Sharma Harsanyi has expanded to the beautiful city of Vancouver BC.
The office is located in Coal Harbor, at Suite 1410 - 1130 West Pender. Telephone: 604-210-1816.
The focus of the Vancouver office will be primarily immigration litigation - refugee hearings before the Refugee Protection Division, immigration/sponsorship/removal order appeals before the Immigration Appeal Division, and Federal Court matters.
Mayoral candidate Alnoor Kassam has asked me to review the decision of the 'Adjudication Division' of the Immigration and Refugee Board.
An allegation was made that Mr. Kassam was inadmissible to Canada because of offences committed outside Canada, that, if committed in Canada would be equivalent to offences that would result in a sentence of 10 years or more.
Much has changed in terms of immigration legislation since Mr. Kassam faced removal from Canada; the Canada Border Services Agency (CBSA) is now responsible to proceeding with such allegations instead of Citizenship and Immigration Canada; the 'Immigration Inquiry' is now termed an 'Admissibility Hearing'; and the 'Adjudication Division' is now known as the Immigration Division, but the functions of that tribunal are essentially the same as they were 8 years ago -- that is, to determine the admissibility of a foreign national or permanent resident in Canada.
The facts are, in the words of the adjudicator, complex. The adjudicator, Ms. D. Shaw-Dyck, however, rose to the occasion and has rendered a thorough decision. She had to assess offences alleged to have been committed in a foreign jurisdiction as well as determine whether they were equivalent to offences under the Canadian Criminal Code.
I have written previously about the concept of deference in our legal system. In essence, the legal 'cosmos' that exists in Canada (and most of the Western world) comprises the courts and administrative tribunals. The vast majority of decisions in Canada are rendered by administrative tribunals, which can be quasi-judicial in appearance and function (like the Immigration and Refugee Board). Usually, for reasons of efficiency, the executive tasks certain functions to administrative bodies instead of the courts. Immigration is one of them. In some instances, review of a decision by an administrative tribunal can be made to a supervising court. In immigration matters, the decisions of an immigration tribunal is generally granted deference and such applications for judicial review are granted infrequently. Deference basically means 'respect'.
My review of the decision of Ms. Shaw-Dyck indicates that this is a decision that would garner significant deference. The adjudicator weighed the evidence; ultimately noting the credibility of Mr. Kassam:
Kassam's testimony is detailed, consistent and in many ways supported by
external sources such as newspaper articles and country reports.
This was a lengthy decision which contained careful review of the law and the application to the facts before her.
The final analysis is contained here:
229. With respect to false pretences contrary to sections 312 and 313 of the Penal Code of Kenya:
Did Kassam know and believe that a representation he made by words, writing or conduct was false?
The representation that Kassam's companies received orders to export fish is alleged to be the false representation in this case. From the credible evidence before me, Kassam learned in early 1993 that Trade Bank was using the pre-export financing scheme to provide liquidity for the bank. While he was told his companies' accounts were being used, he didn't learn the specifics involved. He had no reason to believe that this was anything but a bona fide scheme, sanctioned by Central Bank to keep banks in Kenya, not just Trade Bank solvent. Therefore, his conduct does not disclose that he made or authorized the making of a representation that he knew and believed was false.
Did Kassam intend to defraud?
I have found Kassam's denial of giving orders with respect to the use of the pre-export finance scheme to be credible; whereas, the evidence of bankers that they received orders from Kassam has been shown to he unreliable. Therefore, Kassam's conduct does not disclose that he either directly or indirectly through trickery or deccit caused Central Bank or anyone at Central Bank to act in a certain way.
Did Kassam obtain anything capable of being stolen?
Kassam personally did not obtain moneys as a result of the misuse of the pre-export finance scheme. His business accounts were used by Trade Bank, but as noted, not as a result of an instruction or order given by him. From the credible evidence before me, it was not through the conduct of Kassam that money circulated between Centra! Bank and Trade Bank.Therefore, Kassam did not obtain anything capable of being stolen.
230. After considering the credible evidence before me, I find, based on the balance of probabilities, there has been no linkage established between Kassam's acts or omissions and the elements of the offence involving false pretences in Kenya. With respect to making a document without authority contrary to section 357 of the Penal Code of Kenya:
Did Kassam make. sign or execute a document without lawful authority?
