Stewart Sharma Harsanyi Immigration Law Firm Blog

Calgary Herald article

Article by Gwendolyn Richards in the Herald today. Excerpt: ...the lawyer representing Tran said his client is simply following the process afforded to him under legislation that was tightened back in 2002.Under the current Immigration and Refugee Protection Act, "serious criminals" -- those sentenced to two years or more in prison--are not allowed to appeal their deportation orders, Raj Sharma said Sunday. But Tran, who was sentenced to two years less a day for trafficking offences in 2000 and ordered to pay a fine for a 2002 assault, has the right to contest the removal order, Sharma said."Mr. Tran is not considered a serious criminal in the eyes of the law," he said, adding those who have a problem with that should take issue with the legislation, which sets the limit at sentences of two years or greater and not Tran himself. ... While it has been five years since Tran was first ordered deported, he had no control over the fact his appeal wasn't heard until last year, Sharma said. Read more →

Stay decision

Date: 20090830 Docket: IMM-2024-09 OTTAWA, ONTARIO, AUGUST 30, 2009 PRESENT:The Honourable Mr. Justice de Montigny BETWEEN: NGHIA TRONG NGUYEN-TRAN, a.k.a. TRAN TRONG NGHI NGUYEN and THE MINISTER OF CITIZENSHIP AND IMMIGRATION ORDER UPON MOTION on behalf of the applicant for an Order staying the execution of the removal order scheduled to take place on Monday, 31 August 2009, until the disposition of the underlying Application for Leave and Judicial Review of the decision by the Immigration Appeal Division dismissing his appeal against his removal order for inadmissibility for serious criminality; AND UPON reading the material before the Court; AND UPON hearing counsel for the parties by telephone conference; AND UPON directing myself to the tri-partite test for a stay first developed in the case of R.J.R. MacDonald Limited v. Canada ([1994] 1 S.C.R. 312), as applied to stays of deportation by the Federal Court of Appeal in Toth v. Canada (Minister of Employment and Immigration) (1998), 86 N.R. 302; AND UPON finding that the applicant has established a serious issue to be tried in relation to the underlying application challenging the decision of the Immigration Appeal Division. The applicant submits that the IAD erred in two respects, first in importing... Read more →

Back from remand

Just got back from the remand centre and preparing for the detention review to be held this AM. The detention review will likely be concerned with whether detention can be continued on the basis that the client is a danger to the public and/or whether he is a flight risk (or likely to appear for removal). Removal has been scheduled and is imminent. An application for a stay of removal has been filed with the Federal Court. This will be raised with the Immigration Division. In terms of 'danger', the IAD has found the client not to be (personally) a danger to the public; he has also been released from custody in the past. A decision is generally rendered immediately after the conclusion of submissions. Read more →

Article in the Calgary Herald

Link here. Read more →

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... Read more →

Tories look to fast track refugee claims

Looks like refugee reform will be enacted sooner rather than later. Globe and Mail article indicates that the "safe country" list will be a reality come this fall. Tribunal Officers (formerly known as Refugee Protection Officers) will be making the initial decision with an ability for an appeal (which may or may not mean a hearing) to a Board Member. So what countries will be on the 'safe list'? My guess is all of Europe, Mexico, Israel, India (let's see about this particular prediction), Chile, Israel (and of course the other western democracies, like the US and Australia). Countries that remain outside of the purported safe list will likely be any country with a higher than average acceptance rate. These countries will likely come from Africa, most of the middle east, Burma, North Korea, and other non-Rule-of-Law countries. But the exact mechanics of determining this list will be problematic. Who decides? And what will be the criteria? In my opinion, "safe countries" are those countries that are determined to be "free" (see Freedomhouse.org), with the usual indicia of the rule of law (think independent bar/judiciary, ability of citizens to change their government, ability of citizens to travel freely within the... Read more →

UK Border Agency - Country Specific Asylum Policy

There are certain documents that the Refugee Protection Division will refer to in its National Documentation Packages which typically comprise the disclosure in most refugee claims from the Board. The US Department of State Country Report is one such document. The other, oft-cited document is the Operational Guidance Notes from the UK Home Office. Read more →