Stewart Sharma Harsanyi Immigration Law Firm Blog

The niqab, the hijab, and the air of intolerance in Canada today

Justice Boswell of the Federal Court, appointed by the current Government and a thirty year card carrying Conservative, ruled in favour of Zunera Ishaq who wanted to wear a niqab at her citizenship oath ceremony. Zunera challenged the policy that Jason Kenney, the then Minister of Citizenship and Immigration, promulgated (without legislative basis) that prevented veiling at the ceremony. She had no issue with the actual policy, which required her to unveil for the purposes of establishing her identity prior to the oath (as per section 13.2 of CIC’s policy manual, CP 15: Guide to Citizenship Ceremonies). The Minister however targed veiled Muslim women (I can't imagine any other group that is affected by this action): My interpretation is that the Minister would like this done, regardless of whether there is a legislative base and that he will use his prerogative to make policy change. The above is from a redacted email from a CIC official. Whatever the Minister wants, he can't rule by fiat. Canada is still a country governed by laws, not individuals: [50] Despite the mandatory intentions behind the Policy though, it is the Act and the Regulations that ultimately determine whether a citizenship judge has any... Read more →

Immigration Policy and Immigration Fraud a Comparison between Canada and the UK

Immigration: Canada vs UK by chakdetv Read more →

Visa Officers: The Judges Juries and Executioners of Marriages

The following is a guest post by Arman Chak For those of us who work with legislation, we sometimes get caught up in the rigidity of the rules we create to organize our lives. The Divorce Act is one of those trusted pieces of legislation which allows us to look at the order we seek to achieve in one of the most complicated issues we face, the end of a relationship. Specifically, the end of a formalized relationship. With its mixture of romanticism and ultimately the search for dignified closure, the Divorce Certificate becomes almost more important than the wedding vows themselves. I had the opportunity to work with my good friend Raj Sharma on an interesting family law matter which intermixed international law, the Divorce Act, the rules of comity and conflicts of laws. Mr. Sharma’s client faced a problem of the recognition of his foreign divorce decree and having it recognized in Canada. [Raj: it is an unfortunate fact in immigration law that visa officers take it upon themselves to be the judge, jury and executioner and have little hesitation in expounding on the validity or the lack thereof of foreign judgments, particularly divorce certificates that impinge on... Read more →

When is an Oral Hearing Required in a PRRA?

Justice Harrington is an eloquent jurist. Hamadi, a Lebanese widow with pro-Israel beliefs, made a refugee claim which was dismissed by the RPD (which found that "there were some credibility issues"). Eight years later, she was presented with a Pre-Removal Risk Assessment (PRRA) which was also dismissed (in 2010). It was this decision that was the subject of judicial review. The PRRA Officer gave additional and new evidence proffered by Hamadi "minimal weight" and (typically) found that there was insufficient evidence to find that Hamadi faced more than a mere possibility of persecution upon return. Justice Harrington had no qualms in characterizing the matter as one of credibility as opposed to one of insufficiency of evidence (para 6). In essence, the evidence (the new evidence given minimal weight) was "central to the decision with respect to protection and if accepted would certainly have justified allowing the application". What was the evidence that the PRRA Officer gave minimal weight to? A "to whom it may concern" letter not on letterhead but apparently signed by the Secretariat-General of Hezbollah in 2003 stating that Hamadi was facing both legal and religious prosecution; and Another letter (this time on Hezbollah letterhead but not dated)... Read more →

Being investigated by CBSA?

Finding out that you are being investigated by the CBSA is stressful. Such investigations are sparked by poison pen letters or complaints; they may involve investigating a previous marriage by which you obtained status in this country or allegations that you committed misrepresentation before you came to Canada. Other than criminal convictions which spark (usually) prompt CBSA action (and for a permanent resident, the right of an appeal -- now restricted -- to the Immigration Appeal Division) any other allegation may take years to resolve. … There were ointments and garlands; perfumes were burned; tables provided with the most exquisite meats. Damocles thought himself very happy. In the midst of this apparatus, Dionysius ordered a bright sword to be let down from the ceiling, suspended by a single horse-hair, so as to hang over the head of that happy man. After which [Damocles] neither cast his eye on those handsome waiters, nor on the well-wrought plate; nor touched any of the provisions: presently the garlands fell to pieces. At last he entreated [Dionysius] to give him leave to go, for that now he had no desire to be happy. Does not Dionysius, then, seem to have declared there can be... Read more →

Failure to disclose family members is a bar to sponsorship

If a Permanent Resident fails to disclose a family member at any time prior to or at landing, he or she will be barred from sponsorship under the family class for the undisclosed individuals. This seems to happen regularly and for a variety of reasons. Sometimes there's an issue with the custody of a child; sometimes they get bad advice; sometimes they make an assumption that they'll sponsor their husband/wife/child after they've settled in Canada. R117(9)(d): (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if … (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined There is a possibility that a report alleging inadmissibility will be sought against the sponsor on the grounds of misrepresentation. The PR does have the ability to appeal against any resultant removal order to the IAD. In any event, if the sponsor wants to bring his or her (excluded) family members to Canada, they need to submit a "H&C"... Read more →

