Stewart Sharma Harsanyi Immigration Law Firm Blog

Blog Posting - The End of the Live In Caregiver Program (As We Know It)

In early March 2015, the government, in their never-ending quest to solve imaginary problems (see previous blog posts), made changes to the Live in Caregiver program limiting access even further and making it more difficult for Canadians to find convenient childcare. Essentially, the government has now limited the ability of employers to obtain LMIAs for Live in Caregivers only to those who can show special medical needs for their children or elderly occupants. LMIAs for "normal" live in caregivers, those who care for children with two working parents, will only be processed through the regular low skill LMIA process. As a result, these workers will have no route to permanent residence. Given these changes, and with no route to permanent residence for normal caregivers, we can expect foreign caregivers to look at other countries to work in this role. This is going to result in pressure on parents to find care for their children. We can expect more parents staying home and upward costs on dayhomes and other private childcare options. The rationale for these changes is twofold: (1) The government believes live in caregivers are being exploited and claims to want to protect them from exploitation by removing this... Read more →

The Harper Government Record on Immigration - Part III

The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our attempt (Part III): The mercantile mentality of this government has extended even to the quintessential right, that of Canadian citizenship. In essence, citizenship is a commodity for this cabal of merchants, and the way to increase the value of a commodity is to decrease supply. Citizenship under the Harper Government is harder to get and easier to lose. Ostensibly based on putative problems such as "birth tourism" and so-called Canadians of convenience, the government imposed more stringent requirements for citizenship and also provide more avenues for revoking status. Bill C-24 dramatically increases the grounds for revocation and has created different classes of citizenship. Once again, this government's legislation is headed to the courts. I discussed the revocation of citizenship with CBC The 180 in late 2014. Read more →

The Harper Government Record on Immigration - Part II

The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our attempt (Part II): The Harper Government has played politics and immigrants will pay the price. The atrociously entitled "Faster Removal of Foreign Criminals Act" dramatically lowers the threshold of removing even long term permanent residents of this country and even for penny ante criminal offences. Part of the core messaging of this government is that it is tough on crime and criminals. Hard cases make bad law, and the Harper Government is about to prove that the converse is true. The legislation doesn't differentiate between the nature of the offence, simply looking to the length of the sentence. The legislation also doesn't differentiate between a 20 or 30 year permanent resident of Canada (or someone that arrived as a child) with someone that arrived over the age of majority and committed crimes shortly after arriving in this country. Read more →

There's many ways to skin a cat ... Judicial Reviews of CEC refusals

Regulation 87.1 of the IRPR deals with the Canadian Experience Class (now subsumed into the Express Entry). The CEC was a great pathway to permanent residence for (skilled) temporary foreign workers and international students (with work experience in Canada. Unfortunately, it appears that officers elevated form over substance on many occasions. The Goldilocks principle is derived from a children's story "The Three Bears" in which a little girl named Goldilocks finds a house owned by three bears. Each bear has their own preference of food and beds. After testing all three examples of both items, Goldilocks determines that one of them is always too much in one extreme (too hot or too large), one is too much in the opposite extreme (too cold or too small), and one is "just right". Most frustrating was this search by applicants or counsel for the Goldilocks effect in CEC applications. If the employment letter was too dissimilar from the NOC duties ("too cold") it was rejected. Conversely if the employment letter was too similar from the NOC code ("too hot") it was also rejected. The Federal Court dealt with this problem in Madadi as well as Ghannadi, infra. Justice Phelan in Ghannadi (likely... Read more →

