Stewart Sharma Harsanyi Immigration Law Firm Blog

Blog Posting - Federal Court Initial Ruling on Standard of Review to be Applied by Refugee Appeal Division

In what appears to be the first ruling of its type, Justice Shore of the Federal Court in IYAMUREMYE v. CANADA (CITIZENSHIP AND IMMIGRATION) has agreed with the Refugee Appeal Division in the standard of review to be applied to decisions relating to factual determinations or mixed fact and law in refugee claims. Essentially both Justice Shore and the RAD have indicated that the low threshold of reasonableness is the standard of review for questions of fact and mixed fact and law. Given the nature of the decision being made in RAD cases, the overwhelming evidence that the RAD have broad powers of review, and the statutory scheme underlying the inception of the RAD, we would expect there to be contrary views, to that of Justice Shore, to be expressed by other members of the Court on this point and eventually the matter being heard by the Federal Court of Appeal. Stay tuned. Read more →

What's involved with humanitarian and compassionate applications?

In Paul[1], Justice Campbell overturned a decision where the Officer demonstrated a clear lack of compassion for the difficult circumstances faced by the Applicants. [8] The argument advanced to the Officer in the present case can be identified as one based on unusual, undeserved, and disproportionate impact. In Damte v Canada (Citizenship and Immigration), 2011 FC 1212 (CanLII), 2011 FC 1212 at paragraphs 33 and 34, I have expressed what these considerations should mean: Thus, the Guideline test requires a subjective as well as an objective evaluation of hardship: unusual hardship might only require an objective analysis, whereas undeserved and disproportionate impact hardship requires both an objective as well as a subjective analysis. A subjective analysis requires that the facts be viewed from an applicant’s perspective. In particular, a disproportionate impact analysis must reflect an understanding of the reality of life a person would face, in body and mind, if forced to leave Canada. In my opinion, to be credible in determining these essential features, a decision-maker must apparently, and actually, apply. Applying compassion requires an empathetic approach. This approach is achieved by a decision-maker stepping into the shoes of an applicant and asking the question: how would I feel... Read more →

Blasphemy charges in Pakistan

We've handled many refugee claims against Pakistan. The climate of intolerance and impunity degraded institutions of rule of law means that many individuals are at personalized risk for a variety of reasons. Our recent cases involve false allegations of 'blasphemy'. These false charges are used to intimidate and harass religious minorities and other Muslims. http://www.theglobeandmail.com/news/world/pakistan-tv-station-accused-of-blasphemy-after-broadcasting-music-during-interview/article18770149/ Read more →

Abousfian Abdelrazik

I've discussed the disturbing case of Abousfian Abdelrazik in the past. I've uploaded the originating document for his lawsuit against the Federal Government here: Download T-1322-13 Doc 1 Read more →

Res Judicata and Spousal Sponsorships

Res judicata has often been applied to successfully bar multiple spousal sponsorships. The three preconditions for res judicata: 1. the same issue has been previously decided in earlier proceedings; 2. the previous decision was a final judicial decision; and 3. the parties to the present proceeding are the same parties as the parties to which the previous decision applied. (Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 ) Therefore it is up to the saving provision of “special circumstances” (it is necessary to ask whether, taking into account all the circumstances, the application of issue estoppel would work an injustice (Apotex Inc. v. Merck & Co., [2003] 1 F.C. 242 (FCA) at paras. 29-30) as quoted in Rahman, infra, at para 21). Dhaliwal, is helpful where Justice Campbell states that “evidence of continuing commitment is new in that its current nature was not present in the previous hearing, and that it speaks to the parties' intention at the time of marriage”. “Fresh evidence” may warrant hearing the case on the merits (Rahman v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1661, 2006 FC 1321 at para 24 : The IAD analyzed the question of "fresh" evidence according... Read more →

Canadian Bar Association National Immigration Law Conference

I was honoured to be a presenter at the CBA National Immigration Law Conference held this year in Calgary. I was asked provide my thoughts on emergency stay applications. I was on a panel with the one and only Barbara Jackman. Jason Kenney surprised everyone by dropping in on Friday afternoon resulting in our presentation being pushed to Saturday morning at 8 AM. I took zero issue with that as Mr. Kenney's attendance and his willingness to answer some tough questions obviously took precedence. I've said this in the past, and say it again - while Mr. Kenney and I have different world views, I do recognize zeal, competence and ability when I see it. Some excerpts from my paper (footnotes omitted): An application for a stay is an action where an applicant seeks the intervention of the Federal Court in deferring the enforcement of a removal order until the determination of an underlying and pending application for leave and judicial review. Such a "stay has as its purpose the maintenance of the status quo ante pending the resolution of an application currently before the Court".[1] It is problematic to predict how a court will react to such an appeal... Read more →

