Stewart Sharma Harsanyi Immigration Law Firm Blog

The Intersection of Immigration and Family Law

These past 10 years of practice have been spent largely, almost exclusively in the practice of immigration law and immigration litigation. I have had occasion to appear before the Court of Appeal on a criminal matter (the client was a high profile former professional sports player that was facing removal from Canada) and my partner deals, more regularly, with criminal matters. There are two associates here that do practice family law and I've kept away, from a lack of interest and the fact that immigration is keeping me quite busy. I have dealt with those accused of marriage fraud and the victims of marriage fraud; one young woman approached me in March of this year. Her husband had abandoned her within weeks of coming to Canada, after taking advantage of her financially, physically and emotionally. She was clearly suffering from his actions, was under the care of a physician and on prescription medication. She wanted a divorce and advice regarding her situation as the sponsor of someone that used her for immigration. I canvassed the response of CIC to allegations of marriage fraud and the relevant sections dealing with inadmissibility that could be utilized against her husband but cautioned her... Read more →

Setting Aside a Noting in Default

If you have failed to respond to a Filed and Served Statement of Claim for Divorce and have been Noted in Default, you must act quickly or otherwise face getting divorced without being able to contest the assertions made. The onus is on the Applicant in such matters. It is not a de minimus test and is not one of "common courtesy". The test is actually a substantive one and set out by Judge Higa of the Alberta Provincial Court who relied on Palin v. Duxbury, 2010 ABQB 833. The Applicant must show: 1. He has an arguable defence; and 2. He did not deliberately let judgment go by default and have some excuse for the default, such as illness or a solicitor's inadvertence; and 3. after learning of the default judgment, he moved promptly to open it up. Some cases indicate that the court may also consider whether the Plaintiff will suffer any prejudice by the setting aside of the judgment. It's important to note that the court's power to set aside a default is discretionary. The case law indicates that the meritorious or arguable defence must have evidence. In terms of service, the Applicant's affidavit should state when... Read more →

CBC The 180 Radio Discussion: Revoking Canadian Citizenship

It was my pleasure discussing citizenship revokation with CBC's Jim Brown on The 180. Under the former law, you can only lose citizenship if you lied in your application to obtain same. Individuals under threat of revokation had the right for a full hearing before the Federal Court. Bill C24, the so-called "Strengthening Canadian Citizenship Act" has dramatically expanded the scope of revokation. Even individuals born in Canada (as long as they are dual citizens) can have their status taken away. The process is largely a paper one. The Minister will give notice of his intention to revoke; the individual concerned can respond and a decision will be made. In some circumstances there remains a recourse to the Federal Court. This can be contrasted with Permanent Residents, who (in most cases) can challenge their removal orders to the Immigration Division and the Immigration Appeal Division. Is citizenship an "inalienable" right? Minister Chris Alexander doesn't think so. To some degree he's correct. There's nothing stopping a dual national from renouncing citizenship (Exhibit "A" Ted Cruz). But there's a difference between a voluntary renunciation and unilateral action by the state. This new law is skirting "exile and banishment" which is contrary to... Read more →

Video: Discussing Refugee Detention

We detain thousands of refugees, foreign nationals and there are also permanent residents under the Immigration and Refugee Protection Act. Refugees are generally detained because of identity concerns. Here in Alberta, these individuals, with no criminal record and without criminal charge, are housed alongside serious criminals in maximum security provincial institutions. The average length of stay in the Prairie region is over 30 days. The legislation and rhetoric that we've seen over the last few years tends to scapegoat refugees and frankly, detract from Canada's humanitarian tradition. Combine this with legal aid cutbacks and there are significant concerns at play. Deportation and detention simply does not make sense for the other guest on the panel. He wants an overhaul of the entire immigration system. Like I said, I would like to believe in unicorns and fairy dust, but I am grounded in reality. Countries will always get to determine who gets to enter and who has to leave. Practically and pragmatic reform should be concerned with alternatives to detention, whether electronic monitoring or reporting conditions. Read more →

Justice Harrington to the Rescue

I am appearing at the Federal Court this morning to challenge a negative PRRA decision by my client, a national of Egypt. There are myriad considerations for a PRRA. This is a highly technical area of refugee law. The PRRA constrains consideration to "new evidence" and is generally speaking a paper based review. The acceptance rate for a PRRA is very low, less than 5%. Another area, and the issue for today is the requirement to hold an oral hearing. Duri Cho v. MCI 2010 FC 1299 involved an applicant originally from Bangladesh. He moved to South Korea and obtained citizenship there. He first came to Canada in December 2006 and made a refugee claim which was withdrawn prior to referral. He returned in 2009 and made a claim for refugee protection which was determined to be ineligible (because of his previous claim). He was left with only the PRRA in terms of a risk assessment. He requested an oral hearing (pursuant to s.113(b) of the IRPA). In essence, he had problems in South Korea because of his status as a minority and the fact that he was a human rights activist. The PRRA officer found that state protection did... Read more →

