until recently been petitioning to have Abdelrazik’s name stricken from that list, citing all-clear verdicts from CSIS, the RCMP and Sudanese intelligence. Also, the blacklist doesn’t prevent anyone on it from returning home. Nevertheless, Mr. Cannon made it official yesterday: "I denied Mr. Abdelrazik an emergency passport on the basis of national security,” he said. No further explanation was forthcoming.

There is no such thing as absolute and "untrammelled" discretion in a rule of law jurisdiction (see Rand J. in Roncarelli [1959] SCC 121). Given that there is no obvious and apparent reason for the refusal to issue the travel document, is Abdelrazik being denied for some more nefarious reason? Is it because he's Muslim and/or Sudanese? 

Is the government acting in good faith given the reversal of various positions and offers made to Abdelrazik -- and most mind-boggling of all, the recent efforts by Foreign Affairs itself to have Abdelrazik's name removed from the UN no-fly list?

US waiver of inadmissibility and Canadian TRP and rehabilitation

The increase in database and information sharing between the US and Canada has resulted in old criminal records resurfacing and preventing travel between the two countries. For a US national with a criminal record seeking to enter Canada the solution is a TRP or an application for criminal rehabilitation. For a Canadian with a record seeking to enter the US, the answer lies in obtaining a waiver of inadmissibility. The waiver is not available for certain offences. In either case, its likely that the process will take at least several months.