In my opinion, there is no credible evidence that Kassam personally completed any documents related to the pre-export finance scheme. Additionally, from the credible evidence before me, it was not Kassam who ordered or authorized bank officers or staff to complete any such documents.
Did Kassam knowingly utter or cause the use of such document?
From the credible evidence before me, Kassam did not know that the preexport finance scheme was being used illegally. Thus he could not give an instruction to any bank official or staff to make use of any documents that were forged for this purpose. Accordingly, his conduct does not reveal that he knowingly uttered such documents.
Did Kassam intend to defraud?
231. As stated, it is my opinion that Kassam was unaware that the pre-export finance scheme was being used unlawfully and, further, that he did not instruct anyone's unlawful participation in the completion of forms or documents respecting that scheme. I find that Kassam's conduct docs not disclose he either directly or indirectly, through trickery or deceit, induced or caused Central Bank or any employee at Central bank to act in a certain way.
Therefore, after considering the credible evidence before me, I find, based on the balance of probabilities, there has been no linkage established between Kassam's acts or omissions and the elements of the offence involving making documents without authority in Kenya.
233. Accordingly, as it has not been established by the Minister's officials that Kassam committed, based on the balance of probabilities, an act or omission that would constitute an offence in Kenya, there is no need to compare Kassam's conduct to the elements of the Canadian offences
The Minister did not appeal the decision of Ms. Shaw-Dyck.
I had made no promises to Mr. Kassam in terms of my review of his decision. After review, it is clear that the decision exonerated him with respect to the allegations set out by the Minister. It would be unfortunate if Mr. Kassam is still under the 'cloud' of these dated allegations.
I don't endorse any candidate; frankly I don't remember ever voting in any municipal election. However, I was pleased to review this decision given my background in administrative and immigration law.
I hope that this review will be useful to voters in Calgary that may have wanted more information on one of the mayoral canadidates.
Maldonado -- reads in part as follows: ‘When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness’ ...
I am working on a paper with Dr. Hap Davis IV on the psychological considerations on the concept of atrocity and the compelling reasons exception contained in the Immigration and Refugee Protection Act.
A “Compelling Reason” is an exception under Canada’s Immigration and Refugee Protection Act. It provides an avenue to a refugee to be protected even if changes in the socio-political landscape of the country of origin makes it no longer possible for the individual to say that removal from Canada would subject him or her to danger of torture, cruel or unusual treatment or punishment, or a risk to life.
Through jurisprudence the Federal Court in Canada indicates that if a person has suffered “appalling” or “atrocious” treatment, then this person may apply for the compelling reasons exception to the Act even if a return would otherwise be deemed safe. However, beyond the provision of synonymous and subjective terms such as "appalling" or "atrocious" the Court has not provided sufficient direction to the Refugee Protection Division.
We hope to provide a review of of empirical psychological literature by which mental disorder and loss of instrumental, social, emotional and cognitive functioning in a claimant may be used to describe the context and scope of an individual suffering from extreme and disproportionate hardship.
If society sets the terms for what acts may be deemed appalling then psychology can help establish whether the atrocity can be elevated to a compelling reason sufficient to grant protection. Prevalence and severity of disorder may be used to give dimension to the term “compelling”.
Finally, the utility of psychological science should be underscored to both practitioners and adjudicators that are charged with administering internationally accepted human rights codes for protection of persecuted persons.
'Usual practice' of immigration officer is sufficient evidence of conduct:
20 Ms. Burrows, now a senior officer with the Department of Citizenship and Immigration, has been an immigration officer for 20 years. Ms. Burrows testified that her usual practice when recording applicants' answers is to put a "check-mark" in the appropriate "Yes" or "No" box that corresponded to the question on the application form. Ms. Burrows would then sign her initials "DB" and the date of the interview next to the "check-mark". As an evidentiary issue, testimony concerning one's usual practice is admissible and corroborative of evidence of conduct in a specific case: see, for example, Savoie v. Bouchard,  N.B.J. No. 66; (1983), 49 N.B.R. (2d) 424 at paragraphs 27-37 (N.B.C.A.).
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