Raj Sharma's Canadian Immigration Blog

Appeal from Spousal Sponsorship Refusal

Had an appeal against the refusal of a spousal sponsorship. The hearing was held today via videoconference with the Board Member. In reviewing case law the night before, the following seemed to be helpful:

As in all other cases of this nature before the Division to date, the two prongs of the "bad faith" test articulated in Regulation 4 are to be read conjunctively, as per the French version of the Regulations. In order for a foreign national to be caught by section 4 of the Regulations, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Act. This approach, of the two available, is most favorable to the appellant. In order to succeed on appeal, the appellant need only establish one of the prongs of the test has not been met. The onus is on an appellant to demonstrate that the principal applicant is not caught by the excluding section of the Regulations.

In today's case, an argument could be made that the marriage was entered into by the overseas spouse for the purpose of acquiring a status or privilege under the Act (immigrating to Canada to rejoin his family members here). Nevertheless, the evidence as to the genuineness of the marriage was clear ... and arguably, while it was a 'bonus' for the overseas spouse to rejoin his other family in Canada, the preponderence of evidence did not indicate that this was the 'primary' purpose.

I also came across the following:

Although it is the applicant's intentions that are also of pivotal importance, the intentions of the appellant are very relevant in considering the genuineness of the marriage.

My common practice is to call both the appellant and the applicant to testify as to the intentions of both parties as to the genuiness of the marriage.

Exactitude in the testimonies of the witnesses is not required, in my assessment, in order for an appellant to establish that the applicant does not fall within the rubric of the Bad Faith regulation. Discrepancies in testimony can be rooted in a myriad of factors, including cultural unfamiliarity, language difficulties, and the passage of time, amongst other legitimate reasons. This type of inconsistency, in my view, is outweighed by the detailed consistencies in other important areas, such as their recollections of more recent activities together. ...

It's impossible (in my experience) to have completely matching viva voce evidence. Exactitude is not required ... and some inconsistences can be explained. The evidence should match on "important areas".

Plenary II - Saturday, May 17, 2008 CBA Citizenship and Immigration Law Conference

Plenary II Canada & The World - Targets/Policy Directives - Are we Internationally Competitive?

Howard Duncan Executive Head (Ottawa)

Very interesting discussion by Mr. Duncan, who finds that overall competition for skilled workers/immigrants is not necessarily between us and Europe - but sees China, India and Brazil as emerging competitors (ie as the economies of those countries continue to grow, potential immigrants will choose to remain, rather than leave for 'greener pastures' of Canada).

Duncan refers to a term - Transnationalism - defined as a state where people whose bodies are in one country, but minds, souls, bank accounts are in another country:

While these individuals reside in Canada, they are constantly in touch with their country of origin - sometimes through the use of satellite tv and news and daily newspapers (sometimes even printed in Canada).

Transnationalism is yielding very strong enclaves that are strong financially - don't have to think of them as enclaves of poverty - they are middle class and institutionally complete and lower cost location for integration - settle into immediately - immigrants are now settling directly into suburbs rather than passing through inner city - should view transnational enclaves as competitor to integration - competitor to mainstream.

Duncan stresses consideration of integration - not just the removal of barriers like language and discrimination but think about incentives mainstream can offer to capture hearts and minds of newcomers because lower costs with enclaves:

In order for Canada to develop contemporary policy - but also to lawyers to adjust business practices - need to think incentive structures that accompany globalization

Moderator Baerbel Langner:

Howard's discussion ties in with presentation by Demetrios Papademetriou - first order principles for immigrants --> opportunity ...

Second order principles - tolerant safe society, path to permanent residency and citizenship and recognition of credentials

Howard made the point of removing requirement of language testing - however that is at odds with recent proposal of requiring language testing even from english speaking countries like the US and UK

[this new requirement of official language testing, even from applicants from english speaking countries is of some significance and was widely discussed in the CBA Immigration Law List Serv. Obviously there must be a balance of CIC's need to determine the objective ability for an applicant to meet the requirements of the skilled worker immigrant class - and additional onerous requirements imposed of immigrants to Canada, who have other choices for their relocation]

Moderator: Any thoughts?

Howard: interesting - on language - absolutely no question that strong facility in host country language to financial success - not necessary to social success because of enclave - if willing to spend entire time in enclave - you can have a job, career without language - but if we are after nation building, we can't think about contributing to enclave economy - language testing is best for them and employers

Study comparing Canada and Australia - employer preferences when selecting temporary workers employers prefer who have strong host country language skills - administration is important - and important to Canada

Les Linklater - Director General Immigration (Ottawa) CIC:

Challenges and opportunities for highly talented individuals who have mobility that previous [immigrant] cohorts did not - how reconcile new drivers with traditional objectives of Canada immigration policy - including economic development

For highly skilled with few connections to Canada - large component of immigration is family - why do they come - because family or friend network here - added dynamic to policy development

Australia, US, UK competitors - but real concern about China and India - development of middle class - people coming from those countries have options - if they have opportunities at home, they will stay - quality of life with friends, family in language of choice need to be kept in mind

Recent development is acute shortage throughout - even in Gulf there is dearth of construction workers - even with their boom difficult to find

This government's focus is on economic aspect - family class and refugee do go into the labour market - however skilled workers are not doing as well previous cohorts - skilled workers catching up to native Canadians within 3 years [I'm not sure as to the accuracy of this last comment, on my side or the speakers]

Federal departments have been caught off guard to the degree temporary foreign worker program has been utilized

