Stewart Sharma Harsanyi Immigration Law Firm Blog

The Year that Was and the Year that is to be

The Romans believed in the two-headed Janus, who looked to both future and to the past, the deity of beginnings, endings and transitions. The month of January is not actually named for him, but it is appropriate, albeit cliched, at this time of year to look both at the year that was and the year that is to be. The Year in Review This government under the energetic leadership of Jason Kenney has already remade Canadian immigration policy in its image. For example, it has a far more muscular vision of what it means to be a Canadian emphasizing our (military) history and our ties to the monarchy. While some few individuals sought to challenge the requirement of an Oath to the (foreign) Queen, this government was steadfast in its support of the House of Windsor. The government continued to have little patience for "Canadians of Convenience", cancelling the fiasco that was the Investor class. It continues to "crack down" on immigration fraud, notably significant changes to Canada's Citizenship Act. (or at a minimum, talks about cracking down on immigration fraud). As I've discussed many times previously, the clarity to the physical residency requirement to qualify for Canadian Citizenship was... Read more →

Getting a Work Permit for Your Spouse

Minister Chris Alexander is still handing out goodies for the Christmas season. A cynic may say that this is due to the election next year; a pragmatist will simply accept it for what it is. For my clients, I am simply the latter. Spouses that applied under the "in Canada" or "Spouse or Common Law Partner in Canada Class" have been confronted by radically increased processing times. That means the sponsored person is (unless they can obtain a LMIA, which are in scant supply these days) are sitting on their hands waiting for first stage processing (now taking over a year). This seems incongruous because the spouses of skilled temporary foreign workers are eligible for work permits (but the spouses of permanent residents or Canadian Citizens are n0t). Where there was darkness, there is now light. Individuals that have already applied can simply put in an application to CPC Vegreville, Unit 777. (Don't tell me that number is a coincidence). Merry Christmas! Read more →

Cross Examining an Immigration Officer on an Affidavit Part X

Forget Alice in Wonderland, we`re in the undiscovered country now: But that the dread of something after death, The undiscovered country from whose bourn No traveller returns, puzzles the will And makes us rather bear those ills we have Than fly to others that we know not of? ... Q According to the letter -- and in all fairness, you have changed the date that's indicated in your written letter that appears above your signature at CTR, page 1. According to the letter, you shut down a file that was open since December 2011, almost three years later, only 48 hours after the Federal Court granted leave, according to the original date of this letter? A Yeah, and I don't understand 100 percent how that happened. When I was doing the letter, I may have been looking at another file I closed on my case management system. ... Read more →

Cross Examining an Immigration Officer on an Affidavit Part IX

We've crossed the rubicon from negligence simpliciter which can be encapsulated with the song, Hot Potato: Hot Potato, Hot Potato... Hot Potato, Hot Potato... Hot Potato, Hot Potato,... Potato Potato, Potato, Potato ... to something more: ... Q From your review of the CTR, can you confirm whether there is any information indicating the person concerned's explanation for leaving her husband the day of arriving in Canada? A I did not see that. Q I reviewed your Affidavit, Mr. Martin. You were able to determine the strength of this file without talking to any of the parties involved? A That's correct. I shouldn't say the strength. It's their ability to investigate it effectively in a timely fashion. Q Why do we keep calling it an investigation? I mean, like if no investigatory steps were taken, it's just a file. Would you not agree that this is simply a file that was passed from individual to individual like a hot potato? MS. LEE: The affiant can't be made to state a fact that's at issue in this proceeding, as he is not the respondent's legal counsel. (OBJECTION TO A QUESTION) Q MR. SHARMA: This file was passed from officer to officer?... Read more →

Blog Posting: Express Entry Program

Over the past month, the federal government has revealed further details regarding the Express Entry Program. Essentially the Program will be a catchall for the remaining Economic Classes including the Federal Skilled Worker Class; Provincial Nominees; and the Canadian Experience Class. Applicants will submit an online profile by which they will be assessed points based on the well known criteria of: age; work experience; language ability; and education. Additional points will be assessed based on Canadian work experience (very likely only skilled work experience will result in points); an offer of arranged employment; and being selected as a provincial nominee. The initial points scale indicates that provincial nominees will obtain proportionately large amount of points for their nomination. Similarly, persons with arranged employment also will receive a large amount of points for having this status. The arranged employment will either be through an unspecified and untested matching system through the National Job Bank or through the Labour Market Impact Assessment process. Either way, it is difficult to discern at this time how the matching process is going to work practically especially given the low number of LMIAs now being issued, which would rule out widespread use of Arranged Employment through... Read more →

