Raj Sharma's Canadian Immigration Blog

"Former" terrorist wants to be a lawyer

"Former" terrorist Parminder Singh Saini has completed his undergraduate and legal education here in Canada and now seeks the permission of the Law Society of Upper Canada to practice Law in Ontario. 

Saini was convicted as a terrorist by a Pakistani court after he and his associates from the All India Sikh Students Federation hijacked an Air India flight to Delhi, forcing it to land in Lahore, Pakistan instead. Saini discharged a firearm in the commission of the offence, and his compatriots injured crew members with their kirpans. Sentenced initially to death by hanging, he was released after serving 10 years. Saini then entered Canada on a false Afghan passport and successfully claimed refugee status. CSIS detected the fraud within a year and Saini's status in this country has been, in essence, in limbo for over 14 years. (see this National Post article discussing the decision by the Supreme Court not to hear Saini's appeal in 2002). 

I put the word "former" in quotations because the pardon Mr. Saini has received in Pakistan was not accepted as equivalent to a Canadian pardon by the Federal Court of Appeal (see Canada (MCI) v. Saini 2001 FCA 311). 

As the Toronto Star article notes, few can doubt Mr. Saini's perseverance. Despite the fact that his own immigration status in Canada is tenuous (see Saini v. Canada (MCI) 2003 FCT 154 which appears to be the most recent Federal Court review discussing Mr. Saini), Saini has been fighting the deportation order and finding that he is a danger to the Canadian public for years. 

 Saini's situation is perhaps reminiscent of Maurice Sychuk's efforts to be reinstated to the practice of law (see CBC article here and the LSA Advisory indicating that the application was denied is here). At the end of the day, I suspect Mr. Saini's application will be refused not necessarily because he cannot show himself to be rehabilitated, but because his admission to the practice of law would undermine the legal profession as a whole. Lawtimes article here. As of today's date, the comments are not in support of admitting Saini to the profession.

Immigration reform

Just had a thought, while I was reading the UK Home Office country of origin information documents.

What if the IRB/RPD had a mandate to assess humanitarian grounds at the time of the refugee claim?

As it stands, individuals enter Canada and make a refugee claim which is heard in 18-24 months. After refusal, they can "appeal" the decision to the Federal Court, but generally file a humanitarian and compassionate application. This application is taking over 3 years to be determined in Alberta. Sometime during this process, the individual is presented with a PRRA - a risk assessment that takes place before removal. The success rate for this is low. The individual is therefore in Canada for years (perhaps more than 5) during which the refugee claim and H&C and PRRA are decided and before removal.

It's obviously hard on the individual to be removed after years and settling down in Canada, and would be more efficient that one process and one decision maker determines the substantive merits of granting status through the refugee/humanitarian route. This may result in a higher acceptance rate by the Board (but that would reflect a determination on both risk and humanitarian issues), but would address the concerns that individuals are exploiting the refugee and immigration process in Canada for economic reasons.

Somalia

Have a refugee hearing tomorrow. Country of origin is Somalia. While most Somalian claims have identity issues (the country has no functional government) and can't provide documents such as a passport, my client does have a birth certificate. He is from a minority clan and given the dynamics of the country would be at risk upon return. The most relevant document on country conditions is the UK home office country of origin paper.

Calgary Herald Editorial

Apparently the Calgary Herald believes the 'Refugee appeal system' needs an overhaul.

It's a little disconcerting when a major newspaper commits so many errors in an article that's probably less than 400 words in length.

Where to begin?

1. What is the refugee appeal system anyway? As far as I know, we don't have one.
2. Why conflate the situation of a Rwandan war criminal with that of Jackie Tran, a former permanent resident who's lost his status due to (ordinary) criminality? Is it intellectual dishonesty or intellectual laziness?
3. Jackie Tran is not subject to this unknown 'Refugee appeal system". His hearing was before the Immigration Appeal Division which has jurisdiction over all permanent residents facing a loss of status.
4. Contrary to the snide aside in the editorial, most refugee lawyers are not enriching themselves as a result of the 'system'.
5. Contrary to the editorial, 'control' of the borders has not been delegated to the borders, but to the CBSA.
6. The ability to review decisions made by individuals in accordance with legislation is a hallmark of the rule of law, and therefore advances the cause of justice and does not detract from it.

There may be legitimate concern at the delay in removing a war criminal from Canada - but confusing the public by spouting off on a fictitious 'refugee appeal system' and conflating the situation of a war criminal with that of a permanent resident facing removal is simply bad journalism.

If the writer of this piece had any concern with respect to responsible journalism, he or she would have spent some time in understanding the role of the CBSA, the various divisions of the Immigration and Refugee Board, and the Federal Court. Instead, this poorly researched and presented editorial detracts from the legtimately goal of an informed public.

Interview: Section 44 Report

Just attended an interview with my client with CBSA pertaining to an allegation of criminal inadmissibility. The Officer has discretion in terms of whether writing a report (s.44 report) and discretion in whether or not to recommend a referral of that report to the Immigration Division of the Immigration and Refugee Board. The interview canvassed a number of areas, but started off with the basic 'tombstone' information, such as the legal name, address, employer, date of birth, place of birth and whether the client has applied for Canadian Citizenship. 

