Stewart Sharma Harsanyi Immigration Law Firm Blog

The test for mandamus ...

One of the remedies that can be granted by the Federal Court is mandamus. The Court can essentially compel the relevant decision maker/administrative tribunal to do something. Usually, this remedy is sought because the government/decision maker is refusing to do something -- such as not landing an individual despite an application for permanent residence that has been filed ... or not taking a decision. The Federal Court in Vaziri reiterated that mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays.[1] The Court in Vaziri, supra, summarized the conditions precedent for a grant of mandamus: The test for mandamus is set out in Apotex Inc. v. Canada (Attorney General), 1993 CanLII 3004 (F.C.A.), [1994] 1 F.C. 742 (C.A.), aff'd 1994 CanLII 47 (S.C.C.), [1994] 3 S.C.R. 1100 (and, more recently, discussed in the immigration context in Dragan v. Canada (Minister of Citizenship and Immigration), 2003 FCT 211 (CanLII), [2003] 4 F.C. 189 (T.D.), aff’d 2003 FCA 233 (CanLII), 2003 FCA 233). The eight factors are: (i) There must be a public legal duty to act; (ii) The duty must be owed to the... Read more →

Fairness ...

The Lord Chief Justice of England, Lord Parker CJ made the following pronouncement in Re H.K., [1967] 2 QB 617, which concerned the admissibility of what we would term a foreign national into Britain “he [an immigration officer] must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.” Lord Parker CJ Re H.K., [1967] 2 QB 617 Read more →

Failure to declare cash when entering Canada...

Client failed to declare cash when entering Canada. The amount exceeded $10,000. Unfortunately, there are a number of aggravating circumstances; including the fact that the client had previous violations and the fact that the client changed his story to the CBSA officer. The cash was seized. When we sought a review, the decision maker focused on the fact that the client's explanations as to where he got the funds was insufficient. In our view, the officer has placed the client in an almost impossible position. In reality, the funds were a cash loan to him by family members (corroborated by way of affidavit evidence). While some of the funds were returned, the decision maker has denied the return of the balance. As a result, we are seeking review by the Federal Court. This action is quite different than judicial review on immigration matters: Proceeds of Crime (Money Laundering) and Terrorist Financing Act: Appeal to Federal Court 30. (1) A person who requests a decision of the Minister under section 27 may, within 90 days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which the person is the plaintiff and... Read more →

Extraterritoriality ...

Contrary to what perhaps popular culture might have us believe, the law that is applicable in an embassy is the law that is applicable in the "receiving state". An embassy does not constitute foreign soil, and remains subject to the sovereign law of the state in which it is located. A United States embassy, however, remains the territory of the receiving state, and does not constitute territory of the United States. Restatement (Second) § 77 comment a. Thus, United States embassies are not within the territorial jurisdiction of the United States. McKeel v. Islamic Republic of Iran, 722 F. 2d 582 - Court of Appeals, 9th Circuit 1983 Read more →