30% growth in work permit side - HRSDC has seen even greater growth from LMO side - new paradigm with temporary movement - government would like to capitalize - creation of CEC [Canadian Experience Class] - working to implement that - hope to be able to move very quickly to put this program in place - driving force behind CEC - international students with Canadian credential min 2 year, once they have accumulated work experience will be able to apply - temporary foreign workers at NOC a, b or o with experience will be able to apply - we've taken a page from Australians - used to have a program to flip international students to permanent residents but found that the students did not have soft skills necessary to succeed in job market

[Addresses the language testing requirements]:

We need benchmarks - objective - get away from 2 or 3 ftes [Full time employees] in Buffalo to assess written submissions - from operational perspective, this (language testing) will allow us to do more

PNP - we have gone from 196 arrivals in 1996 to 20000 in 2008. Provinces are stepping up and retaining people - great demonstration to work cooperatively and provinces to exercise jurisdiction successfully

Althea Williams, Director Temporary Foreign Workers Program Policy (Gatineau) HRSDC:

V robust economy - declining labour force growth - reduced population growth - underutilization of certain labour groups such as disabled, refugees etc

TFW program quite responsive to labour market needs - it is a short term measure for employers - get labour while they continue to look for Canadian workers for their long term needs - employers need to be cognizant that they are now looking to TFW even for long term

HRSDC is to assess impact of entry of TFW on labour market - work together because program intertwined - HRSDC and CIC - like eLMO pilot

Stakeholders - balancing needs and demands - eg. Employers are needing and wanting that there would be no LMO if they can get a worker, why get a LMO? Why not just get the worker - also want it done faster - why take 6 months to get LMO? also call for consistent processes nationally -also want competitive wages -that's not our role that employers are competitive - our role is to ensure TFW are paid the same as native Canadians - other side we have labour groups who want to ensure strong measures that wages are not lowered and that working conditions are adhered to - and workers and advocates who want more protection and want open work permits - they dont want workers to be tied to an employer because that creates a relationship open to abuse

Budget 2007 provided with funding 50 million over 2 years to reduce processing delays and respond to labour needs and program integrity measures - these are in various stages of development

hrsdc and cic have improved - James Sutherland addressed them:

elmo pilot project - new way to process lmos - to speed process while incorporating some integrity functions - regional list of occupations which clarify minimum advertising requirements in a region - better information for employers - to ensure they know their responsibilities and also information to advise them to complete the application properly - information for workers so they know their rights and know employers obligations - eg overtime, no need to give passport

In terms of future directions - working closely to intro policy to facilitate entry - strengthen integrity and improve worker protection

Facilitate- learning from elmo - put measures from that pilot - preestablish employer eligibility - reduce paperwork upfront - work with employers methodology - employer advisory committee - for them to give us information in a standard manner to establish wage - program integrity - clarify recruitment methods - advertisement - update nationally consistent processing - monitoring compliance to help protect workers - and continued information sharing with provinces and territories - also address labour brokers who are a huge problem for everyone - we hope to have a package of ideas to mitigate those problems

Foreign governments are hoping to work with CIC/Service Canada and would like to send their nationals as TFW - how do we link with employers - that's a policy area that we are working towards

[These are of course very interesting developments and offer CLE participants a 'big picture' overview of the efforts of CIC/Service Canada and future trends. As to whether Canada is internationally competitive there was little discussion as to how our immigration programs stack up against our traditional competitors for skilled workers and immigrants such as the US or Australia. Also missing would be discussion of adoption of best practices from our competitors. My opinion is that official language testing even of native English speakers is not internationally competitive. As an example, if an Indian national, currently residing in the US as a H1B applies as a skilled worker to Canada, there is little reason to suspect that their language ability would be deficient given that they have been working in a skilled position in an English speaking milieu. Proof that an applicant has studied in the English language or has primarily utilied English in either education and/or employment should simply be sufficient. As always, there are challenges and opportunities for the immigration practitioner]

Plenary I - Friday, May 16, 2008 CBA Citizenship and Immigration Law CLE 2008

CBA CLE

Plenary I - Major Trends in 2008 and Future Initiatives

Unfortunately I've only walked in to hear part of Brian Goodman's (Chairperson, IRB) presentation.

Mr. Goodman has gone over the Member "deficit" and of course the increased intake resulting in significant delays for applicants to have their day before the tribuanls of the IRB (RPD and IAD). He encouraged members of the audience to apply as additional appointments will be made. He closed with some of the achievements of the Board in the last little while - I believe that he was appointed interim Chair when the former Chair, Mr. Fleury resigned.

Mr. Goodman seems well aware of the member deficit and appears genuinely interested in addressing this very important issue. It's clear that a lack of decision makers will adversely affect his ability to carry out his mandate as Chair of Canada's largest administrative tribunal. Unfortunately, the appointment process is out of his hands, and will depend largely on the actions of the Conservative Minister.

James Sutherland (Director Temporary Foreign Workers) followed Goodman and discussed improvements in the temporary foreign worker operations and increased resources. He's mentioned a new position - integrity - which will oversee compliance with the conditions imposed via the LMO and work permits. [Hmmmm...I anticipate visits by CBSA to employer sites to monitor the employer-TWF (Temporary Foreign Worker)].

