Stewart Sharma Harsanyi Immigration Law Firm Blog

Medical Inadmissibility - Responding to the Fairness Letter

Skilled individuals apply with their families to start a new life in this country. Families wait for years to re-unite in Canada with their sponsor. In either case, that desire to come to Canada may be stymied if the applicant or their accompanying family member is inadmissible by reason of a medical condition. In this case, CIC will provide with a 'fairness letter'. The fairness letter will detail the diagnosis and the prognosis of the particular condition which is expected to impose a burden on health and/or social services in Canada. The fairness letter should include a list of health or social services required and their cost implications. The relevant legislation is s.38 of the Immigration and Refugee Protection Act. The fairness letter allows the applicant to provide additional information or documents relating to the medical condition, diagnosis or opinion. The applicant can submit any information addressing the issue of excessive demand. If the applicant is being sponsored as a member of the family class, he or she can appeal a negative determination to the Immigration Appeal Division which can consider all the circumstances including humanitarian and compassionate considerations and set aside a finding of inadmissibility. We have attached, in... Read more →

Controversy over the Temporary Foreign Worker Program

I discussed Minister Jason Kenney's abruptly announced moratorium on foreign workers for the restaurant industry on the CBC Radio Homestretch program. No one will disagree with the proposition that Canadians should have first 'dibs' on jobs here. The reality, however, is that the temporary foreign worker program is here to stay. Jason Kenney's targeting of the restaurant industry smacks of electioneering. It was made without any consultation or notice to stakeholders whatsoever. We've heard so many stories of exploitation of foreign workers which has never resulted in significant reaction by the government, public or media. This story is different, and has struck a nerve. In my opinion, temporary foreign workers are not taking away 'our' jobs. It is Canadian businesses that are preferring foreign workers over Canadians. We're going to see consequences of this abrupt decision right away. With all that being said, reform is necessary. We need to strike the right balance for Canadian businesses, Canadian workers and temporary foreign workers whom we need to treat equitably. Related articles Kenney imposes partial moratorium on temporary foreign workers program Some businesses need foreign-worker program, Restaurants Canada says Jason Kenney under fire as controversy rages over temporary foreign workers Kenney in... Read more →

Blog Posting - Changes to Federal Skilled Worker Program

The Minister has announced new changes to the Federal Skilled Worker Program, the Federal Skilled Worker Trades Program and the Canadian Experience Class effective May 1, 2014. Here is the link: http://news.gc.ca/web/article-en.do?mthd=index&crtr.page=1&nid=841339 Importantly, the Minister has expanded the number of eligible occupations for which an applicant may be eligible to apply under the Federal Skilled Worker Program through prior work experience. Importantly, family physicians, nurses, professors, different financial officers, managers and other types of professionals are once again eligible to apply. Once found eligible, applicants will still need to meet the points criteria, but the expansion of the list is a very positive development. Read more →

Blog Posting - Express Entry

As mentioned in previous posts, the government is now moving towards an "Expression of Interest" ("Express Entry") immigration system whereby potential immigrants are assessed by the government regarding their qualifications, the demand for their skills, whether a job offer exists and other still unpublished criteria which establishes their ability to succeed in Canada. The new regime is to be rolled out by January 2015 and promises to raise questions and have a profound effect on the current immigration system. The devil will be in the details, which to date have neither been discussed nor provided to the public. Accordingly, if you are now eligible to apply for permanent residence under any of the economic categories of immigration, we would strongly encourage you to do so at first opportunity as you may (or may not) be affected by the upcoming changes. Read more →

The Length of the Chancellors Foot

Sean Rehaag, Associate Professor at Osgoode Hall Law School, York University, has published his RPD Member decision stats for 2013. His data on 2013 RPD refugee claim outcomes and recognition rates -- for both legacy cases and the new system -- are now available on the CCR website: https://ccrweb.ca/en/2013-refugee-claim-data Professor Rehaag comments: "as with similar data for past years, there are significant variations in recognition rates, with some decision-makers granting refugee protection rarely, and others granting refugee protection in most cases. As indicated in the tables analyzing the data, these variations do not appear to be fully explained by country of origin specialization". For a discussion of the methodology used to obtain the data and to calculate the statistics, as well as an analysis of the implications of similar data for a previous year, see Sean Rehaag, “Troubling Patterns in Canadian Refugee Adjudication” (2008) 39 Ottawa Law Review 335. This article is available via links here: http://ssrn.com/author=404046 Read more →

