Stewart Sharma Harsanyi Immigration Law Firm Blog

The Kübler-Ross Model and Immigration

I am seeing a lot of dejected, despondent faces these days. The Kübler-Ross Model was developed for terminally ill patients, but it applies to the death of the dream of Canadian Permanent Residence as well. The five stages are denial, anger, bargaining, depression and acceptance. Humans, it appears, have a near infinite capacity for self-deception. Acceptance is rare. Many of these individuals are temporary foreign workers, unskilled and facing the end of their sojourn in Canada. Others were international students with too-short post graduate work permits now facing dramatic unanticipated increase to AINP processing times. And no way to bridge the difference. Still others are those that failed at the near-lottery of a refugee claim and judicial review or humanitarian and compassionate application or permanent residents that have lost status due to criminality or misrepresentation. Past inefficiencies with respect to removals have resulted in individuals living in this country for years. Like the proverbial frog in boiling water, they do not realize the temperature of the water they are in until it's too late. Usually they meet with us after their penultimate meeting with a removals officer. Some of course, are our own clients. All of them know that their... Read more →

Video Blog: Changes to the TFW program and Tips for Obtaining Labour Market Impact Assessments

The recent changes to Service Canada's Foreign Worker Program have presented many employers in Alberta and other provinces with problems regarding they types of efforts they need to demonstrate in order to obtain Labour Market Impact Assessments (LMIAs) for foreign workers. As a result of dialogue with both other practitioners and Service Canada officers, we can offer the following three observations regarding the new regime: 1. Both content and form count. Service Canada has taken a rigorous and uncompromising approach to accepting and reviewing LMIA applications. Relevant fields in the forms will have to be COMPLETELY filled out in order for LMIA applications to even by accepted for filing. If fields are missed or not filled in, do not expect a call from Service Canada requesting the additional information, but rather expect the full application to be returned to you. Therefore, it is imperative that the forms are thoroughly completed prior to filing; 2. In terms of content, employers can expect to be grilled by Service Canada regarding applicants for the position and why applicants were not considered suitable. Service Canada is also not going to let employers list work experience or education requirements that are illogical or do not... Read more →

The Right to be Heard

The Immigration Appeal Division has jurisdiction over appeals regarding refusals of the family class. As stated by Justice Barnes in Gill v. Canada (Minister of Citizenship and Immigration) [2010] F.C.J. No. 229, [in sponsorship appeals] the Panel "must proceed with great care because the consequences of a mistake will be catastrophic to the family." To determine the appeal, the IAD usually holds a proceeding where it hears from the parties - both the sponsor (and any witnesses he or she wishes to call) and the Minister (represented by a hearings officer). There are occasions however, where the IAD can or has determined the outcome of a matter without a full hearing. This has been the subject of judicial review on more than one occasion. Depending on the particular circumstances, a legitimate expectation may arise that a full hearing will be held by a division of the Immigration and Refugee Board: In Albarahmeh et. al. v. Canada (Minister of Citizenship and Immigration) 2010 FC 1153, the applicants claim for protection was heard, but there was an initial issue to be decided with respect to the exclusion of the male Applicant. Evidence was led and the a continuance occurred as the Panel... Read more →

Video Blog: What is a Temporary Resident Permit?

What is a Temporary Resident Permit (TRP)? It's a discretionary tool that an immigration officer can use to overcome a foreign national's inadmissibility or non-compliance with the IRPA. Conrad Black is here in Canada on a TRP despite being a foreign national and criminally inadmissible to this country. Read more →

Power outage in downtown Calgary

This office has had to deal with two emergency situations in as many years. Last year saw the flood that caused significant loss to both individuals and businesses. It was after that unforeseen occurrence that we developed a contingency plan that we unfortunately had to utilize this last week. With the power out and not knowing exactly when it would be back, we had our intrepid IT professional fetch our servers from the darkened Ford Tower to relocate to our temporary environs. Phones were forwarded (with limited capacity) but in any event, luckily, the power outage that affected a large part of downtown Calgary has been resolved within the week; our office is back up and running at full capacity. Read more →

Prosecuting Marriage Fraud

I've represented individuals that have been accused of marriage fraud as well as those that have been victimized by unscrupulous individuals seeking only status in this country. Prior to the conditional permanent residency, it was difficult if not impossible to get CBSA/CIC to pay attention to an allegation of marriage fraud. This was for a number of reasons. One, it was apparently a lack of resources (combined with the fact that marriage fraud, despite Mr. Kenney's representations, has never been a priority for the department(s)). Secondly, the breakdown of marriage inevitably leads to different narratives. A marriage could have broken down for legitimate reasons, but a charge of marriage fraud was frequently made by an aggrieved party (the sponsor). This meant of course that someone had to separate the wheat from the chaff; it became difficult to prove the intention of the foreign national. Prosecution/removal is far easier now of course because of the requirement for sponsored persons to stay with their sponsor for two years after landing in Canada. This will present other issues (such as unfounded allegations of abuse to get within an exemption to this requirement). This is a topic for another day. What of the thousands... Read more →

Video Blog: Immigration Appeals

The Refugee Appeal Division (or the "RAD") appeals decisions of the Refugee Protection Division. Rejected claimants (as well as the Minister) can appeal negative (and conversely, positive) decisions of the RPD. This appeal is available only for "new" refugee claims and is not available for individuals from Designated Countries of Origin. The Immigration Appeal Division has jurisdiction over permanent residents facing removal orders and sponsorship appeals by either citizens or permanent residents. Time frames are lengthy; the IAD is a court of record. Finally, the Federal Court has jurisdiction to hear judicial reviews over refugee decisions, or decisions of the ID, RAD and the IAD. They also have jurisdiction over humanitarian and compassionate decisions, and decisions made in-Canada and outside Canada by an immigration officer. This is not a true appeal. The Court can't substitute it's own decision, but can find a reviewable error and send the matter back for redetermination by a different Panel or officer. Read more →