Claudette Deschenes, Assistant Deputy Minister Operations (Ottawa) made a number of comments [unfortunately reading directly from her text]:

429,000 new comers came to Canada - immigrants, students and temporary workers. CIC has had to make tough choices with respect to resources. 12% increase to TFW. More immigrant visas overseas than any other year in the past 5 years. Lift caps on provincial nominees. Demonstrated responsiveness to provinces. Expanded post-grad work permits to international students. Extended off campus work permit program. Last 2 years issued 17,000. Extended TFWU offices - Moncton and Toronto.  Also supportive of UNHCR on Bhutanese and Iraq refugees, as well as resettlement of Vietnamese from the Philippines. Lifted visa requirements from European countries. Significant more funds to support new arrivals in Canada. Proud of foreign credentials recognition office and want to encourage prospective immigrants to take advantage of this prior to coming to Canada.

[The self-congratulatory continued ...]

In terms of citizenship, working on enhanced ceremonies. Introduced changes to Citizenship Act which will deal with some Canadians that have lost citizenship. Adopted children will be dealt with as if they were born of Canadian parents.

[Closed with a general comment:]

At the end of the day we will never have all the resources we need.

Kimber Johnston (VP Enforcement) notes that CBSA has two mandates - one is to facilitate entry of admissible individuals to Canada and the second is the removal of indamissible individuals from Canada. She discussed a number of initiatives including the recent report on the Auditor General:

Average detention 17 days. Vast majority however was 48 hours or less. Cost of detention $200/day [this is likely the immigration detention centre, as opposed to holding the immigrant in provincial institutions]. Cost of removal (last year 12000 plus) $6600. CBSA now has responsibility for IRPA investigations from RCMP. Over 500 active investigations and charges with conviction rate of 95%, sentences ranging from one day incarceration to one year.

[Obviously these charges and convictions, if made against Permanent Residents or Foreign Nationals will result in inadmissiblity issues on top of the criminal consequences - I think it's safe to say that these investigations and convictions will result in more removal order appeals to the IAD]

Live Judicial Review Proceeding - CBA National Citizenship and Immigration Law CLE Conference

CBA National Citizenship and Immigration Law CLE Conference - May 16-17, 2008 Niagara-on-the-Lake, Ontario

After sitting through an interminable workshop which was made intolerable not because of the panel, but because of an overzealous moderator who managed to turn an interesting discussion into a morass of her own irrelevant opinions – a rare opportunity has presented itself in the form of a live judicial review proceeding in the Grand Georgian Ballroom here at the Queen's Landing hotel.

    

Mr. Justice Yves de Montigny presiding

Counsel for the Appellants: Barbara Jackman

Counsel for the Respondent: Marianne Zoric

Barrack et al and the Minister of Citizenship & Immigration

Issues involve:

- threshold test for risk on a H&C application versus the assessment of risk in a PRRA application

- best interests of the child

- whether evidence/relevant factors were ignored/not considered

- whether H&C policy guidelines were ignored/not considered

Hopefully I don't sound like a legal groupie, but it's very exciting to be in the presence of the great Barbara Jackman. I'm sitting right behind her clients - the applicants, the second row behind counsel.

Jackman doesn't appear to be wearing silk robes, worn by QC - which suggests that the title has yet to be bestowed upon her. I'll have to check this upon my return. Here's a bio – it does look like she's been conferred an honorary LLD though.

I imagine I'll have to stand (along with the rest of the audience) when Mr. Justice Montigny enters - it'll be a delicate balancing act with my folding keyboard and Treo precarious perched on my lap.

It's a rare opportunity to observe such experienced counsel - living in Alberta doesn't afford the opportunity to observe truly experienced Federal Court litigators like Jackman and Lorne Waldman.

Mr. Justice Montigny has entered - he sports a most impressive moustache and appears very gracious. He begins by thanking counsel for agreeing to proceeding with the application 'live' at the conference.

He assures counsel that he's reviewed the record (which is probably his not so subtle hint that he probably wouldn't appreciate anyone reading the record or argument to him).

Jackman begins – and started off by indicating that she has a tendency to go over time.

…

While I took extensive notes of the oral argument, in essence Jackman focused on the fact that the officer rendered both the H&C and PRRA decision in a strickingly similar fashion (in fact the Justice even commented that it was 95% 'the same'). She argues – and this is very fact specific that the officer on not one or two, but on four separate equations seemed to be requiring personalized risk in the context of the H&C decision. Personalized risk however, is only relevant to a PRRA, CR or PINOP analysis. She also took issue with the officer taking what she felt were 'positive factors' and turning them around to make an argument that they supported the family would not suffer undue hardship (a common argument by immigration officers). She also took issue with the officer's sparse analysis of the best interests of the child, a point that Mr. Justice Montigny seemed to appreciate, commenting that the officer devoted less than 2 paragraphs to this analysis.

Marianne Zoric, for the Department of Justice also acquitted herself very well and argued that the officer made the correct assessment given the applicants 'sparse' submissions before her. She also pointed to deference to the officer's decision (however, Jackman clearly felt that the immigration officer was not a specialized tribunal) arguing the standard of review as reasonableness (against Jackman's argument that the appropriate review was correctness as the officer was applying an incorrect legal test).

Justice Montigny asked very relevant questions, and at least in my opinion, seemed to be gravitating towards Jackman's arguments – especially the best interests of the child (was the officer 'alert, alive and sensitive'? …).

No decision was rendered and Justice Montigny invited the parties to formulate a certified question.

Consequences of Misrepresentation – CBA National Citizenship and Immigration Law CLE Conference

CBA National Citizenship and Immigration Law CLE Conference - May 16-17, 2008 Niagara-on-the-Lake, Ontario

May 15, 2008 <Enroute to Toronto>

I've just taken an opportunity to review some of the materials for the CBA Conference.

