Stewart Sharma Harsanyi Immigration Law Firm Blog

Need a Work Permit and thinking about going to the border to apply?

While a visitor can now apply for a work permit from within Canada, many individuals still go to the border to apply. This should only be done if you and/or your representative have done the homework and ensured that all relevant t's are crossed and i's dotted. A relatively recent case discusses the risk inherent in approaching the border as well as allegations of incompetence/negligent representation (and perhaps conflict of interest?) by the applicant's former representative: [1] This application challenges a decision made by an Immigration Officer [Officer] on July 29, 2020 to issue an Exclusion Order against the Applicant, Cajetan Enye. It is common ground that, when Ms. Enye attended at the Douglas border crossing, she was out-of-status. Her intention was to attempt to regularize her immigration status with the assistance of her immigration consultant. Things did not proceed as planned and instead of receiving a visa, she was given an Exclusion Order. Although Ms. Enye remains in Canada, she does so under the risk of immediate removal. ... [3] Although it is not a point of contention, it bears stating that the Officer’s decision was lawful and reasonable based on the information provided. When Ms. Enye and her... Read more →

Speculation as Refugee Protection Analysis

Refugee and risk adjudicators sometimes fall into the trap of speculating as to whether a claimant's identity or activities will come to the attention of the putative agents of persecution. The jurisprudence warns against such an probabilistic analysis: X.Y v. MCI 2018 FC 213 [11] This Court has dealt with this question on several occasions. In Sheikh v Canada (Citizenship and Immigration), 2014 FC 264 [Sheikh], Justice Russel Zinn overturned a decision which had found that Mr. Sheikh’s fears of religious persecution in Pakistan due to his marriage to a Christian Pakistani woman were not well-founded since “there was no ‘serious possibility of such persecution befalling’ him because it was unlikely that this would be disclosed by those who knew him or by his family in Pakistan” (para 7). Justice Zinn ruled that this was an error: [14] … [I]t is irrelevant how likely or unlikely it is that the facts on which the persecution is based, would become known to the agents of persecution. In fact, any analysis on the part of the Board on this question would largely be an exercise in speculation, absent a finding on the evidence that it would never become known. It is also... Read more →

The Humanitarian and Compassionate Application

The Humanitarian and Compassionate (H&C) application is a tool that allows an individual within Canada to seek exemption from the requirements of the IRPA (Immigration and Refugee Protection Act) and IRPR (Immigration and Refugee Protection Regulations) in order to become a Permanent Resident. The Minister of Citizenship and Immigration or their delegate has discretion to grant the exemption based on "humanitarian and compassionate" grounds. The application considers factors such as the individual's ties and establishment in Canada, circumstances leading to their application, adverse challenges posed by removal, and the best interests of children affected by the decision. The H&C remedy has been sought by failed refugee claimants, sponsors who are ineligible, those without status or with temporary status, and inadmissible FNs (except those inadmissible under s.34/35 and 37). The officer has wide discretion in considering the requests and factors listed in the manual include establishment in Canada, ties to Canada, best interests of children, health considerations, family violence, consequences of separation of relatives, inability to leave Canada, and unique circumstances. Whether to file a H&C application depends on the individual's immigration and personal history and it's recommended to consult experienced counsel. The Humanitarian and Compassionate Application An application under H&C... Read more →