Preparing for an Admissibility Hearing

Today I will be appearing before the Immigration Division. My client, a Permanent Resident of Canada, is the subject of a section 44 report alleging inadmissibility. In essence, the report indicates that my client committed a (serious) crime overseas that would also be a (serious) crime in Canada. The Minister bears the onus or responsibility to prove this on the standard of "reasonable grounds" (less than the balance of probabilities). I will be presenting Mr. Hersh Wolch, QC expert opinion on the nature of the Canadian offence. This is an administrative setting, and the formal rules to qualify experts is not strictly applied. Nonetheless, it's important not to assume that your expert will be qualified. The IRB has dealt with the qualification of expert witnesses. Member Renee Miller dealt with it in Nguyen-Tran v. MCI and qualified a police officer who had no post-secondary education but had significant experience and "read" widely on gang structure and membership. It is a long established principle of law that an expert witness is a person possessed of special knowledge acquired through study or experience, which entitles him to give an opinion on a topic of expertise which is likely outside the experience and... Read more →

Hygienic behaviour and Immigration and Citizenship Policy

How does a community deal with an internal threat? Tens of thousands of individuals live together in close proximity. Each member has a place within the collective. There are significant advantages in prioritizing productivity, developing advanced and rapid communication, pooling resources and harnessing specialized labour over individual existence. But there are drawbacks to society; with proximity comes the danger of infectious disease easily spread in close environs. To deal with this the development of the ability to synthesize antimicrobial agents effective against both bacterial and other infections is vital. Sometimes, the physical removal of diseased individuals is necessary for the preservation of the whole. I'm talking about bees. Foulbrood disease is caused by a bacterium and is the most serious of diseases affecting honey bees. To stop its spread beekeepers have razed entire colonies to the ground. But the best line of defense is called hygienic behaviour. In essence, certain strains of honey bees are genetically programmed to “detect, uncap, and remove infected brood” when the bacterium is still inert and non-infectious. This reduces contamination to a manageable level. It appears that the hygienic bees have a higher sensitivity to the odour released by diseased prepupae. Other strains of honey... Read more →

Video Blog: Canadian Citizenship - Harder to Get and Easier to Lose

Canadian Citizenship is now harder to get and easier to lose. Bill C-24 has received Royal Assent. Canadian Citizenship was perhaps the last item to be crossed off on Jason Kenney's to-do list. Kenney has now re-made Citizenship and Immigration Canada (somewhat) in his (or, the Conservative Party's) own image. The changes include lengthening the residency requirement for citizenship (and making it far more objective with far less discretion); asking applicants to indicate their intent at residing in Canada; increasing language proficiency requirements (ages 14-64); and dramatically expanding the ability of the government to revoke citizenship. This article will discuss the residency requirement which in my view is the least controversial and the one reform that is easily justifiable. In my opinion there is only one way to become a "Canadian" and that is to spend a substantial amount of time here. Prior to 1977 an applicant for Canadian citizenship had to be resident in Canada for five years. Other developed countries in the world have similar (and more stringent) residency requirements than Canada. That being said, the world is a different place than 1977 (although an excellent year in other respects). The reality is that many professionals are required... Read more →

Appealing a Spousal Sponsorship Refusal

I was before the Immigration Appeal Division today on an appeal from an overseas spousal sponsorship refusal. A helpful resource to individuals and counsel is the IAD Legal Services publication Sponsorship Appeals IRPA. The sponsor needs to establish, on a balance of probabilities, that they are not caught by s.4 of the IRPR. In essence, the relationship needs to be both genuine and not entered into primarily for the purposes of immigrating to Canada. Evidence needs to be adduced by way of disclosure (prior to the hearing and in accordance to the IAD Rules) and by the testimony of the parties. Generally speaking, both the appellant and applicant should be called (the applicant is usually called by way of telephone call). I have written on this issue many times. There is no one determinative factor for the IAD to assess genuineness. Counsel need to be aware and deal with the following: Inconsistent or contradictory statements (at the visa office interview, or at the hearing itself). You must deal with credibility. Pull/push factors. Has the applicant tried to come to Canada in the past? Is there another reason for him/her to come here other than to join his/her spouse/common-law partner? Knowledge.... Read more →

Video Blog: Tips for Winning Your Refugee Hearing

The hearing (for claimants in the Calgary region) is held at the IRB offices at 201, 225 Manning Road NE. It may be held via videoconference despite the fact that Calgary has RPD Members (Mr. Douglas Cryer, Ms. Luella Gaultier, Ms. Kerry Cundal, Ms. Bindu Narula, Ms. Jodie Schmalzbauer, and Ms. Preeti Adhopia). There is a wide disparity between the decisions of the RPD, even for the same country. You can read the disappointing and dispiriting analysis of Professor Sean Rehaag here. To a large degree, the success or failure of your claim depends on the identity of the decision maker. Picking the RPD Member for your hearing would have been my first tip but unfortunately, you can't do this. My first real tip then is to carefully pick the lawyer that is going to represent you. It's clear that success or failure depends on the quality and experience of your legal counsel. "Refugee Roulette: Disparities in Asylum Adjudication" published in Stanford Law Review confirms Professor Rehaag's findings regarding the personality of the particular judge that determines the claim; the article also found that: Given the complexity of the asylum process and increasingly stringent corroboration requirements in immigration court, it... Read more →