Cross Examining an Immigration Officer on an Affidavit Part VIII

“Curiouser and curiouser!” Cried Alice (she was so much surprised, that for the moment she quite forgot how to speak good English).” ... Q MR. SHARMA: Officer Stefan did not convoke an interview of either the complainant, the victim of marriage fraud, and did not convoke an interview with the person concerned. Could Officer Stefan have sent fairness letter to the person concerned? A The person concerned being the spouse? Q Yes. A Yeah, if he is able to locate her, he could. Q He could have sent a fairness letter if he knew where she was? That was what you testified, what you just stated? A If he is able to locate her I said, if he made steps to do that. Q Okay. CPS Constable Yanko had the address where the subject of the tip was staying and her contact information. MS. LEE: Are you asking him what is in the knowledge of this CPS officer? MR. SHARMA: I'm not done my question yet. Q The CPS officer, Constable Yanko had the address and contact information of the person concerned. So if Officer Stefan wanted to send a fairness letter, all he had to do was pick up... Read more →

Cross Examining an Immigration Officer on an Affidavit Part VII

The decision by this CBSA manager to close this file rather than investigating straight forward allegations of marriage fraud was damn peculiar... SULU: Reliant in our section, this Quadrant, sir, and slowing. SAAVIK: Sir, may I quote General Order Twelve, 'On the approach of any vessel, when communications have not been established... SPOCK: Lieutenant, the Admiral is well aware of the Regulations. SAAVIK: Aye sir. KIRK (OC): Is it possible that their Comm system has failed? SPOCK (OC): It would explain a great many things. [Reliant bridge] JOACHIM: They're requesting communications, sir. KHAN: Let them eat static! JOACHIM (OC): They're still running with shields down. KHAN: Of course. We're one big happy fleet. Ah, Kirk, my old friend, do you know the Klingon proverb that tells us 'Revenge is a dish that is best served cold?' It is very cold ...in space. [Enterprise bridge] KIRK: This is damned peculiar. ...Yellow Alert. SAAVIK: Energise defence fields. UHURA: I'm getting a voice message. They say their Chambers coil is overloading their Comm system. KIRK: Spock? SPOCK: Scanning. Their coil emissions are normal. ... Q MR. SHARMA: With specific regard to this file, did Officer Stefan have the ability to close this file... Read more →

Cross Examining an Immigration Officer on an Affidavit Part VI

Setting up the duties and responsibilities of the CBSA is important to determine whether there was a deviation... ... Q MR. SHARMA: I went on the CBSA website and looked at the CBSA charter, your mission, your vision. I'm going to ask you a question that I don't think you can possibly object to, but my understanding is that the CBSA investigates and detects and apprehends violators of the Immgration and Refugee Act. Would that understanding be correct? A Yes. Q My understanding is that the CBSA's agencies legislative, regulatory, and partnership responsibilities include removing people who are inadmissible to Canada? A Yes. Q My understanding -- and again, this is as per your department's website -- is that the CBSA administers legislation that governs the admissibility of people into and out of Canada? MS. LEE: Are you asking whether that's my client's understanding? MR. SHARMA: Yes. Q Would my understanding be correct? A Can you repeat that one more time? Q That your responsibilities -- the CBSA's responsibilities include administering legislation that governs the admissibility of people and goods, plants and animals, into and out of Canada? A To the best of my knowledge, that's correct. ... Read more →

Cross Examining an Immigration Officer on an Affidavit Part V

The CBSA manager's affidavit indicated that he closed the investigation because of the fact that it was three year old. However, this was a specious argument and did not bear further scrutiny: .... Q MR. SHARMA: How about this, then: How does the age of the file have any bearing on the fact that there is no cohabitation? Whether a file is old or young, it doesn't change the fact that the sponsored person never lived with the sponsor. MS. LEE: That's not a fact that's been established in this case. MR. SHARMA: The information in the CTR indicates "no cohabitation". MS. LEE: That there was an allegation. MR. SHARMA: There is an allegation of no cohabitation in the CTR. Q How would the age of the file impact that context, given that context? A Because it's an allegation, it would need to -- we would need to confer interviews. Q But that was never done? A As far as I'm aware, it was not. Q But that's not the answer to my question. Your Affidavit says that you closed this file because it was aged; correct -- or that was one factor? A That was one factor, that's correct.... Read more →