Blog Posting - Federal Skilled Worker Class and Express Entry

As previously stated on the blog, the Federal Skilled Worker program will close at the end of the 2014 Calendar year. Very few details have been provided regarding the Express Entry system although practitioners are providing some insight into what may be expected from the program when it is initiated in 2015: http://www.canadianlawyermag.com/5288/Is-express-entry-the-solution-to-Canadas-immigration-issues.html In any event, with respect to current Federal Skilled Worker applications, some believe that even if the 1000 applicant quota for each occupation is not met this calendar year, the government will still stop processing applications in 2015. They may then cherry pick the best applications for placement into the Express Entry system and return the other applications that were in queue. Accordingly, Applicants should be prepared to litigate if this eventuality takes place. Read more →

Practising Law in Canada

The Provincial Law Societies control entry to the profession of law. This is a self-regulated profession; protection of the public interest (and protection of a near monopoly over the delivery of legal services) is paramount. There is no Charter right to be admitted as a student-at-law, nor is there a Charter right to practice the profession of law. After the completion of law school, graduates with an LLB or JD need to apply to the Law Society to be admitted as a "student-at-law". The Legal Profession Act (at least in Alberta) and the Rules of the Law Society dictate who gets in. International graduates, and anyone other than a "cookie-cutter" applicant, needs to jump through various hoops. The case of Brian Woods is instructive. Brian (I talked to him last week, seeking his insight into a similar matter I am arguing tomorrow before the Credentials Committee of the LSA) graduated from the Faculty of Law, University of Alberta in 1978. He spent over two decades with the National Energy Board in the field of utilities and regulatory law. In February 2004, the LSA adopted Rule 50(2) which would impose a three year limitation between the time of the granting of... Read more →

Appearing before the Law Society of Alberta

I will be appearing before the Law Society of Alberta tomorrow. Thankfully, only as counsel. My client completed his law degree (LLB) through distance learning at an educational institution in the UK. The NCA will only issue a CQ (Certificate of Qualification) if my client completes 8 law school courses. This is based on their policy. One problem. Neither the U of C nor the U of A law offer seats to NCA students. There is a remedy available - an appeal to the Benchers which can consider special circumstances. I've appeared before administrative tribunals for 12 years, 2 of which I was a tribunal officer. However, every tribunal inhabits its own "universe of discourse" as Professor Arthurs would say. I'm looking forward to this new experience, and hope that future appearances before the Benchers are also only in the role of counsel. Read more →

A Decision for Deepan Budlakoti

Deepan Budlakoti was born in Canada and held, not one but two passports. He was to all appearances anyway, a citizen of this country. Despite holding all the accoutrements of Canadian citizenship, he is not and has never been a citizen of this country. The reason for this is s.3 of the Citizenship Act RSC 1985, c C-39. Deepan's parents (nationals of India) were apparently employed in the service of a diplomatic or consular officer at the time of his birth. I say apparently because this is now a point of contention. This came to a head because Deepan was convicted of serious crimes in Canada involving weapons and drugs (cocaine) in 2010. He received a three year sentence; immigration sought his removal from Canada because after review and investigation they determined he was not a citizen. It seems pretty clear that the issue of his citizenship would never have arisen or been at contention if Deepan had not brought himself to the attention of the authorities with his unlawful activity. The Immigration and Refugee Board agreed and found that Deepan was not a citizen and issued a removal order against him. Deepan sought judicial review of that decision. Justice... Read more →

Persistent, Pernicious Problems in Pakistan

The Immigration and Refugee Board’s National Documentation Package (NDP) on Pakistan is one of the thickest. That should not be a point of pride for Pakistan. As of the date of this writing, items 2.1 (Country Reports on Human Rights Practices for 2013, US Department of State); 7.1 (IRB RIR) as to the state’s response to criminality; 10.1 (IRB RIR) and 10.2 (Human Rights Commission of Pakistan; Commonwealth Human Rights Initiative) disclose the following regarding police corruption and ineffectiveness, that: police corruption was a “persistent” problem; police effectiveness varied greatly; some police committed human rights abuses or were responsive to political interests; some police charged fees to register genuine complaints and accepted bribes for registering false complaints; “an ineffective police force and judicial system is the root of the violence, leading ethnic, sectarian, political, militant, and criminal groups to use violence with impunity”; “police officers are powerless, lack resources and are “ill-prepared”; “police officers have been implicated in “extortion”...that police “are poorly paid, which is a major reason for rampant corruption and inadequate performance”; and ombudsman tasked with receiving complaints regarding the police are “ineffective”. Honour crimes and killings remain a pernicious problem for Pakistan. Items 2.1 (the aforementioned Department... Read more →