Questions also included: 

• Employment history 
• Family in Canada and in the country of nationality/origin 
• Assets/Liabilities and whether the client had received social assistance 
• Education 
• Travel history 
• Language ability 
• Employment/Job skills 
• Breach of previous probation 
• Details of criminal convictions and circumstances of each offence 
• Treatment/programs taken 
• Health condition 
• Rehabilitation/what's to prevent relapse into criminal behavior 

In this case, while the seriousness of the offence is not a factor in my client's favour, his time in Canada, and his family (including a 2 month old child) may persuade the officer to exercise positive discretion in this matter. I will make written submissions and will likely seek a psychological report to underscore the client's rehabilitation in this matter.

Alberta Immigrant Nominee Program - Family Stream Changes effectiveSeptember 14th, 2009

Changes to the AINP family stream have been announced.

---

From: Pnp Office

Date: Mon, 14 Sep 2009 10:21:24 -0400
Subject: Alberta Immigrant Nominee Program - Family Stream Changes effective September 14th, 2009

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Please note the Alberta Immigrant Nominee Program (AINP) has introduced changes to the AINP –

Family Stream

effective September 14^th, 2009.  The changes announced on September 14^th, 2009 include changes to the Alberta Relative and Candidate criteria and updated AINP –

Family Stream

Application Forms.

 

Visit the

Family Stream

Frequently Asked Questions (FAQs) section of the AlNP

website

for a review of the criteria changes:

http://www.albertacanada.com/immigration/immigrate/familystreamfaqs.html

 

Visit the AINP – Applications Forms section of the AINP

website

for the new

Family Stream

Application Forms:

http://www.albertacanada.com/immigration/immigrate/ainpforms.html#3

 

All

Family Stream

applications submitted on or after September 14^th, 2009 must use the new AINP –

Family Stream

Applications Forms and Document Checklist.

 

 

Alberta

Immigrant Nominee Program

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Jackie Tran: A Man Between Two Countries

Richard Cuthbertson's article appeared in the Calgary Herald today. Entitled "Jackie Tran: A Man Without a Country" the article speaks to issues beyond my client's current situation. I prefer the title, a man between countries, because strictly speaking, unlike other Vietnamese clients facing deportation who are 'stateless', Vietnam acknowledges Mr. Tran as a national. He is between two countries because he is not fully of either, and perhaps is to some degree a product of both. While he was born in Vietnam, his formative years were in Canada. Cuthbertson's piece, unlike most of the dialogue on this issue, is balanced.

I take issue with Kelly Sundberg's characterization of the immigration system as 'broken'. While I know Kelly personally, and have great respect for his background in this area (Kelly was formerly with the CBSA and is a professor at MRU) there is actually nothing broken with the system. The Immigration and Refugee Protection Act - in effect since 2002 - is in fact an enforcement statute. Unlike the past, individuals sentenced to more than 2 years imprisonment for an offence are now denied an ability to appeal the removal order to the Immigration Appeal Division (I wonder what Kelly's thoughts are on the Immigration Act, which was replaced by the IRPA). As a result, we are already quite 'firm' with non-citizens in this country.

Also - the 2 year cut off was established by Parliament. Thus, any criticism of 'duplicative appeals' should be directed at the political system - not lawyers and not judges. While Calgary MP Deepak Obhrai wants Tran out (the "quicker the better") - presumably he was representing his constituents interests when the IRPA was debated in Parliament. Since he is part of the governing party, he should advise the public as to the reasons with respect to the delay in re-appointing members to the Immigration and Refugee Board. Perhaps politicians should shoulder some of the blame considering their complicity in manufacturing delays in the immigration system.

As it stands, the system strives to balance protection of the Canadian public with family reunification and other humanitarian and compassionate considerations. The system strives to be proportionate in addressing criminality by permanent residents.

Bear in mind, anyone who is facing deportation has already served time with respect to their underlying criminal offence. This type of double jeopardy is not allowed in the criminal justice system, and one wonders at the appropriateness of punishing certain individuals twice.

Interesting case

http://www.nationalpost.com/m/story.html?id=1969809&s=Home&p=2

Developments

The client was released from Custody on Wednesday, September 2, 2009 with essentially the same conditions as his release in March of this year. Rick Bell's (somewhat inflammatory) article Tran's Lawyer is Smiling discussing the release here.

Immigration Division Member Otto Nupponen, in his decision to release indicated that Mr. Nguyen-Tran has "simply quite aggressively sought resources available to him in law." Nupponen also dismissed CBSA assertions that the client was a flight risk or a danger to the public. It appears the biggest factor in ordering the release was the fact that removal was no longer imminent.

This matter has received a lot of attention, including apparently that of the Minister of Citizenship and Immigration, Jason Kenney. I don't believe the client can be blamed for availing himself of the remedies available to him under the law. Nor do I believe that he is responsible for any purported delay in his removal. See Calgary Sun Article - Don't Blame Tran: Lawyer here.

I have received some criticism from the general public who perhaps don't understand the role a lawyer plays within our justice system. My role is simply to advance my client's partisan interests against the state with the maximum zeal permissible under law.

This coming week we will file an Application for Leave and Judicial Review of the most recent removal order (Immigration Division Member Tessler's decision was released on September 1, 2009).