Stewart Sharma Harsanyi Immigration Law Firm Blog

Immigration Appeals - Dealing with a Shortfall in Meeting the Minimum Necessary Income Requirements - What you Need to Know

After submitting an application to sponsor family overseas, sponsors are sometimes confronted with refusals based on a shortfall in meeting the MNI or minimum necessary income (currently defined as the LICO or low income cut-off plus 30%). There is a right of appeal against such decisions -as long as the sponsor has indicated in their sponsorship forms that they wish to continue with the application notwithstanding any issues of ineligibility. The Immigration Appeal Division or IAD will look at two different areas in such appeals. Firstly, an appellant can argue that the visa office decision is not valid. This is relatively rare as it is simply black and white whether the sponsor met the minimum necessary income requirements at the time of sponsorship and at the time of the visa office assessment. The vast majority of these appeals are decided on the IAD equitable jurisdiction that is on humanitarian and compassionate grounds. The IAD will look at all of the circumstances of the case including the best interest of any child or children affected by the decision and can still allow these appeal and direct the visa office to continue processing the file notwithstanding the noncompliance or shortfall. The Immigration... Read more →

Yemeni Refugee Claims

Our office is handling a number of refugee claims made by nationals of Yemen. There is of course a severe humanitarian crisis throughout that country. Civil War or prevalent conflict does not preclude a refugee claim however an applicant must still show personalized risk. Such dire conditions however assist the claimant in showing that there is no viable internal flight alternative (generally speaking claimants have to show that there is a no other safe and reasonable place to relocate in their own country before requesting international protection). Such conditions further assist in rebutting the presumption of state protection -indeed the presumption does not even arise as this state is not in control of its borders or territory. Outside of the two issues outlined above of the claimant will still be tested on his or her credibility. This may be done by the board member exploring testimony by way of questioning and ensuring that of the testimony is consistent with the basis of claim form and narrative -and whether the testimony or narrative is consistent or at odds with the objective country conditions on file. Other issues that may arise may be the failure of a claimant to make a claim... Read more →

Blogpost: The Basket May Break - The Case Against Express Entry

The inaccurately named "Express Entry" (think "Refugees are welcome here) forum for permanent residence filed for Canadian Experience Class, Federal Skilled Worker, Federal Skilled Trades and some Provincial Nominee programs has been a mixed bag. On the one hand, processing times have been reduced, requirements of applicants streamlined and points for selection rationalized. On the other hand, the system still lacks the internal checks and balances as well as common sense of officers necessary to ensure the system works as it was intended. Since the system has been implemented we have seen: -Points for Arranged Employment subtracted and applications refused even though the requirements for arranged employment were met in the contract submitted; -Points for Education subtracted despite assessments confirming the points claimed; -applications wholly rejected where proof of submission for police checks was not provided even though explanatory letters were sent in the absence of the certificates; and -Work Experience points deducted and misrepresentation findings made on the basis of calls to unsuspecting former employers who could not recall the individual in question or, due to surprise, provided inaccurate information. Thankfully, in Alberta, provincial nominees can apply for permanent residence independently of the Express Entry system. Unfortunately, we have... Read more →

Changes to the AINP: Alberta Immigrant Nominee Program Coming Soon

FYI : AINP is changing in Jan 2018 – see below and attached link for details of new Opportunity stream. Good news is that NOC D jobs are being accepted (as long as they are not listed on ineligible occupation list) and AINP is opening up to Express Entry. However, all applicants will now need a language test and minimum work experience requirements. http://www.albertacanada.com/opportunity/programs-and-forms/ainp-alberta-opportunity-stream.aspx Effective January 2, 2018, the AINP will be making changes to its streams. The AINP will reduce the number of streams available. These changes will simplify application processes, reduce wait times, and make it more fair for applicants across all sectors and industries in Alberta. The AINP will also be more responsive to emerging labour market needs while supporting the goal of building a skilled, permanent workforce and a more diversified economy. As of January 2, 2018, the AINP will accept applications under two streams: the newAlberta Opportunity Stream and the Self-Employed Farmer Stream. The Alberta Opportunity Stream will replace the Employer-Driven Stream and Strategic Recruitment Stream. Complete applications for the Employer-Driven Stream and Strategic Recruitment Stream postmarked on or before January 1, 2018, will be accepted for processing and those already in queue for processing... Read more →

Blogpost: Supreme Court Decision in Tran

A heartfelt congratulations to Peter Edelmann and his team for winning a great victory in the Tran case. A copy of the decision is linked here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16803/index.do Essentially the Court's decision can be summarized as follows: (1) Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a "term of imprisonment" under s 36(1)(a) of the IRPA? The Supreme Court has answered "no" to this question. Prior to this decision an individual who received a C.S.O of six months or more would be treated the same as an individual who was incarcerated for the same period. In both cases, the individual concerned, if a permanent resident, would lose their right to appeal any removal order issued against them as a result of a conviction with a sentence of six months or more incarceration or a conditional sentence for the same term. Now, an individual with a conditional sentence of six months or more could retain their right to appeal a removal order to the Immigration Appeal Division. A right to appeal to the IAD ensures that a decision maker will only proceed with deportation if, after a review... Read more →

Interview on Abdulahi Hasan Sharif, the Safe Third Country Agreement, Asylum Shopping, and Potential Changes to Canada's Refugee System

Speaker 1.: So I was hoping you might be able to explain how could it possibly be that this man [Abdulahi Hasan Sharif] could enter Canada after being rejected in the United States? Could you just walk through the mechanism of how that might be possible? Raj Sharma: Well The Safe Third Country Agreement or the STC is designed to prevent, or restrict at least, asylum shopping. It's meant to make sure that people that come to Canada first, make a claim here, rather than go and make a claim in the US and vice versa. Now, there are exceptions to the STC. So someone could make a refugee claim in the US, be rejected, then come up to the border. So either you cross the border and make a claim outside of a port of entry, and that's an exception to the STC and that's what we're seeing with the border crossers over out East. But you could also come to a port of entry and you could make a refugee claim at the border and there could be an exception, for example, if you have family in Canada that either have status or are going through the refugee... Read more →

Interviewed by Danielle Smith of AM770 on Edmonton Terrorist Suspect and Refugee Claimant Abdulahi Hasan Sharif

Danielle Smith: Let's move on to this next topic. We do know why it is that Abdulahi Hasan Sharif in Edmonton, we do know why he did what he did. He had an ISIS flag sitting on the seat of one of the vehicles that he was in. We know that it was motivated as a terror attack. When he slammed into a police officer, attempted to kill him by stabbing him and then went and got a U-Haul truck and again, good policing work in both of these instances, right. It's quite amazing when you think about it that hours later they were able to identify, recognize this guy and then immediately take evasive action so that it was not worse than four individuals being injured. We've been looking into how it is that this person got refugee status. We talked about that earlier. Even more alarming now is how does he get refugee status after having been refused in the United States, detained for four months. They say they didn't have the ability to remove him right away so they let him go and he didn't show up again when he was supposed to on January 24, 2012.... Read more →