Stewart Sharma Harsanyi Immigration Law Firm Blog

Romeo Dallaire to speak on conflict and peace

Romeo Dallaire (Ret'd) will be speaking on the theme "Patterns of Conflict, Paths to Peace" addressing the required political response to conflict and the resulting developing forms of peace from personal/political/cultural perspectives. He'll be speaking at the U of C Mac Hall on March 10, 2006 at 7:30 PM. Tickets are available through Ticketmaster (www.ticketmaster.ca). Read more →

(In)Famous Immigration (ex)Lawyer

Ingrid Chen has again made the news. This time with allegations over using bikers to collect debts from clients: A self-employed debt collector and his team of beefy biker associates were allegedly hired by a Winnipeg lawyer to aggressively chase down unpaid bills from her clients, court was told yesterday. Patrick Armstrong said Ingrid Chen even wanted him to "slap around" one of the two men he was asked to go after in 1999. Armstrong said he couldn't go through with the beating because the man's children were home when Armstrong paid a visit. "She wanted him slapped around, but even I'm not that much of an idiot," said Armstrong, adding he later lied to Chen and said he'd roughed the man up. "I told her I gave him a couple slaps and she was happy with that...(Mike McIntyre - article here.) While accounts receivable are a problem for all self-employed professionals, this is really taking it a tad too far. Unfortunately, these allegations surrounding a former lawyer can only besmirch the profession as a whole. Read more →

Rothstein appointment - a judicial 'conservative'?

Marshall Rothstein of the Federal Court of Appeal has been chosen by Prime Minister Harper to sit on the country's highest court. Article from canada.com found here. Obviously many commentators will be looking at Rothstein's judgments to gauge his future stances. His judgment in Azizi [2005] FCJ No. 2041 may be very helpful. The case considered 117(9)(d) of IRPA - the case dealt with a refugee granted status in Canada who was barred from sponsoring his wife and children because he did not disclose them on his original immigration application (he was required to be single so that he could leave the refugee camp he was staying in in Pakistan) - the FCA upheld that decision ruling that Azizi was the 'author of his own misfortune'. The following sentence in Rothstein's judgment may be why he has been nominated by the Conservative government: It is trite law that the Court may not change the words of a statute or regulation, which is what Mr. Azizi's argument implicitly requests.[Para. 15]. The Conservatives have long been concerned that the SCOC/Other Courts have overstepped their function - making law instead of interpreting it. Rothstein's statement may be reassuring to Conservatives. Read more →

Security trumps rights

Lorne Waldman, a leading immigration lawyer and author of the semonal text in the area (Immigration Law and Practice) is representing Maher Arar, a Canadian who was deported to Syria where he was allegedly tortured. His article on security and rights was published today in the Toronto Star. The article is at http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1140521651009&call_pageid=968256290204&col=968350116795. His well founded concern is the amendments to the Canada Evidence Act - which allows the suppression of evidence by the attorney general and little recourse or effective oversight by the Federal Court of Canada. Unfortunately I don't believe the public at large will grasp the implications or that there has been significant intrusion into fundamental rights and freedoms. Read more →

CBA Immigration Meeting

Just finished attending a CBA Immigration Meeting. Some very helpful comments by Anita Boscariol - the Assistant Deputy Chairperson of the Western Region - Immigration Appeal Division. I've requested her permission to post scans of the handouts distributed at the meeting. There were two - one was a summary of the IAD stats in the Western Region. That - and the comments by the ADC regarding the appointment/re-appointment of Members indicate that processing times are not going down anytime in the immediate future. The stats are indicating an almost 20% (on average) increase in filed appeals in Calgary, Edmonton, Winnipeg and Vancouver. The second handout was actually a quick summary or primer of Practice before the Immigration Appeal Division. I want to post a scan of it, because it will be of assistance to junior immigration lawyers with little practice experience before the IAD. It talks about the IAD's early review practice - basically 'triage' or case screening. The IRB's website is of course at: www.irb-cisr.gc.ca Read more →

Border Crossings and Disbarment

Illegal migrants paid up to $40,000 to cross the US/Canada border. Link is here. Looks like disbarred lawyer Ingrid Chen was offering bargain rates when she was involved in setting up an illegal border crossing. A former Winnipeg immigration lawyer has been handed a one-year conditional sentence after being convicted of helping to smuggle [Ferdinand (Dean) Gutierrez] into the United States in 1999. Ingrid Chen appeared upset when Mr. Justice Nathan Nurgitz handed down the sentence yesterday. He says she will be under a curfew that will allow her to leave her home only to go to work. She will also have to repay about $3,800 she received [for masterminding] the smuggling incident." (Globe and Mail, May 14, 2004) This is from the Law Society of Manitoba website: N O T I C E TAKE NOTICE that by resolution of the Complaints Investigation Committee of The Law Society of Manitoba, effective the 8th day of July, 1999, INGRID YIN-YU CHEN was suspended from the practice of law pursuant to Section 50(1) of The Law Society Act pending an inquiry into her conduct. DATED at the City of Winnipeg, in the Province of Manitoba, this 8th day of July, A.D., 1999.... Read more →

Hungarian deportee

The Hamilton Spectator is covering the situation of a Hungarian woman facing deportation from Canada. The link is here. The woman's (unclear whether she was a refugee claimant or not) ex-boyfriend promised to assist her on regularizing her status. It apparently didn't happen. She was abused by him and fears for her life from her ex-boyfriend's family. She has a daughter born in Canada. The author is requesting Canadians to lobby CIC/CBSA/Minister of CIC with respect to this particular case. The circumstances certainly appear tragic. Our immigration system however does incorporate the principle of 'non-refoulement' - basically that we're not sending anyone back to a country where their life will be in danger. One of the ways this 'risk' is assessed is by way of a PRRA analysis (Pre-Removal Risk Assessment). However, given the extremely low rate of success (2% here in the Prairie region) its unlikely this will solve 'Anna's" problem. **02/17/2006** 'Anna' was granted status in Canada, likely through the H&C process. Article here. Read more →