Between watching the movie "Charlie Wilson's War" (which inexplicably shut down a number of times during the flight) and flipping through some of the papers I printed off, I came across a paper by Shoshana T. Green "Consequences of a Misrepresentation Allegation".

Ms. Green basically confirms my experience that a dramatic trend has surfaced indicating both CIC and CBSA are pursuing permanent residents on grounds of inadmissibility arising from misrepresentation.

Ms. Green notes several scenarios that result in investigation, a finding of inadmissibility and possible appeal to the Immigration Appeal Division.

The first is the 'short marriage' which leads CIC to believe that the permanent resident originally arrived in Canada on the basis of a fraudulent marriage (aka 'marriage of convenience'). Once the now permanent resident divorces the partner of convenience (what Ms. Green calls a 'short marriage') and returns to their country of nationality for marriage and sponsorship - CIC attempts to move against the permanent resident for misrepresentation.

Another scenario that CIC/CBSA follows up on is the 'hidden marriage' - whereby a foreign national becomes a permanent resident (as a skilled worker or as a dependant under the family class) when in fact it was never disclosed to CIC that the foreign national was in fact married (and would, therefore been ineligible to enter Canada as a dependant, and member of the family class).

Green notes (which again dovetails with my own experience) that while CIC/CBSA investigates, the sponsorship of the second spouse is usually put on hold, for a period of 2 years or more.

Green recommends that counsel immediately request information pursuant to an Access to Information request. After that, the client should be thoroughly prepared to discuss the "subject matter of the investigation".

Green correctly points out that the responsible immigration officer has discretion not to refer the matter to an admissibility hearing (i.e. has the discretion not to write the s.44 report). This decision is based on a number of factors that can be found in the relevant Enforcement Manual.

In my practice, I have on one particular occasion seen an immigration officer decide to exercise her discretion not to refer the matter forward. In this case there was clear misrepresentation (the client has deliberately falsified documents indicating that an accompanying dependant was a biological child, when in fact the child had been informally taken in adoption some twenty years previously). The officer was kind enough not to proceed down the admissibility route. There were clear H&C's on the application, and the experience suggests that it is always worth an opportunity to canvass the possibility with the responsible immigration officer.

However, if the officer writes the report /refers the matter to the Immigration Division of the Immigration and Refugee Board, one of two things may happen:

Either the Division will find that there is insufficient evidence to support the allegation of inadmissibility, or the individual will be found inadmissible and the matter can be appealed de novo to the Immigration Appeal Division. The Immigration Division does not have discretion and cannot consider any equitable issues.

In my experience thus far, allegations of inadmissibility are usually well founded and, again, in my practice are usually conceded at the Immigration Division given that the Immigration Appeal Division can consider equitable grounds to rule in favour of the client.

At the appeal stage, the Immigration Appeal Division can do one of the following:

1. Allow the appeal;

2. Stay the removal order (for a period of time, criminality usually eliciting a stay of 3 years at which point the IAD will allow the appeal assuming any conditions imposed are met); and

3. Dismiss the appeal.

Given the above trends, it is probably good advice that any permanent resident that has been made aware that he or she is under investigation for possible inadmissibility should contact experienced immigration counsel immediately.

IAD Workshop -- CBA National Citizenship and Immigration Law CLE Conference

CBA National Citizenship and Immigration Law CLE Conference

May 16-17, 2008

Niagara-on-the-Lake, Ontario

Workshop: Best Practices before the Immigration Appeal Division

A paper prepared for the Conference by Shari A. Stein, A/Deputy Chairperson of the Immigration Appeal Division of the Immigration and Refugee Board is quite instructive.

As a Member of the IAD, Stein provides invaluable advice to counsel appearing before the appeal division of the IRB.

While the IAD hears four types of appeals, the most prevalent are sponsorship appeals - requests to reconsider the refusal of a visa officer who is overseas with respect to a family class sponsorship. One example is where a sponsorship of a spouse is refused by a visa officer who has found reason to believe that the marriage is not genuine (a marriage of convenience).

In this case, the appellant has the burden - on a balance of probabilities - that either: the marriage was genuine or was not entered into primarily to facilitate immigration.

Stein notes that the numbers of sponsorship appeals have been steadily increasing and that they comprise almost 80% of the cases heard before the IAD.

Other appeals include an appeal from a removal order, which concerns a permanent resident who has run afoul of criminality or even misrepresentation - discussed in Shoshana Green's article (discussion on which will be posted asap).

The third type of appeal is an appeal from loss of permanent resident status. Permanent Residency carries with it a residency obligation, which requires presence in Canada for approximately 2 years in a (rolling) 5 year period.

The fourth, and likely irrelevant type of appeal for most readers, is an appeal from a decision by the Minister of Public Safety and Emergency Preparedness.

Stein discusses the IAD Innovation initiative – (NB additional information can be found on the IRB website).

What I found most helpful in the paper concerned practice tips for proactive counsel. Stein notes that counsel ought to be well-informed on latest developments and jurisprudence. Counsel should have familiarity with the IAD Rules - most importantly the deadlines for filing a Notice of Appeal and (in my opinion: deadlines and other details regarding disclosure, like having an index, consecutive page numbering and 81/2 x 11" paper size).

Determine - early on, in Stein's opinion - the following (inter alia):

Whether the basis of the appeal is law or discretion (or both);

What is needed to put forth a solid and focused legal argument; and

Whether witnesses are likely/necessary.