Think Again About Committing Marriage Fraud

Friday the 13th. An inauspicious date for an admissibility hearing. I'm attending an admissibility hearing today concerning "marriage fraud" under the new Regulations that require the sponsored person to live with their sponsor for a period of two years after coming to Canada. According to CBSA here in Calgary, this is the first such hearing. I'm representing the victimized Canadian spouse who will be testifying. The general process is this: A report alleging inadmissibility is written and referred by CBSA to the Immigration Division. The Immigration Division holds a hearing and CBSA bears the onus to establish that the report is well-founded. The Immigration Division, if it is satisfied on a balance of probabilities that it is, will issue a removal order (specifically, an exclusion order). If the person concerned is a Permanent Resident, they have the right to appeal (an exclusion order) to the Immigration Appeal Division which can consider humanitarian and compassionate considerations (such as time in Canada, family in Canada, nature and extent of the non-compliance/inadmissibility, hardship upon return, and the best interests of any children affected by the decision). If the IAD allows the appeal, the Permanent Resident gets to stay; if the IAD dismisses the... Read more →

A Lifeline for Temporary Foreign Workers?

Has Jason Kenney thrown a lifeline to temporary foreign workers facing the end of their road in Canada? I discussed this with Doug Dirks of CBC's Homestretch on February 3, 2015. Temporary foreign workers - The Homestretch - CBC Player A couple of points to consider: People need to understand that the Temporary Foreign Worker is actually composed of hodge-podge of programs; This announcement affects a minority of a minority and the government is giving the distinct impression that they are creating policy on the fly; There's an 80% drop in employers utilizing the LMIA program and the AINP is mismanaged with processing times exceed 18 months; April 1, 2015 we are going to have thousands of individuals leaving their jobs, communities, neighbours, pulling up their stakes and returning to their countries of origin. We are going to see a lot of heartbreak and employers scrambling to deal with this ill-considered blanket rule limiting a low wage temporary foreign worker for 4 years maximum. Read more →

Harlequin romance, western ethnocentrism and arranged marriages don't mix

Harlequin romance, western ethnocentrism and arranged marriages don't seem to mix. It's important to confront stereotypes, assumptions and the (unfounded) inferences that flow from them when dealing with refused spousal sponsorships. The reality is that the Immigration Appeal Division ("IAD") is presented with non sequitur arguments on a regular basis. It has jurisdiction to hear appeals from the refusal to grant a permanent resident visa to spouse, common-law, partner (at least applications submitted outside of Canada). In Gill v. MCI; the Appellant (Gurbux Kaur Gill) had sponsored her husband, Sarabjit to Canada. The visa officer refused the application, noting that the marriage was done in haste, that there was no engagement ceremony, that there was an absence of honeymoon or post-wedding outings, and the lack of knowledge by the applicant (the husband), among other concerns. In an appeal of a visa officer's decision, the Appellant has to establish, on a balance of probabilities that neither prong of s.4(1) of the IRPR apply. That is, the Appellant needs to establish that the relationship is genuine and was not entered primarily for the purposes of gaining status in Canada. The Panel in Gill sets out the (non-exclusive) factors in determining "genuineness at... Read more →

The Lawyer's Journey

Many law students have chosen the profession because they imagine that they can change the world. Cynics will laugh at such perceived naïveté but the absence of meaning and purpose or choice in our demanding profession leads to burnout, substance abuse and nihilism. It is thus important to create meaning; mythology or cultural touchstones may work for some, religion and its parables will work for others. Create your own astrolabe and choose your own navigational stars and understand that everyone's journey will be unique: The waves I take were never sailed before; Minerva breathes, Apollo pilots me, and the nine Muses show to me the Bears. ... The Divine Comedy, Dante Alighieri, Paradiso Canto II. Follow your desire; pursue that which resonates within you. ... To follow knowledge like a sinking star, Beyond the utmost bound of human thought. ... Ulysses, Alfred Lord Tennyson Choose your paragons. Literature, history abound with heroes that have given their lives over to something bigger than themselves. Few men can oppose tyrants and face insurmountable odds like the indomitable Gobind Rai. Cu kar az hama hilate dar guzast halal ast burdan ba samsir dast (When all avenues have been explored, all means tried, it... Read more →

Blog Posting: The "Absolute Tolerance for Ostracizing Muslims Act"

On its face the Zero Tolerance for Barbaric Cultural Practices Act seems like a no-brainer in a liberal democracy such as Canada. The Act makes inadmissible individuals who practice polygamy from immigrating or entering Canada; amends the Civil Marriage Act to provide for the legal requirements of for a free and enlightened consent to marriage and for any previous marriage to be dissolved or declared null before a new marriage is contracted; and amends the Criminal Code to criminalize various acts surrounding the marriage of parties who are less than 16 years of age. In advocating for the enactment of this legislation, Minister Chris Alexander indicated that forced marriages are practiced in Canada, citing the research of the South Asian Legal Clinic ("SALCO") of Ontario, indicating the same. SALCO has come out against this legislation on the grounds that criminalization of polygamous individuals does not help the women who are victims. The basis for SALCO's objection to criminalization is that victims will further fear coming forward to authorities as victims if they believe that their partner, who is often related or a close family associate, will be arrested or face immigration or criminal consequences. As a result, they will continue... Read more →