Judicial Review Against a TRP Refusal

What is a Temporary Resident Permit? By way of background: TRPs are issued pursuant to a broad discretionary power and as exceptional relief from the provisions of the IRPA; Farhat v. MCI 2006 FC 1275 indicates that the TRP "is to soften the sometimes harsh consequences of the strict application of IRPA ... where there may be "compelling" reasons to allow a foreign national to enter [or remain] ..."; At the same time, Farhat, underscored the exceptional aspect of TRP issuance; and The holder of a TRP is entitled to apply for permanent residence (as a member of the "Permit Holder" class) 3-5 years of residency in Canada under the permit. As in all discretionary decisions, the decision maker is to act in good faith. There is no such thing as "untrammeled" discretion in Canada. Justice Teitelbaum reviewed the refusal to extend a temporary resident permit (TRP) to the applicants in Beyer v MCI 2009 FC 823. The applicants in Beyer were near octogenarians; Ms. Beyer was morbidly obese and bedridden and required the constant assistance from her husband. Their medical costs were covered by purchased insurance and financially independent. They had bought a vacation home in Canada almost 20... Read more →

The TRP, formerly known as the Minister's Permit

The TRP allows a foreign national who is inadmissible to Canada (or does not meet the requirements of the IRPA or IRPR) to enter or remain in Canada if an officer *thinks* it's justified in the circumstances. Or, in Justice Shore's words "Basically, the TRPs allow officers to respond to exceptional circumstances while meeting Canada's social, humanitarian and economic commitments [Farhat, infra, paragraph 22]. Farhat v. Canada MCI 2006 FC 1275 dealt with the refusal to issue a TRP. Farhat had married a Canadian in 2000; however he was convicted of theft under $5000 and became the subject of a section 44 report given his criminal inadmissibility under the IRPA. He left Canada and then sought to return by obtaining a TRP. Justice Shore began his analysis by assessing the degree of deference due to the decision maker. Given the "polycentric" nature of the decision, it is one that attracts a high degree of respect (he utilized the then relevant term "patent unreasonableness" now obviated by the SCC decision in Dunsmuir). In Farhat, the applicant had a "history of non-compliance" which overcame his need to rejoin his wife and child in the country. Further, there was no requirement that the... Read more →

The Humanitarian and Compassionate Application

I am appearing before the Chief Justice of the Federal Court tomorrow on a refused "H&C" application. I have written about H&C applications in the past; here's a link to a recent CanLII Connects Summary. Justice Campbell, who wrote the decision in Paul v. MCI 2013 FC 1081 is a "softie". That subjective term is based on the fact that he grants leave at the highest rate; that as an applicant, you are more likely to have leave granted by Justice Campbell, and if leave is granted by another justice but heard before Justice Campbell, more likely to succeed than before any other Justice. Justice Campbell, more than all the Justices of the Federal Court is alert, alive and sensitive to the fragilities of the human condition. In my case, the applicant and his (now deceased) common-law partner entered Canada almost six years ago. While they made a refugee claim, it was deemed abandoned since they (operating under a misapprehension) only notified CIC as to their change of address. They submitted an application for humanitarian and compassionate relief in December 2012, after the principal applicant was diagnosed with a serious form of cancer (missed by her physicians here in Canada).... Read more →

The Harper Government Record on Immigration - Part I

The Harper Government is nearing an important anniversary. It's been almost ten years since it has been entrusted by Canadians to govern. This past decade has been a watershed in terms of immigration law and policy. It's difficult to encapsulate the changes, but here's our attempt: The most comprehensive changes enacted were those to Canada's refugee determination system. There were, undoubtedly, worthwhile aspects to these changes. For example, under the previous system, claimants often waited years for their claims to be heard. Even after refusal, failed claimants had recourse to various avenues of appeal and applications prior to deportation. But the Harper Government compounded the problem by failing to appoint or re-appoint the decision makers. The resulting 'broken system' was then streamlined through the "Balanced Refugee Reform Act" which significantly expedites the determination of claims while denying recourse to failed refugees (that the Minister calls "bogus") and those individuals that are from certain countries (conveniently designated by the Minister himself). In conjunction with the Balanced Refugee Reform Act, the Minister sought to implement other disincentives to individuals coming to Canada and making refugee claims. These disincentives ranged from the farcical (putting up billboards in foreign countries) to the tragic (denying... Read more →