Stewart Sharma Harsanyi Immigration Law Firm Blog

Real Refugee Reform

Ministers Toews and Kenney have been busy this year trying to show Canadians (and prospective refugees outside Canada) that they mean business. Instead of announcing and enacting new legislation that would apply to only a tiny minority of refugee claimants, the duo should perhaps look at the existing legislation that actually allows the government to take back refugee status given to an individual if the conditions back home have changed and the reasons for the claim/risk no longer exist (cessation). The use of that provision, combined with expeditious determination of claims and (more importantly) expeditious removal of individuals once they have been determined not to be at risk should be more than enough to send a clear message to economic migrants/bogus refugee claimants. Maybe they aren't actually interested in solutions; politics is theatre to a large extent and the government needs to show the public that they are taking action on a seemingly intractable problem. The reality is far more prosaic. The government already has the tools necessary to address the essential problems, but insist on public display and ostentatious new legislation. Read more →

Randy Quaid and the Star Whackers

Randy Quaid and his wife are claiming refugee protection against their country of origin/nationality: the United States of America. The claim appears to be manifestly unfounded. The erratic Quaid, a Hollywood actor, is claiming persecution from "star whackers", pointing to the untimely deaths of Heath Ledger and David Carradine. His wife states that Hollywood is killing its stars for ad sales (as an aside, it's questionable whether Quaid still ranks among the glitterati to merit 'star' status). Such a claim profile underscores the fact that our immigration/refugee system is susceptible to abuse, and at the same time, is a slap in the face to genuine refugee claimants that actually need this country's protection. Under our current law, Quaid is entitled make a refugee claim in Canada. Fine. But he's not entitled to stay here any longer than absolutely necessary for the immigration authorities need to adjudicate his ridiculous claim for protection. Read more →

Assessment of Credibility in Claims for Refugee Protection

I am reviewing a publication by Legal Services, Immigration and Refugee Board entitled "Assessment of Credibility in Claims for Refugee Protection". One reference seems to indicate that it would be an error of law for the Board to rely on selective evidence: In Polgari, Imre v.M.C.I. (F.C.T.D., no. IMM-502-00), Hansen, June 8, 2001, 2001 FCT 626, the Court faulted the CRDD for "the absence of any analysis of the extensive documentation...coupled with the failure to adequately address the contradictory documents and explain its preference for the evidence on which it relied." In Orgona, Eva v.M.C.I.(F.C.T.D., no. IMM-4517-99), MacKay, April 18, 2001, 2001 FCT 346, the Court faulted the CRDDbecause "it made no reference to the significant documentary evidence which was supportive of the... claims. ...when evidence which supports the [claimants'] position is not referred to, and when other documentary evidence is selectively relied upon, the tribunal, in my opinion, errs in law by ignoring relevant evidence. Another reference indicates the limited value of noting the failure of a claimant to refer to his/her fear in an application for a visitor visa to enter Canada: In Fajardo, Mercedes v.M.E.I. (F.C.A., no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993, Reported: Fajardo v.... Read more →

Refugee Acceptance Rates

CBC has a database indicating refugee acceptance rates broken down by source country. I requested the rates for countries that we have worked on recently, including Zimbabwe, Somalia, DRC, Haiti, Colombia, India, Pakistan, etc. Country Claims Referred Accepted Rejected Abandoned Withdrawn / Other Claims Finalized Pending Acceptance rate Zimbabwe 22 89 16 4 2 111 486 80.18% Somalia 189 137 9 33 0 179 941 76.54% Democratic Republic of Congo 107 116 30 5 3 154 642 75.32% Haiti 639 1364 890 65 85 2404 5697 56.74% Colombia 732 751 537 17 47 1352 3087 55.55% China 846 476 337 53 59 925 2879 51.46% Pakistan 224 81 63 9 20 173 786 46.82% Albania 104 68 64 5 9 146 565 46.58% Mongolia 16 9 12 1 0 22 54 40.91% India 239 73 109 16 21 219 1056 33.33% El Salvador 223 42 126 7 7 182 1147 23.08% Israel 103 39 156 9 54 258 768 15.12% Honduras 178 20 93 12 10 135 639 14.81% Mexico 749 305 1675 152 701 2833 11770 10.77%  Read more →

Mandamus

More on Mandamus -- from Justice Boivin's decision (http://decisions.fct-cf.gc.ca/en/2010/2010fc767/2010fc767.html): [13] Mandamus is a discretionary equitable remedy. It lies to compel the performance of a public legal duty which a public authority refuses or neglects to perform although duly called upon to do so. In Kalachnikov v. Canada (Minister of Citizenship and Immigration), 2003 FCT 777, [2003] F.C.J. No. 1016, from paragraphs 11 to 13, Justice Snider reviewed the requirements for mandamus in the immigration context: The Test for Mandamus [11] Mandamus is a discretionary, equitable remedy (Khalil v. Canada (Secretary of State), [1999] 4 F.C. 661 (C.A.)) subject to the following conditions precedent. 1. There is a public duty to the applicant to act; 2. The duty must be owed to the applicant; 3. There is a clear right to performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty; (b) there was a prior demand for performance of the duty, a reasonable time to comply with the demand, and a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; and 4. There is no other adequate remedy. 5. The "balance of convenience" favours the applicant (Apotex Inc.... Read more →

Visa officers discretion in granting or not granting work permits

Very good decision by Justice Martineau on decisions by visa officers on granting/not-granting work permits: http://decisions.fct-cf.gc.ca/en/2010/2010fc941/2010fc941.html Read more →

Federal Court decision on the Galloway affair

Justice Mosley has ruled on the (improper) efforts to keep George Galloway out of Canada: http://decisions.fct-cf.gc.ca/en/2010/2010fc957/2010fc957.html Read more →