Stewart Sharma Harsanyi Immigration Law Firm Blog

What do you do if you're the victim of Marriage Fraud?

What do you do if you're the victim of marriage fraud? One question that is relevant is when your spouse came to Canada. Subject to some exceptions, anyone that came to Canada after October 25, 2012, needs to stay with their spouse for two years. In my opinion, however, Jason Kenney's reforms will simply mean more unfounded claims of abuse (as this is one of the exceptions to the 2 year rule). The fact of the matter is, whether your spouse (that has simply used you to come to this country) came before October 25, 2012 or after, you will need to report the marriage fraud to Citizenship Immigration Canada and the Canada Border Services Agency. The former Minister of Citizenship and Immigration made it clear that the government is taking action on marriage fraud. However, despite the fact that Jason Kenney has said the "jig" is up on marriage fraud and all of the publicization of a "crack-down" the reality is far different. All too often CIC and the CBSA do not take action on even clear cases of marriage fraud. As a result, I haved filed actions at the Federal Court to compel the Federal Government to take... Read more →

Judicial Review of a "Super Visa" refusal

I am appearing today before Justice Boswell of the Federal Court. Justice Boswell is a recent appointment to the Court and as such, I do not have any prior experience appearing before him. The case deals with the casual dismissal of a "super visa" application by an officer without giving any opportunity to the applicants to address his or her concerns: "he [an immigration officer] must at any rate give the immigrant an opportunity of satisfying him of the matters ... and for the purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him...[It is] a question of...of being required to act fairly." Chief Justice Lord Parker in Re HK [1967] 2 QB 617. The Factual Background My clients, the adoptive parents of a Canadian citizen sought a so called "Super Visa" to see their daughter and her family in Canada. They applied at the Canadian Consulate General in Chandigarh, India but were rejected in late summer of 2013. They had adopted their daughter when she was three months old. They provided clear documentary evidence establishing their three decades plus familial relationship with their daughter, including an adoption order, proof of their daughter's... Read more →

Les Miserables, Dostoevsky, Rohinton Mistry and Refugee Law in Canada

There was a time when men were kind When their voices were soft And their words inviting There was a time when love was blind And the world was a song And the song was exciting There was a time Then it all went wrong - Les Miserables Was there ever such a time for refugees in Canada? Certainly not prior to the Singh decision where decisions were made by immigration officers without ever hearing from the claimant. Perhaps there was a time, after the advent of the Immigration and Refugee Board and Convention Refugee Determination Division (later renamed the Refugee Protection Division) but before the recently enacted and Orwellian Doublespeak entitled Balanced Refugee Reform Act. Perhaps it was during the brief time when there were refugee hearings officers (later called refugee protection officers, then tribunal officers, and now, no more) and decisions concerning potential life and death were made by three independent individuals, then one. Now of course those same decisions are made by civil servants that can't help but notice the scapegoating of refugees by their titular employer, the Honourable Citizenship of Immigration. During that time, refugee claimants could count on access to Canada's health and public safety... Read more →

Questioning one of the greatest defense lawyers in Canada

Last month I dealt with an admissibility matter. My client has been charged with a serious criminal offence in the People's Republic of China. The Canada Border Services Agency (CBSA) is seeking her removal pursuant to s.36 of the Immigration and Refugee Protection Act. This is the Minister's application; thus he (and by extension his hearings officers) have to establish that their report alleging inadmissibility is well-founded. The Immigration Division is charged with this determination; due to recent changes by Jason Kenney, there is no appeal for this particular client at the Immigration Appeal Division. My first line of defense is to show that the two offences (the PRC criminal offence of fraud and the offence of fraud in Canada) are not equivalent. To do so, I requested Hersh Wolch, one of Canada's leading criminal defense lawyers to provide a legal opinion. To enter it as an exhibit, I had to qualify him as an expert. In this administrative setting formal rules to qualify experts is not strictly applied. The IRB dealt with the qualification of expert witnesses in Nguyen-Tran v. MCI; qualifying a police officer who had no post-secondary education but had significant experience and "read" widely on gang... Read more →