Stein encourages early disclosure and contacting CBSA with a view to perhaps resolving the matter. Other recommendations include preparing the appellant and other witnesses, and agreeing with CBSA on facts and limiting issues in dispute, and of course ensuring you and the appellant arrive on time or early.

During the hearing, Stein recommends that counsel focus on the key issues in dispute, avoid leading questions, and avoid repetition in submissions.

 

FBI Clearance...

Prospective immigrants to Canada need to provide police clearances from every country in which they have resided in (6 months or more). In the case of US residents, this means both a state clearance (each state has its own procedure) AND a FBI clearance. Procedure for FBI Record Request follows:

NB The following is lifted in its entirety from: FBI Identification Record Request page.

Introduction 

An FBI Identification Record, often referred to as a Criminal History Record or Rap Sheet, is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. If the fingerprints are related to an arrest, the Identification Record includes name of the agency that submitted the fingerprints to the FBI, the date of arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. All arrest data included in an Identification Record is obtained from fingerprint submissions, disposition reports and other reports submitted by agencies having criminal justice responsibilities.

The United States Department of Justice Order 556-73 establishes rules and regulations for the subject of an FBI Identification Record to obtain a copy of his or her own Record for review. The FBI’s Criminal Justice Information Services (CJIS) Division processes these requests.

Reasons for Request

An individual may request a copy of his or her own FBI Identification Record for personal review or to challenge information on the Record. Other reasons an individual may request a copy of his or her own Identification Record may include international adoption or to satisfy a requirement to live or work in a foreign country (i.e., police certificate, letter of good conduct, criminal history background, etc.)

Can I request my own record for an employment background check?

If you are requesting a background check for employment or licensing within the United States, you may be required by state statute or federal law to submit your request through your state identification bureau, requesting federal agency or other authorized channeling agency. You should contact the agency requiring the background check or the appropriate state identification bureau (or state police) for the correct procedures to follow for obtaining an FBI fingerprint background check for employment or licensing purposes. 

Who May Request a Copy of Record

(or Proof that a Record Does Not Exist)

Only the subject of the identification record can request a copy of his own FBI Identification Record.

How to Request a Copy of Record

    1. Complete cover letter.

If for a couple, family, etc., all persons must sign cover letter 

Include your complete mailing address 

If you have a deadline (e.g., an immigration deadline), please include the deadline in your cover letter and on the outside of the envelope.

    2. Obtain proof of identity, which consists of a set of your fingerprints

         (original card, no copies), with your name, date of birth and place of

         birth. Fingerprints should be placed on a standard fingerprint form

         (FD-258) commonly used for applicant or law enforcement purposes.

Include rolled impressions of all ten fingerprints and impressions of all ten fingerprints taken simultaneously (these are sometimes referred to as plain or flat impressions.)

If possible have your fingerprints taken by a fingerprinting technician  (this service may be available at a Law Enforcement Agency.) 

Previously processed fingerprint cards will not be accepted. 

    3. Include $ 18 - U.S. dollars in the form of a money order, certified check

        made payable to the Treasury of the United States, or you may pay by

        credit card

Be sure to sign where required 

No personal checks or cash 

Must be exact amount 

If for a couple, family, etc., include $18 for each person

If paying by credit card you must include the completed credit card payment form 

Credit cards will not be used for expedited mail services 

    4. Mail the items #1, #2, #3 (listed above) to the following address:

        FBI CJIS Division – Record Request

         1000 Custer Hollow Road

         Clarksburg, West Virginia 26306

New Office & Recruitment Agency Regulation in Alberta

Effective July 15, 2007, I will be leaving Caron & Partners LLP and starting my own firm at Suite 700 Bow Valley Square II (205-5th Ave SW) Calgary AB. You can reach me at (403) 705-3398 (after the 15th), and email at raj.sharma.immATgmail.com

I gained some great experience working at Caron & Partners, but look forward to concentrating on immigration advocacy and helping find practical solutions to my clients' problems.

I've reserved the domain www.immigrationpractice.ca (still under construction) for my official website. Check back often, this blawg will continue to be updated on a regular basis. I've been somewhat 'inspired' by the practice and specialization of Eugene Meehan QC (www.eugenemeehan.com) as well as other leading immigration practitioners such as Mr. Lorne Waldman, and will try to model my new practice accordingly.

On a totally different topic, foreign workers, check out the cached Calgary Herald article here. It talks about some issues surrounding the massive increase in (unskilled) foreign workers that are arriving in Alberta and some problems - notably exploitation - that have been occurring.

Recruitment companies that have been charging foreign workers should take note - not only do they(employment/recruitment companies/agencies) have to be licensed (Alberta Fair Trading Act) but the Employment Agency Business Licensing Regulation prohibits the collection of a fee or other compensation for securing or endeavouring to secure employment for the person.

According to that Herald article, at least 10 employment/recruitment agencies in Alberta are currently under investigation.

I'll be discussing my move, the issue/problem of recruitment agencies that exploit foreign workers and other immigration news and developments with Mr. Dan Sidhu on his radio program, Lok Sat, on 94.7 FM this evening.

World Refugee Day

It's the 6th anniversary of World Anniversary Day. The turmoil in Iraq and Sudan have worsened conditions for thousands of innocent men, women and children. Canada continues to be one of the world's largest 'settlement solution' for refugees and internally displaced individuals. Citizenship and Immigration site here.

Refugee claimants in Canada are required to establish conditions in his or her country of origin necessitate accessing Canada's protection. In addition to refugee claimants, H&C applications, appeals of removal orders before the IAD, and PRRA applications also benefit or require information about the country of return.