It's Time to Grow Up and Change the Oath of Citizenship

I will be discussing the (Canadian) Oath of Citizenship at 12:30 on CBC Radio today (@Albertaatnoon) with Donna McElligott. The segment starts approximately 27.00 minutes into the podcast. 2014 04 14 CBCca alberta@noon The podcast on the CBC website is here. A trio of Canadian Permanent Residents have gone to Court to challenge the requirement of an oath of allegiance to her Majesty the Queen, her heirs and successors. All three are prepared to swear an oath to "Canada" but object (on various grounds) swearing an oath to the venerable Elizabeth. Only those seeking to become naturalized citizens are required to take the oath. Many would say that these immigrants have chosen a Commonwealth country, one with historic ties to the House of Windsor and thus cannot complain now. I don't know that this argument holds water. Immigrants have the right to challenge law that infringes their rights. They didn't sign away those rights when they landed in Canada. I highly doubt that this government will entertain the notion of changing the oath through legislation. The British monarchy seems to have inculcated "unthinking credulity and servility" (h/t CH) from this particular Prime Minister and his Cabinet. Citizenship and Immigration Canada... Read more →

UK Immigration Lawyer Harjap Bhangal

I first saw this video of UK Immigration lawyer Harjap Bhangal a while ago. Since that time, I've been watching his advice to (mostly NRIs) in the UK on his television show. I've been privileged to have him on my own radio show (The Legal Viewpoint, Fridays 6PM-7PM MST on 106.7FM). This particular clip remains my favourite. Read more →

Federal Court Judge Douglas Campbell

I appeared before Justice Campbell on two matters this last Wednesday. He allowed both applications because neither passed the "smell test". DoJ counsel Rick Garvin told me before we got started that Justice Campbell will be retiring next week. I'm glad I had the chance to appear before Justice Campbell prior to his retirement. I'll miss him. So will a lot of other lawyers that litigate on behalf of vulnerable refugees and other immigrants dealing with faceless bureaucrats and heartless government policies. Jason Kenney probably won't. Justice Campbell wasn't sufficiently solicitous of government policy for Jason Kenney's liking. Here's Justice Campbell's eviseration of (now Manitoba Judge, then Minister of Public Safety) Toews analysis: I find that the minister’s … analysis provides no justification for his stated belief, because he has failed to comply with the requirements of [the act]. [Toews's decision] states known facts, and an assumed fact, about the applicant’s act of criminal conduct resulting in his incarceration, but does not provide what is required: an opinion, supported by cogent evidence, as to whether the applicant, after the transfer, will commit a terrorism offence or criminal-organization offence. As a result, I find that the minister’s decision is not defensible... Read more →

Blog Posting - New Budget - Possible Financial Penalties - Employers of Foreign Workers

The 2015 budget is set to include clauses which will allow the Federal Government to impose fines on companies who either misrepresent their use of foreign workers or who use foreign workers to replace Canadians. Under the previous regime, employers could not be fined for transgressions, but rather employers who were found to have not adhered to the terms and conditions of the foreign workers' employment would be put on a Blacklist and barred from utilizing the Foreign Worker Program. Fines can now also be imposed on employers. Accordingly, in order to avoid penalties for use of the Foreign Worker Program it is imperative that employers page the wages required and ensure the working conditions meet provincial standards. Amongst other documents, employers utilizing the program need to be prepared to show paystubs and records of employment demonstrating wage compliance; worker's compensation board registration and payments; for low skilled workers proof of employer payment for travel from and to home country; and health coverage for workers prior to provincial health coverage kicking in. Employers who fail to document their employment of foreign workers risk being deemed to have not complied with their requirements and subject to the Blacklist or fines. Read more →