Litigation as War

More than one writer has compared litigation to war. More than one myopic legal 'warrior' who has likely never exceeded a sustained 150 bpm or a sub 25 BMI has subscribed to this sophomoric analogy. I suspect most of these grandiloquent writers are vainglorious litigators themselves. Is litigation akin to warfare? It's almost a trite or facile comparison. For example, there's this description for a book sold on Amazon: Litigation is a blood sport, a gladiatorial contest. Each side names its champions who are ordered to fight to the death. Litigation is brutal. But it is also full of finesse and strategy. It is as much a mind game as a fight game. Litigation is as much, if not more, an art as it is a skill. Litigation is a battle of wills, a test of character and intellect. It is a test of stamina. Litigation is a matter of honour for the good litigator. Litigation is war and this is the art of how to win in any court anywhere in the world. I'm not sure what the writer's background is. I've done hundreds of hearings; have over 70 reported decisions over a decade of practice. Litigation as far... Read more →

Submitting (Another) Canadian Experience Class Application

The applications are flying out of this office; this morning I reviewed an application under the Canadian Experience Class. The issue with these types of applications - beyond determining eligibility - is to ensure that the Canadian work experience is equivalent to that of a NOC A, B or 0 occupation. Remember, of course, that certain NOC B occupations are not to be considered, and that there are limits to the overall number of CEC applications and sub-caps for individual NOC B occupations. Obviously, proof of language proficiency and the meeting of the threshold CLB is required. An assessment of the appropriate NOC is often harder than it appears. It's vital that you don't rely simply on the job title. This can be very misleading. Further, for the most part, employers are not (and indeed, should not) tailor their job letter to match the duties contained NOC [indeed, sometimes the applicant is penalized when the job letter mirrors the NOC too closely]. Don't take the fact that your job is equivalent to an eligible NOC for granted; officers are likely particularly on guard on those job duties that occupy the grey zone between NOC B and C. These are usually... Read more →

A Funeral Dirge; a Quote from Shakespeare; and Pontification about the FSW

Join me in mourning the end of the Federal Skilled Worker Program. This program allowed and provided for a more objective assessment of an applicant's credentials and qualifications to immigrate to Canada. Introduced under Pierre Trudeau's sojourn as Prime Minister it also correlated (or perhaps caused) a shift from Euro-centric immigration to the ascendancy of Asian/non-European applications. My own father came to Canada under this program, he still remembers the language proficiency exam and his incorrect answers to this day (he didn't know the meaning of "sedan"; given he came from India in the late 1960's and probably rarely if ever rode in a car prior to coming here, understandable). I have a few more FSW applications in the hopper. One of the last, and one that will go out today, involves a "soil conservation officer". At first blush, this job title does not appear in the current (and soon to be not current) eligible occupations list.However, as any immigration lawyer worth his or her salt will tell you, the issue is the job duties and responsibilities and not the job title. What's in a name? that which we call a rose By any other name would smell as sweet;... Read more →

Why do I defend "criminals"?

"...Then I went down to the potter's house, and there he was, making something on the wheel. But the vessel that he was making of clay was spoiled in the hand of the potter; so he remade it into another vessel, as it pleased the potter to make... " Jeremiah 18:3-4 Last night (or to be more accurate, early this morning) I was asked how I could morally defend criminals. It's not the first time that I've been asked this question; won't be the last. I think I gave a decent response, especially given the hour and other complicating factors. I believe that individuals are more than cracked vessels. Perhaps there are many in society that would throw away such spoiled vessels. In my view, redemption is a possibility for many that have made mistakes. Rather than throwing them away, flawed vessels can be remade. Also, it's vitally important that people realize that our justice system is not perfect. Innocent individuals are found guilty; guilty individuals walk free. One of my personal heroes is Hersh Wolch, who exonerated David Milgaard who spent more than two decades in jail for a murder he did not commit. Milgaard had been sent to... Read more →