Essentially the applicant is required to provide objective country condition documents that corroborate or buttress the claimant's allegations of hardship, risk and/or harm. Contained in this post is what I typically use in reviewing source country conditions.

One interesting site that I've recently come across is at the Foreign Policy website (www.foreignpolicy.com) and a recent article on that site - 'The Failed States Index of 2007'. The article ranks failed states. In my opinion, there should be a strong correlation between success before the RPD and the ranking of the claimant's country of nationality. Not surprisingly, the rankings of failed states does not match the top 10 refugee source countries for Canada. Inland refugee protection is granted only to those lucky few that have funds and access to an airplane (or cargo ship) transport to Canada.

Here's the top 15 (Surprisingly, Pakistan at 12 has 'beat out' Bangladesh, which is 16 - and North Korea at 13??):

1. Sudan

2. Iraq

3. Somalia

4. Zimbabwe

5. Chad

6. Ivory Coast

7. Democratic Republic of Congo

8. Afghanistan

9. Guinea

10. Central African Republic

11. Haiti

12. Pakistan

13. North Korea

14. Burma (also known as Myanmar)

15. Uganda

Here are a couple of other sites that are especially handy (if not absolutely essential reference material):

http://www.unhcr.org/cgi-bin/texis/vtx/home -- UNHCR but see http://www.unhcr.org/cgi-bin/texis/vtx/rsd for research;

http://www.homeoffice.gov.uk/rds/country_reports.html#countries -- UK Home Office (COI) Reports;

http://www.state.gov/g/drl/hr/c1470.htm -- US Department of State Country Reports;

http://www.state.gov/g/drl/irf/ -- US DoS - International Religious Freedom Reports;

www.freedomhouse.org -- a non-profit, non-partisan, "clear voice" for democracy and freedom;

http://www.nationmaster.com/index.php -- database and a way to graphically compare countries;

http://cgrs.uchastings.edu/about/ -- Center for Gender & Refugee Studies (actually, I haven't used this resource myself);

http://www.llrx.com/features/rsd2.htm -- A good starting point for the legal professional;

and, of course, don't forget to review the information available at the IRB's own website:

http://www.irb-cisr.gc.ca/en/research/index_e.htm

Jurisprudence is also makes for good submissions:

http://decisions.fct-cf.gc.ca/fct/index.html

See also www.canlii.org for free online research.

and finally, a good resource from Georgetown:

http://www.ll.georgetown.edu/intl/guides/RefugeeProtection.cfm

National Citizenship & Immigration CLE Conference

Session 5B - The Compassionte Alternative: When and How of H&C Applications discussed the possible (and creative) uses of section 25 of the Immigration and Refugee Protection Act - a section that allows an exemption from (any) requirement of the Act. Ryan Rosenberg's paper is helpful and encourages counsel to think of various factors that can benefit their client's application.

Appendix A of his paper (H&C Factors) lists factors to evaluate when deciding whether to pursue an exemption. Factors include (inter alia):

• Time resident in Canada/away from home country
• Evaluation of life in Canada vs. home country
• Ties to Canada vs. home country
• Best interests of children -- access to both parents, health care, schooling, emotional needs
• Worsening country conditions in home country
• Attempts to integrate
• Personalized risk
• Spousal abuse
• Custody issues
• Dying/sick family members
• Business operations employing Canadians
• Home purchase
• Employment history

I'm happy to say that the practice at Caron & Partners is to properly prepare and submit all of our H&C applications, including consideration of the factors above and a thorough review of the client's personal circumstances and submission of supporting documents.

National Citizenship & Immigration CLE Conference

Session 4-B - Federal Court Practice: How to Make the Federal Court Work for You(!) was also quite informative. Panel members were Darryl Larson, Ron Poulton, Brad Hardstaff (Justice counsel - all of our Federal Court leave applications are sent to Brad's office in Edmonton) and Justice Michael Phelan.

Both Ron and Justice Phelan were emphatic in underscoring the importance of cross-examination on affidavits. Essentially, both were surprised at how little cross-examination was being utilized by the Bar. It was clear that many cases could turn in the Applicant's favour on the answers obtained through the examination of (immigration) officers.

Ron suggested that cross-examination of officers and questioning occur on the definitions in law and the regulations in question. He cited examples of where officers made admissions that were extremely helpful to the applicant's position.

Justice Phelan stated that he "was suprised how little cross examination was used" and that it was a "particularly powerful tool" as cross examination adds "humanity to the case". He did note there was a small risk as cross-examination provides an opportunity for the officer to fill in the gaps of his/her affidavit.

He also suggested that counsel should genearlly attack the subjective assumptions of an officer, not their expert knowledge (which could likely exceed that of the lawyer). It's also useful to show the use of extraneous assumptions by the officer. He reiterated that the use of cross examination does "materially assist" the Court.

In addition to their comments on the use of cross examination in Federal Court matters, the panel also discussed the use of Mandamus applications. I filed a Mandamus application and was successful in obtaining leave (however, for strategic reasons have filed a discontinuance as we have managed to get an undertaking from CIC/CBSA to move my client's file forward). Mandamus is basically an order from the Court compelling processing or even setting down time limits for a specific action/decision to take place. Usually they are used in immigration contexts where CIC/CBSA refuses to act on a matter (or delays acting to the point where refusal can be implied). One requirement for a successful Mandamus application is to ensure the applicant has complied with all of the requirements imposed upon him/her for processing to occur. For such an application, it's essential to establish that the delay is unreasonable. Case law however has not provided a finite definition - just one that depends on the circumstances. In addition, when 'does the clock start ticking'?