Blog Posting - LMO Exemptions for Construction Trades in Alberta

Amidst the ever changing political environment for labour market opinions, employers and foreign nationals should increasingly try to obtain work permits that are exempt from the LMO requirement. One program that applies in Alberta to steamfitter, welders, heavy equipment mechanics, ironworkers, millwrights, carpenters and estimators allows employers to hire foreign workers in these occupations without an LMO. Employers are required to offer employment in these fields at the prevailing wage for the position and the job offer must meet all applicable labour standards. In most cases, the foreign national must obtain an approval letter from Alberta Apprenticeship and Industry Training advising that they are enrolled with them to write qualifications exam. It should be noted that this approval letter is not required where the job offer is for an optional trade such as for a carpenter or millwright. Read more →

Immigration and Big Brother

Remember, there is massive information that is being shared between countries. Canada is part of the 'Five-Country Conference Information Exchange'. CIC and CBSA share biometric and biographical information with Australia, New Zealand, UK and US on a systematic and ad hoc basis. Results are disclosed to the RPD. Read more →

The Changing Landscape of the New RPD

I'm attending at the CBA National Immigration Conference held this year in beautiful Calgary. I've tweeted throughout the conference, but decided to write a blog entry on the session I'm attending this afternoon. There's significant change to the landscape at the RPD. Ross Pattee, the man in charge, is providing the overview. Notably, the average time to a hearing from 22 months has been reduced to 4 months. (The new timelines are 3045/60 days after referral). The reduction in time frames is an impressive feat. The RPD remains 'in transition'. A new tribunal has been set up, the Refugee Appeal Division. Perhaps assisting the transition is the dramatic drop in refugee referrals. Nevertheless, they appear to be building the airplane while they're flying it. Over the past fiscal year approximately 2% were returns from the RAD and the Federal Court. Applications to cessate and vacate have dramatically increased compared to previous years. These applications are brought by the Minister. There has been a significant increase in Ministerial interventions. They only got involved 3% of the time prior to the 2013/2014 year. They are now involved 20% (much more so in the Western Region). Reasons for the intervention are predominately credibility.... Read more →

Blog Posting - Moratorium on LMOs for Food Service Industry

The widely publicized moratorium on LMOs for several occupations in the food services industry is affecting individuals and companies who need LMOs for either an initial work permit or extension; as well individuals who have already received an LMO and have a work permit application in process. Based on industry feedback, we understand that work permit applications for persons who already have LMOs are being refused as a result of this moratorium. While the effects of the moratorium are wide ranging and serious, we would note that the moratorium does not apply to all businesses who are employing cooks and other food service personnel. Specifically, there are provisions in this policy change which exempt hotels, clubs and other non-restaurant/mall businesses from being excluded from obtaining LMOs. Please contact our office if you are unsure if the moratorium applies to you. Read more →

State Protection

Lawyers from this office will be attending before the Federal Court on 5 separate judicial review applications this week. Bjorn, Ram, Suha and I are appearing before Justices de Montigny and Zinn challenging decisions from various decision makers including the Immigration Appeal Division, the Refugee Protection Division and immigration officers. My matter involves the (faulty) analysis of RPD Member Philip MacAulay on the issue of state protection. Now, state protection was canvassed by the Supreme Court of Canada in a decision called Ward. In essence, before succeeding on a refugee claim, the claimant must show that he or she was unable or unwilling to avail him or herself of the protection of the country of reference. It's not enough for the claimant to simply state that he or she doesn't believe that state protection is unavailable. This is a contextual analysis. The RPD needs to assess the nature of the harm; the nature of the agent of persecution; the efforts taken by the claimant to seek protection; the response from the authorities; past experience dealing with state authorities; the experiences of similarly situated individuals and the available country condition evidence. There is a presumption at play. States are presumed to... Read more →

It has been a pleasure to be a member of the Legal Aid Regional Appeals Committee for the past 5+ years. Access to justice is an issue that is very dear to my heart and is something that every Albertan should have a right to. I learned a lot and made some great friends! Read more →