Stewart Sharma Harsanyi Immigration Law Firm Blog

Discussing Nepalese Temporary Foreign Workers on Alberta Primetime

I've written about the (few) options for Nepalese temporary foreign workers that are in Canada, but may not have a home to return to after the devastating earthquakes this last April. Half a million homes are destroyed, millions need food and are displaced. We've got an impoverished, land-locked country that has been devastated by a natural disaster. Note to the reader: if you want to preserve your faith in humanity, never read the on-line comments. I discussed this issue on Alberta Primetime earlier this week. The video can be found here. The problem for these temporary foreign workers, who came here seeking a better life for themselves and their family, is that there are few options to achieve permanent residency. Successive governments have failed to address such options for (low wage) temporary foreign workers. Temporary doesn't mean disposable. I'd like to see a blanket grant of permanent residency to our workers. These workers are here, have a job and secure housing. Giving a few dozen or a couple hundred individuals permanent residency is a easy solution to their predicament. This office is filing applications for humanitarian and compassionate consideration for our Nepalese clients. This may be the one and only... Read more →

The Changing Nature of Canadian Citizenship

Canadian citizenship has fundamentally changed. It was, more or less, irrevocable. There was a possibility of citizenship revocation under the former citizenship law, but this was rare. As my colleague, Steven Meurrens points out in his excellent blog, between 1977 and 2010 only 63 people had their citizenship revoked. I've commented on the changes to combat terrorism with Al Jazeera. One of my concerns is that this government is scapegoating newcomers to Canada, instilling fear in ordinary Canadians that outsiders, such as recent immigrants are a risk. This was best exemplified by Chris Alexander, Canada's current Minister of Citizenship and Immigration unfortunately correlating niqabs and terrorists: “Until this court decision last year -- which we think was very mistaken and that's why we're appealing it -- there was no controversy about this, and the overwhelming majority of people were happy to be seen and heard taking the oath,” Alexander told Vice’s Justin Ling. “The overwhelming majority of Canadians want that rule to continue to apply. We've done a lot in the past year to strengthen the value of Canadian citizenship. People take pride in that. They don't want their co-citizens to be terrorists.” Alexander has said he was referring to... Read more →

Federal Court Has Ruled Bar on RAD Appeals for Individuals from Designated Countries of Origin (DCOs) Invalid

Justice Boswell of the Federal Court has struck down s. 110(2)(d.1) of the IRPA because it violates equality rights under section 15 of the Charter. He refused to suspend his judgment, indicating that Designated Country of Origin (DCO)claimants should not spend one more day subject to inequality. This means that DCO failed claimants can now appeal their refused claims to the Refugee Appeal Division (RAD). This is a substantive right that should be pursued as the RAD had far greater powers to rectify incorrect decisions than the Federal Court. The full list of DCO countries is linked here: http://www.cic.gc.ca/english/refugees/reform-safe.asp Although the government has announced in the media that it will appeal and seek a stay of the decision, the current implications of the Court's decision are: For DCO claimants refused by the RPD and who are now within the 15 day limitation period: Because they must exhaust their remedies at the IRB prior to going to Court, they must seek a RAD appeal as opposed to seeking leave in the Federal Court. Their removal would be suspended pending the outcome of the appeal by virtue of s 49(2)(c) of the IRPA. Should the FCA grant a stay of the Federal... Read more →

Criminality and Removal Order Appeals

If you are a Permanent Resident of Canada you face removal from this country for a conviction in Canada for an offense that could result in a maximum sentence of 10 years (or more). You do have an appeal if you've been sentenced by way of a conditional sentence or to less than 6 months in jail. You do not have an appeal to the Immigration Appeal Division if you have been sentenced to more than 6 months in jail. Don't think that deportation is automatic. There are options that can be explored. You can also be removed from Canada if there is evidence that you've committed a serious crime outside Canada. If this allegation is made, the Minister will need to establish their allegations in front of the Immigration Division. These matters involve making an equivalency between the foreign offense and a relevant Canadian offense. These things get very technical very quickly. It is imperative that you retain experienced immigration counsel. In certain circumstances, there may not be an appeal to the Immigration Appeal Division. If you do have an appeal to the IAD it is essential to show remorse, insight and rehabilitation. Read more →

Our thoughts on Marriage Fraud

These are our thoughts on marriage fraud both from the perspective of those accused of marriage fraud and those sponsors that feel that they've been the victim of marriage fraud. The government of Canada has changed the Regulations to require the sponsored person to live with their sponsor in a conjugal relationship for two years after landing. There are exceptions to this requirement, and we will be seeing specious allegations of abuse to circumvent removal and deportation. If the Canada Border Services Agency writes a report alleging misrepresentation or non-compliance with the IRPA or IRPR then a hearing will be held. The report can be challenged; if the report is found well founded then a removal order will result. The sponsored person still has the ability to appeal against the removal order to the Immigration Appeal Division which can review all the circumstances of the case including humanitarian and compassionate grounds such as establishment in Canada, hardship upon return. If you are the subject of removal or investigation, and falsely accused of marriage fraud, it is imperative that you contact experienced immigration counsel. If you are the sponsor, it's important to provide CBSA with the documents that they will require.... Read more →

10 Years of Continuous Changes to Canadian Immigration Law

The last decade has been a watershed in Canadian immigration law and policy. There are few, if any, aspects of immigration law that have gone untouched. The impact of these changes will be far reaching: from citizenship that is harder to get and easier to lose, to a lowered threshold for the deportation of even long term permanent residents, to refugee claims that are heard in weeks with fewer options to appeal a false negative, it is difficult to encapsulate these changes. Read more →

Compelling Government Action on Your Immigration File

I have written about the remedy of mandamus before. In essence, the Federal Court has the power to compel Citizenship and Immigration, or Canada Border Services Agency to do something that they should be doing. More formally, mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty and it is a remedy that controls procedural delays (Vaziri v. MCI 2006 FC 1159 (CanLII) at para 38). Mandamus is a prerogative writ, a traditional remedy, which were all "primarily vehicles for ensuring that the administrative arms of government were kept under control" (Mullan, Administrative Law, 5th edition, p. 1093). The writ of mandamus typically comes up in terms of forcing immigration to process already submitted applications for permanent residence. There is development in this area of law; a recent case of mine will be heard by the Federal Court of Appeal and will deal directly with the (thorny) issue of whether a private citizen/third party can compel the government to do something that it is authorized (or mandated) to do by law. This is a complex area of administrative law, as it deals with whether such decisions (or non-decisions) are "justiciable" and whether... Read more →