Stewart Sharma Harsanyi Immigration Law Firm Blog

Her Majesty the Queen v. Daniel James Gomboc

Both Charlie and David are back from their appearance in Ottawa before the Supreme Court of Canada. Details about the case: Gomboc was convicted of growing marijuana in his home. Calgary police asked a power company to measure Gomboc's electricity usage. Police did not have a warrant when it asked the company to install a digital recording ammeter (DRA). Based upon the DRA's information and the drug unit's observations of Gomboc's property, the police obtained a search warrant for his house. Gomboc argued that the police had breached his right to privacy and that the search warrant was unconstitutional. The Alberta Court of Appeal overturned his conviction and ordered a new trial. victed of growing marijuana in his home. Calgary police asked a power company to measure Gomboc's electricity usage. Police did not have a warrant when it asked the company to install a digital recording ammeter (DRA). Based upon the DRA's information and the drug unit's observations of Gomboc's property, the police obtained a search warrant for his house. Gomboc argued that the police had breached his right to privacy and that the search warrant was unconstitutional. The Alberta Court of Appeal overturned his conviction and ordered a new... Read more →

CBSA Officers

A CBSA Enforcement Officer's job is inherently difficult. By definition he or she is dealing with potential infractions to Canada's immigration regime and has a mandate to uphold the integrity of the system. They see only the pathology and/or the 'bad apples' and it would be easy for them to become cynical and jaded. It's a given that they will encounter, on a daily basis: war criminals; failed refugee claimants; individuals who are abusing the immigration system; people working without authorization; employers in non-compliance with IRPA; people that have overstayed their visitor visa; identity fraud; criminals who need to be removed from Canada; and, sometimes, simple dupes or other victims - among others. While as lawyers we sometimes are in a somewhat adversarial position with CBSA, the officers here in Calgary are firm but generally fair. My encounter today with Darryl Zelisko was representative of my dealings with other officers. The officer was courteous and respectful with my client, but clear as to the repercussions with respect to his failure to attend at a secondary examination. We dealt with the warrant that was issued and the client was released on a cash bond and terms and conditions. All in a... Read more →

Appeal to the IAD: Breach of the Residency Requirement

IRPA allows permanent residents to appeal removal orders made against them. Removal orders can be made against permanent residents on a number of grounds. In my experience, misrepresentation and criminality are the most common; followed by a breach of the residency obligation. A permanent resident (PR) can appeal the removal order to the Immigration Appeal Division (IAD), an administrative tribunal. After becoming a PR, an individual must comply with a defined residency obligation (in essence, and with some exceptions, to be in Canada 730 days in a five year period -- Note, except for the initial 5 year period, the officer will calculate whether residency had been met for the 5 years preceding the date of the examination). Should a determination be made (within Canada, at a POE, or outside Canada) that a PR has not complied with the residency requirement, a departure order may be issued. The PR has the option of appealing that determination both on legal grounds and on discretionary grounds. In my experience, it is usually conceded that the departure order is valid in law and evidence is presented to establish the existence of humanitarian and compassionate grounds to justify special relief. The concept of 'abandonment',... Read more →

The spousal sponsorship appeal

I have written previously about the spousal sponsorship appeal hearing. This is the most common type of appeal before the Immigration Appeal Division (IAD). The appeal is from a refusal by an overseas visa officer (Note - there is no appeal for a "In-Canada Spousal Sponsorship") of a spousal sponsorship application. Typically 'red-flags' alert a visa officer - this can be in the form of incompatibilities, such as a disparity in age, education, social/linguistic background; or it could be a poor performance at an interview and the applicant displays a lack of knowledge of the sponsor. The sponsor (a Canadian citizen or permanent resident) has to file a Notice to Appeal within 30 days of receiving the decision. The Notice of Appeal can be faxed. The visa officer generally takes issue with the bona fides or 'genuineness' of the relationship. On some occasions, there may be an issue with the legal validity of the marriage (for example, a sponsorship will be refused if the marriage is not in accordance with the laws of that particular country; China/PRC for example does not recognize cousin-cousin marriages; other countries may have an age requirement). If there is an issue with the legal validity... Read more →

It's a hearing heavy two weeks. Three hearings this week, followed by three more the next week. Refugee claims against Burma, Albania and Haiti. Next week will include a refugee claim against Tanzania, a residency appeal and a 'spousal sponsorship' appeal. In terms of the residency appeal, it will be essential to lay out the reasons for the non-compliance, as well as the current ties and establishment to Canada. In terms of the spousal sponsorship, I've met with the sponsor on a number of occasions to prepare her for the questions that will be raised in the appeal, in this case the misrepresentation made by her husband, the applicant in this matter. Read more →