Cross Examining an Immigration Officer on an Affidavit Part IV

The key question for me of course was why CBSA chose to shut down this file rather than investigate: .... Q The decision by Officer Stefan not to convoke an interview with xxxxx or xxxxx -- you would agree with me that an interview is the basic investigatory tool? It's the foundational tool for law enforcement? A Yes. For us, it's a key tool. Q Because we don't know what will come up in an interview; right? Strong cases become weak, weak cases can become strong; right? A Very much so. Q Yes. It's entirely possible that the subject concerned could have admitted to engaging in marriage fraud if an interview was convoked? Unlikely, sure, but it's possible? A I mean, anything is possible. Q Sure. It's possible that xxxxxx allegations could -- you know, would not merit ongoing investigation. It could be that, you know, you talked to the complainant. You don't see any merit to those allegations, right, because after a relationship breaks down, narratives change. So many times, people are living with their wives for five years -- someone comments to you and says, "I sponsored her, I've been living with her for five years, and she... Read more →

Cross Examining an Immigration Officer on an Affidavit Part III

Why did the officer/manager close a clear case of marriage fraud? Why did he decide to close a file rather than investigate? Perhaps it has to do with his erroneous understanding of the threshold to write a section 44 report in the first place: ... Q MR. SHARMA: Is it your understanding that an examination is not a necessary prerequisite for an officer to prepare and transmit a report? A I do believe that is correct. An examination could mean many things. It's usually related to the port of entry. Q Yes. You have written Section 44 reports in the past? A Yeah. Q What's the threshold to write a Section 44 report? A Reasonable probable grounds to believe, is our evidentiary standard -- or balance of probability, sorry. Different things for different delegations. Q Let's break that up. Let's deal just with misrepresentation because that's what this deals with. A Right. Q So what is the threshold? A Balance of probabilities on a misrep, I believe. I would need to refer directly to the manuals to confirm that, but I believe that's the case. Q It is your testimony today that to write or refer a report, the officer... Read more →

Cross Examining an Immigration Officer on an Affidavit Part II

Examining an officer on their affidavit is akin to chopping down a tree. Generally, it doesn't happen in one swing. In this case, the DoJ is resisting our application for mandamus - that is, we are seeking judicial review for the CBSA failure to investigate or deal with a clear case of marriage fraud. In this particular exchange, I was simply putting forth the fact that the allegations by my client - the victim of marriage fraud - were uncontested. ... Q And in terms of the CTR, or your review of the CTR, there was nothing to gainsay xxxxxxx's statements regarding him being the victim of marriage fraud? MS. LEE: Sorry, can you repeat the question? Q MR. SHARMA: There is nothing to gainsay those statements or allegations by Mr. xxxxxx? A Gainsay, what does that mean? Q Gainsay, as in there is nothing to contradict those allegations. A I didn't see anything... ... Read more →

Cross Examining an Immigration Officer on an Affidavit

Lorne Waldman once told me that he was surprised that more counsel do not cross examine immigration officer's on their affidavits filed with the Federal Court. I do not believe that this is a common practice particularly in Alberta. In this case, DoJ counsel had an affidavit from a senior manager from CPC Mississauga indicating that checks were done confirming that the person concerned has not accessed social assistance. The reason that they put this affidavit in was to counter my argument that my client (the victim of marriage fraud) has standing; that he was liable pursuant to the Sponsorship Agreement and Undertaking. Questioning does not have to be lengthy; in this case the examination took about ten minutes. The manager knew her stuff and was very credible. All I needed to get on the record really, was the answer (which I of course suspected) to this one question: Q MR. SHARMA: Your affidavit does not preclude the possibility that Ms. XXXXXX has accessed Social Assistance somewhere else in Canada. Is that fair? A I'm sorry. Can you repeat the question, please? Q Your affidavit and the information contained in your affidavit and the checks that you've done do not... Read more →