Stewart Sharma Harsanyi Immigration Law Firm Blog

Blog Posting - Canada's Integration of New Immigrants

The linked article indicates that Canada's integration of immigrants has regressed and that newer immigrants are having a more difficult time accessing, amongst other areas, the labour market; education; healthcare; and participating in the political process. http://www.thestar.com/news/immigration/2015/05/27/canada-slips-out-of-top-five-countries-in-integrating-immigrants.html This news must come as a shock to the Harper government, whose focus on economic immigrants with English or French language ability and skilled Canadian work experience or education was touted as a way to ensure easier resettlement and integration of immigrants into Canada. It appears that the government's policy failure was because, despite the warnings of many, they have imposed restrictions on family reunification and citizenship. This has resulted in immigrants feeling less included and failing to integrate more fully into Canadian society. While not covered in this article, one cannot help but think that the "Fortress Canada" mentality, which has been supported rhetorically by Conservative politicians, has also played a part in Canada's fall from 3rd to 6th in these global rankings and in a more tangential sense of belonging for new immigrants and a correlative colder welcome from established Canadians. Read more →

The Right to Be Heard is at the Heart of our Sense of Justice and Fairness

Refugee hearings are heard by the Refugee Protection Division of the Immigration and Refugee Board. Each Division of the IRB has its own Rules that govern procedure. These Rules are not legislation and thus do not carry the force of law. Decision makers within each Division should realize that they are not judges and their administrative world or universe should not be conflated with superior courts. This is particularly so when it comes to access and participatory rights. These Divisions are too concerned (in my opinion) with backlogs or a rigid, mechanical adherence to Rules that emphasize efficiency over fairness. By way of example. The RPD Rules say that the Basis of Claim Form (the BoC) must be filed within a certain period of time. Otherwise a hearing will be held and if the claimant does not appear, the claim will be found to be abandoned. The claimant could then apply to re-open, but the Board takes an exceptionally narrow view of such applications. Consider this. Most refugee claimants do not speak English or French. They are sometimes assisted by relatives or friends, or friends of friends. Sometimes they have good interpreters, sometimes not. Many do not have financial resources... Read more →

The Doctrine of Res Judicata and the Immigration Appeal Division

The Immigration Appeal Division is dealing with a backlog. Outside of the Western Region, it can take as long as three years for a matter to be heard. How does an adjudicative body deal with a backlog? One option is to implement informal dispute resolution mechanisms. The ADR is what the IAD employs, however this requires buy-in from the CBSA hearings officers that need to consent to strong cases. The ADR process, at least in the Western Region, falls short. Some CBSA officers will consent, others will not, no matter the strength of the case before him or her. Another way to keep cases out the hearing room is to limit access. It is important not to conflate an administrative tribunal with a court. Administrative tribunals such as the IAD are uniquely adapted to the needs and traditions of their particular enterprise. They are constrained by policy judgments and other practical considerations. The tribunal holds hearings in largely informal settings set against the backdrop of the reality that there will never be sufficient resources to reach policy goals. The divisions that form the Immigration and Refugee Board have to deal with the administration and adjudication quickly and informally and on... Read more →

Blog Posting - Premier Elect Rachel Notley and Access to Justice

MLA Rachel Notley was strident in her critique of the previous government's cutbacks and unstable funding to Legal Aid Alberta, terming the lack of funding a denial of Albertans fundamental rights to justice: http://www.albertandp.ca/notley_calls_on_pcs_to_commit_to_continual_funding_for_legal_aid It remains to be seen whether Premier Notley will take action to restore funding to acceptable levels for Albertans. In the last week alone we have counselled clients who badly mismanaged their own refugee claims and immigration appeal division appeals as a result of not having access to Legal Aid. This lack of access to counsel has resulted in these individuals doing untold harm towards their legal status in Canada. We hope Premier Notley takes action to restore access to justice for lower income Albertans and commits to stable and increased funding for the foreseeable future. Read more →

