Calgary Immigration Lawyer Raj Sharma, a former immigration hearings officer and now partner at Stewart Sharma Harsanyi, one of Western Canada's premier immigration law firms, reviews Canadian immigration developments.
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.
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.
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
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.
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.
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"):
Escorcia - applicant was excluded. He was chief of intelligence with D.A.S. which was directly responsible for murder etc.
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..."
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.
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.
Murcia - application allowed - "considerable confusion" in the evidence whether applicant was at places at time of atrocities.
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).
Herrera - application allowed. The Colombian army not of "Limited/Brutal Purpose" Served in Reserves.
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.