Retainer or Engagement Letters

A good, succint article at http://www.cba.org/cba/PracticeLink/CS/engagement.aspx outlines the necessity of and basic parameters to a retainer or engagement letter. A written agreement is envisioned in the Code of Professional Conduct, but is important so that both parties are aware of the fundamentals of the lawyer-client relationship. Obviously payment terms and the scope of the retainer is important for the lawyer to establish from the outset. More importantly the author seems to indicate that the retainer may help to uncover 'problem' clients- before they become (at a minimum) an annoyance. Make sure the retainer outlines how and uner what circumstances the lawyer can withraw. Combined with Foonberg's Law (essentially - fees up front) a written retainer will save a lawyer from unpaid bills and unrealistic (and therefore unhappy) clients. Here's a draft engagement letter used by my office. Download engagement_letter.doc Read more →

Mexico No. 1 Source Country for Refugees

Somewhat surprisingly, Mexico is Canada's number one source country for refugees in 2005. The news link is here. Rougly 3,500 Mexican refugee claims were 'referred' to the Immigration and Refugee Board. Out of which around 2,300 were rejected. Another 700 failed to show up for immigration proceedings and 'abandoned' their claims. I'm pretty sure that the numbers don't mean that country conditions in Mexico are worse than the perennial source countries. I think it has to do more with the geographical proximity and the fact that Mexicans don't need a visa to enter Canada. Read more →

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).... Read more →

Increased Immigration Levels Not Necessary??

A leading demographer has indicated that increasing immigration levels to meet labour shortages in Canada is not necessary. The link is here. Based on demographics, Foot said he would maintain the existing level of immigration to Canada until 2015, a time when fewer people will be in their 20s. That opinion runs contrary to new policies announced last fall by both the federal and provincial governments. Notably, Foot's view is contrary to the (popular) perception that immigration levels need to rise in Canada - that it is vitally necessary for our economy. At the same time, there are numerous indicators of Alberta's severe shortage of workers. Efforts at recruting individuals within Canada are not succeeding at meeting the demand. A CBC news link already documents the efforts of Alberta companies advertising and recruiting from Eastern Canada: link here. Here's an excerpt: One grocery retailer is offering jobs that pay up to $35,000 per year, free airfare, a month's free rent and moving expenses. Philip Roach of Westfair Foods says it's not just the grocery business that's booming. "Every business in Alberta is struggling with recruiting qualified staff," he said. It could be that while Foot's demographic models may be technically... Read more →

Border security - an oxymoron?

Border security guards fled their posts for the third time in recent memory in response to a threat. Globe and mail link here. I understand that the border guards are not armed and have the right not to work in unsafe conditions. I also understand that the RCMP are 'on site'. However 'fleeing their posts' kind of negates the concept of 'guard'. Ironically, our national anthem calls on us to 'stand on guard' for our country. Border security should actually mean that. The sovereignty and security of this country require that the border is secure. We need to ensure that the border is not merely a line on a map - and we can't abdicate that responsibility to the US. If the Canada Border Services Agency purports to secure the nation at the border, at port of entries and enforce the laws of this country, they must be able to carry out that mandate. Apparently the new PC government plans to do that. CBC link at here. Read more →

Refugees/Deserters...

The Federal Court has heard the application for leave and judicial review for two "American war dodgers". It has yet to make a decision. The underlying decision (the decision being 'appealed') was a refusal by the IRB RPD (Immigration and Refugee Board, Refugee Protection Division) to grant the individuals refugee status. A CTV news article can be found here. Read more →

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... Read more →

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 Read more →

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... Read more →

Detention of asylum seekers

A recent article speaks about suicide rates among detained asylum seekers in the UK. BBC's link is at here. While there remains many issues with Canada's asylum system, I am glad that we've stayed away from large scale detention like the UK and Australia. Upon claiming asylum in Canada, claimants can apply for a work permit, social benefits, and a driver's license. Read more →

"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... Read more →

Vancouver reports lowest Refugee Acceptance Rates

A previous post commented on the sharp drop in refugee claims at the border due to the Safe Third Country Agreement (and referenced some critics). Another article (from the Globe and Mail) indicated that Vancouver has the lowest acceptance rate among the various IRB centers (Calgary, Ottawa, Toronto, Montreal being the main ones - actually Calgary is now part of the Western Region). The link is here. The article also lists an interesting year by year comparison of acceptance rates, showing Calgary and Vancouver having significantly lower acceptance rates than other regions: 2000: Vancouver 25% Calgary 51% Toronto 54% Montreal 47% National 48% 2001: Vancouver 38% Calgary 55% Toronto 46% Montreal 50% National 47% 2002: Vancouver 30% Calgary 48% Toronto 50% Montreal 43% National 47% 2003: Vancouver 28% Calgary 35% Toronto 43% Montreal 42% National 42% 2004: Vancouver 24% Calgary 27% Toronto 40% Montreal 41% National 40% 2005: Vancouver 27% Calgary 30% Toronto 46% Montreal 44 % National 44% So what does this mean? It's concerning that different regions may be producing different results for similar claims/same source countries. It's important that any judicial type proceeding have a degree of consistency. Read more →