Humanitarian and Compassionate Relief at the Immigration Appeal Division

Permanent Residents can appeal a finding of inadmissibility (in most cases) to the Immigration Appeal Division. The IAD can grant an appeal on humanitarian and compassionate grounds, commonly referred to as the "Ribic and Chieu" factors. When discussing the Board's discretionary jurisdiction, it is not possible to “establish an absolute scale of values against which to measure the weight of the evidence, it is clear that such a scale must be commensurate with the magnitude of the obstacle to be overcome” (Lutchman v. Canada (MEI) (1989), 12 Imm. L.R. (2d) 224.) The purpose of the IAD’s equitable jurisdiction is to facilitate rather than frustrate immigration and to make available a remedy where the strict application of the law produces harsh results. (Jugpall v. MCI (IAD T98-00716; see also MCI v. Dang (FCTD no IMM-3113-99 where the panel adopted the reasoning of the IAD in Jugpall). Read more →

Blog Posting - Rachel Notley's Immigration Platform

Immigration policy was not, as a candidate, nor will it be, as the new Alberta Premier, at the top of Rachel Notley's list of priorities. The Alberta NDP provided no details on how they would address the issue of immigration in the province and this makes some sense given that provinces have very limited powers with respect to this sphere, which is almost wholly under the purview of the Federal Government (other than in Quebec). Nevertheless, her public statements regarding immigration have closely followed talking points from the Alberta Federation of Labour. She has argued for the closure of the temporary foreign worker program and the granting of permanent resident status to all current temporary foreign workers. Her solution for the demographic and labour market need for immigration is to close the foreign worker program, but open up direct paths for immigration for foreigners. She has not made any statements , that we are aware of regarding the Alberta Immigrant Nominee Program (AINP), the sole avenue for the province to select its own immigrants. In the coming weeks and months we would hope that Ms. Notley finds her footing regarding this issue. Her previous declarations are nonsensical in that they... Read more →

Here on a Work Permit and Want to Marry a Refugee? You May Want to Think Again

In Abalos. v. Canada, 2011 FC 608 a spouse with an enforceable removal order can be fatal to an otherwise valid economic immigration application. In Abalos, the applicant was a citizen of the Philippines. She came to Canada under the live-in-caregiver program. After working here for the requisite period of time, she applied for permanent residence. After the grant of first stage approval, she advised CIC that she had married a refugee claimant in Canada [subject to a removal order that was enforceable after the notification to CIC]. CIC rejected the applicant; and while she sought to challenge that decision, the Federal Court found that to be "unfortunate" it was not able to agree with the applicant that the officer made an unreasonable decision. In the words of the Court: [46] This is not the “end of the road” for the applicant. Her situation can better be resolved through the H&C application already submitted on September 24, 2010, and hopefully for her to be decided in the near future. Immigration can often by an odyssey; even when prospective immigrants think that they are doing everything right, an unexpected twist or turn can ruin their well laid plans. Read more →

Immigration Policy and the Terrorist Threat in Canada

It's been seven years since Alexander Moens and Martin Collacutt co-edited the Fraser Institute Publication "Immigration Policy and the Terrorist Threat in Canada and the United States." It's available for download in PDF format here. The constituent essays were presented in a related conference in June of 2007 still in the metaphorical shadows of the smoldering twin towers. To a man with a hammer everything looks like a nail. To all the issues surrounding the terrorist threat in North America, the authors relentlessly, repetitively, point to only one solution: a significant reduction in immigration intake levels (this is a theme that Mr. Collacutt at least has been very consistent with over the years. I discussed this with him on Alberta Primetime a couple of years ago). Their summary in a nutshell: "mass immigration is essentially incompatible with security" as screening is (inherently) inadequate (or problematic) and that large immigrant communities (quoting from Mao ...) as they serve as the sea within which terrorists "swim like fish". In particular, there are significant numbers of immigrants from countries that spawn terrorists, like Pakistan. As a result (you guessed it) the problem is immigration levels are too high and should be reduced. While... Read more →