Raj Sharma's Canadian Immigration Blog

Refugee claim

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

Fighting Deportation

Calgary Herald Article Here.

Excerpt:

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

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

...

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

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

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

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

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

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

Some of the comments are also interesting:

Jamie

 

May 22, 2009 - 1:58 PM

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

   

 

JRW

 

May 22, 2009 - 12:14 PM

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

   

 

my2cents

 

May 22, 2009 - 12:00 PM

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

   

 

frank

 

May 22, 2009 - 11:40 AM

 

 Send him back now. Maybe the lawyer with him

   

 

geo

 

May 22, 2009 - 10:26 AM

 

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

   

 

WHAT

 

May 22, 2009 - 10:16 AM

 

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

   

Applications for Leave and Judicial Review

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

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

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

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

Ruby Dhalla and nanny gate

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

Labeling gang members

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

Colombian War Crimes/Crimes Against Humanity Research

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

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

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

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

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

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

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

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

Why hire us?

I realise that there are a number of options that can be availed when searching for professional representation. What sets us apart is not just our knowledge and experience in this area. Its personalised service; the file will not be bounced from one paralegal to another. This is not and never will be a 'factory'. Our clients and their future are paramount important for us. We measure our success by the results we obtain for the client.

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