What to do with a Failed Humanitarian Application

I am attending at the Federal Court on two matters tomorrow morning before Justice Campbell. The first hearing deals with an applicant that came to Canada in the fall of 2005. He made a refugee claim which was denied a year later. His first application for humanitarian and compassionate grounds was filed within a month and was rejected 6 years later. We were retained and we filed an application for leave and judicial review to the Federal Court. Leave was granted; the Department of Justice consented to have the matter remitted to a different officer for reconsideration which resulted, nonetheless, in another refusal. We filed another application for judicial review; once again leave has been granted and the matter is set down for oral argument. An application under s.25 a "Humanitarian and Compassionate Application" is about seeking an exemption from the criteria set out in the Immigration and Refugee Protection Act and Regulations. The applicant seeking the exemption (obviously) bears the onus of proving his or her case. This means that the applicant needs to establish that 'unusual or undeserved' or disproportionate hardship would result if the application were not granted. In this case, the officer makes a fairly obvious... Read more →

My Big Fat Fake Wedding - Marriage Fraud in the UK

There are no fairy tale endings in fake weddings; just immigration status for the fraudsters. It's an eye opening series; not sure if anything similar has been done in Canada. This journalist crashes a fake wedding to film a potential sham wedding between 46 year old Maria and 29 year old (Pakistani national) Ali. Part I: Read more →

What does it mean to be a Canadian Citizen?

What does it mean to be a Canadian citizen? Chris Alexander, the current Minister of Citizenship and Immigration believes that all Canadians share certain, fundamental values. In my opinion, lecturing newcomers as to the inherent superiority of "Canadian values" is not the best way to spread those values. The values that Chris Alexander references as Canadian values are global and transnational values espoused by every culture that I have encountered - hard work, honesty, etc. Let's get off our soapbox and start noticing what we all have in common. Read more →

No increased language requirements for spouses

It would appear that no increase in language requirements is in the works. Minister Chris Alexander made that clear in Parliament on March 27: "Mr. Speaker, no, we have no intention of imposing language requirements for spouses, but we will continue to study these issues..." I think many immigrant groups will have a sigh of relief and hold this government to this clear commitment. It leaves me wondering why speculation and concern was allowed to run for a couple of weeks. Read more →

Possible Changes to Requirements for Spousal Sponsorship Applicants and Sponsors

Minister Chris Alexander appears to be mulling making changes to the criteria for acceptance of applicants being sponsored by the partners and spouses in Canada. Specifically, the Minister is thinking about making potential Applicants meet minimum proficiency in one of the two official languages before being granted permission to enter Canada as well as have sponsors meet minimum income requirements. There does not appear to be any articulated rationale for requiring language proficiency as a spouse. Language proficiency is required for most economic class immigrants. There are good reasons for this requirement. Economic immigrants who have language proficiency integrate more easily, are able to find work more easily and therefore are able to become successful in Canada more so than individuals without such abilities in English or French. Spouses have never been required to meet language requirements for the simple fact that the government has never sought to meddle in or dictate in affairs of the heart. Unsurprisingly, we see this as yet another misguided, mistaken and foolish potential change to the Act. Obviously such a requirement would clearly and unequivocally impact certain sub-groups of the immigrant population worse than other groups which would result in unjustifiable differential treatment. It... Read more →

Former CBSA Officer Discusses Immigration Enforcement

Former CBSA officer Kelly Sundberg discusses Canada's tough talk on human smuggling. Read more →

Is Canada Losing its Compassion for Refugees?

Canada's response to the Syrian humanitarian and refugee crisis is being compared to our response in 1979/1980 to the Vietnamese "boat people". Canada's response to Syrian refugee crisis - in our opinion is wholly inadequate although Mr. Alexander seems to be an articulate defender of our refugee policies. This is one of the rare times that we've seen this minister (or the previous) challenged in this manner. Most disappointing, Mr. Alexander keeps referring to "bogus" refugees; a misleading and damaging term. Janet Dench gave as good as she got; it would have been great to see her debate Mr. Alexander head-to-head. Read more →

The Refugee Appeal Division

The Federal Court is hearing an important case dealing with the nature of the appeal at the Refugee Appeal Division (today). CARL and CCR are intervening jointly to argue that the appeal is a full appeal on the merits, not simply a review of whether the first decision before the Refugee Protection Division was reasonable. The government wanted to adjourn the hearing to have more time to prepare, but the Court just refused, so the hearing is going ahead (they know how a refugee claimant feels!) Audrey Macklin is presenting oral arguments for CARL and CCR. Good luck to the Applicant (and CARL and CCR counsel). Read more →