Mr. Justice Phelan noted that Mandamus applications illustrate the tension between (limited) government resources and the applicant's right to have his application/case determined.

It would appear that Mandamus applications will become increasingly popular as the government suffers problems in processing times and longer queues.   

National Citizenship & Immigration CLE Conference

Just returned from (beautiful) Victoria BC after attending the National Citizenship & Immigration Law CLE (Continuing Legal Education) Conference this weekend. Entitled "Shifting Sands: 2007 Canadian Immigration Law Update" the conference was a success (in my view) in providing practitioners with a heads-up on the important changes to immigration practice, policy and jurisprudence.

Session 3A "Effective written and oral advocacy at the IAD" was especially beneficial, given the increase my practice has seen in appeals to the Immigration Appeal Division. The panel was composed of Phil Rankin, Gordon Maynard, Susan Kramer and Margaret Ostrowski QC (a Member of the IAD). I read both Phil's and Gordon's papers and have to say that they're very good and address the advocate's primary role for such hearings: proper preparation of the client.

Member Ostrowski  had a set of "kindly suggestions/do's or don'ts for practicing before the IAD.

a. She kindly suggests that counsel (after a quick warm up of the client/appellant) spend the majority of time and effort on the decisive issue(s). She noted that there is at least 'one elephant' in teh room and it's preferable for counsel to deal with issues such as inconsistencies and address them (rather than Minister's counsel doing so on cross-examination). 

b. Obviously counsel is to know the law and test to be met and organize evidence accordingly. In that vein, when counsel is dealing with difficult issues, counsel is to have corroborative evidence, or a reasonable explanation why such evidence is not available. Also, ensure that 'easily obtainable' evidence and documents are before the Board. For example, on residency appeals, where the allegation is that the appellant had to leave Canada to care for a ailing family member, prescription/medical note regarding the family member should be before the Member. 

c. Counsel is to prepare witnesses thoroughly -- there should be no unexpected answers. She noted that Board Members are quite cognizant of those counsel that come prepared and those that do not.

d. The Member stressed that familiarity with the Appeal Record was vital for the hearings ... while obvious, counsel should know the client's case and the issues.

e. The Member would encourage counsel to canvass matters with hearings officers prior to the hearing to narrow issues.

f. The Member reminded counsel to demonstrate professional courtesy, not just to the Board Member, but to the hearings officer, translator, Board staff.

Arranged Employment Application/Opinion Steps...

APPLICATION FOR ARRANGED EMPLOYMENT OPINION

Important:

This application is only for positions under levels A, B, or 0 of the National Occupational Classification. The skilled worker must have at least one-year of work experience in a professional, managerial, or technical occupation under Canada’s NOC system. Also, the approval of AEO does not automatically allow the person to work in Canada.  It will only support the skilled worker’s application for permanent residency in Canada.

STEPS:

1.      Employer makes a permanent offer in a skilled occupation.  The letter of permanent employment must

-    Be on company letterhead

-    Be signed by the person responsible for hiring employees

-    State the title and salary of the position offered and the length of employment is open.

      The offer must consider the following factors:

o  It must be permanent

o  It must be genuine

o  Wage & working conditions are comparable to Canadians working in similar occupation

o  Employment is full-time and not seasonal.

Note:

Placement agencies, temporary help agencies, and firms of similar nature, unless they have established employer-employee relationship, are not included in the definition of employer.

2.      Complete the HRSDC EMP 5275

3.      Submit the completed form

            For applicants in Alberta, send the AEO application to:

Service Canada Centre                                             

Suite 1440 Canada Place

9700 Jasper Avenue

Edmonton AB

T5J 4C1

Phone:  800-418-4446     Fax:       (780) 495-2738

            

Attachments to the application:

-    Letter of offer for permanent employment

-    Copies of remittances issued by CRA itemizing source deductions over the last 12 months (Form PD7A) and the CRA T4

-    Evidence of business, e.g., business license (spanning 12 months or more), commercial lease agreement, etc.

4.      Employer receives AEO Letter of Confirmation (If the result of application is positive).

5.      Send a copy of the AEO letter to the Skilled Worker.

6.      The skilled worker applies to appropriate visa office for skilled worker permanent resident visa.   Attached the AEO letter of confirmation to the application along with the other documents required by CIC.

7.      The skilled worker receives his permanent resident visa (if CIC approves application)

AB Skilled workers and PNP link

Here's a new publication from the Alberta Provincial Nominee Program (Nov. 2006) entitled "Useful websites for skilled workers and employers." I think it is a very practical tool because it has links to the various Federal and Provincial immigration and employment programs as well as information particular to Alberta (trades, settlement and employment standards).

http://www.alberta-canada.com/immigration/albertaImmigrationPromotion/files/pdf/UsefulWebsitesSkilledWorkersEmployers_Nov2006.pdf

Alberta PNP

I am attending a CBA section meeting on the PNP program right now. Looks like AB is moving toward the MB model but will avoid the 'population building' aspects and concentrate on skilled workers and employment. One good development is that they are planning to increase numbers to 5000+ by 2009/2010. Past quotas or targets were around the 400 mark. There are no waiting times for 'complete' applications and such applications can be processed within 2 months. The vast majority (90%+) of applications are for foreign nationals already in Canada on a work permits. The program is looking for true skilled workers (as defined by the NOC) but there is a pilot program for low skill workers in 1. Food/meat processing 2. Hospitality industry and 3. Long haul truck drivers. All in all, sounds like good developments for AB labour shortage.

