Stewart Sharma Harsanyi Immigration Law Firm Blog

Found the following helpful commentary in L. Waldman's text on Immigration Law and Practice regarding the use of plausibility findings by the Board: "Plausibility findings should only be made in the clearest of cases -- where the facts as presented are either so far outside the realm of what could reasonably be expected that the trier of fact can reasonably find that it could not possibly have happened, or where the documentary evidence before the tribunal demonstrates that the events could not have happened in the manner asserted by the claimant..." Read more →

Refugee claim tomorrow morning. Some quick notes on the process: the refugee claimant bears the onus in establishing his/her claim for protection; for a s.96 claim the standard of proof is "more than a mere possibility of persecution" (which is less than the civil standard); for a s.97 the standard of proof is balance of probabilities; there is a presumption of state protection which can be rebutted with clear/convincing evidence of state's inability/unwillingness to provide protection; and the risk must exist in all parts of the country of nationality. Read more →

Disgraced refugee adjudicator/former city councilor/non-practicing lawyer Steve Ellis has been found guilty. Ellis was a former member of the Refugee Protection Division. He was found guilty of using his position for his benefit (IE he proposed a sexual relationship to a refugee claimant in exchange for a favourable consideration of her claim). I imagine the Law Society of Upper Canada may now move to suspend or disbar Ellis because of the criminal conviction. Ellis was apparently well regarded by his peers; but his appointment was likely one in which political considerations played a part. Kenney's refugee reforms have one silver lining - no political appointee will be involved in the front-line decision making process. Civil servants trained in adjudication and principles of administrative law and natural justice will make the initial decision. Read more →

The 'Balanced Refugee Reform Act'

As I've recently tweeted, I'm not a fan of euphemistic legislative titles. The 'Balanced Refugee Reform Act' should instead be called the 'Limiting Access to our Immigration and Refugee System'. The former title seems to imply that there is a balancing of interests. Let's be clear - there is no 'balancing', only a tipping of the scale in favour of the government. Lawyers Weekly has an article detailing the proposed changes to the current system here. The issue that few are talking about is the fact that there is an absence of independence in this proposed new system. Front-line decision makers are civil servants, not independent tribunal members. Why is this important? Rephrased: how can we be certain that a decision is on the facts and merits of the individual case when the Minister of Citizenship and Immigration (who presumably has the ability to determine the apogee and perigee of a civil servants career) is opining about the bona fides of claims from certain countries? There was a reason why an independent tribunal was set up to determine refugee claims. I'm not certain that abandoning that framework is the wisest course of action. Read more →

Had a number of consultations today, ranged from questions about an individual in the U.S wanting to make a refugee claim in Canada (yes, there was an exception to the Safe Third Country Agreement); an appeal for a refusal on a skilled worker application (no technical appeal, just judicial review at the Federal Court which was not feasible in the circumstances -- application under AINP Family Stream better route); a seemingly straightforward family class sponsorship by a Canadian Permanent Resident (explained LICO, sponsor eligibility, and typical inadmissibility issues); and a consultation about the AINP Family Stream (whether funds have to be in the Candidate's account overseas). Read more →

Attended at the IRB/RPD on Wednesday for a (Cuban) refugee claim. Paraphrased decision in Ward in my submissions: where fear is legitimate (or credible) and there is an absence of state protection, then it is not a great leap to presume that persecution will be likely. Cuba continues to harass, monitor, and persecute individuals it perceives as dissidents. Client is deserving of protection either as a Convention Refugee or a Person in Need of Protection. Read more →