Inland Spousal Sponsorship

Immigration lawyer Guidy Mamann raises a couple of interesting points in his article on the metronews.ca site. The article can be found here. In summary, the new policy on 'in-land spousal sponsorships' is not a blanket amnesty/remedy for people without status in Canada. Here's an excerpt:

Those who think that because they are married to a Canadian they can’t be deported had better read this bulletin carefully.

To qualify under this policy, the applicant would typically need to submit an application for permanent residence to the Case Processing Centre in Vegreville, Alta.,  under the “Spouse or Common-Law Partner in Canada Class” using form IMM 5002.

Second, they will only be considered under this policy if the only reason they are in Canada illegally is due to a “lack of status.” The policy defines this term and includes limited grounds.

If the applicant meets the criteria, the application can be processed in Canada. However, this doesn’t necessarily mean they will be allowed to stay here while it is finalized.

In my practice I have found it helpful to alert CBSA (at least here in Calgary) that a spousal sponsorship has been submitted and that enforcement of removal not occur (administrative deferral). This deferral request ought to be done timely, and should be documented.

Colombian Refugee Claimants - FARC/ELN

Just had two successful hearings (both Colombians). While the Member of the RPD (Refugee Protection Division) had issues with whether the claimants would now be at any risk should they return to Colombia, the following documentary evidence was corroborative of the risk faced by anyone in Colombia fearing persecution/risk to life from the FARC/ELN - it's a RIR (Response to Information, basically research done by the IRB's Research Directorate): Download c16_col41770e.pdf

Here are some notable excerpts:

A number of Colombia experts consulted by the Research Directorate characterized the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, FARC) and United Self-Defence Forces of Colombia (Autodefensas Unidas de Colombia, AUC) as groups that are capable of carrying out operations throughout the country...

The associate professor at Stetson University College of Law indicated that members of the FARC, ELN and AUC are present in "nearly all the urban centers of any note in Colombia" ...

According to the Georgetown University adjunct professor, both the guerrillas and paramilitary groups

often employ highly sophisticated data bases and computer networks. An individual who is threatened in one area of the country will not be notably safer by relocating to another. Depending on the nature and reasons for the threat, the victims can be pursued relentlessly. There are countless stories of men and women receiving threats in Bogotá or Medellín after relocating from another area and attempting to live anonymously in the big city. Many have been killed after seeking refuge in another part of the country. There are also cases of people leaving the country for a period of months or years, and then being killed after returning. Memories are long and data is systematically recorded and analysed ...

It is virtually impossible to relocate from one part of the country to another without someone taking note. Regional identity is very important. Skin color, colloquial mannerisms and customs, speech inflections and social orientation to the external environment all work to make it difficult for a Colombian individual to hide his or her roots or social origins. ...

Russian conscript

An interesting article for anyone handling an asylum/refugee case for a Russian conscript or conscientious objector to military service.

BBC reports detail an account of a tortured conscript beaten so badly that amputation was necessary.

BBC link: http://news.bbc.co.uk/1/low/world/europe/4691036.stm

Work permits

There are various ways to obtain temporary status in Canada. In terms of the traditional work permit there is much to be desired. The system is unnecessarily complicated - and creates unnecessary delay for both employers in need of workers and foreign workers trying to obtain employment in Canada.

The work permit is used for almost all foreign temporary workers: from live in caregivers (nannies), cooks and for IT professionals.

First the foreign worker (FW) needs a positive Labour Market Opinion (LMO). To obtain a LMO, the employer must provide appropriate proof of advertisement, job offer and a completed foreign worker application to HRSDC. This takes about 4-6 weeks (at least in Alberta). Once HRSDC has verified the job offer, the LMO is sent to the FW.

Now the FW takes the LMO, completed Work permit application and supporting documentation (work experience letters, resumes etc) to the Canadian Embassy. An interview to assess the FW qualifications, experience, english ability, etc. is often required.

The discretion of the Immigration Officer is quite broad. Experience suggests that the likelihood of approval depends largely on the country of origin. Generally speaking European countries are easier source countries than India, Pakistan, Bangladesh - unless we're talking about IT professionals.

The discretion of the immigration officer is a problem. The criteria for assessment must be more objective so that evryone involved have a greater degree of certainty throughout the process.

"Emergency" Stay Applications

Stay Applications are perhaps the final attempt to stop the removal of someone from Canada.

Once removal is scheduled by the CBSA (let's say for anyone with a valid deportation order issued against them), there are extremely limited options to 'stay' enforcement of removal (a Minister's permit would be one, a legislative stay another - finally, a stay by the Federal Court.)

An extraordinary remedy, it requires the applicant to meet the tripartite test set out in Toth (serious issue to be tried, irreparable harm to the applicant if order not granted - and not compensable in damages, and balance of convenience favouring the applicant). The case law is not entirely consistent - for example, a couple of cases, KAHN and SHARMA, indicate that harm to the family unit constitutes irreparable harm, whereas other case law indicates that the irreparable harm must be personal to the applicant himself/herself).

There must be an 'underlying' application for leave and judicial review (either an application for leave for a refused H&C, refused PRRA, or in some circumstances, refusal of the enforcement officer to defer removal).

A good review of the process is Waldman's text. The Federal Court Rules must be referred to. In short, counsel will need the Rule 35 letter, Draft Notice of Motion, Table of Contents, Affidavit(s) and Written Submissions (along with Solicitor's certificate).

Any situation that involves or could involve removal, requires experienced immigration counsel acting from the outset.